03-000186 Miami-Dade County School Board vs. Neil D. Lefkowitz Status: Closed Recommended Order on Thursday, July 31, 2003.

Summary: Male teacher developed social relationship outside school with two female, 11th-grade students; misconduct and violation of School Board rules requiring professional and ethical conduct from teachers. Recommended 24-month suspension without pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0186

)

NEIL D. LEFKOWITZ, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on April 21, 2003, by video teleconference, with the parties

appearing in Miami, Florida, before Patricia Hart Malono, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Melinda L. McNichols, Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue

Suite 400

Miami, Florida 33132

For Respondent: Neil D. Lefko witz, pro se

1635 Northeast Miami Gardens Drive

Number 235

North Miami Beach, Florida 33179

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in

the letter fr om the Petitioner dated January 16, 2003, and in

the Notice of Specific Charges filed February 27, 2003, and, if

so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In a letter dated January 16, 2003, the Miami - Dade County

School Board ("School Board") notified Neil D. Lefkowitz that

the School Board had suspended him and initiated dismissal

proceedings against him at its January 15, 2003, meeting. The

School Board asserted in the letter that the action was taken

against Mr. Lefkowitz because he allegedly was guilty of

immorality, misconduct in office, violation of School Board

Rules 6Gx13 - 4 - 1.09 and 6Gx13 - 4A - 1.21 , and Rule 6B - 1.001 and 6B -

1.006, Florida Administrative Code. Mr. Lefkowitz timely

requested an administrative hearing, and the matte r was

transmitted to the Division of Administrative Hearings for

assignment of an administrative law judge.

In a three - count Notice of Specific Charges filed with the

Division of Administrative Hearings on February 27, 2003, the

School Board, in Count I, c harged that Mr. Lefkowitz had

committed misconduct in office by violating Rule 6B - 1.001(1),

(2), and (3), Florida Administrative Code, the Code of Ethics of

the Education Profession, and by violating Rule 6B - 1.006(3)(a),

(e), and (h), Florida Administrativ e Code, the Principles of

Professional Conduct for the Education Profession; the School

Board, in Count II, charged that Mr. Lefkowitz had violated

School Board Rule 6Gx13 - 4 - 1.09 , which governs employee - student

relationships; and the School Board, in Count III, charged that

Mr. Lefkowitz had violated School Board Rule 6Gx13 - 4A - 1.21 ,

governing a teacher's responsibilities and duties. The charges

were based on the School Board's allegations that, from

January through April 2002, Mr. Lefkowitz dated two 11th - grade

students who attended North Miami Beach Senior High School

("North Miami Beach High"); that Mr. Lefkowitz engaged in sexual

intercourse with one of the students; that Mr. Lefkowitz invited

the two female students and several male students who attende d

North Miami Beach High to his apartment; that the students

participated in a video project with several of Mr. Lefkowitz's

college friends; that Mr. Lefkowitz transported these students

in his car; and that, on or about April 21, 2002, Mr. Lefkowitz

tele phoned one of the female students he had allegedly dated,

used profanity, and threatened to kill her. 1

At the hearing, the School Board presented the testimony of

Allyn Bernstein; Victor Hernandez; J.D. 2 ; Y.L.D.; Glamour Yveline

Legros; and Raymond Fontana . Petitioner's Exhibits 1 through 4

were offered and received into evidence. Mr. Lefkowitz

testified in his own behalf and presented the testimony of Carol

Lefkowitz; Alvaro Gutierrez; Solomon Neisloss; M.D.; and M.T.R.

Respondent's Exhibits 1 and 2 wer e offered and received into

evidence.

The transcript of the proceedings was filed with the

Division of Administrative Hearings on June 9, 2003, and the

parties timely filed proposed findings of fact and conclusions

of law, which have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The School Board is a duly - constit uted school board

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

free public schools within the School District of Miami - Dade

County, Florida. Article IX, Florida Constitution;

Section 230.03, Florida Statutes (2002). 3

2. At the times mater ial to this proceeding, Mr. Lefkowitz

taught emotionally handicapped and seriously emotionally

disturbed students in North Miami Beach High's Bertha Abbess

exceptional student education program. He has been employed by

the School Board since 1993, and is currently employed under a

professional services contract.

