vs. ) Case No. 06-1756
Respondent. )
Pursuant to notice, a final hearing was held in this case on September 11, 2006, by video teleconference with connecting sites in Miami and Tallahassee, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.
For Respondent: Carol R. Buxton, Esquire
The issues for determination are whether Respondent's suspension should be upheld and whether his employment with Petitioner should be terminated, as set forth in Petitioner's
action letter dated May 11, 2006 and, more specifically, in the Notice of Specific Charges dated and filed May 30, 2006.
By letter dated May 11, 2006, Miami-Dade County School Board (School Board) notified Javier Peraza that, at its scheduled meeting on May 10, 2006, the School Board suspended him from employment and initiated proceedings to terminate his employment with the School Board. Mr. Peraza contested the suspension and termination and requested a hearing. On May 12, 2006, this matter was referred to the Division of Administrative Hearings.
On May 30, 2006, the School Board filed a Notice of Specific Charges, consisting of two counts. The School Board charged Mr. Peraza as follows: Count I, Misconduct In Office-- violating School Board Rule 6Gx13-4A-1.21, constituting just cause for suspension and dismissal from employment; Count II, Violation of Code of Ethics/Lack of Good Moral Character-- violating 6Gx13-4A-1.213, Fla. Admin. Code Rules 6B-1.001, 1.006, and 4.009, and Sections 1012.32 and 1012.33, Florida Statutes (2004), constituting just cause for suspension and dismissal from employment; and all constituting grounds for suspension and dismissal from employment for just cause and/or for failure to meet the statutory employment standards in
1012.33, and 447.209, Florida Statutes (2004).
Prior to hearing, the parties entered into and filed a Joint Pre-Hearing Stipulation. At hearing, the School Board presented the testimony of four witnesses, who included
Mr. Peraza, and entered 33 exhibits (Petitioner's Exhibits numbered 1-33) into evidence. Mr. Peraza testified in his own behalf, presented the testimony of one witness, and entered no exhibits into evidence.
A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The Transcript was filed on October 30, 2006.
The parties timely filed post-hearing submissions.
Subsequently, on December 1, 2006, Mr. Peraza filed a motion to strike the School Board's post-hearing submission. On
December 15, 2006, he filed another motion to strike the School Board's post-hearing submission, which is considered an amended motion to strike. Mr. Peraza failed to include a statement as to whether the School Board objected to the motion. Fla. Admin. Code R. 28-106.204(3). The School Board did not file a response to the amended motion to strike, having been afforded an opportunity to do so. Fla. Admin. Code R. 28-106.204(1). The grounds indicated in the amended motion to strike and the
amended motion itself are addressed in this Recommended Order. The parties' post-hearing submissions have been considered in the preparation of this Recommended Order.
In 1983, Mr. Peraza, at 18 years of age, was arrested for strong-arm robbery. The case was nolle prossed, and the record was sealed.
Almost 15 years later, in 1998, Mr. Peraza applied for an instructional position with the School Board. The 1983 arrest information became known to the School Board through this application process.
In 1999, Mr. Peraza began his employment with the School Board as a teacher. At all times material hereto, he was assigned to Allapattah Middle School.
While at Allapattah Middle School, Mr. Peraza taught Civics, Geography, and U.S. History.
Also, at Allapattah Middle School, Mr. Peraza was the Department Chair and a Team Leader.
Further, at Allapattah Middle School, Mr. Peraza received numerous awards from the school and the students, including Beginning Teacher of the Year and the student- nominated, Best Teacher. He was also twice nominated for Teacher of the Year.
Additionally, Mr. Peraza was active in some of the student-oriented activities: participated in after school tutoring; assisted the Chess Club; and assisted wrestlers in achieving academic success.
Since the beginning of his employment with the School Board, Mr. Peraza received outstanding performance evaluations.
Mr. Peraza was well-liked by both parents and students.
