00-002159 Charlie Crist, As Commissioner Of Education vs. Ricardo F. Arnaldo Status: Closed Recommended Order on Wednesday, May 16, 2001.

Summary: Educator`s certificate should be suspended for six months where teacher viewed photographs of nude people during sixth grade class and some students saw the photographs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, Commissioner of )

Education , )

)

Petitioner , )

)

vs. ) Case No. 00-2159

)

RICARDO F. ARNALDO , )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case in Miami, Florida, on November 1 and 2 and on December 18

and 19, 2000, before Administrative Law Judge Michael M. Parrish

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner : Charles Geitner, Esquire

Robert Sickles, Esquire

Broad & Cassel

100 North Tampa Street, Suite 3500

Post Office Box 3310

Tampa, Florida 33602-3310

For Respondent : Kimberly A. McCoy, Esquire

Jose F. Torres, Esquire

Law Offices of Robert E. Weisberg

1450 Madruga Avenue, Suite 209

Coral Gables, Florida 33146

STATEMENT OF THE ISSUES

This is a license discipline proceeding in which the

Petitioner seeks to have disciplinary action taken against the

Respondent on the basis of alleged acts of misconduct set forth

in an Administrative Complaint. In the six-count Administrative

Complaint it is charged that the Respondent violated three

specific statutory provisions and three specific rule

provisions.

PRELIMINARY STATEMENT

At the final hearing in this case, the Petitioner presented

the testimony of fourteen witnesses and offered twelve exhibits,

all of which were received in evidence. 1 The Respondent

testified on his own behalf and presented the testimony of ten

additional witnesses. The Respondent also offered seven

exhibits which were received in evidence. 2

At the conclusion of the hearing the parties were allowed

until January 31, 2001, within which to file their proposed

recommended orders. The last two volumes of the hearing

transcript were filed January 5, 2001. On January 15, 2001, the

Respondent requested that the deadline for filing proposed

recommended orders be extended until February 14, 2001. By

order issued on January 24, 2001, the request was granted, and

thereafter all parties filed timely Proposed Recommended Orders

containing proposed findings of fact and conclusions of law.

The proposals submitted by the parties have been carefully

considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Respondent holds Florida Educator's Certificate

355910, covering the areas of Spanish, Supervision, and Social

Science, which is valid through June 30, 2002.

2. At all times material to this case, the Respondent was

employed as a Social Studies teacher at Hammocks Middle School

in the Miami-Dade County School District.

3. The Respondent first became employed as a teacher at

the Hammocks Middle School on or about 1984. At Hammocks Middle

School the Respondent taught sixth, seventh, and eighth grade

American History. He also taught Geography to sixth graders as

part of the Bilingual Content Curriculum Program. As of April

1999, the Respondent had been employed by Miami-Dade County

Public Schools for approximately twenty-five years. The

Respondent had never been the subject of any disciplinary action

by his employer or by the Education Practices Commission at any

time prior to April 1999.

4. The Respondent has been a naturist since approximately

1971. The Respondent belongs to a local naturist organization

and subscribes to naturist publications.

5. On April 26, 1999, between 7:00 a.m. and 7:30 a.m.,

before the start of the school day and while there were no

students in his classroom, the Respondent executed an Internet

search by typing the word "naturism" into the search engine on

his school-provided computer. Of the several "hits" resulting

from the search, a website entitled Forste side af ialt 6

Naturistsider , caught the Respondent's attention because it

appeared to have the word "naturist" in its foreign title. The

Respondent "clicked" on and accessed the Forste side af ialt 6

Naturistsider website. On April 26, 1999, the Respondent viewed

the website for about one minute and "bookmarked" the site. The

Respondent did not access the website again on April 26, 1999,

at any time.

