STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. )

)

ALFREDO REGUEIRA, )

)

Respondent. )

Case No. 06-4752

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on January 25, 2007, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Janeen L. Richard, Esquire

Miami-Dade County School Board Attorney's Office

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

For Respondent: Alfredo Regueira, pro se

1970 Northwest 188th Terrace Miami, Florida 33056

STATEMENT OF THE ISSUES

The issues in this case are (1) whether an education paraprofessional made salacious and vulgar comments to a female student and, if so, (2) whether such conduct gives the district school board just cause to suspend this member of its instructional staff for 30 workdays, without pay.

PRELIMINARY STATEMENT

At its regular meeting on October 11, 2006, Petitioner Miami-Dade County School Board suspended Respondent Alfredo Regueira for 30 workdays, without pay, from his position as a physical education paraprofessional. The School Board took this action because it believed that, in late February or early March 2006, Mr. Regueira had made inappropriate, sexually oriented comments to a female student at Miami Senior High School, where he worked.

By letter dated October 12, 2006, Mr. Regueira timely requested a formal hearing, and soon thereafter the matter was referred to the Division of Administrative Hearings for further proceedings. The final hearing was scheduled for, and conducted on, January 25, 2007.

At the final hearing, the School Board called the following witnesses: students A. M. and E. S.; Dr. Liliam Hernandez, teacher; Detective Alicia Neal; Reinaldo Benitez, administrator; Victoriano Lopez, former principal; Vivian Santiesteban Pardo, administrator; and Dr. Isabel Siblesz, administrator. In addition, Petitioner's Exhibits 2-24 and 28-33 were offered and received into evidence.

Mr. Regueira testified on his own behalf. Also testifying for Mr. Regueira were teachers Samuel Baumgarten and Carlos A. Ferralls plus former student Philemon Ramontel. Besides that,

Mr. Regueira introduced Respondent's Exhibit 1, a photograph which was admitted into evidence; however, despite post-hearing prodding, Mr. Regueira failed to provide the undersigned with this exhibit for inclusion in the record.

The final hearing transcript was filed on March 12, 2007.

Each party timely filed a Proposed Recommended Order by the established deadline, which was March 27, 2007.

Unless otherwise indicated, citations to the Florida Statutes refer to the 2006 Florida Statutes.

FINDINGS OF FACT

1. At all times relevant to this case, Respondent Alfredo Regueira ("Regueira") was an employee of Petitioner Miami-Dade County School Board ("School Board"), for which he worked full time as a physical education paraprofessional. At the time of the events giving rise to this proceeding, Regueira was assigned to Miami Senior High School ("Miami High"), where he led exercise and fitness classes in the gymnasium.

2. As of the final hearing, A. M., aged 17, was a senior at Miami High. She had met Regueira in the spring of her sophomore year at the school, in 2005, outside the gym. Thereafter, although never a student of Regueira's, A. M. would chat with "Fred"——as she (and other students) called him——about once or twice per week, on the gymnasium steps, during school

   hours. As a result of these encounters, A. M. and Regueira developed a friendly relationship.

3. At some point, their relationship became closer than it prudently should have, moving from merely friendly to (the undersigned infers) nearly flirty. A. M. gave Regueira a picture of herself inscribed on the back with an affectionate note addressed to "the prettiest teacher" at Miami High. Regueira, in turn, spoke to A. M. about sexual matters, disclosing "what he did with women" and admitting a proclivity for lesbians.

4. Notwithstanding this flirtatious banter, there is no allegation (nor any evidence) that the relationship between Regueira and A. M. was ever physically or emotionally intimate. As time passed, however, it became increasingly indiscreet and (for Regueira at least) dangerous.

5. At around eight o'clock one morning in late February or early March 2006, A. M. and her friend E. S. went to the gym to buy snacks, which were sold there. Regueira approached the pair and, within earshot of E. S., made some suggestive comments to

   A. M., inviting her to get into his car for a trip to the beach.

   
   

   Later, when E. S. was farther away, Regueira spoke to A. M. alone, using vulgar language to communicate his desire to have sexual relations with her. In A. M.'s words, "Mr. Fred me dijo en English 'I want to fuck you.'" (Mr. Fred told me in English

   "I want to fuck you.")1 At lunch that day, while conversing with

   E. S., A. M. repeated Regueira's coarse comment. A. M. did not, however, report the incident contemporaneously either to her parents, being unsure about how they would react, or to anyone else in authority, for fear that she would be disbelieved.

