STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 13-0715

MAYDA CEPERO,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in by video teleconference between Tallahassee and Miami, Florida, on May 16, 2013, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Sara M. Marken, Esquire

Miami-Dade County School Board Suite 430

1450 Northeast 2nd Avenue Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides, P.A. Suite 110

29605 U.S. Highway 19, North

Clearwater, Florida 33761 STATEMENT OF THE ISSUE

Whether the Miami-Dade County School Board (School Board) has good cause to terminate the employment of Mayda Cepero

(Respondent), a paraprofessional, as alleged in the Amended Notice of Specific Charges filed by Petitioner on April 18, 2013.

PRELIMINARY STATEMENT

At the times relevant to this proceeding, Respondent was employed by the School Board as a paraprofessional at Dr. Carlos Finlay Elementary School (Finlay Elementary). Respondent’s assigned duties were in a pre-kindergarten (Pre-K) class.

At its regularly-scheduled meeting on February 25, 2013, the School Board took action to suspend Respondent’s employment without pay and institute proceedings to terminate her employment. Respondent timely challenged the School Board’s action. The matter was referred to DOAH, where it was assigned DOAH Case No. 13-0715.

The School Board filed its Amended Notice of Specific Charges on April 18, 2013, in which the School Board made factual allegations relating to Respondent’s relationship with the family of a former student of Finlay Elementary (C.M.) and C.M.’s sibling (N.M.), who is a current student of Finlay Elementary.

These students, their father (Mr. M.) and their mother (Ms. M.), are referred to by their initials to protect their privacy.

Based on the factual allegations set forth in the Amended Notice of Specific Charges, the School Board charged Respondent with (Count I) Misconduct in Office; (Count II) Gross Insubordination; (Count III) Violation of School Board

Policy 4210; (Count IV) Violation of School Board Policy 4210.1; and (Count V) Violation of School Board Policy 4213.1/

At the final hearing, the School Board presented the testimony of Cecilia Sanchez (Finlay Elementary principal), Leyla Paiz (Finlay Elementary security employee), Yasmary Hernandez (Finlay Elementary Pre-K teacher), Rainaldo Benitez (director of the School Board’s Office of Professional Standards), and Respondent.2/ The School Board entered into evidence pre-marked Exhibits 11, 13, 19, 31, 32, 38, and 39. Petitioner’s exhibits included the depositions of N.M. and Mr. M. Respondent offered no other testimony and no exhibits.

A Transcript of the proceedings, consisting of one volume, was filed on June 20, 2013. The parties timely filed proposed recommended orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to Florida Statutes (2012), and all references to rules are to the version thereof in effect as of the entry of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida.

   
   

   Finlay Elementary is a public school in Miami-Dade County, Florida.

2. At all times material hereto, Respondent has been employed as a paraprofessional and assigned to a Pre-K class at Finlay Elementary.

3. At all times material hereto, Cecilia Sanchez has been the principal of Finlay Elementary.

4. During the 2009-2010 school year, C.M. was a student at Finlay Elementary, but C.M. was not a student in Respondent’s assigned classroom. Respondent had no direct supervisory responsibility for C.M.

5. Prior to the 2009-2010 school year, Respondent had met Ms. M. and, through Ms. M., Respondent met Mr. M.3/ Respondent asked Mr. M., who has a law enforcement background, to assist her with certain personal matters relating to the untimely death of Respondent’s son. The M. family and Respondent developed a personal relationship. Thereafter, Respondent made what Mr. M. considered to be an inappropriate sexual advance towards him.

   Mr. M. attempted to break-off all communication with Respondent.

   
   

6. Subsequent to the break-off, Respondent accessed C.M.’s emergency contact information card and began sending Mr. M. numerous, unwanted text messages, emails, and other electronic communications. Respondent used the emergency contact information to make these communications with Mr. M. Respondent

   
   

   had no professional interest in accessing C.M.’s emergency contact information. In November 2009, Ms. Sanchez issued a reprimand to Respondent for this conduct.4/

7. On March 23, 2010, Respondent disobeyed instructions from her classroom teacher and from her principal. The teacher had instructed Respondent to keep the class in the classroom during a Career Day demonstration involving a K-9 officer and his dog. The K-9 officer was Mr. M. Notwithstanding that instruction, Respondent brought her class outside to watch the

   K-9 demonstration. Ms. Sanchez told Respondent to take her class back to the classroom. Respondent refused and told her class to run and play. Ms. Sanchez had to ask another teacher, who was supervising her own class, to assist with Respondent’s class.

   Because of this incident, Ms. Sanchez issued a written reprimand to Respondent for her failure to follow instructions from her classroom teacher and Ms. Sanchez.

8. In April 2010, Ms. Sanchez reprimanded Respondent for failing to comply with her responsibilities and duties in the classroom.

9. On February 25, 2012, Ms. Sanchez reprimanded Respondent for not following her job responsibilities and duties and for not complying with directives issued by both her classroom teacher and Ms. Sanchez.

