vs. )
ARMANDO M. CHAVERO, )
Respondent. )
Case No. 00-4020PL
The parties having been provided proper notice, Administrative Law Judge John G. Van Laningham of the Division of Administrative Hearings convened a formal hearing of this matter on December 5, 2000, in Miami, Florida.
For Respondent: Armando M. Chavero
The issues in this case are whether Respondent violated the Principles of Professional Conduct for the Education Profession, specifically Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), Florida
Administrative Code, and, if so, what disciplinary action should be taken against him pursuant to Section 231.2615(1)(i), Florida Statutes.
By Administrative Complaint dated July 20, 2000, Petitioner Tom Gallagher, as Commissioner of Education (the "Commissioner"), charged Respondent Armando M. Chavero ("Chavero"), the holder of a valid Florida Educator's Certificate, with acting inappropriately during the 1999-2000 school year by yelling at students, threatening to hit one student, insulting students, and refusing to help students at various times. Chavero disputed the factual allegations and timely requested a formal hearing. On
September 26, 2000, the Commissioner referred this matter to the Division of Administrative Hearings for a formal hearing.
At the formal hearing held on December 5, 2000, the Commissioner called five witnesses: Jane Garraux, the Assistant Principal of G. Holmes Braddock Senior High ("Braddock"), and four of Chavero's former students named V. D., J. A., R. G. and F. V.
1/ In addition, the Commissioner introduced the depositions of Dr. Donald Hoecherl, Braddock's Principal, and Madeleinech Chamizo, Activities Director at Braddock, which were received as Petitioner's Exhibits 1 and 2. Finally, the Commissioner introduced a composite exhibit, Petitioner's Exhibit 3, composed of written statements that a number of Chavero's students had
prepared on January 27, 2000, following one of the incidents at issue in this proceeding.
Chavero called Jose Goslago as a witness by telephone and testified on his own behalf. Chavero offered no exhibits.
The transcript of the final hearing was filed on January 18, 2001. The Commissioner timely submitted a proposed recommended order, which was carefully considered in the preparation of this Recommended Order. Chavero did not submit any post-hearing papers.
The evidence presented at final hearing established the facts that follow.
Chavero holds a Florida Educator's Certificate that is currently valid.
Chavero was employed as a public school teacher in the Dade County School District at all times pertinent to this proceeding.
In the 1999-2000 school year, Chavero taught English and math at Braddock. All of his students were enrolled in an Alternative Education Program known as the STARS Program.
The STARS Program is offered as a last resort to students who, because of bad behavior, poor grades, or other problems, need extra assistance and attention to remain in school.
If a student in the STARS Program fails to perform satisfactorily, he or she may be expelled.
Chavero believed that student misconduct and a general lack of discipline at Braddock (and other schools) were preventing pupils from learning and teachers from teaching. Consistent with his pedagogic philosophy, Chavero aspired to teach his students not only the content of a course but also such social skills as proper behavior, dress, and manners.
Braddock's Principal, Dr. Donald Hoecherl, disagreed with Chavero's view that behavior and social skills should be taught in the classroom. Principal Hoecherl told Chavero not to teach his students how to conduct themselves in socially acceptable ways. Apparently, the principal's admonition reflected the administration's sensitivity to the perceived "low self-esteem" of students in the STARS Program.
Chavero was expected to be flexible and to refrain from confronting students or "coming on too strong" with them. This type of teaching was completely out of character for Chavero. Predictably, he was not able to abandon the authoritarian style that suited his personality and beliefs.
As a result, Chavero developed a reputation as a strict disciplinarian — but "nothing out of the ordinary," in the words of V. D., a former student who testified against him at hearing. Transcript ("T-") 49. Indeed, according to this same student,
Chavero's classroom rules were "pretty much the same" as other teachers'. T-49.
Students began to complain, however, that Chavero was making too frequent use of a form of punishment called an “exclusion.” An exclusion is a temporary in-school suspension that the teacher may impose when a student is disrupting the class. Upon being excluded, the misbehaving student must leave the classroom and spend the remainder of the period in detention at another location.
Assistant Principal Jane Garraux investigated the student complaints and concluded that Chavero’s use of the exclusion was excessive. She also determined that most of Chavero’s students (as many as 70 percent) were failing his classes. By comparison, other teachers in the STARS Program were giving passing grades to between 80 and 95 percent of their students.
