12-001184TTS Miami-Dade County School Board vs. Alexandro Madruga Status: Closed Recommended Order on Friday, December 21, 2012.

Summary: School Board failed to prove that Respondent had violated School Board policies, or that he was guilty of misconduct in office or gross insubordination.

Case No. 12-1184TTS

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, RECOMMENDED ORDER )

)

Petitioner, )

vs. )

)

ALEXANDRO MADRUGA, )

)

Respondent. )

)

)

Pursuant to notice, a hearing was conducted in this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes, 1/

before Jessica E. Varn, a duly-designated administrative law

judge of the Division of Administrative Hearings (DOAH). The

hearing was held on October 25, 2012, by video teleconference at

sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Arianne B. Suarez, Esquire

Miami-Dade County School Board

Attorney's Office, Suite 430

1450 Northeast 2nd Avenue

Miami, Florida 33132

For Respondent: Maria del Carmen Calzon, Esquire

Suite 249

1825 Ponce de Leon Boulevard

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

Whether there exists just cause to suspend Respondent

without pay for fifteen work days.

PRELIMINARY STATEMENT

On March 7, 2012, Miami-Dade County School Board (School

Board) notified Mr. Madruga of its intent to suspend him without

pay for fifteen work days. Mr. Madruga timely requested an

administrative hearing, and the School Board referred the matter

to DOAH on April 2, 2012. The hearing was originally scheduled

for June 4 through 6, 2012. Based upon requests from the

parties, the hearing was rescheduled for September 4 and 5, 2012.

On August 1, 2012, the School Board sought leave to file an

Amended Administrative Complaint, which was granted without

objection. The hearing was once again rescheduled for October 25

and 26, 2012. The Amended Administrative Complaint charged

Mr. Madruga with violations of Florida Administrative Code Rule

6B-4.009(3), alleging that Mr. Madruga's acts constitute

misconduct in office; rule 6B-4.009(4), alleging that

Mr. Madruga's actions constitute gross insubordination; and

School Board policies 3210 and 3210.01.

At the hearing, the School Board presented the testimony of

Mr. Madruga; C.P., 2/ a parent; and Principal Jacques Bentolila.

Petitioner Exhibits 1-4, and 10-23 were admitted into evidence

pursuant to stipulation of the parties. Respondent testified on

his own behalf, and introduced no exhibits into evidence.

The one-volume Transcript was filed with DOAH on

November 15, 2012. Both parties filed timely Proposed

Recommended Orders, which were considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. Mr. Madruga has been employed as an English, Stagecraft,

and Theater Arts teacher at Ronald Reagan/Doral Senior High

School since 2006.

2. During the 2011-2012 school year, Mr. Madruga taught

Stagecraft and Theater Arts. In his Stagecraft class, the

students learned how to create the overall visual aspect of the

high school productions. The students create costumes, construct

set pieces, apply make-up, design the lighting scheme, and

control the sound of the production.

3. Mr. Madruga seems to thoroughly enjoy teaching these

subjects; his passion for teaching was evident during his

testimony.

4. In July 2011, a complaint was filed against Mr. Madruga

regarding communication he had with a student via Facebook. He

received a letter of reprimand, which included the following

directives: refrain from participating in any kind of

communication with students through Facebook, cellular phone, or

email unless it was regarding school business; refrain from using

inappropriate language in conversation of any type (written or

verbal) with students when addressing them; adhere to all School

Board rules and regulations at all times; and conduct himself,

both in his employment and in the community, in a manner that

would reflect credit upon himself and the Miami-Dade public

schools.

5. On September 29, 2011, on a teacher planning day,

Mr. Madruga and the Band Director were, with the help of student

volunteers, building a set for a marching band production.

Mr. Madruga was present that day to help the band students build

the stage. He recognized most of the band students, but did not

know them well.

6. The school had received grant money from the City of

Miami-Dade, and the money was being partially used for the

construction of the set. The school was responsible for creating

a report which documented the use of the grant money.

7. E.P., a student, was assigned the task of photographing

the construction of the set for use in the report. E.P.'s

mother, C.P., was also helping that day.

8. C.P., the Band Director, and Mr. Madruga went to Home

Depot to buy all the materials needed for construction of the

stage. During that trip, Mr. Madruga made some comments that

C.P. interpreted to be sexual in nature.

9. While the students were building the frame of the stage,

they used metal braces at the junctures. Those supports are

screwed into the wood frame using approximately 8-10 screws. Two

students worked together during this process; one held the metal

support piece in place, and the other used a power tool to drill

the screws in place.