6. After the incident, A. M. stopped going to the gym because she was afraid and embarrassed. A few weeks later,

   A. M. disclosed to her homeroom teacher, whom she trusted, what Regueira had said to her. The teacher promptly reported the incident to an assistant principal, triggering an investigation that led ultimately to the School Board's decision to suspend Regueira. Thus had the candle singed the moth.2

7. That this incident has diminished Regueira's effectiveness in the school system is manifest from a revealing sentence that Regueira himself wrote, in his proposed recommended order: "Since this situation has been made public[,] . . . my peers have lost all respect for me." An employee who no longer commands any respect from his colleagues is unlikely to be as effective as he once was, when his peers held him in higher regard.

   Ultimate Factual Determinations

   
   

8. Regueira's sexually inappropriate comments to A. M. violated several rules and policies that establish standards of conduct for teachers and other instructional personnel, namely,

   Florida Administrative Code Rule 6B-1.006(3)(e)(prohibiting intentional exposure of student to unnecessary embarrassment or disparagement), Rule 6B-1.006(3)(g)(forbidding sexual harassment of student), Rule 6B-1.006(3)(h)(disallowing the exploitation of a student relationship for personal advantage), School Board Rule 6Gx13-4A-1.21 (banning unseemly conduct); and Board Rule 6Gx13-4-1.09 (proscribing unacceptable relationships or communications with students).

9. Regueira's misconduct, which violated several principles of professional conduct as noted above, also violated Florida Administrative Code Rule 6B-1.001(3)(employee shall strive to achieve and sustain the highest degree of ethical conduct). This ethics code violation, it should be mentioned, is secondary to the previously described misdeeds, inasmuch as sexually inappropriate behavior in the presence of, or directed toward, a student necessarily demonstrates a failure to sustain the "highest degree of ethical conduct."

10. Regueira's violations of the ethics code and the principles of professional conduct were serious and caused his effectiveness in the school system to be impaired. In this regard, Regueira's admission that his colleagues have lost all respect for him was powerful proof that, after the incident, he could no longer be as effective as he previously had been.

11. Based on the above findings, it is determined that Regueira is guilty of the offense of misconduct in office.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 1012.33(6)(a)2., 120.569, and 120.57(1), Florida Statutes (2006).

13. A district school board employee against whom a disciplinary proceeding has been initiated must be given written notice of the specific charges prior to the hearing. Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the [statute,] rule, [regulation, policy, or collective bargaining provision] the [school board] alleges has been violated and the conduct which occasioned [said] violation." Jacker v. School Board of Dade County, 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J. concurring).

14. Once the school board, in its notice of specific charges, has delineated the offenses alleged to justify suspension, those are the only grounds upon which such discipline may be predicated. See Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Department of Business and Professional

    Regulation, 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993); Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992); Willner v. Department of Professional Regulation, Board of Medicine, 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev.

    denied, 576 So. 2d 295 (1991).

    
    

15. In an administrative proceeding to suspend or dismiss a member of the instructional staff, the school board, as the charging party, bears the burden of proving, by a preponderance of the evidence, each element of the charged offense(s). See McNeill v. Pinellas County School Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County School Bd., 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); MacMillan v. Nassau County School Bd., 629 So. 2d 226 (Fla. 1st DCA 1993).

16. The employee's guilt or innocence 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).

17. While rendering services under the supervision of a certified teacher, an education paraprofessional such as Regueira is entitled to the "same protection of laws as that accorded the certified teacher." § 1012.37, Fla. Stat. In addition, "[p]aid education paraprofessionals employed by a district school board shall be entitled to the same rights as

    those accorded noninstructional employees of the district school board." Id.

18. As a non-probationary "education support employee," Regueira may be discharged only "for reasons stated in the collective bargaining agreement" where one exists, as here, or as part of a district-wide reduction-in-force, which latter alternative is not implicated in the instant case. See § 1012.40(2)(b), Fla. Stat.

19. The applicable collective bargaining agreement, which is evidence, provides that any "member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes."

20. Education paraprofessionals are classified as "instructional personnel." See § 1012.01(2)(e), Fla. Stat.

21. Pursuant to Section 1012.33(6)(a), Florida Statutes, the School Board is authorized to suspend or dismiss

    [a]ny member of the instructional staff

    . . . at any time during the term of [his teaching] contract for just cause . . . .

    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.

    
    

    (Emphasis added.) The term "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.

    
    

    § 1012.33(1)(a), Fla. Stat.

    
    

22. In its Notice of Specific Charges filed on

    
    

    December 11, 2006, the School Board advanced three theories for suspending Regueira: Misconduct in Office (Counts I, IV and V); Unseemly Conduct in Violation of School Board Policy (Count III); and Violation of School Board Policy Against Unacceptable Employee-Student Relationships (Count II).