6. On April 27, 1999, before the start of the school day

and while there were no students in his classroom, the

Respondent accessed the site Forste side af ialt 6 Naturistsider

via the "bookmark" he had created on April 26, 1999. On that

day, the Respondent exited the website before any students

arrived at his classroom for his first period class. On the

same day, during his third period planning period, while no

students were present in the classroom and while the door to his

classroom was closed, the Respondent again accessed the Forste

side af ialt 6 Naturistsider website. The Respondent left the

accessed naturist site on his computer at the end of the

planning period but he covered the site by opening his electric

gradebook over it. The Respondent did not view the website

during the fourth period. During the last ten minutes of the

fifth period on April 27, 1999, the Respondent entered student

grades into his electronic gradebook while clicking on and

viewing some of the photographs from the Forste side af ialt 6

Naturistsider website. Students were present in the classroom

but there is no evidence that any student saw naturist

photographs on the Respondent's computer monitor during the

fifth period.

7. During his sixth period class on April 27, 1999, the

Respondent viewed some more naturist photographs on the Forste

side af ialt 6 Naturistsider site while grading geography

projects at his desk. The Respondent's geography students were

working on an in-class vocabulary assignment. The Respondent's

computer monitor was facing away from his students and images on

the monitor could not be seen by the students while they were at

their desks. However, during the course of the Respondent's

sixth period class on April 27, 1999, several of the students

had occasion to approach the Respondent's desk or to otherwise

be in a position to see the monitor on the Respondent's

computer. Several of those students were able to see

photographic images of nude people on the monitor, even though

the Respondent made efforts to cover the monitor when students

approached his desk.

8. Shortly after the end of the sixth period on April 27,

1999, several of the students reported to the school

administration that they had seen photographs of nude people on

the Respondent's computer. An investigation was promptly

initiated; written statements were obtained from the students,

and the Respondent's classroom computer was removed and locked

in a secure place until it could be examined.

9. The photographs of nude people that were seen on the

Respondent's computer monitor during his sixth period class on

April 27, 1999, were all photographs from the Forste side af

ialt 6 Naturistsider website. 3 The photographs from that website

depict nude men, women, and children of various ages engaged in

a variety of outdoor recreational activities such as sunbathing,

walking on the beach, sitting or standing by a swimming pool,

swimming, boating, and water skiing. The photographs from that

website do not depict any acts of sexual intercourse, any acts

of sexual touching, or any acts suggestive of sexual conduct.

None of the photographs from that website include any sexual

innuendo, nor could any of them be fairly described as

provocative. Specifically, none of the photographs from that

website were obscene or pornographic. But all of the

photographs from that website were distinctly inappropriate for

display to sixth grade students in a geography class.

10. Examination of the computer that was removed from the

Respondent's classroom revealed that the computer had been used

to gain access to the Forste side af ialt 6 Naturistsider

website. During the course of the investigation, the Respondent

admitted that he had viewed that website during his sixth-grade

class on April 27, 1999. Examination of the computer also

revealed that it had been used to gain access to other websites

that contained images of a sexually suggestive or sexually

explicit nature. However, there is no clear and convincing

evidence that the Respondent was the person who gained access to

the websites that contained sexually suggestive or sexually

explicit images. 4

11. There is no clear and convincing evidence that, in the

words of the statute, the Respondent "has been found guilty of

personal conduct which seriously reduces that person's

effectiveness as an employee of the district school board." 5

12. The Respondent's act of having photographs of nude

people displayed on his computer monitor on April 27, 1999,

created a condition harmful to learning, as well as potentially

harmful to the mental health of the students. That act also

exposed students to unnecessary embarrassment. That act was

also a use of institutional privileges for personal gain or

advantage.

13. On or about August 25, 1999, the Respondent was

terminated from his position with the Miami-Dade County School

Board.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. Section 120.57, Florida Statutes.

15. In a disciplinary action of this type, the burden is

on the Petitioner to establish the facts upon which its

allegations of misconduct are based. The Petitioner must prove

its allegations by clear and convincing evidence.

