00-005058 Miami-Dade County School Board vs. Velencia C. Ivory Status: Closed Recommended Order on Wednesday, August 22, 2001.

Summary: Acts constituting immorality and failure to meet standards of conduct provide just cause to terminate a teacher`s professional services contract.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 00-5058

)

VELENCIA C. IVORY , )

)

Respondent , )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on March 15, 2001, by video teleconferencing between Miami and

Tallahassee, Florida, before Claude B. Arrington, a duly-

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Timothy A. Pease, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent : Velencia C. Ivory, pro se

15600 Northwest 27th Place

Miami, Florida 33054

STATEMENT OF THE ISSUE

Whether Petitioner (the School Board) has just cause to

terminate Respondent's employment on the grounds alleged in the

Notice of Specific Charges.

PRELIMINARY STATEMENT

The School Board seeks to terminate Respondent's

professional service contact of employment as a classroom

teacher. The Notice of Specific Charges, filed January 10,

2001, alleged the following grounds for termination of

Respondent's employment:

Count I: "Immorality", as defined by the

State Board of Education's Rule 6B-4.009(4),

Florida Administrative Code ;[ 1 ]

Count II: "Conviction of a Crime Involving

Moral Turpitude, Upon Such Conviction"; and

Count III: "Violation of School Board

Rule 6Gx13-4A-1.21, Responsibilities and

Duties" [of School Board Employees].

A brief discussion of the motions filed before, during, and

after the final hearing is warranted. This dispute was referred

to the Division of Administrative Hearings on December 14, 2000 .

On December 28, 2000, the matter was scheduled for hearing on

February 9 and 10, 2001. On January 11, 2001, the School

Board's unopposed motion to continue the proceeding was granted

and the matter was rescheduled for hearing on March 15 and 16,

2001. On February 26, 2001, Respondent moved to continue the

matter on the grounds that she wished to obtain counsel or other

qualified representative. On February 27, 2001, the undersigned

entered an Order that denied Respondent's motion to continue,

noting that the motion failed to establish that Respondent had

made any efforts to secure counsel. On March 15, 2001, the

final hearing in this matter was convened. At the final

hearing, Respondent moved, ore tenus , to continue the matter

because she did not have an attorney. That motion was denied,

but Respondent was permitted to submit for review by the

undersigned certain correspondence between Respondent and United

Teachers of Dade, the classroom teacher's union. Respondent

requested the union to provide an attorney to represent her in

this proceeding. The correspondence reflects that the union

denied Respondent's request for legal representation on

December 14, 2000, and notified her of that denial on

December 15, 2000. On January 8, 2001, Respondent invo ked the

union's internal appeal process to challenge the union's denial

of her request for counsel. Leslie Meek, an attorney for the

union, notified Respondent on January 16, 2001, that her appeal

was untimely and would not be processed. On March 8, 2001, a

paralegal for the union advised Respondent that her request had

been reviewed again on February 15, 2001, and denied. On or

about March 26, 2001, attorney Leslie Holland filed a Notice of

Appearance on behalf of Respondent and moved to re-open the

final hearing. On April 2, 2001, that motion was heard by

telephone conference call. During that conference call, the

undersigned ordered Respondent's counsel to proffer the

testimony she expected to produce if the hearing was reconvened

and ordered Respondent to file an affidavit setting forth the

efforts she had made to timely secure counsel. Respondent's

counsel filed her proffered testimony, but Respondent did not

file an affidavit as ordered. On April 26, 2001, the

undersigned entered an Order Denying Motion to Reopen Hearing,

noting that the proffered evidence did not warrant the requested

relief and that Respondent had failed to file the affidavit she

had been ordered to file. On June 15, 2001, Respondent filed a

pleading styled "Respondent's Notice of Filing Status of

Criminal Case in Lieu of Proposed Recommended Order and Motion

to Reopen the Hearing Based on New Evidence". On June 18, 2001,

the School Board filed "Petitioner's Motion to Strike

Respondent's Notice of Filing Status of Criminal Case in Lieu of

Proposed Recommended Order and Response to Respondent's Motion

to Reopen the Hearing Based on New Evidence." The attachment to

Respondent's motion purported to reflect the disposition of

criminal charges that had been filed against Respondent.