Following her investigation, the assistant principal initiated an evaluation of Chavero in November 1999 that led to the identification of performance deficiencies in the area of classroom control. He was placed on a 90-day performance probation and, as a result, needed to correct the identified deficiencies within that period or face termination of employment. See Section 231.29(3)(d), Florida Statutes.
While on performance probation, Chavero was observed and evaluated several times. In the opinion of his assessors, Chavero’s performance continued to be unsatisfactory. In February 2000, he resigned. 2/
The Commissioner sought to prove that, in the months leading to his resignation, Chavero: (a) refused, on occasion, to answer students’ questions about lessons and assignments; (b) used the exclusion tool excessively, in relation to other teachers in the STARS Program; (c) demanded more from his students in terms of academic performance and classroom decorum than his colleagues were requiring; and (d) became angry and raised his voice in class at times. This is not a proceeding to terminate Chavero’s employment, however, and poor performance does not constitute a basis for discipline under Section 231.2615, Florida Statutes — not, at least, without more than has been shown here. 3/
Therefore, even if all the general deficiencies in Chavero’s performance that the Commissioner attempted to prove at hearing were found to have existed, none amounts to a violation either of Rule 6B-1.006(3)(a) or of Rule 6B- 1.006(3)(e), Florida Administrative Code.
There were, however, two specific occasions on which Chavero allegedly lost his temper and threatened the physical safety of a student or students. Together, these particular
instances are the heart of the Commissioner’s case against Chavero and therefore require closer scrutiny.
The First Period Incident
On January 27, 2000, Chavero gave his first period class a mid-term examination. Near the end of the period, Chavero allowed the students who had completed the test to talk quietly, provided they would not bother the few who were still working. V. D. and J. A., who were sitting together in the back of the room, began conversing with one another.
The class soon began to get loud, and Chavero told the students to be quiet. He held up V. D. and J. A. as an example of how he would like the class to behave, saying: "Why can't you guys whisper like J. A. and V. D."
The class momentarily calmed down but quickly became noisy again. Chavero began to get angry. He told the students to lower their voices. V. D. continued to talk, and Chavero yelled at her to be quiet. Instead of obeying, V. D. denied that she had been talking loudly, which caused Chavero to yell at her some more. V. D. asked Chavero not to scream at her; he did not stop.
At some point during this exchange, V. D. said to Chavero: “What the f*** is your problem?” Enraged, Chavero slammed his fist on a desk and moved quickly toward V. D. Some students, including V. D. and J. A., recall that as Chavero
approached V. D., he raised his open hand, palm facing forward, as if to strike her. A number of other students, however, in written statements prepared on January 27, 2000, made no mention of the teacher’s raised hand. For his part, Chavero adamantly denied having raised his hand against V. D.
V. D.’s immediate reaction suggests that she was not intimidated or frightened by Chavero’s rapid approach, regardless where his hand was. V. D. testified that she “lost [her] temper,” “got up and . . . exchanged a few words” with Chavero. T-55. More important, it is undisputed that Chavero did not touch V. D. Rather, he returned to his desk at the front of the class to write a “referral” — that is, a written account of V. D.’s misconduct that would be provided to the assistant principal for further handling. V. D. gathered her belongings and left the room.
The Commissioner failed to prove, by clear and convincing evidence, that Chavero intended either to hit V. D. or to cause her unnecessary embarrassment or disparagement; that
V. D. suffered any physical or emotional injury or felt embarrassed or degraded; or that V. D. was in danger of likely being harmed in Chavero’s classroom on January 27, 2000.
As a result, it cannot be said without hesitancy that the conditions in Chavero's classroom that day were harmful to learning or to a student's mental or physical health or safety.
The Third Period Incident
R. G. was a student in Chavero’s third period math class. R. G.’s academic performance was extremely poor, and he frequently was excluded for bad behavior. He was defiant and aggressive, openly challenged Chavero’s authority, and, on at least one occasion, threw staples at the teacher.
One day — the precise date of this event is not clear, but it apparently occured after January 27, 2000 — R. G. was in Chavero’s class, sitting in the back, not doing his assignment. Because R. G. was refusing to do his schoolwork, Chavero wrote a referral to send him to the assistant principal.