10. While two students worked on installing one of these

metal braces, E.P. photographed them. One photograph captures

the two students on the floor with the framing; one is kneeling

while using the power drill, the other is sitting on the ground

while holding the metal brace in place. Mr. Madruga is standing

beside the student who is using the power drill, holding screws

in his left hand. His hand is lowered to his knee level, which

is also at the level of the kneeling student's head.

11. Mr. Madruga explained that, at the time the photo was

taken, he was standing next to the student using the power drill

because it is quite easy to get injured using it. As he was

holding the screws, the photograph captured him handing a screw

to the student using the power drill.

12. C.P. filed a complaint with the school, alleging that

Mr. Madruga had extended his middle finger in the photograph

intentionally, and then laughed about having done so. She also

alleged that while the student using the power drill was kneeling

and bending at the waist over the framing, Mr. Madruga commented

that he was familiar with that position. C.P. considered the

comment to be sexual in nature, and thought that extending his

middle finger in the photograph was inappropriate.

13. Students present during this construction event were

interviewed during the investigation of C.P.'s complaint, and

none, with the exception of C.P.'s son, corroborated C.P.'s

allegations.

14. The student kneeling in the photograph refused to

provide a statement. The student sitting down holding the metal

brace had no knowledge of these allegations, and never heard

Mr. Madruga make the alleged comment.

15. The greater weight of the evidence supports

Mr. Madruga's testimony; the photograph captures Mr. Madruga

handing the student screws as he described, and if Mr. Madruga

had made sexually charged comments while in close proximity to

students, the undersigned believes the students--in particular

the student to whom the comment was allegedly directed--would

have heard it.

16. The greater weight of the evidence established that

Mr. Madruga is not guilty of misconduct in office, gross

insubordination, or of violating any School Board policies.

CONCLUSIONS OF LAW

17. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to chapter 120.

18. District school boards have the authority to operate,

control, and supervise all free public schools in their

respective districts and may exercise any power except as

expressly prohibited by the State Constitution or general law.

§ 1001.32(2).

19. Such authority extends to personnel matters and

includes the power to suspend and dismiss employees. See §§

1001.42(5), 1012.22(1)(f), and 1012.23(1).

20. At all times material to the instant case, the School

Boards had the right, under section 1012.33(6)(a), to suspend or

dismiss, for "just cause," classroom teachers and other

instructional personnel having professional service contracts.

21. "Just cause" has been defined to include, but not be

limited to, immorality, misconduct in office, incompetency, gross

insubordination, willful neglect of duty, or being convicted or

found guilty of, or entering a plea of guilty to, regardless of

adjudication of guilt, any crime involving moral turpitude.

§ 1012.33(1)(a).

22. "Misconduct in office" has been defined in Florida

Administrative Code Rule 6B-4.009(3)) as follows:

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.

23. "Gross insubordination" has been defined in Florida

Administrative Code Rule 6B-4.009(4) as follows:

A constant or continuing intentional refusal

to obey an order, reasonable in nature, and

given with proper authority.

24. The Code of Ethics of the Education Profession is set

forth in Florida Administrative Code Rule 6B-1.001, and provides:

(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.

25. Florida Administrative Code Rule 6B-1.006, which

contains the Principles of Professional Conduct for the Education

Profession in Florida, provides:

(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:

(a) 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.

(b) Shall not unreasonably restrain a

student from independent action in pursuit of

learning.

(c) Shall not unreasonably deny a student

access to diverse points of view.

(d) Shall not intentionally suppress or

distort subject matter relevant to a

student's academic program.

(e) Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

(f) Shall not intentionally violate or deny

a student's legal rights.

(g) 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.

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

(i) Shall keep in confidence personally

identifiable information obtained in the

course of professional service, unless

disclosure serves professional purposes or is

required by law.

(4) Obligation to the public requires that

the individual:

(a) Shall take reasonable precautions to

distinguish between personal views and those

of any educational institution or

organization with which the individual is

affiliated.

(b) Shall not intentionally distort or

misrepresent facts concerning an educational

matter in direct or indirect public

expression.

(c) Shall not use institutional privileges

for personal gain or advantage.

(d) Shall accept no gratuity, gift, or favor

that might influence professional judgment.

(e) Shall offer no gratuity, gift, or favor

to obtain special advantages.

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

(b) Shall not on the basis of race, color,

religion, sex, age, national or ethnic

origin, political beliefs, marital status,

handicapping condition if otherwise

qualified, or social and family background

deny to a colleague professional benefits or

advantages or participation in any

professional organization.