Because the School Board did not present any evidence as to

those criminal charges at the final hearing, that evidence does

not warrant re-opening the final hearing. On July 27, 2001, the

undersigned granted the motion to strike and denied the motion

to re-open the final hearing.

At the final hearing, the School Board presented the

testimony of Police Officer Joseph Calicchio, Police Officer

Raul Gomez, John Gall, and Dr. Thomasina O'Donnell. At the

times pertinent to this proceeding, Officers Calicchio and Gomez

were employed by the City of Miramar, Mr. Gall was a forensic

chemist employed by the Broward County Sheriff's Office, and

Dr. O'Donnell was employed by the School Board's Office of

Professional Standards. The School Board's Exhibits 1- 9

and 1 1-13 were admitted into evidence. Respondent offered no

testimony and presented no exhibits.

A transcript of the proceedings was filed on April 2, 2001.

The School Board filed a Proposed Recommended Order, which has

been duly considered by the undersigned in the preparation of

this Recommended Order. Respondent did not file a Proposed

Recommended Order.

FINDINGS OF FACT

1. The School Board is a duly-constituted school board

charged with the duty to operate, control, and supervise all

free public schools within the School District of Miami-Dade

County, Florida. See Article IX, Florida Constitution, and

Section 230.03, Florida Statutes.

2. At all times pertinent to this proceeding, the School

Board employed Respondent as a classroom teacher pursuant to a

professional service contract and assigned her to teach at

Mae M. Walters Elementary School. Respondent began her

employment with the School Board in 1993.

3. While on traffic detail on August 10, 2000, Officer

Calicchio stopped a car with an expired tag. At the time

pertinent to this proceeding the car, a convertible, had its top

down. The driver, a male, and Respondent, the front seat

passenger, were the only occupants of the car. After the car

pulled off the road, Officer Calicchio parked his patrol car

behind the stopped vehicle, approached the vehicle, and asked

the driver for his license and registration. The driver

responded that he did not have his driver's license on his

person and gave his name and date of birth to Officer Calicchio.

Respondent informed Officer Calicchio that the vehicle belonged

to her and gave him her license and the car's registration.

4. Officer Calicchio returned to his patrol car to verify

the information that had been given to him and to determine

whether the driver had a valid license. While he was doing

that, Officer Gomez appeared at the scene as backup for Officer

Calicchio.

5. Officer Gomez observed marijuana particles on the

driver's shirt and in the car. After Officer Gomez related his

observations to Officer Calicchio, the two officers took the

driver into custody and placed him in the backseat of Officer

Calicchio's patrol car.

6. Officer Calicchio returned to the vehicle and observed

marijuana particles in the vehicle. Officer Calicchio asked

Respondent if he could search the vehicle. She consented and

got out of the vehicle. After he completed his search, Officer

Calicchio asked Respondent if he could search the large purse

she was carrying. She consented and began pulling objects out

of the purse and placing them on the hood of Officer Calicchio's

patrol car. When Respondent slid her purse back up on her arm,

Officer Calicchio asked if her purse was empty. Respondent

answered in the affirmative. Officer Calicchio asked if he

could look inside her purse. Respondent responded by leaning

the purse towards him so he could look inside. Officer

Calicchio observed two yellow envelopes in the bottom of the

purse. Respondent consented to Officer Calicchio retrieving the

two envelopes and opening them. The envelopes contained a

green, leafy substance.

7. When Officer Calicchio showed Respondent the contents

of the envelope and asked what the substance was, Respondent

fled on foot. Officer Calicchio, immediately followed by

Officer Gomez, pursued Respondent. As she was fleeing, both

officers observed Respondent reach into the front of her pants

and pull out a plastic bag. As she was attempting to throw the

bag into some bushes, Respondent slipped and fell to the ground.

The plastic bag fell to the ground, landing next to the

Respondent. The two officers recovered the bag and took

Respondent into custody.

8. The plastic bag contained a white-yellowish substance

that Officer Calicchio field-tested using a Valtox field test.

The substance tested positive for cocaine.

9. Officer Calicchio also performed a field test on the

green, leafy substance that was taken from the envelopes in

Respondent's purse. The substance tested positive for cannabis .

10. Subsequent tests by John Gall, a forensic chemist

employed by the Broward County Sheriff's Officer, confirmed that

the substance in the plastic bag was cocaine. The cocaine taken

from the plastic bag weighed 35.2 grams.