R. G. testified that before Chavero wrote the referral, he had insulted R. G. by saying that his (R. G.’s) mother was raising an animal. However, another of Chavero’s former students named F. V., who witnessed this particular incident and testified at hearing on the Commissioner’s behalf, did not hear Chavero make this remark to R. G. Indeed, F. V. testified that he had never heard Chavero make rude or disrespectful comments to his students, nor had he observed Chavero become angry with the class. Chavero denied having insulted R. G., and the evidence supports his denial.
After Chavero had filled out the referral, R. G. rose from his seat and approached Chavero’s desk. R. G. reached out to snatch the referral from Chavero’s hand in a manner that,
according to F. V., was apparently intended “just to . . . annoy” Chavero. T-93. Specifically, as R. G. grabbed for the referral, he made a feint toward Chavero’s grade book. As F. V. explained, it was well known that Chavero “didn’t like it when people touched [his] grade book.” T-93. In the process, R. G. may have hit Chavero’s hand, although he denied having done so.
Reacting to R. G.’s provocative act, Chavero slapped
R. G.’s hand away. R. G. was neither injured nor embarrassed by this. Rather, he became angry and began yelling and cursing at Chavero, insulting him. Both R. G. and F. V. recalled that Chavero then said to R. G., “Oh, hit me if you’re a man,” or words to that effect. Chavero, however, testified that his exact statement to R. G. was: “[I]f you try to be physical you’ll get in trouble.” T-124. Chavero was the most credible witness of the three.
After Chavero warned R. G. not to become physical,
R. G. left the classroom.
The Commissioner failed to prove, by clear and convincing evidence, that Chavero intended either to harm R. G. or to cause him unnecessary embarrassment or disparagement; that
R. G. suffered any physical or emotional injury or felt embarrassed or degraded; or that R. G. was in danger of likely being hurt in Chavero’s classroom on the day of the third period incident. To the contrary, it appears that R. G.’s aggressive
and provocative behavior may have threatened Chavero’s physical safety.
Consequently, it cannot be said without hesitancy that the conditions in Chavero's classroom that day were harmful to learning or to a student's mental or physical health or safety.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Upon a finding of probable cause to believe that grounds exist to revoke or suspend a teaching certificate, or to impose any other appropriate penalty against a teacher, the Commissioner is responsible for prosecuting the formal administrative complaint. Section 231.262(5), Florida Statutes.
If the Commissioner proves any of the grounds for discipline enumerated in Section 231.2615, Florida Statutes, then the Education Practices Commission (the "Commission") is empowered to punish the certificate holder by imposing penalties that may include one or more of the following: permanent certificate revocation; certificate revocation, with reinstatement following a period of not more than ten years; certificate suspension for a period of time not to exceed 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(7)(b), 231.262(6), and 231.2615, Florida Statutes.
Section 231.2615(1)(i), Florida Statutes, authorizes the Commission to take disciplinary action against a certified teacher who has "violated the Principles of Professional Conduct for the Education Profession in Florida prescribed by State Board of Education rules."
Rule 6B-1.006, Florida Administrative Code, provides in pertinent part:
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.
Obligation to the student requires that the individual:
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.
* * *
(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
The foregoing statutory and rule provisions are penal in nature and must be strictly construed, with ambiguities being resolved in favor of the licensee. Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).
For the Commission to suspend or revoke a teacher's certificate, or to impose any other penalty provided by law, the Commissioner must prove the charges by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292, 294 (Fla.
1987); McKinney v. Castor, 667 So. 2d 387, 388 (Fla. 1st DCA 1995). Further, the grounds proven must be those specifically alleged in the administrative complaint. See, e.g., 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).
In Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla.
4th DCA 1983), the Court of Appeal, Fourth District, canvassed the cases to develop a "workable definition of clear and convincing evidence" and found that of necessity such a definition would need to contain "both qualitative and quantitative standards." The court held that
clear 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 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.
Id. The Florida Supreme Court later adopted the fourth district's description of the clear and convincing evidence standard of proof. Inquiry Concerning a Judge No. 93-62, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding the interpretive comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler
Brothers, Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied, 599 So. 2d 1279 (1992)(citation omitted).
In the Administrative Complaint against Chavero, the Commissioner made the following allegations of fact:
During the 1999-2000 school year, [Chavero] acted inappropriately when he would not allow students to move in their seats, had sudden outbursts of loud recriminations toward students and would slam his fist down on the desk of students to get their attention. [Chavero] threatened to strike one student, called students unflattering names and referred to them as "stupid" and other derogatory descriptions. [Chavero] also refused to help students at various time.