3. At the times material to this proceeding, Mr. Lefkowitz

and at least one other person were making a music video for a

course they were taking at Florida International University.

Alvarro Gutie rrez was working with Mr. Lefkowitz on the video,

and Mr. Gutierrez had chosen the girl who would sing and would

choreograph the dances for the video. Mr. Gutierrez did not,

however, have any dancers, and Mr. Lefkowitz told Mr. Gutierrez

that he knew some girls "from school" who were dancers and that

he would ask them if they wanted to dance in the video.

4. J.D. was, at the times material to his proceeding, an

11th - grade student at North Miami Beach High, although she was

not a student of Mr. Lefkowitz. Rather, J.D. met Mr. Lefkowitz

in a school hallway, while she was selling candy for her French

class, and they apparently had several conversations during

school hours.

5. In one of these conversations, Mr. Lefkowitz mentioned

that he was filming a music video for a college class. J.D.

asked if she could be in the video, and Mr. Lefkowitz agreed and

asked J.D. if she had any friends who could also dance in the

video.

6. J.D. introduced Mr. Lefkowitz to her friend N.F. N.F.

was, at the time, an 11th - gra de student at North Miami Beach

High, but she did not know Mr. Lefkowitz until J.D. introduced

them. Mr. Lefkowitz did not know at the time he met her that

N.F. was a student at North Miami Beach High.

7. J.D. also introduced Mr. Lefkowitz to Glamour Leg ros,

whom she knew because she and Ms. Legros attended the same

church. Prior to introducing Mr. Lefkowitz to Ms. Legros, J.D.

had told him on a number of occasions how much Ms. Legros wanted

to meet him. 4

8. Ms. Legros and N.F. shared an apartment. Ms. Legros

was not a student at the times material to this proceeding, and

she was older than N.F. and J.D.

9. J.D., N.F., and Ms. Legros agreed to dance in the music

video and went to Mr. Lefkowitz's apartment several times to

discuss, rehearse, and shoot t he video.

10. Mr. Lefkowitz picked up J.D., N.F., and Ms. Legros and

drove them to his apartment on the occasions when they were

working on the video. Mr. Lefkowitz also took J.D. and her

friends home on these occasions.

11. M.D., J.D.'s brother and a s tudent at North Miami

Beach High at the time, went to Mr. Lefkowitz's apartment once,

and H.D., another student at North Miami Beach High, was at

Mr. Lefkowitz's apartment on at least one occasion, when she

danced for the music video. These two students a lso rode with

Mr. Lefkowitz in his car on at least one occasion.

12. In addition to her visits to Mr. Lefkowitz's apartment

and her rides in his car, J.D. spoke with Mr. Lefkowitz numerous

times on the telephone.

13. When working on the video, J.D. went to

Mr. Lefkowitz's apartment with her friends. She was alone with

Mr. Lefkowitz once, after her friends left Mr. Lefkowitz's

apartment; Mr. Lefkowitz took her home after about an hour.

14. Mr. Gutierrez did not observe Mr. Lefkowitz engage in

any imprope r behavior with J.D. or her friends at

Mr. Lefkowitz's apartment during the time they were discussing,

rehearsing, and shooting the music video.

15. On April 21, 2003, Ms. Legros called the police and

she and N.F. reported that Mr. Lefkowitz had come to t heir

apartment, beat on the door, and threatened them verbally.

According to the police incident report, the police were

dispatched at 10:09 p.m. and arrived at Ms. Legros's and N.F.'s

apartment at 10:12 p.m.

16. Mr. Lefkowitz had outpatient surgery on A pril 18,

2002. Mr. Lefkowitz's mother was with him at his apartment from

April 18 through the morning of April 22, 2002, the day he

returned to work. According to Ms. Lefkowitz, Mr. Lefkowitz was

in bed, asleep, on the night of April 21, 2002.

17. On Ap ril 22, 2002, Raymond Fontana, the principal of

North Miami Beach High, received a telephone call from a woman

who identified herself to Mr. Fontana's secretary as J.D.'s aunt

and who told Mr. Fontana that an exceptional student education

teacher named "Ne il" was having a relationship with J.D., a

student at North Miami Beach High; the caller also reported that

the teacher had been involved in an "incident" that had been

reported to the police.