    Misconduct In Office

    
    

23. The term "misconduct in office" is defined in Florida Administrative Code Rule 6B-4.009, which prescribes the "criteria for suspension and dismissal of instructional personnel" and provides, in pertinent part, as follows:

    (3) 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.

    
    

24. The Code of Ethics of the Education Profession (adopted in Florida Administrative Code Rule 6B-1.001) and the Principles of Professional Conduct for the Education Profession

    in Florida (adopted in Florida Administrative Code Rule 6B- 1.006), which are incorporated in the definition of "misconduct in office," provide in pertinent part as follows:

    6B-1.001 Code of Ethics of the Education Profession in Florida.

    1. 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.

    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.

    3. 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.

       
       

       * * *

       
       

       6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.

       1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

       2. 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.

       3. Obligation to the student requires that the individual:

       * * *

       
       

       (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

       
       

       * * *

       
       

       1. Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.

       2. Shall not exploit a relationship with a student for personal gain or advantage.

       
       

25. As shown by a careful reading of Rule 6B-4.009,3 the offense of misconduct in office consists of three elements: (1) A serious violation of a specific rule4 that (2) causes (3) an impairment of the employee's effectiveness in the school system. The second and third elements can be conflated, for ease of reference, into one component: "resulting ineffectiveness."

26. As underlying infractions on which to base the charge of misconduct in office, the School Board alleged that Regueira had violated Rule 6B-1.006, paragraph (3), subparagraphs (e), (g), and (h). As set forth hereinabove, the undersigned has determined as matter of ultimate fact that Regueira is guilty of misconduct in office for having committed violations of Florida Administrative Code Rule 6B-1.001(3), as charged. Indeed, Regueira's conduct so obviously contravened the plain language

    of the pertinent Principles of Professional Conduct, which language can be applied to the facts at hand without resorting to legal interpretation or analysis, as to render unnecessary any further conclusions of law on this charge.5

    Unseemly Conduct

    
    

27. The School Board grounded its charge of "unbecoming conduct" on Regueira's alleged violation of School Board Rule 6Gx13-4A-1.21, which provides as follows:

    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.

    
    

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

    
    

28. This particular offense is not one of the just causes enumerated in Section 1012.33(1)(a), Florida Statutes, although the statutory list, by its plain terms, is not intended to be exclusive. Yet, the doctrine of ejusdem generis6 requires that the offense of unseemly conduct be treated as a species of misconduct in office, so that, to justify suspension or termination, a violation of School Board Rule 6Gx13-4A-1.21 must be "so serious as to impair the individual's effectiveness in the school system." See Miami-Dade County School Bd. v. Depalo,

    DOAH Case No. 03-3242, 2004 Fla. Div. Adm. Hear. LEXIS 1684, at

    
    

    *27-*28 (Fla.Div.Admin.Hrgs. Apr. 29, 2004), adopted in toto, July 14, 2004; Miami-Dade County School Bd. v. Wallace, DOAH Case No. 00-4392, 2001 WL 335989, *12 (Fla.Div.Admin.Hrgs. Apr.

    4, 2001), adopted in toto, May 16, 2001.

    
    

29. Here, Regueira used profane language in the workplace when he crudely propositioned A. M. His conduct vis-à-vis A. M. was the very picture of unseemly. Therefore, Regueira violated the plain language of School Board Rule 6Gx13-4A-1.21.

30. Based on the evidence presented, the undersigned was persuaded to find that, as a matter of ultimate fact, Regueira's inappropriate behavior constituted a serious violation of the Rule, for several reasons. First, Regueira used profane language in the presence of students. Second, he directed an especially vulgar term at a minor female student. Third, Regueira's conduct can reasonably be interpreted as an attempt to seduce A. M., which is intolerable behavior for any teacher or paraprofessional.

31. Finally, as found, there is persuasive evidence that Regueira's unseemly conduct has impaired his effectiveness in the school system.

    Improper Employee-Student Relationships

    
    

32. School Board Rule 6Gx13-4-1.09 provides in pertinent part as follows:

    Nothing is more important to Miami-Dade County Public Schools that protecting the physical and emotional well-being of the students. This policy is developed to ensure that all School Board employees will conform to the highest professional, moral, and ethical standards in dealing with students on or off school property.

    
    

    As such, all School Board personnel are strictly prohibited from engaging in unacceptable relationships and/or communications with students. Unacceptable relationships and/or communications with students include, but are not limited to the following: dating; any form of sexual touching or behavior; making sexual, indecent or illegal proposals, gestures or comments; exploiting an employee-student relationship for any reason; and/or demonstrating any other behavior which gives an appearance of impropriety.