On or about March 12, 2004, Mr. Peraza was arrested for selling and felony dealing in a controlled substance, i.e., steroids. The arrest occurred on school property at the administration office. He was charged with selling a controlled substance, i.e., steroids, and with forgery (attempting to use the identification of another person without consent). The court's disposition of the charges was the withholding of adjudication and probation, with special conditions--probation for a year, with early termination after six months. After five months, Mr. Peraza probation was terminated due to his compliance with all the terms of his probation.
At hearing, Mr. Peraza explained the circumstances surrounding the arrest, charge, and disposition. He explained that a man whom he had befriended at the gym inquired as to whether he (Mr. Peraza) would receive mail for him (the man) at his (Mr. Peraza’s) post office box because the man stated that he (the man) was unable to receive mail at his home; Mr. Peraza
agreed to do so. A U.S. Postal inspector intercepted a packaged addressed to Mr. Peraza’s post office box, not to Mr. Peraza, which contained steroids. At the time of his arrest, Mr. Peraza denied having any knowledge of the package or of its contents.
Mr. Peraza accepted a plea agreement of withholding adjudication and probation to avoid the possibility of being incarcerated so that he could support his two young daughters. The undersigned finds Mr. Peraza's testimony credible.
Further, no evidence was presented as to whether Mr. Peraza actually pled nolo contendere to the charge. In as much as the evidence demonstrates that he accepted a plea agreement and that no objection was made to his explaining the
charges and the court’s disposition, an inference is drawn and a finding of fact is made that he pled nolo contendere to the charge.
After the arrest of Mr. Peraza, the principal at Allapattah called a special faculty meeting. At the meeting, the principal informed the faculty of Mr. Peraza's arrest. No evidence was presented that the faculty would have known about the arrest had the principal not informed the faculty at the special meeting.
The local newspaper, The Miami Herald, contained a report of the arrest. The newspaper’s report on Mr. Peraza’s
arrest was found on page 47 of the paper amidst the paper’s report of the occurrence of numerous criminal actions.
After this criminal incident, Mr. Peraza was returned to the classroom by the School Board. He had the understanding that no disciplinary action would result from the criminal incident although he did receive a verbal warning from the principal at Allapattah Middle School.
On or about September 30, 2004, Mr. Peraza was arrested at Allapattah Middle School for probation violation. The charge was eventually dismissed. During the time that the School Board was reviewing the incident, he was given an alternate location assignment. The principal at Allapattah Middle School gave Mr. Peraza a verbal warning for the incident.
When Mr. Peraza returned to Allapattah Middle School, he was welcomed back by his colleagues, the students, parents, and his administrator; and he received several letters of support from students and parents. Further, at a back-to-school gathering in October 2004, when Mr. Peraza was introduced, he received a standing ovation.
On or about November 26, 2005, Mr. Peraza was arrested for and charged with aggravated battery and witness tampering/threatening, involving a domestic incident with his wife. The court's disposition of the charges was probation for
five years. At the time of the hearing in the case at hand, he was still on probation.
At hearing, Mr. Peraza and his wife explained the circumstances of the charges involving the domestic incident. Mrs. Peraza suffers from "night terrors," a condition in which she, during sleep, screams and acts violently but is not aware of what she is doing. Prior to the incident, neither Mr. Peraza nor his wife had informed Mr. Peraza's daughters of or explained to them his wife’s condition because she was embarrassed by her condition. At the time of the incident, Mrs. Peraza was suffering from an episode of a night terror, and Mr. Peraza was attempting to calm and restrain her to ensure her safety.
Mr. Peraza's daughters saw him, and one of the daughters, fearing for the safety of Mrs. Peraza, but not aware that Mrs. Peraza was experiencing one of her episodes, called 911.
Mrs. Peraza, because of her condition, was unaware of what had occurred prior to the arrival of the law enforcement officers. The law enforcement officers attempted to question Mr. Peraza’s daughters, but he intervened demanding that the officers not question and upset his daughters. Mr. and Mrs. Peraza are being seen by a therapist for her condition. The undersigned finds the testimony of Mr. and Mrs. Peraza credible.
