STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 97-4170

)

KEVIN TURNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on November 18, 1997, with the parties appearing from Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Leslie A. Meek, Esquire

United Teachers of Dade - Law Department 2929 Southwest Third Avenue

Miami, Florida 33129 STATEMENT OF THE ISSUES

Whether the Respondent committed the violations alleged in the Notice of Specific Charges and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on August 27, 1997, when the School Board of Dade County, Florida, took action to suspend Respondent, Kevin Turner, and to initiate dismissal proceedings in order to terminate Respondent's employment with the Board. The Notice of Specific Charges filed in this cause alleged that Respondent had, on one or more occasions during the 1996/97 school year, requested that a minor student urinate into a paper cup. Based upon such allegations, Petitioner claimed Respondent had committed misconduct in office and conduct unbecoming a School Board employee.

By letter dated August 28, 1997, Respondent requested a formal hearing to contest the allegations. On September 5, 1997, the matter was forwarded to the Division of Administrative Hearings for formal proceedings.

At the hearing, Petitioner presented testimony from the following witnesses: R.B., a minor student; Frankie Hamilton, the parent of a minor student; Officer Anthony Ruggiero, a police officer employed by the Petitioner; Bettye L. Woodson, a principal employed by the Petitioner; and Thomasina O'Donnell, the director of professional standards for the Petitioner.

Petitioner's exhibits numbered 1 and 2 were admitted into evidence.

Respondent testified in his own behalf and offered testimony from: Vrlen Johnson, a computer specialist and tutor employed by the Petitioner; and WenDell B. Neal, a guidance counselor

employed by Petitioner. Respondent's ore tenus motion to strike paragraph 12 of the Notice of Specific Charges was denied.

As no transcript of the proceedings has been filed, the parties were directed to file their Proposed Recommended Orders not later than 5:00 p.m., December 5, 1997. Both have timely filed proposals which have been considered in the preparation of this order.

FINDINGS OF FACT

1. At all times material to the allegations of this case, Petitioner was a school board charged with the responsibility of operating and supervising the public schools within its district. Such responsibility includes the employment of non-instructional school employees.

2. At all times material to the allegations of this case, Respondent was employed as a non-instructional school employee and was utilized as a security monitor assigned to Earlington Heights Elementary School. Prior to the incidents complained of, Respondent had been a satisfactory employee for approximately eight years.

3. During the 1996/97 school year Respondent came to know an eight year old student, R.B., who was enrolled at Earlington Heights in the second grade.

4. On March 14, 1997, Respondent went to R.B.'s classroom during an after school period and advised R.B.'s mother, who was present at the time, that the student was being taken to the

   office.

   
   

5. Contrary to that remark, Respondent took R.B. to a restroom and requested that the minor child urinate into a paper cup left inside the restroom while Respondent remained outside.

6. R.B. did as he was told but was not very happy.

   
   

7. When R.B. did not return to the classroom, his mother went to find the minor, found him in the hallway, and asked him what had happened.

8. R.B. related the incident of Respondent requesting him to urinate in the cup. At that time, R.B. and his mother went to see the school principal to lodge a complaint against Respondent.

9. R.B. was frightened; his mother was angry at the prospects of what might have occurred with her son; and the principal tried to pacify them by calling Respondent to the office.

10. Respondent admitted, in front of the principal and R.B.'s mother, that he had taken the child to the restroom so that he could urinate into a cup. Respondent explained the matter by saying he needed the urine for a friend's drug test.

11. Subsequently, Respondent was placed in an alternate assignment away from contact with children while Petitioner investigated allegations of lewd and lascivious behavior (unsupported) and the instant charges of conduct unbecoming a school board employee and misconduct in office.

12. Later during the investigation, Respondent admitted to

    Officer Ruggiero that the urine was needed for his own drug testing program.

13. Apparently, unbeknown to his employer, Respondent was required to submit to drug testing several times prior to March 14, 1997.

14. According to R.B., prior to March 14, 1997, Respondent had asked him for urine several times and had, on more than one occasion, paid him for same.

15. At all times material to the allegations of this case, Respondent wore a security uniform and was in a position of authority over the minor child, R.B.

16. Respondent claimed to want to help R.B. by "adopting" him and supporting him for various school programs. Thus Respondent sought and exercised additional control over the minor student.

17. R.B. complied with Respondent's requests for urine because he was, in part, afraid of the mean look on Respondent's face.

18. R.B. was embarrassed by the requests for urine.

    
    

19. Respondent's conduct with R.B. demonstrates a lack of professional judgment, exploitation of a minor, and a gross indifference to the child's rights. Respondent has offered no explanation for such a breach of ethics.

20. Respondent's conduct has seriously impaired his service to the school district as administrators can no longer trust

    Respondent around minor students.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

22. The Petitioner bears the burden of proof in this case and has established, by clear and convincing evidence, the allegations supporting Respondent's termination from employment.

23. Section 231.3605(2)(b), Florida Statutes, provides in pertinent part that:

    Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective bargaining agreement. . . .

    
    

24. The UTD Labor Contract provides in pertinent part at Article XXI, Section 3.D:

    Upon successful completion of the probationary period, the employees' employment status shall continue from year to year, unless . . . the employee is terminated for just cause. Just cause includes, but is not limited to, misconduct in office, . . . .

    Such charges are defined, as applicable, in State Board rule 6B-4.009, (emphasis added).

25. State Board of Education Rule 6B-4.009(3), Florida Administrative Code, provides the following definition of misconduct in office:

    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.

    
    

26. Rule 6B-1.001, Florida Administrative Code, the Code of Ethics of the Education Profession in Florida, provides in pertinent part:

    (2) The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity (emphasis added).

    
    

27. Rule 6B-1.006, Florida Administrative Code, the Principles of Professional Conduct for the Education Profession in Florida, provides in pertinent part:

    1. Obligation to the student requires that the individual:

       1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.

          
          

          * * *

          
          

          1. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          2. Shall not intentionally violate or deny a student's legal rights.

          
          

          * * *

          
          

          (h) Shall not exploit a relationship with a student for personal gain or advantage.

          
          

28. School Board Rule 6Gx13-4A-4.21(P.1) provides in pertinent part that:

    I. Employee Conduct

    
    

    All persons employed by The School Board of Dade County, Florida, are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system.

    
    

    Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. . . .

    
    

29. It cannot be subject to serious debate that Respondent used his position as a security monitor to take advantage of the minor student, R.B. Such conduct as noted in the findings of fact, is inexcusable.

30. Respondent's conduct demonstrates a lack of professional judgment which resulted in the exploitation of the student, a failure to maintain the respect of his colleagues and the student's parent, and unnecessary embarrassment to the student. Such conduct not only constitutes misconduct in office but is conduct unbecoming a school board employee, and is just cause for dismissal from employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida enter a Final Order dismissing Respondent from his employment with the district.

DONE AND ENTERED this 17th day of December, 1997, in Tallahassee, Leon County, Florida.

J. D. Parrish 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 December, 1997.

COPIES FURNISHED:

Mr. Roger C. Cuevas Superintendent

Dade County School Board

1450 Northeast 2nd Avenue, Suite 403

Miami, Florida 33132

Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

Madelyn P. Schere, Esquire School Board of Dade County 1450 Northeast Second Avenue Suite 400

Miami, Florida 33132

Patricia M. Kennedy, Esquire Leslie Meek, Esquire

United Teachers of Dade 2929 Southwest Third Avenue Miami, Florida 33129

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.

Docket for Case No: 97-004170

Orders for Case No: 97-004170