18. Ms. Legros was the person who called Mr. Fontana. 5

19. Mr . Fontana called Allyn Bernstein, an assistant

principal at North Miami Beach High, into his office and asked

her to look into the allegations made by the caller.

20. Dr. Bernstein called Mr. Lefkowitz into her office

and, before she could say anything, M r. Lefkowitz told her that

he knew why she had summoned him, that an ex - girlfriend had

threatened to make trouble for him because he wouldn't give her

money. When Dr. Bernstein questioned Mr. Lefkowitz about his

relationship with the student J.D., Mr. Lef kowitz denied knowing

her.

21. Dr. Bernstein also called J.D. into her office. In

response to Dr. Bernstein's questions, J.D. denied knowing

Mr. Lefkowitz. She stated that she did not have a social

relationship with any teacher outside of school and tha t she had

never met any staff member outside school.

22. After Dr. Bernstein reported to Mr. Fontana that she

believed that there might be "something there," 6 Mr. Fontana

reported the matter to the school district personnel, who

referred the matter to the Miami - Dade School Police Department,

and an investigation was initiated.

23. Once the investigation was initiated, Mr. Lefkowitz

was placed on alternate assignment at his home effective May 3,

2002.

24. The investigator, Detective Victor Hernandez,

inte rviewed N.F., Ms. Legros, J.D., H.D., M.D., and

Mr. Lefkowitz. During the course of his investigation,

Detective Hernandez was told that Mr. Lefkowitz and N.F. had

dated and that they had had sexual intercourse. When Detective

Hernandez interviewed Mr. L efkowitz, Mr. Lefkowitz denied that

he knew either J.D. or N.F.

25. In a report dated September 2, 2002, Detective

Hernandez described his investigation and set forth the

substance of the statements given by the witnesses. Detective

Hernandez concluded t hat the charges that Mr. Lefkowitz had

violated Rules 6B - 1.001 and 6B - 1.006, Florida Administrative

Code, and School Board Rules 6Gx13 - 4.109 and 6Gx13 - 4A - 1.21 were

substantiated.

26. A Conference - for - the - Record was held on October 2,

2002, with Paul Green field, District Director, presiding.

Mr. Lefkowitz attended the Conference - for - the - Record, together

with the School Board's Director of Region II and Mr. Fontana.

Mr. Lefkowitz requested that his attorney be allowed to attend,

but this request was denied . 7

27. Mr. Greenfield reviewed Mr. Lefkowitz's history with

the Miami - Dade County public school system and presented the

results of the investigation. Mr. Lefkowitz denied having met

J.D. and N.F. and denied that they were ever in his apartment.

28. Aft er the Conference - for - the - Record, Mr. Fontana

recommended to the Superintendent of Region II that

Mr. Lefkowitz's employment be terminated.

29. Mr. Lefkowitz lied to Dr. Bernstein, to Detective

Hernandez, and to the participants in the Conference - for - the -

Record about his relationships with J.D. and N.F. because he

knew it was improper for the students to be in his apartment and

for him to associate with students outside of school.

Mr. Lefkowitz expressed remorse at his behavior and acknowledged

that his c onduct was not appropriate.

30. J.D. testified that she and Mr. Lefkowitz never dated

or had sexual intercourse. Ms. Legros testified that she did

not know whether Mr. Lefkowitz and J.D. had had sexual

intercourse. She claimed, however, to have observed

Mr. Lefkowitz and J.D. at Mr. Lefkowitz's apartment hugging and

kissing and acting like "boyfriend and girlfriend to me." 8

31. Ms. Legros has no personal knowledge that

Mr. Lefkowitz had sexual relations with N.F., but testified that

N.F. told Ms. Legros that she had had a relationship with

Mr. Lefkowitz.

32. An 11th - grade student testified at the hearing that he

considered Mr. Lefkowitz to be a good teacher, a role model, and

a teacher that he would remember after high school.