Mr. Peraza explained the circumstances surrounding the plea agreement. At the time of the domestic incident and the
ensuing charges, he was involved in a custody battle with his ex-wife over his daughters. Mr. Peraza was faced with expending funds for his criminal defense or his custody battle; he chose the custody battle. As a result, he accepted a plea agreement, which resulted in the five-year probation. The undersigned finds Mr. Peraza's testimony credible.
Further, no evidence was presented as to whether Mr. Peraza actually pled nolo contendere to the charge. In as much as the evidence demonstrates that he accepted a plea agreement and that no objection was made to his explaining the
charges and the court’s disposition, an inference is drawn and a finding of fact is made that he pled nolo contendere to the charge.
No testimony was presented that students, parents, or faculty had any knowledge of Mr. Peraza’s arrest involving the domestic incident.
Mr. Peraza does not deny any of the foregoing arrests, charges, or court dispositions.
Mr. Peraza has had no further arrests, charges or convictions.
By letter dated May 11, 2006, the School Board notified Mr. Peraza that, at its meeting on May 10, 2006,
it took action to suspend him and initiate dismissal proceedings against him from all employment with it.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006).
The School Board has the burden of proof to show by a preponderance of the evidence that Mr. Peraza committed the offenses in the Notice of Specific Charges. McNeil v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).
No dispute exists that at all times material hereto, Mr. Peraza was subject to the rules and regulations of the School Board and that his employment was also subject to the terms and conditions of the contract between the School Board and the United Teachers of Dade (the UTD Contract).
The School Board contends that just cause exists for the suspension and dismissal of Mr. Peraza due to the number of arrests in his criminal history. See Joint Pre-Hearing Stipulation.
Section 1012.32, Florida Statutes (2004), provides in pertinent part:
To be eligible for appointment in any position in any district school system, a person shall be of good moral
character . . . .
Section 1012.33, Florida Statutes (2004), provides in pertinent part:
(1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certified pursuant to s. 1012.56 or s. 1012.57 or employed pursuant to s. 1012.39 and shall be entitled to and shall receive a written contract as specified in this section. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause.
Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.(emphasis added)
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(6)(a) Any member of the instructional staff, excluding an employee specified in subsection (4), may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (1)(a). The district school board must notify the employee in writing whenever charges are made against the employee and may suspend such person without pay; but, if the charges are not sustained, the employee shall be immediately reinstated, and his or her back salary shall be paid. . . .
Section 1012.22, Florida Statutes (2004), provides in pertinent part:
The district school board shall:
Designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment,
compensation, promotion, suspension, and dismissal of employees as follows, subject to the requirements of this chapter:
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(f) Suspension, dismissal, and return to annual contract status.--The district school board shall suspend, dismiss, or return to annual contract members of the instructional staff and other school employees; however, no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may be discharged, removed, or returned to annual contract except as provided in this chapter.
Florida Administrative Code Rule 6B-4.009, Criteria for Suspension and Dismissal, provides in pertinent part:
The basis for charges upon which dismissal action against instructional personnel may be pursued . . . The basis for each of such charges is hereby defined:
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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.
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, FAC., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, FAC., which is so serious as to impair the individual's effectiveness in the school system.
Florida Administrative Code Rule 6B-1.001, Code of Ethics of the Education Profession in Florida, provides in pertinent:
The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.
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.
Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
Florida Administrative Code Rule 6B-1.006, Principles of Professional Conduct for the Education Profession in Florida, 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.
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(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, provides in pertinent part:
Employee Conduct
All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system.
School Board Rule 6Gx13-4A-1.213, Code of Ethics, provides in pertinent part:
APPLICATION
This Code of Ethics applies to all members of The School Board of Miami-Dade County, Florida, administrators, teachers, and all other employees. . .