    
    

33. For the reasons stated in paragraph 28, supra, the offense of engaging in an improper employee-student relationship needs to be treated as a species of misconduct in office, so that, to justify suspension or termination, a violation of School Board Rule 6Gx13-4-1.09 must be "so serious as to impair the individual's effectiveness in the school system."

34. Regueira's conduct clearly violated the plain language of the instant Rule. This was, moreover, a substantial, nontrivial violation of the Rule in question, for the same reasons that Regueira's violation of Rule 6Gx13-4A-1.21 was so serious as to impair his effectiveness in the school system.

35. Having proved by a preponderance of the evidence that Regueira committed the offense of misconduct in office and other, similar offenses constituting just cause for discipline, the School Board is entitled to suspend Regueira for 30 workdays without pay.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order suspending Regueira from his duties as a physical education paraprofessional for a period of 30 workdays.

DONE AND ENTERED this 11th day of April, 2007, in Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2007.

ENDNOTES

1/ The sentence appears in a written statement dated March 24, 2006, that A. M. gave to the authorities after the incident had been reported. A. M.'s statement, which is in Spanish (except for the quote attributed to Regueira), was read at hearing by

A. M. and translated by an interpreter.

2/ Needless to say, Regueira denies the allegations against him. The undersigned, however, in the exercise of his prerogatives as fact-finder, has determined, one, that A. M. was, on balance, a more credible witness than Regueira and, more important, that the greater weight of the evidence supports the findings set forth above in the text. To the extent that any finding herein is inconsistent with either a witness's testimony or any other evidence, the finding reflects a rejection of all such inconsistent testimony and evidence (none of which was overlooked, disregarded, or ignored) in favor of proof that the undersigned deemed to be more believable and hence entitled to greater weight.

3/ Florida Administrative Code Rules 6B-4.009, 6B-1.001, and 6B-

1.006 are penal in nature and must be strictly construed, with ambiguities being resolved in favor of the employee. See Rosario v. Burke, 605 So. 2d 523, 524 (Fla. 2d DCA 1992); Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

4/ To elaborate on this a bit, the Rule plainly requires that a violation of both the Ethics Code and the Principles of Professional Education be shown, not merely a violation of one or the other. The precepts set forth in the Ethics Code, however, are so general and so obviously aspirational as to be of little practical use in defining normative behavior. It is one thing to say, for example, that teachers must "strive for professional growth." See Fla. Admin. Code R. 6B-1.001(2). It is quite another to define the behavior which constitutes such striving in a way that puts teachers on notice concerning what conduct is forbidden. The Principles of Professional Conduct accomplish the latter goal, enumerating specific "dos" and "don'ts." Thus, it is concluded that that while any violation of one of the Principles would also be a violation of the Code of Ethics, the converse is not true. Put another way, in order to punish a teacher for misconduct in office, it is necessary but not sufficient that a violation of a broad ideal articulated

in the Ethics Code be proved, whereas it is both necessary and sufficient that a violation of a specific rule in the Principles of Professional Conduct be proved. It is the necessary and sufficient condition to which the text refers.

5/ This case does not present any complicated or close factual or legal questions regarding any of the elements of the offense charged. Cf. Miami-Dade County School Board v. Wallace, DOAH Case No. 00-4392, 2001 WL 335989 (Fla.Div.Admin.Hrgs. Apr. 4, 2001), adopted in toto, May 16, 2001. In particular, it is not necessary here, as it was in Wallace, to infer resulting ineffectiveness. The undersigned notes, however, that, under the reasoning of Wallace, such an inference would be, in the present circumstances, both legally permissible and factually justified.

6/ See generally Green v. State, 604 So. 2d 471, 473 (Fla. 1992)("Under the doctrine of ejusdem generis, where an enumeration of specific things is followed by some more general word, the general word will usually be construed to refer to things of the same kind or species as those specifically enumerated."); see also Robbie v. Robbie, 788 So. 2d 290, 293

n.7 (Fla. 4th DCA 2000)(When, in implementing a non-exhaustive statutory listing, the use of an unenumerated criterion is indicated, "that ad hoc factor will have to bear a close affinity with those enumerated in the statute——i.e., the factor employed must be ejusdem generis with the enumerated ones.").

COPIES FURNISHED:

Janeen L. Richard, Esquire

Miami-Dade County School Board Attorney's Office 1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

Alfredo Regueira

1970 Northwest 188th Terrace Miami, Florida 33056

Dr. Rudolph F. Crew Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132-1394

Honorable Jeanine Blomberg Interim Commissioner of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

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.

Docket for Case No: 06-004752

Orders for Case No: 06-004752