On these allegations, the Commissioner accused Chavero of violating subsections (3)(a) and (3)(e) of Rule 6B-1.006, Florida Administrative Code, which are part of the Principles of Professional Conduct for the Education Profession in Florida.
If proved by clear and convincing evidence, the alleged rule violations would be grounds for discipline under Section 231.2615(1)(i), Florida Statutes.
Whether Chavero violated these rules, as charged, is a question of ultimate fact to be decided in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995).
As set forth in the Findings of Fact above, the trier has determined as matter of ultimate fact that Chavero did not violate the Principles of Professional Conduct as alleged. Simply put, the evidence that the Commissioner presented was insufficient to prove, clearly and convincingly, either that Chavero had failed to protect a student from harmful conditions or that he had intentionally and unnecessarily embarrassed a student.
These factual findings, however, were necessarily informed by the administrative law judge's application of the law. A brief discussion of the pertinent legal principles,
therefore, will illuminate the dispositive findings of ultimate
fact.
Rule 6B-1.006(3)(e)
The First District Court of Appeal has described Rule 6B-1.006(3)(e), Florida Administrative Code — which, recall, proscribes the intentional infliction of unnecessary embarrassment — as an "aspirational" rule, the "violation of
which could only justify suspension of a teaching certificate if there was factual evidence that the violation was so serious as to impair the teacher's effectiveness in the school system." Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995); MacMillan v. Nassau County School Board, 629 So. 2d 226, 228 (Fla. 1st DCA 1993).
Significantly, moreover, to be prohibited by Rule 6B- 1.006(3)(e), the offending conduct must be committed with a specific intent to disobey the rule. Accordingly, "[t]here can be no violation in the absence of evidence that the teacher made a conscious decision not to comply with the rule." Langston, 653 So. 2d at 491.
Even if the Commissioner sufficiently had proved the other elements of a Rule 6B-1.006(3)(e) violation, and he did not, the record is devoid of any direct evidence that Chavero specifically intended to violate this rule or to embarrass or disparage a student, and none of the circumstances shown to have
existed clearly and convincingly supports such a conclusion. Therefore, the offense was not established.
Rule 6B-1.006(3)(a)
Rule 6B-1.006(3)(a), Florida Administrative Code, imposes on teachers the affirmative duty to protect students from harmful conditions. The standard against which a teacher's performance of this duty is measured is an objective one: he must make a "reasonable effort." Therefore, in contrast to Rule 6B-1.006(3)(e), a teacher's subjective intent is not determinative of whether Rule 6B-1.006(3)(a) was violated.
By its plain terms, the rule requires students to be reasonably guarded against "harmful" conditions — i.e. conditions likely to damage one or more of a student's protected interests 4/ — not harm itself. Thus, proof that a student actually suffered a bodily or emotional injury, or failed to learn, is not essential to establish a violation of this rule, although such evidence plainly would have substantial probative value.
By the same token, however, the fact that a student had suffered an actual injury would not necessarily prove a teacher's violation of the rule. Cf. Cassel v. Price, 396
So. 2d 258, 264 (Fla. 1st DCA), rev. denied, 407 So. 2d 1102 (1981)("It is still fundamental, of course, that the mere occurrence of an accident does not give rise to an inference of
negligence, and it is not sufficient for a finding of negligence on the part of anyone."). While proof of actual damage ordinarily would tend to demonstrate not only that a harmful condition had existed but also lack of reasonable protective effort, it cannot be denied that harm might occur, in some situations, despite the teacher's reasonable effort.
Interestingly, the rule does not expressly prohibit a teacher from creating a harmful condition. 5/ The rule's drafters seem to have envisioned that the duty to make reasonable protective effort would arise most often in situations where the harmful condition was not one of the teacher's own doing. 6/ Nevertheless, if a teacher creates a harmful condition, then the rule clearly requires that he make a reasonable effort to protect the student from it.
When no actual harm has ensued from an allegedly harmful condition, as in this case, proving a violation of the rule is difficult. Lack of injury calls into question whether the complained-of condition was truly harmful, and also tends to suggest that if there were a dangerous condition, then the teacher's reasonable effort averted harm.