Employees are subject to various other laws, rules, and regulations, including but not limited to “The Code of Ethics for the Education Profession in Florida and the Principles of Professional Conduct of the Education Profession in Florida,” Chapter 6B-1.001 and -1.006, F.A.C., the “Code of Ethics for Public Officers and Employees,” found in Chapter 112, Part III of the
Florida Statutes, and School Board Rule 6Gx13-4A-1.212, Conflict of Interest, which are incorporated herein by reference and this Code of Ethics should be viewed as additive to these laws, rules and regulations. To the extent not in conflict with any laws, School Board rules or governmental regulations, this Code of Ethics shall control with regard to conduct. In the event of any conflict, the law, regulation or School Board Rule shall control.
FUNDAMENTAL PRINCIPLES
The fundamental principles upon which this Code of Ethics is predicated are as follows:
Citizenship – Helping to create a society based upon democratic values; e.g., rule of law, equality of opportunity, due process, reasoned argument, representative government, checks and balances, rights and responsibilities, and democratic decision- making.
Cooperation – Working together toward goals as basic as human survival in an increasingly interdependent world.
Fairness – Treating people impartially, not playing favorites, being open-minded, and maintaining an objective attitude toward those whose actions and ideas are different from our own.
Honesty – Dealing truthfully with people, being sincere, not deceiving them nor stealing from them, not cheating or lying.
Integrity – Standing up for your beliefs about what is right and what is wrong and resisting social pressure to do wrong.
Kindness – Being sympathetic, helpful, compassionate, benevolent, agreeable, and gentle toward people and other living things.
Pursuit of Excellence – Doing your best with the talents you have, striving toward a goal, and not giving up.
Respect – Showing regard for the worth and dignity of someone or something, being courteous and polite, and judging all people on their merits. It takes three major forms: respect oneself, respect for other people, and respect for all forms of life and the environment.
Responsibility – Thinking before you act and being accountable for your actions, paying attention to others and responding to their needs. Responsibility emphasizes our positive obligations to care for each other.
The School Board argues that Mr. Peraza’s criminal conduct and his “extensive” criminal history does not reflect credit upon himself or the community and violates School Board Rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213. As a result, the School Board contends that his violation of the School Board Rules constitute misconduct in office and is just cause for suspension and termination.
Further, the School Board argues that Mr. Peraza has demonstrated lack of good moral character by his “extensive” criminal history. As a result, the School Board contends that his violation of ethical rules constitutes misconduct in office and just cause for suspension and termination.
Hence, the School Board contends that Mr. Peraza’s actions violated Sections 1012.32 and 1012.33, Florida Statutes (2004), and Florida Administrative Code Rules 6B-1.001, 6B-
1.006, and 6B-4.009 and establishes just cause for suspension and termination.
As to the 1983 arrest, it was nolle prossed and the record was sealed. Further, it occurred more than 20 years prior to the 2004 arrest and conviction. The 1983 arrest should not be a factor in the determination of the case at hand and will not be considered.
Regarding the arrests and convictions pertaining to the 2004 and 2005 incidents, Mr. Peraza entered into plea agreements and pled nolo contendere. “A no contest plea . . represents only an accused’s unwillingness to contest charges against him, and does not constitute an admission of guilt and may not be used as direct evidence of guilt in a civil suit or in an administrative proceeding.” Kelly v. Department of Health
and Rehabilitative Services, 610 So. 2d 1375, 1377 (Fla. 2nd DCA 1992). As a result, the plea agreements by Mr. Peraza are not direct evidence of guilt in the case at hand in this administrative proceeding. The undersigned found the testimony of Mr. Peraza and his wife, explaining these incidents and the plea agreements, credible. The evidence presented is insufficient to establish that Mr. Peraza committed the acts for which he was arrested and eventually entered into plea agreements.
For the March 2004 incident, Mr. Peraza received a verbal warning.
The probation violation arrest was dismissed.
Regardless, Mr. Peraza received a verbal warning for the arrest.
Consequently, the evidence in the case at hand shows arrests of Mr. Peraza. The School Board contends that the arrests are sufficient to support suspension and dismissal of Mr. Peraza for just cause.