11. Respondent's conduct was sufficiently notorious to

bring both Respondent and the educational profession into public

disgrace or disrespect. Respondent's misconduct impaired her

service in the community.

12. On December 13, 2000, the School Board voted to

suspend Respondent's employment and begin proceedings to

terminate her employment.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

14. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

15. The School Board has the burden of proving the

allegations in the Notice of Specific Charges by a preponderance

of the evidence. Allen v. School Board of Dade County , 571 So.

2d 568, 569 (Fla. 3d DCA 1990) ; Dileo v. School Board of Lake

County , 569 So. 2d 883 (Fla. 3d DCA 1990).

16. Prior to her suspension, Respondent was employed by

the School Board pursuant to a professional service contract.

Section 231.36, Florida Statutes (1999), provides in pertinent

part:

(1)(a ) Each person employed as a member

of the instructional staff in any district

school system . . . shall be entitled to and

shall receive a written contract as

specified in chapter 230. All such

contracts . . . 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.

* * *

(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). . . .

17. The definition of just cause set forth in Section

231.36(1)(a), Florida Statutes, is not all-inclusive. Engaging

in immoral conduct as defined by Rule 6B-4.009(2), Florida

Administrative Code, can constitute just cause for the

termination of a professional service contract, as can conduct

that fails to meet standards of conduct established by School

Board Rule 6Gx13- 4A-1.21 . The context of the violation(s) must

be considered in determining whether just cause exists.

"Whether a particular action constitutes a violation of a

rule . . . 'is a factual question to be decided in the context

of the alleged violation.'" McKinney v. Castor , 667 So. 2d 387,

389 (Fla. 1st DCA 1995)(quoting Langston v. Jamerson , 653 So. 2d

489, 491 (Fla. 1st DCA 1995)).

18. In Count I of the Notice of Specific Charges, the

School Board charged Respondent with "immorality," as defined by

Rule 6B-4.009(2), Florida Administrative Code, a rule duly

adopted by the State Board of Education, which provides as

follows:

(2 ) 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.

19. The School Board established by the requisite

evidentiary standard that Respondent's possession of cannabis

and over 35 grams of cocaine, together with her attempted

flight, constituted immoral acts within the meaning of Rule 6B-

4.009(2), Florida Administrative Code, as alleged in Count I of

the Notice of Specific Charges.

20. There was no evidence that Respondent had been

convicted of a crime involving moral turpitude. Consequently,

Count II of the Notice of Specific Charges should be dismissed.

21. School Board Rule 6Gx13- 4A-1.21 provides, in pertinent

part, the following standards of conduct for School Board

employees:

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. . . .

22. The School Board established by the requisite

evidentiary standard that Respondent violated the standard of

conduct required of School Board employees by School Board

Rule 6Gx13- 4A-1.21 , as alleged in Count III of the Notice of

Specific Charges.

23. Under the facts of this case, the violation found

based on the allegations of Count I of the Notice of Specific

Charges constitutes just cause to terminate Respondent's

professional service contract.

24. Under the facts of this case, the violation found

based on the allegations of Count III of the Notice of Specific

Charges constitutes just cause to terminate Respondent's

professional service contract.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board enter a final order

that upholds the suspension of Respondent's employment and

terminates her professional service contract.

DONE AND ENTERED this 22nd day of August, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

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 22nd day of August, 2001.

ENDNOTES

1/ The Notice of Specific Charges correctly quoted the

definition of "immorality" set forth in Rule 6B-4.009(2),

Florida Administrative Code, but incorrectly cited the rule as

being Rule 6B-4.009(4), Florida Administrative Code. That

scrivener's error is harmless error.

COPIES FURNISHED:

Timothy A. Pease, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Velencia C. Ivory

15600 Northwest 27th Place

Miami, Florida 33054

Dr. Roger C. Cuevas, Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue

Miami, Florida 33132

Honorable Charlie Crist

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

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.

1 The Notice of Specific Charges correctly quoted the definition of

"immorality" set forth in Rule 6B-4.009(2), Florida Administrative Code, but

incorrectly cited the rule as being Rule 6B-4.009(4), Florida Administrative

Code. That scrivener's error is be harmless error.