(c) Shall not interfere with a colleague's

exercise of political or civil rights and

responsibilities.

(d) 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.

(e) Shall not make malicious or

intentionally false statements about a

colleague.

(f) Shall not use coercive means or promise

special treatment to influence professional

judgments of colleagues.

(g) Shall not misrepresent one's own

professional qualifications.

(h) Shall not submit fraudulent information

on any document in connection with

professional activities.

(i) Shall not make any fraudulent statement

or fail to disclose a material fact in one's

own or another's application for a

professional position.

(j) Shall not withhold information regarding

a position from an applicant or misrepresent

an assignment or conditions of employment.

(k) Shall provide upon the request of the

certificated individual a written statement

of specific reason for recommendations that

lead to the denial of increments, significant

changes in employment, or termination of

employment.

(l) Shall not assist entry into or

continuance in the profession of any person

known to be unqualified in accordance with

these Principles of Professional Conduct for

the Education Profession in Florida and other

applicable Florida Statutes and State Board

of Education Rules.

(m) Shall self-report within forty-eight

(48) hours to appropriate authorities (as

determined by district) any arrests/charges

involving the abuse of a child or the sale

and/or possession of a controlled substance.

Such notice shall not be considered an

admission of guilt nor shall such notice be

admissible for any purpose in any proceeding,

civil or criminal, administrative or

judicial, investigatory or adjudicatory. In

addition, shall self-report any conviction,

finding of guilt, withholding of

adjudication, commitment to a pretrial

diversion program, or entering of a plea of

guilty or Nolo Contend[e]re for any criminal

offense other than a minor traffic violation

within forty-eight (48) hours after the final

judgment. When handling sealed and expunged

records disclosed under this rule, school

districts shall comply with the

confidentiality provisions of Sections

943.0585(4)(c) and 943.059(4)(c), Florida

Statutes.

(n) Shall report to appropriate authorities

any known allegation of a violation of the

Florida School Code or State Board of

Education Rules as defined in Section

231.28(1), Florida Statutes.

(o) Shall seek no reprisal against any

individual who has reported any allegation of

a violation of the Florida School Code or

State Board of Education Rules as defined in

Section 231.28(1), Florida Statutes.

(p) Shall comply with the conditions of an

order of the Education Practices Commission

imposing probation, imposing a fine, or

restricting the authorized scope of practice.

(q) Shall, as the supervising administrator,

cooperate with the Education Practices

Commission in monitoring the probation of a

subordinate.

26. School Board policy 3210 requires that employees shall

conduct themselves, both in their employment and in the

community, in a manner that will reflect credit upon themselves

and the school system.

27. School Board policy 3210.01 provides the Code of Ethics

that employees must adhere to.

28. Petitioner has the burden of proving the material

allegations by a preponderance of the evidence. McNeill v.

Pinellas Cnty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996);

Allen v. Sch. Bd. of Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d DCA

1990).

29. The preponderance of the evidence standard requires

proof by "the greater weight of the evidence" or evidence that

"more likely than not" tends to prove a certain proposition.

Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000); see also

Williams v. Eau Claire Pub. Sch. , 397 F.3d 441, 446 (6th Cir.

2005) (holding trial court properly defined the preponderance of

the evidence standard as "such evidence as, when considered and

compared with that opposed to it, has more convincing force and

produces . . . [a] belief that what is sought to be proved is

more likely true than not true").

30. As detailed in the findings of fact above, the School

Board failed to meet its burden of proof. The greater weight of

the evidence fails to prove that Mr. Madruga has violated any

School Board policy, that he is guilty of misconduct in office,

or that he is guilty of gross insubordination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board dismiss the

Administrative Complaint against Mr. Madruga.

DONE AND ENTERED this 21st day of December, 2012, in

Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of December, 2012.

ENDNOTES

1/ All citations to the Florida Statutes are to the 2012 version.

2/ The Transcript incorrectly identifies the parent as having the

initials "F.P.," rather than by her proper initials, which are

"C.P."

COPIES FURNISHED :

Maria del Carmen Calzon, Esquire

Suite 249

1825 Ponce de Leon Boulevard

Coral Gables, Florida 33134

Arianne B. Suarez, Esquire

Miami-Dade County School Board

Attorney's Office, Suite 430

1450 Northeast 2nd Avenue

Miami, Florida 33132

Dr. Tony Bennett, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Alberto Carvalho, Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132

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.