33. Mr. Fontana testified that he thought Mr. Lefkowitz's

effectiveness as a teacher had been impaired because of the

"manner in which he dealt with students, having students come to

his apartment, dealing with students that are out of the realm

of his teaching responsibilities." Mr. Fontana observed that

"once you breach that student/teacher relationship and you lose

that professionalism I don't think you can ever go back and have

the same degree of effectiveness as a teacher." 9

34. In making his decision to recommend that Mr. L efkowitz

be terminated from his employment as a teacher, Mr. Fontana

considered Mr. Lefkowitz's employment history with the Miami -

Dade County public school system. Mr. Lefkowitz was twice

referred for evaluation as to his medical fitness to perform his

du ties as a teacher and was twice found fit to perform these

duties. Mr. Lefkowitz was the subject of three allegations of

battery on a student, one in February 1995, one in

February 1999, and one in March 1999; the February 1995 charge

was substantiated, 10 and Mr. Lefkowitz was given a verbal

warning; the remaining two charges were unsubstantiated.

Finally, in August 1995, Mr. Lefkowitz had an unacceptable

annual evaluation, was given a TADS Category VII prescription in

the area of Professional Responsibili ty, and successfully

completed the prescription within the specified time.

Summary

35. The greater weight of the credible evidence presented

by the School Board is insufficient to establish that

Mr. Lefkowitz dated either J.D. or N.F. or that Mr. Lefkowi tz

had sexual intercourse with N.F. The School Board presented no

direct evidence establishing that J.D. and Mr. Lefkowitz had a

romantic relationship or that N.F. and Mr. Lefkowitz had a

sexual relationship. The School Board relied exclusively on

Ms. Le gros's testimony to establish that these relationships

existed, 11 and most of her testimony was based on hearsay, not

personal knowledge. Ms. Legros had no personal knowledge that

N.F. had sexual relations with Mr. Lefkowitz, and the only

behavior that Ms. Legros testified that she personally observed

was Mr. Lefkowitz and J.D. in Mr. Lefkowitz's apartment hugging

and kissing and, in Ms. Legros's estimation, acting like

boyfriend and girlfriend.

36. Ms. Legros is found not to be a particularly credible

wit ness, and her uncorroborated testimony is not sufficiently

persuasive to establish that Mr. Lefkowitz and J.D. more likely

than not were dating or that the hugging and kissing, if she

indeed observed such behavior, was sexual in nature. Both J.D.

and Mr. Lefkowitz denied having a romantic relationship, but it

is difficult to credit fully their testimony, given that both

J.D. and Mr. Lefkowitz lied to School Board personnel about

knowing one another and that Mr. Lefkowitz lied to School Board

personnel abou t being acquainted with N.F. However, on

reflection and after a careful review of the evidence, the

testimony of J.D. and Mr. Lefkowitz is credited over that of

Ms. Legros.

37. The greater weight of the credible evidence presented

by the School Board is not sufficient to establish that

Mr. Lefkowitz telephoned N.F. on April 21, 2002, and threatened

her or that he went to the apartment shared by Ms. Legros and

N.F. on the night of April 21, 2002, and made threats to harm

them. Mr. Lefkowitz's mother testi fied unequivocally that she

was with Mr. Lefkowitz from April 19 through the morning of

April 22, 2002, and that he was recovering from surgery and

sleeping on the night of April 21, 2002. The School Board

presented no evidence that Mr. Lefkowitz telephon ed N.F. and

threatened her, and Ms. Legros was the only witness to testify

that Mr. Lefkowitz came to her apartment and made threats. The

testimony of Mrs. Lefkowitz is credited over that of

Ms. Legros. 12

38. The evidence presented in this case is suffici ent to

establish that Mr. Lefkowitz failed to exercise the best

professional judgment, failed to maintain the highest ethical

standards, and used his position as a teacher to his personal

advantage by recruiting young women students to perform as

dancers i n the music video he was filming as part of a college

assignment. Mr. Lefkowitz admitted that he had engaged in

inappropriate conduct: He had had a personal relationship

outside of school with both J.D. and N.F.; J.D. and N.F. danced

in a music video he made for a college project; J.D. and N.F.

were in his apartment several times; and he drove J.D. and N.F.

in his car to and from his apartment. The contents and tone of

the written statement Mr. Lefkowitz adopted as his testimony

supports an inference tha t he was on very familiar terms with

both J.D. and N.F., and with Ms. Legros as well. 13

Mr. Lefkowitz's poor judgment in developing significant social

relationships outside of school with two female students at

North Miami Beach High and his inappropriate behavior in having

these students as guests in his car and in his apartment reflect

poorly on him as a teacher employed by the School Board.