16. The clear and convincing evidence standard requires

that the evidence be found to be credible; the facts to which

witnesses testify must be distinctly remembered; the testimony

must be precise and explicit; and the witnesses must be lacking

in confusion as to the facts in issue. The evidence must

produce in the trier of fact a firm belief or conviction as to

the truth of the allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

17. Prior to addressing the specific violations with which

the Respondent is charged in the six-count Administrative

Complaint, it is helpful to take note of the fact that at the

time the Administrative Complaint was prepared, the Petitioner

believed that the Respondent had engaged in conduct much more

serious than was proved at the final hearing. Then it was

believed that on numerous occasions the Respondent had used his

school computer to gain access to sexually explicit materials of

an obscene or pornographic nature. What was proved at hearing

was that on April 26 and 27, 1999, the Respondent used his

school computer to gain access to a naturist website containing

numerous photographic depictions of nude people, and that on

April 27, 1999, he viewed these images under circumstances which

made it possible for some of his students to also see the

photographic depictions of nude people. What was originally

believed to be a case involving a continuing course of immoral

conduct has, in the final analysis, proved to be a case of only

one incident of a very serious lapse of judgment in which the

Respondent placed his personal interests ahead of his

responsibilities and duties to his students.

18. Addressing attention now to the specific violations

alleged in the Administrative Complaint, in Count I the

Respondent is charged with a violation of Section

231.2615(1)(c), Florida Statutes , 6 "in that the Respondent has

been guilty of gross immorality or an act involving moral

turpitude." The conduct which has been proved in this case by

clear and convincing evidence is not conduct that constitutes

gross immorality or that involves moral turpitude. There being

no persuasive evidence gross immorality or moral turpitude, the

allegations in Count I should be dismissed. 7

19. In Count 2 of the Administrative Complaint the

Respondent has been charged with a violation of Section

231.2615(1)(f), Florida Statutes, "in that the Respondent, upon

investigation, has been found guilty of personal conduct which

seriously reduces his effectiveness as an employee of the school

board." As noted in paragraph 11 of the findings of fact and in

endnote 5, the evidence is insufficient to establish that the

Respondent's effectiveness has been seriously reduced.

Accordingly, the allegations in Count 2 should be dismissed.

20. Count 3 of the Administrative Complaint charges the

Respondent with violation of Section 231.2615(1)( i), Florida

Statutes, "in that the Respondent has violated the Principles of

Professional Conduct for the Education Profession in Florida

prescribed by State Board of Education [Rules]." The specific

principles of professional conduct the Respondent is alleged to

have violated are specified in the three following paragraphs

identified as Counts 4, 5, and 6 of the Administrative

Complaint. Although designated as separate counts in the

Administrative Complaint, Counts 4, 5, and 6 are, in essence,

additional specific details regarding the violation charged in

Count 3. Stated otherwise, the violation charged in Count 3

encompasses all of the additional specific details set forth in

Counts 4, 5, and 6. Accordingly, it is not necessary to devote

separate discussion to Counts 4, 5, and 6 because the violations

alleged there are encompassed by the allegations of Count 3.

21. The provisions of Rule 6B-1.006, Florida

Administrative Code, which the Respondent is alleged to have

violated read as follows:

(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.

* * *

(e ) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

* * *

(4 ) Obligation to the public requires

that the individual:

* * *

(c ) Shall not use institutional

privileges for personal gain or advantage.

22. From the facts established at the hearing, it appears

that the Respondent, by his conduct on April 26 and 27, 1999,

violated all three of the principles quoted above. He certainly

failed to protect the students from conditions harmful to

learning within the meaning of (3)(a). Quite to the contrary of

what he should have been doing, the Respondent actually created

a condition that was harmful to learning. The Respondent also

intentionally exposed his students to unnecessary embarrassment

within the meaning of (3)(e) . 8 And, finally, the Respondent also

used institutional privileges for personal gain within the

meaning of (4)(c). These violations warrant the imposition of

disciplinary action against the Respondent.

