D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Carlos E. Mustelier, Jr., Esquire
For Respondent: Leslie A. Meek, Esquire
Whether the Respondent should be dismissed from his employment with the Miami-Dade County School District.
Miami-Dade County School Board (Board) suspended Respondent, Maurice Cherry, from his employment with the school district. The Board took action based upon allegations of immorality and violations of School Board Rules 6Gx13-4A-1.21(1) and
6Gx13-4C-1.02. It is the Board's position that such allegations are just cause for the termination of Respondent's employment.
Respondent contested his suspension and proposed dismissal, and timely requested an administrative hearing pursuant to Section 231.3605(2)(c), Florida Statutes. The matter was then forwarded to the Division of Administrative Hearings for formal proceedings on November 14, 1997.
Pursuant to an order entered in this cause, Petitioner's Notice of Specific Charges was filed on December 17, 1997. The hearing, originally scheduled for February 26-27, 1998, was continued to April 30 and May 1, 1998. The Respondent waived any back pay, if entitled, from February 27, 1998, through the date of continuance.
At the hearing, Petitioner presented testimony from Sergeant Larry Buck, a Metro-Dade police officer; Dr. Thomasina O'Donnell, a case manager with the Petitioner's Office of Professional Standards; Frances Young, the Principal at Thomas Jefferson Middle School (TJMS); Larry Bowen, an Assistant Principal at TJMS; and Detective William Buxton, a Metro-Dade police officer. Petitioner's Exhibits numbered 1 through 6 were admitted into evidence. Petitioner requested, and official recognition was
taken, of School Board Rules 6Gx13-4A-1.21(1) and 6Gx13-4C-1.02 and Rule 6B-4.009(2), Florida Administrative Code.
Respondent testified in his own behalf and offered testimony from Mary Dibiasi, a secretary at Scott Lake Elementary School; Alice Dressler, a teacher at William H. Turner Technical High School; Cristine Dail-Benton, a teacher at Lake Stevens Elementary School; and Brian Shappell, a teacher at TJMS. Respondent's Exhibits numbered 1, 13 and 14 have also been received in evidence.
The transcript of the proceeding was filed with the Division of Administrative Hearings on June 12, 1998. Thereafter, the Respondent filed a motion for enlargement of time to file a proposed recommended order which Petitioner opposed. Subsequent to a telephone conference with the parties, the request was granted, and Respondent was afforded until July 27, 1998, to file a proposed recommended order.
Both parties have filed proposed orders which have been considered in the preparation of this order. Respondent's proposed order was received by facsimile and filed on
July 28, 1998.
Petitioner is charged by Florida law with the operation, control, management, and supervision of all public schools within the Dade County School District.
At all times material to the allegations of this case,
Respondent, Maurice Cherry, was employed by Petitioner as a security monitor at Thomas Jefferson Middle School (TJMS).
Sergeant Buck is a seventeen-year veteran police officer employed by the Metro-Dade Police Department. During the month of November 1996, Officer Buck was deployed in an undercover assignment related to activities and complaints at several adult bookstores. These complaints alleged lewd and lascivious acts were occurring on the premises of several named bookstores.
While in his undercover capacity at or near one of the adult bookstores, Officer Buck met the Respondent. During this initial conversation with the Respondent, Officer Buck noted that the Respondent wore what appeared to be a school security jacket. Because Respondent made several suggestive sexual comments and verbal advances, Officer Buck determined to investigate the Respondent further as he was concerned that Respondent might be pursuing improper sexual conduct on school property with minors.
In furtherance of his investigation, Officer Buck discovered that Respondent did, in fact, provide security monitor services at TJMS. The officer went to the school property and was attempting to verify that the security monitor employed at TJMS was the individual he had previously encountered at the adult bookstore site.