39. Mr. Lefkowitz also failed to exercise the best

professional judgment and to maintain the highest ethical

stand ards with respect to his dealings with the School Board

during the investigation of his conduct. Mr. Lefkowitz lied to

Dr. Bernstein and Detective Hernandez and at the October 2,

2002, Conference - for - the - Record when he said he did not know

J.D. or N.F., a nd he admitted at the final hearing that he lied

because he knew that he should never have involved these

students in making the music video, should never have given

these students rides in his car, and should never have invited

the students to his apartme nt. Mr. Lefkowitz's lack of

truthfulness reflects poorly on him as a teacher employed by the

School Board.

40. The evidence presented by the School Board is also

sufficient to establish that Mr. Lefkowitz engaged in one

instance of inappropriate behavior involving students M.D. and

H.D. Mr. Lefkowitz admitted that, on one occasion, he picked up

these two students in his car and drove them to his apartment,

where H.D. danced in the music video and M.D. observed

Mr. Lefkowitz and cohorts filming the music video.

Mr. Lefkowitz did not have repeated out - of - school contacts with

these two students, as he did with J.D. and N.F., but his

behavior with M.D. and H.D. reflected poorly on him as a teacher

employed by the School Board.

41. The evidence presented by the School Board, which

consisted only of Mr. Fontana's conclusory and general

statements, is not sufficient to establish that Mr. Lefkowitz's

conduct impaired his effectiveness as a teacher in the Miami -

Dade County public school system. The evidence pres ented by the

School Board is, however, sufficient to permit an inference that

Mr. Lefkowitz's effectiveness as a teacher was impaired.

Mr. Lefkowitz encouraged students to develop personal

relationships with him and to spend significant amounts of time

wi th him in his apartment. Even though J.D., the young woman

with whom he was primarily involved, was not a student in his

class, his willingness to become involved with this student and

her friends brings his personal and professional judgment into

questio n and necessarily affects the school administration's

assessment of his fitness for supervising high school students.

It may also be inferred that Mr. Lefkowitz's effectiveness as an

employee of the School Board was also impaired because he lied

to the pr incipal and assistant principal of his school and to

the regional superintendent of the Miami - Dade County public

school system about even knowing J.D. By not being truthful

with the school system administrators, Mr. Lefkowitz diminished

his credibility as a professional educator.

CONCLUSIONS OF LAW

42. 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 (2002).

43. Beca use this case is a proceeding to terminate

Mr. Lefkowitz's employment with the School Board and does not

involve the loss of a license or certification, the School Board

has the burden of proving the allegations in the Notice of

Specific Charges by a prepo nderance of the evidence. McNeill v.

Pinellas County School Board , 678 So. 2d 476 (Fla. 2d DCA 1996);

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).

44 . 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)).

45. "Whether a particular action constitutes a violation

of a rule . . . 'is a fac tual 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)). See also Holmes v.

Turlington , 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(Whether

there was a deviation from the required standard of conduct is

not a conclusion of law, it is an ultimate finding of fact

within the fact - finding discretion of the hearing officer.)

46. Section 230.23(5), Florida Statutes (2002 ), provides

that a school board has the power to suspend and dismiss

employees as follows:

(f) Suspension and dismissal and return

to annual status. -- Suspend, dismiss, or

return to annual contract members of the

instructional staff and other school

empl oyees; however, no administrative

assistant, supervisor, principal, teacher,

or other member of the instructional staff

may be discharged, removed or returned to

annual contract except as provided in

chapter 231.

47. At the times relevant to this proceed ing,

Mr. Lefkowitz was employed under a professional services

contract. Section 231.36, Florida Statutes (2002), provides in

pertinent part:

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

of the instructional staff in any district

school system shall be prope rly certificated

pursuant to s. 231.17 or employed pursuant

to s. 231.1725 and shall be entitled to and

shall receive a written contract as

specified in chapter 230. All such

contracts, except continuing contracts as

specified in subsection (4), shall con tain

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 insubordi nation,

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 th e

contract for just cause as provided in

paragraph (1)(a). . . .

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

School Board charged Mr. Lefkowitz with misconduct in office,

which is defined in Rule 6B - 4.009, Florida Administrative Code,

as follo ws:

(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, FAC., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, FAC ., which is so serious as to

impair the individual's effectiveness in the

school system.