The evidence failed to demonstrate that the arrests rose to the level of such seriousness as to affect his effectiveness in the school system and that Mr. Peraza did not reflect credit upon himself and the school system. Mr. Peraza received only verbal warnings from his principal. Mr. Peraza was returned to the classroom and welcomed back to school by the faculty, students and parents when he returned from an alternate location assignment due to the 2004 incident.
The evidence failed to demonstrate that Mr. Peraza’s service to the community would be impaired.
The evidence failed to demonstrate that, absent the special faculty meeting held by the principal, the faculty were aware of the arrest in March 2004 or that the faculty were aware of the arrest in September 2004. Even if the evidence demonstrated that the faculty were aware of the arrests, the
evidence demonstrated that the faculty were in support of Mr. Peraza.
The evidence failed to demonstrate that the faculty were aware of the arrest in November 2005.
Hence, the evidence failed to demonstrate that
Mr. Peraza committed misconduct in office, violated the code of ethics, and lacked good moral character.
Additionally, the School Board argues that the impaired effectiveness of a teacher may be inferred thus resulting in just cause for termination due to misconduct in office, citing Walker v. Highlands County School Board, 752 So. 2d 127 (Fla. 2nd DCA 2000). The undersigned is not persuaded that Walker, supra, is applicable to the case at hand. The evidence in the case at hand does not demonstrate that
Mr. Peraza’s conduct “by its very nature, demonstrates his ineffectiveness in the school system” and that “independent evidence” of his ineffectiveness in such a situation would be “superfluous.” Id. at 128.
Further, in the case at hand for the first time in these proceedings, in its post-hearing submission, the School Board argues that, by committing the criminal offenses,
Mr. Peraza failed to satisfy the statutory requirements regarding the qualifications of a teacher found at Section 435.04, Florida Statutes (2004); hence, resulting in just cause
for dismissal. At no other time did the School Board proclaim such failure constituting just cause for dismissal even though the School Board has maintained from the beginning of these proceedings that just cause exists for dismissal. This argument advanced by the School Board in its post-hearing submission does not allege or include any new facts—the facts remain the same.
The question is whether Mr. Peraza had reasonable notice of the nature of the alleged violations or grounds or charges that he was ultimately expected to defend prior to the proof being offered at hearing. If the answer is in the affirmative, the School Board is prohibited from including a violation or ground or charge that was not alleged in the Notice of Specific Charges. Lusskin v. Agency for Health Care Administration, Board of Medicine, 731 So. 2d 67 (Fla. 4th DCA 1999). The court in Lusskin, supra at 68, cited its holding in Wood v. Department of Transportation, 325 So. 2d 25, 26 (Fla. 4th DCA 1976) (“It is clear from the record that[appellant] did not and could not know with any reasonable degree of certainty the nature of any alleged violations or grounds for revocation of his license until after [appellee] had offered its evidence at hearing.”); and supra at 69, cited Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) (“Predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint or some comparable
pleading violates the Administrative Procedure Act”) and Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992) (“the proof at trial or hearing [must] be that conduct charged in the accusatorial document. ).
Mr. Peraza did not have reasonable notice of the nature of the alleged violation or ground or charge of Section 435.04, Florida Statutes (2004). As a result, the School Board is prohibited from including a violation or ground or charge of Section 435.04, Florida Statutes (2004), as just cause for suspension and termination of Mr. Peraza’s employment.
Hence, the School Board failed to demonstrate that Mr. Peraza committed misconduct in office or violated the code of ethics or lacked good moral character and that just cause exists for the suspension and dismissal of Mr. Peraza.
DONE AND ENTERED this 1st day of February 2007, in Tallahassee, Leon County, Florida.
ERROL H. POWELL
Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2007.
Carol R. Buxton, Esquire Florida Education Association
Dr. Rudolph F. Crew, Superintendent Miami-Dade County School District 1450 Northeast Second Avenue, No. 912
Daniel J. Woodring, General Counsel Department of Education
John L. Winn, Commissioner Department of Education Turlington Building, Suite 1514
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.