While not expecting to run into Respondent, Officer Buck did make contact with the suspect in the school hallway. On this occasion Respondent ushered the police officer into a locked,
second-story classroom (for which Respondent had the key) and engaged in conversation of a sexual nature. During the course of this brief encounter, Respondent grabbed Officer Buck in the groin area, and, as the police sergeant interpreted it, attempted to touch the officer's penis.
Officer Buck resisted the sexual advance and, after making an excuse to Respondent, left the school premises. At no time during this episode did Respondent say or indicate to Officer Buck that students or minors were involved in any sexual activities with the Respondent.
After several months of reassignment on another police project, Officer Buck returned to TJMS in April 1997 to resume his investigation of the Respondent. Again, his primary focus was to assure that the security monitor was not engaged in any sexual activities with minors.
In this connection, Officer Buck approached the Respondent and engaged in conversation to determine if the Respondent would divulge any information related to minors. Respondent did not. It did not appear that Respondent was interested in minors.
On the other hand, Respondent again attempted to make sexual contact with Officer Buck. Although during school hours and with students present on campus, Respondent ushered the undercover officer into a locked room, asked him to show him his penis, grabbed Officer Buck in the groin area as if to attempt to
remove his penis from his pants, and exposed his own penis to Officer Buck.
All of this occurred within a matter of moments. Since Officer Buck had sounded a verbal signal to officers who were waiting outside, police backups were making their way to the classroom where the officer and Respondent were located.
Within a short time, Respondent was in police custody and was charged with criminal offenses stemming from the lewd behavior. This event made the evening television news. It was also covered by at least one prominent Miami-area newspaper.
As a result of the publicity generated by Respondent's arrest, the principal at TJMS did not want the security monitor back at her school. Parents expressed concerns regarding Respondent and his presence at the school.
The allegations related to Respondent's arrest resulted in a disturbance at the school such that to permit him to return would have caused additional turmoil and disruption. Such turmoil would result in the school system being brought into further disgrace and disrespect because of the unacceptable conduct Respondent exhibited.
Respondent's effectiveness as a school security monitor has been greatly diminished as a result of his conduct and the resulting criminal charges. That the case was not criminally prosecuted does not mitigate the damage done to Respondent's effectiveness because, while he was not prosecuted, the lewd acts
were committed on school property during the school day.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 231.3605(2)( c), Florida Statutes, provides:
In the event a superintendent seeks termination of an employee, the school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by school board rule in the event there is no collective bargaining agreement.
In this case, the Petitioner bears the burden of proof. It is entitled to terminate Respondent's employment under the collective bargaining agreement upon establishing "just cause." That term is defined at Article XXI, Section 3 of the collective bargaining agreement as:
Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4009.
Rule 6B-4.009, Florida Administrative Code, defines "immorality" as:
(2) 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.
Also pertinent to this case is School Board Rule 6Gx13- 4A-1.21, which provides, in part:
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.
School Board Rule 6Gx13-4C-1.02, provides:
The Board recognizes and appreciates the important supporting role played by non-
instructional personnel in the school system's educational program. For that reason the Board endeavors to select persons
of the highest quality to fill vacancies as they occur.
One of the important functions served by the non-teaching staff is that of demonstrating good citizenship in the community. The Board reaffirms its wish that all employees of the schools enjoy the full rights and privileges of residency and citizenship in this community and in the state.
Because of its high regard for the school system's non-teaching staff, the Board confidently expects that its employees will place special emphasis upon representing the school system ably both formally and informally in the community.
In this case, the Petitioner has established that the Respondent engaged in inappropriate, improper, and unacceptable sexual conduct on school property during school hours. Such conduct and the notoriety brought about by the criminal charges filed against Respondent have significantly reduced Respondent's effectiveness as a school security monitor, have damaged his reputation such that the school system would be brought into further disgrace and disrespect were Respondent to remain a school security monitor, and have impaired his service to the Petitioner. The two accounts rendered by Sergeant Buck regarding sexual contacts between the Respondent and the undercover officer on school property during school hours have been deemed credible and persuasive in this matter.