23. In determining the appropriate penalty to be imposed

in this case, it is appropriate to consider the fact that the

Respondent has had a long history of satisfactory performance,

that he was never the subject of any prior disciplinary action

by either his employer or by the Education Practices Commission,

and that the subject violation arose from a single episode of

incredibly poor judgement. It is also important to note that,

although the violations resulted from an intentional act of the

Respondent, the Respondent did not intend the consequences that

flowed from his thoughtless act. Specifically, the Respondent

was not trying to show the images of nude people to his

students. And, finally, it is significant that the images at

issue, while totally inappropriate for the classroom setting,

were not sexually explicit, pornographic, or obscene. The

circumstances here warrant discipline sufficiently severe to

discourage the Respondent and others from any future similar

lapses in judgement, but not so severe as to terminate a long

and successful career as a teacher.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED

that a final order be entered to the following effect:

(a) dismissing the charges in Counts 1 and 2 of the

Administrative Complaint; (b) finding the Respondent guilty of

the violations alleged in Counts 3, 4, 5, and 6; and (c)

imposing as a penalty an administrative fine in the amount of

five hundred dollars ($500.00), and a suspension of the

Respondent's certificate for a period of six (6) months.

DONE AND ENTERED this 16th day of May, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

MICHAEL M. PARRISH

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of May, 2001.

ENDNOTES

1/ The Petitioner's Exhibits were marked as S-1, T-1, O-1, O-2,

O-3, K, H-1, H-2, H-3, G-1, G-2, and N-1.

2/ The Respondent's Exhibits were marked as R-4 through R-10.

3/ The Respondent admits that he accessed this website during

his sixth grade class on April 27, 1999. He denies viewing this

website on his classroom computer on any days other than April 26

and April 27, 1999. There is no clear and convincing evidence

that the Respondent viewed the Forste side af ialt 6

Naturistsider website at any times other than the times to which

he admitted.

4/ The Respondent was not the only person who had access to the

computer in his classroom. Other teachers at the school where

the Respondent taught described instances when it was discovered

that other classroom computers had been used by persons unknown

to gain access to sexually explicit images.

5/ While the record contains some conclusory remarks concerning

the Respondent's loss of effectiveness as a result of his conduct

on April 27, 1999, the greater weight of the evidence is to the

effect that his effectiveness as an employee of the district

school board has not been seriously reduced. His effectiveness

was certainly reduced to some extent, but not seriously reduced.

6/ The Administrative Complaint refers to various provisions of

Section 231.28(1), Florida Statutes. Those provisions have since

been moved to Section 231.2615(1), Florida Statutes.

7/ In this regard it is important to note that the images seen

by the Respondent's students were not sexually explicit images.

They were by no means similar to the sexually explicit materials

described in paragraphs 16 and 17 of the Recommended Order in Tom

Gallagher, as Commissioner of Education v. Stephen Rosenthal ,

DOAH Case No. 00-3888PL (Recommended Order issued January 10,

2001).

8/ The Respondent argues that he did not violate this Rule

provision because his acts were not intentional and he did not

intend for the students to see the images. The argument fails

because the images were present on the computer monitor only as a

result of an intentional act by the Respondent and the

consequences which followed (i.e., embarrassed students), while

not intended by the Respondent, were certainly foreseeable and

predictable consequences that should have been prevented.

COPIES FURNISHED:

Charles Geitner, Esquire

Robert Sickles, Esquire

Broad & Cassel

100 North Tampa Street, Suite 3500

Post Office Box 3310

Tampa, Florida 33602-3310

Kimberly A. McCoy, Esquire

Jose F. Torres, Esquire

Law Offices of Robert E. Weisberg

1450 Madruga Avenue, Suite 209

Coral Gables, Florida 33146

Kathleen M. Richards, Executive Director

Department of Education,

Education Practices Commission

Florida Education Center

325 West Gaines Street, Room 224-E

Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Chief

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Room 224-E

Tallahassee, Florida 32399-0400

James A. Robinson, General Counsel

Department of Education

The Capitol, Suite 1701

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.