   
   

10. In November 2012, a personnel investigation against Respondent began based on complaints from Mr. and Ms. M. that Respondent was monitoring N.M. at school and texting Mr. M. with her observations. Respondent would often stare at N.M. at school. Respondent monitored N.M.’s absences from school. Respondent went to the parking lot to see who picked N.M. from school. Respondent often interrupted the security employee who was supervising the parent pick-up of children following the school day. Respondent repeatedly sent text messages to Mr. M. that contained references to N.M.’s activities at school.

11. N.M. became very uncomfortable and talked to N.M.’s parents about Respondent. N.M. became reluctant to attend school and N.M.’s grades suffered.

12. In November 2012, Ms. Sanchez informed Respondent that she was under investigation from parents that were to remain confidential for the time being. Ms. Sanchez directed Respondent to have no contact with any witness who may be involved in the investigation. Immediately after being told by Ms. Sanchez not to contact any witness, Respondent sent a text message to Mr. M.5/

    CONCLUSIONS OF LAW

    
    

13. DOAH has jurisdiction over the subject matter of and the parties to this case pursuant to sections 120.569 and 120.57(1), Florida Statutes.

    
    

14. Respondent is an “educational support employee” within the meaning of section 1012.40(1)(a). Pursuant to section 1012.40(1)(b), as used in section 1012.40, the term “employee” means any person employed as an educational support employee. Section 1012.40(2)(c) is as follows:

    (c) In the event a district school superintendent seeks termination of an employee, the district 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 district school board rule in the event there is no collective bargaining agreement.

    
    

15. Because the School Board seeks to terminate Respondent’s employment, which does not involve the loss of a license or certification, the School Board has the burden of proving the allegations in its Amended Notice of Specific Charges by a preponderance of the evidence, as opposed to the more stringent standard of clear and convincing evidence. See McNeill

    v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990). A school board may agree to a more stringent burden of proof (such as clear and convincing evidence) through the collective bargaining process. Because the applicable collective bargaining agreement was not introduced as an exhibit, the

    
    

    undersigned has looked to the proposed recommended orders to determine what each party considers to be the appropriate standard. Both agree that the burden of proof is by a preponderance of the evidence.6/

16. The preponderance of the evidence standard requires proof by “the greater weight of the evidence,” Black’s Law Dictionary 1201 (7th ed. 1999), or evidence that “more likely than not” tends to prove a certain proposition. See Gross v.

    Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American Tobacco Co. v. State, 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

    quoting Bourjaily v. United States, 483 U.S. 171, 175 (1987)).

    
    

17. This is a de novo proceeding designed to formulate final agency action. See Hamilton Cnty. Bd. of Cnty. Comm’rs v. Dep’t Envtl. Reg., 587 So. 2d 1378 (Fla. 1st DCA 1991) and section 120.57(1)(k).7/

    THE ALLEGED VIOLATIONS

    
    

18. The Amended Notice of Specific Charges alleged Respondent was guilty of:

    (Count I) Misconduct in Office; (Count II) Gross Insubordination; (Count III) Violation of School Board

    Policy 4210;

    (Count IV) Violation of School Board Policy 4210.1; and

    (Count V) Violation of School Board Policy 4213.

    
    

19. Because School Board failed to introduce any of its School Board Policies, the undersigned cannot address those alleged violations. As noted above, the applicable collective bargaining agreement is not in evidence. Consequently, the undersigned does not have the benefit of the grounds for discipline to which the parties have agreed to through the collective bargaining process. Because there is no contention that “misconduct in office” and “gross insubordination” are not grounds for discipline, because those terms are defined by applicable rule, and because no meaningful definition of “just cause” would be complete without including those grounds, the undersigned will address the violations alleged in Counts I

    and II of the Amended Notice of Specific Charges.

    
    

    MISCONDUCT IN OFFICE

    
    

20. Florida Administrative Code Rule 6A-5.056(2) defines the term “Misconduct in Office” as follows:

    1. “Misconduct in Office” means one or more of the following:

       1. A violation of the Code of Ethics of the Education Profession in Florida as adopted in [rule 6A-10.080];

       2. A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in [rule 6A-10.081];

       3. A violation of the adopted school board rules;

       4. Behavior that disrupts the student’s learning environment; or

          
          

       5. Behavior that reduces the teacher’s ability or his or her ability to effectively perform duties.

          
          

21. Rule 6A-10.080 sets forth the following as the 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.

    
    

22. Rule 6A-10.081 sets forth the “Principles of Professional Conduct for the Education Profession in Florida” and provides, in relevant part, as follows:

    1. Obligation to the student requires that the individual:

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

       2. Shall not unreasonably restrain a student from independent action in pursuit of learning.

       3. Shall not unreasonably deny a student access to diverse points of view.

          
          

       4. Shall not intentionally suppress or distort subject matter relevant to a student’s academic program.

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

       6. Shall not intentionally violate or deny a student’s legal rights.

       7. 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.

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

       9. Shall keep in confidence personally identifiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law.

          
          

    2. Obligation to the public requires that the individual:

       
       

       * * *

       
       

       1. Shall not use institutional privileges for personal gain or advantage.

          
          

          * * *

          
          

    3. Obligation to the profession of education requires that the individual:

    
    

    * * *

    
    

    1. Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual’s performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive

    
    

    environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.