The difficulty that arises from the absence of injury is compounded when, as here, the teacher himself is charged not merely with having created the allegedly harmful condition, but with being the harmful condition. In effect, Chavero has been
accused of failing to make a reasonable effort to protect the students from himself. Because he did not cause an injury-in- fact to any student, however, the question ultimately reduces to whether Chavero reasonably should have exercised greater self- restraint and not become as angry as he did. Recognizing that an angry person is not intrinsically a harmful person but potentially could be, depending on the circumstances, the case against Chavero forces the trier to make fine distinctions between degrees of anger in order to decide whether Chavero's was so unreasonably hot as to create a harmful condition.
On the issue of harmful condition, the Commissioner proved at best that Chavero became angry under circumstances that would cause a reasonable person to become angry, and that his anger remained within reasonable bounds. The Commissioner did not prove that Chavero was dangerously out control with rage. Perhaps a more talented or patient teacher would have handled the first period and third period incidents with greater skill, but such speculation is inconsequential. The important fact is, Chavero did not endanger his students. The Commissioner failed to prove that the conditions in Chavero's class were "harmful" within comprehension of the rule.
Moreover, even if it were assumed that Chavero's students were exposed to harmful conditions on the occasions in question by virtue of Chavero's anger, thereby triggering
Chavero's duty to make a reasonable protective effort, the Commissioner failed to present any evidence regarding the standard of conduct that he contends Chavero breached.
The specific standard of care owed under legal duty is typically a question of fact. See Dennis v. City of Tampa, 581
So. 2d 1345, 1350 (Fla. 2d DCA), rev. denied, 591 So. 2d 181
(1991); Spadafora v. Carlo, 569 So. 2d 1329, 1331 (Fla. 2d DCA 1990). As such, it is susceptible to ordinary methods of proof. Accordingly, when a teacher is charged with having failed to make a reasonable protective effort under Rule 6B-1.006(3)(a), Florida Administrative Code, the final hearing necessarily entails: (1) evidence regarding the teacher's actual actions in the face of a harmful condition; (2) evidence from which the trier of fact can conceptualize a standard of conduct in the form of the action of a "reasonable teacher" under the same or similar circumstances; and (3) a comparison of the teacher's conduct against the theoretical, objectively reasonable standard of conduct. Cf. Wal-Mart Stores, Inc. v. King, 592 So. 2d 705, 707 (Fla. 5th DCA 1991), rev. denied, 602 So. 2d 942 (1992)(enumerating facts that must be proved in trial of premises liability action).
In a case such as this, where the alleged conditions were not unambiguously harmful and the teacher's conduct not patently unreasonable — where, in short, the rule's violation is
not so obvious as to be readily apparent to persons of common experience — the Commissioner's burden to show what reasonable effort was called for under the circumstances may require expert testimony. Cf. Robbins v. Newhall, 692 So. 2d 947, 949 (Fla.
3d DCA), rev. denied, 699 So. 2d 1375 (1997)(absence of expert
testimony to establish standard of care in medical malpractice case is fatal defect in plaintiff's proof); Brooks v. Serrano,
209 So. 2d 279, 280 (Fla. 4th DCA 1968)(medical expert must establish standard of care except when its duty and breach are obvious to persons of common experience). At any rate, without proof regarding the standard of reasonable effort, whether it be lay or expert testimony, the trier is bereft of an acceptable measure by which to judge the accused teacher's performance.
Here, no proof was adduced at the final hearing concerning what a reasonable teacher in Chavero's place would have done, in the exercise of a reasonable protective effort, when V. D. openly challenged his authority with the extremely disrespectful question: "What the f*** are you doing?" Likewise, the Commissioner was silent as to what reasonable protective effort was due under the circumstances when, to annoy Chavero, R. G. reached out as if to touch the teacher's grade book in the process of grabbing a referral slip from his hand — again, an open affront to the teacher's authority.
The absence of such evidence is particularly notable because no one, it bears repeating, was actually harmed in Chavero's classroom. From the fact that Chavero successfully shielded the students from harm can be drawn the inference — neither rebutted nor challenged by any evidence — that his protective efforts were reasonable.
Based on the evidence presented, the trier of fact was not able to form a firm belief or conviction that Chavero had failed reasonably to protect his students from harmful conditions, assuming there were any, which was not proved either. In sum, the offense charged was not established by clear and convincing evidence.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Administrative Complaint against Respondent Armando M. Chavero.
Tallahassee, Leon County, Florida.
JOHN G. VAN LANINGHAM
Armando M. Chavero
Kathleen M. Richards, Executive Director Education Practices Commission Department of Education
Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education
James A. Robinson, General Counsel Department of Education
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.