    
    

23. The School Board proved that Respondent was guilty of misconduct in office by placing her interest in Mr. M. over the welfare of N.M. Respondent used her position as a school employee to track N.M.’s absences and school activities. She used that information in electronic communications with Mr. M. to promote her interest in him. Respondent’s actions made N.M. uncomfortable and interfered with N.M.’s learning environment. At a minimum, the School Board proved that Respondent failed to comply with the provisions of rules 6A-10.080(2) and 6A-10- 081(3)(a) and (4)(c).

    GROSS INSUBORDINATION

    
    

24. Rule 6A-5.056(4) defines “gross insubordination” to mean “the intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. . . “

25. There can be little doubt that Ms. Sanchez had the authority to direct Respondent not to communicate with individuals who may be witnesses in the investigation into her conduct. There can be no doubt that Respondent was aware that Mr. M. was one of the parents whose complaint had initiated the investigation. The School Board proved that Respondent was guilty of gross insubordination within the meaning of

rule 6A-5.056(4) because she communicated with Mr. M. in direct violation of the directive given by Ms. Sanchez.

RECOMMENDATION

The following recommendations are based on the foregoing Findings of Fact and Conclusions of Law:

It is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is FURTHER RECOMMENDED that the final order uphold the suspension without pay of employment of Mayda Cepero and terminate that employment.

DONE AND ENTERED this 19th day of July, 2013, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 2013.

ENDNOTES

1/ The Amended Notice of Specific Charges alleges that Respondent was employed pursuant to a professional services contract that was “subject to Florida Statutes, the regulations issued by the Florida State Board of Education, the policies and procedures of the School Board, and the provision of the UTD [United Teachers of Dade] contract.” The UTD contract was not offered as an exhibit, and there was no request for official recognition. The relevant School Board polices are cited in the Amended Notice of Specific Charges, but they were not offered into evidence, and there was no request for official recognition.

2/ Prior to calling Respondent as a witness, Ms. Marken, the School Board’s counsel, made the following statement (Transcript, page 49, beginning on line 20): “Your Honor, our last witness would be the Respondent in this case, Ms. Cepero, but I have been informed that Mr. Herdman will be calling her as his witness, so subject to our rebuttal, we would be resting.” Thereafter, during a short break, Mr. Herdman informed Ms. Marken that he intended to rest his case without calling Ms. Cepero. When the proceedings reconvened following the break, Ms. Marken made the following statement (Transcript, page 50, beginning at line 22): “[A]s you recall before we went off the record, I indicated that my last witness would have been the Respondent, but I had been informed that she would be called by Mr. Herdman, so that, subject to that, I was resting. I was just informed by

Mr. Herdman that he is not calling the Respondent; therefore, I would like to take the opportunity to call Respondent as our final witness.” Thereafter, over Respondent’s objection, the undersigned permitted Petitioner to reopen its case for the purpose of calling Ms. Cepero as a witness (Transcript, page 51, beginning at line 9). After she testified, the undersigned denied Mr. Herdman’s motion to strike Ms. Cepero’s testimony and the exhibits that came into evidence during her testimony (Transcript, page 93, beginning at line 8).

3/ At the time of the formal hearing, C.M. was 11 years old, and

N.M. was ten years old. N.M. was in Respondent’s assigned classroom for the school year N.M. was a Pre-K student.

4/ This unwanted texting continued until Mr. M. obtained a restraining order from a circuit judge in December 2012. Mr. M. testified in his deposition that Respondent texted him once in violation of the restraining order.

5/ That text message was shown to Respondent to refresh her recollection, but it was not introduced as an exhibit.

Respondent described the text as being a romantic, private text. (Transcript, page 78, beginning at line 6.) Her contention that she did not know that Mr. M. was involved in the investigation because the complaining parents were confidential is, under the circumstances of this case, not credible.

6/ Although “preponderance of the evidence” is the applicable standard, the findings of fact reflected in this Recommended Order were established by clear and convincing evidence.

7/ Over Respondent’s objection, the undersigned admitted into evidence four exhibits, each of which was a “Summary of Conference-for-the Record.” No finding of fact reflected in this Recommended Order has been based on those exhibits.

COPIES FURNISHED:

Mark Herdman, Esquire

Herdman and Sakellarides, P.A. Suite 110

29605 U.S. Highway 19, North

Clearwater, Florida 33761

Sara M. Marken, Esquire

Miami-Dade County School Board Suite 430

1450 Northeast 2nd Avenue Miami, Florida 33132

Matthew Carson, General Counsel Department of Education

Suite 1244 Turlington Building

325 West Gaines Street Tallahassee, Florida 32399-0400

Alberto M. Carvalho, Superintendent Miami-Dade County School Board

1450 Northeast Second Avenue Miami, Florida 33132

Dr. Tony Bennett Commissioner of Education Department of Education Suite 1514

Turlington Building

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: 13-000715

Orders for Case No: 13-000715