49. In the Notice of Specific Charges, the School Board

charged that Mr. Lefkowitz had violated the following provisions

of Rule 6B - 1.001, Florida Administrative Cod e, 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.

50. In the Notice of Specific Charges, the School Board

charged that Mr. Lefkowitz had violated the following provisions

of Rule 6B - 1.0 06, Florida Administrative Code, the Principles of

Professional Conduct for the Education Profession in Florida:

(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.

* * *

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

51. Based on the findings of fact herein, the School Board

has proven by a preponderance of the evidence that Mr. Lefkowitz

violated Rule 6B - 1.001(2) and (3), Florida Administrative Code,

and Rule 6B - 1.006(3)(h), Florida Administrative Code.

52. The offense of misconduct in office has two elements,

however. In order for Mr. Lefkowitz to be found guilty of

misconduct in office, the violations of Rule 6B - 1001(2) and (3),

Florida Administrative Code, and of Rule 6B - 1.006(3)(h), Florida

A dministrative Code, must be so serious that Mr. Lefkowitz's

effectiveness as a teacher employed by the School Board has been

impaired. The School Board failed to prove by a preponderance

of the direct evidence that Mr. Lefkowitz's actions were so

serious that they impaired his effectiveness as a teacher. See

McNeill v. Pinellas County School Board , 678 So. 2d 476, 477

(Fla. 2d DCA 1996)("The School Board bears the burden of

proving, by a preponderance of the evidence, each element of the

charged offense [ misconduct in office] which may warrant

dismissal.") Nonetheless, based on the findings of fact herein,

it may be inferred that Mr. Lefkowitz's conduct impaired his

effectiveness as a teacher in the Miami - Dade County public

school system. See Purvis v. M arion County School Board , 766

So. 2d 492, 498 (Fla. 5th DCA 2000)(In the absence of direct

evidence, impaired effectiveness can be inferred from the nature

and seriousness of the misconduct.)

53. This is not to say, however, that, under the

circumstances , Mr. Lefkowitz's conduct is so serious that his

effectiveness in the school system is permanently impaired. The

School Board failed to carry its burden of proving the most

serious charges against Mr. Lefkowitz, that he dated J.D., that

he had sexual inte rcourse with N.F., or that he threatened to do

violence to N.F. and Ms. Legros.

54. In Count II of the Notice of Specific Charges, the

School Board charged Mr. Lefkowitz with violating School Board

Rule 6Gx13 - 4 - 1.09 , Employee - Student Relationships, by eng aging

in conduct with students that gave the appearance of

impropriety. Rule 6Gx13 - 4A - 1.21 provides:

Nothing is more important to Miami - Dade

County Public Schools than protecting the

physical and emotional well - being of its

students. This policy is devel oped 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

unaccept able 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 prop osals, gestures or

comments; exploiting an employee - student

relationship for any reasons; and/or

demonstrating any other behavior which gives

an appearance of impropriety.

55. Based on the findings of fact herein, the School Board

has proven by a prepond erance of the evidence that Mr. Lefkowitz

engaged in unacceptable social relationships with J.D. and N.F.,

and, to a lesser degree, with M.D. and H.D., and that

Mr. Lefkowitz engaged in behavior that certainly gave the

appearance of impropriety.

56. In Co unt III of the Notice of Specific Charges, the

School Board charged Mr. Lefkowitz with violating School Board

Rule 6Gx13 - 4A - 1.21 , Responsibilities and Duties, by engaging in

conduct unbecoming a School Board employee. Rule 6Gx13 - 4A - 1.21

provides in pertin ent part:

I. Employee conduct.

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 th e community, in a manner

that will reflect credit upon themselves and

the school system.

Based on the findings of fact herein, the School Board has

proven by a preponderance of the evidence that Mr. Lefkowitz

violated School Board Rule 6Gx13 - 4A - 1.21 . By developing social

relationships outside of school with J.D., N.F., and to a lesser

degree, M.D. and H.D., and by lying to School Board personnel,

Mr. Lefkowitz engaged in conduct that did not reflect well on

him as a teacher.

57. The School Board seeks to terminate Mr. Lefkowitz's

employment. Based on all of the evidence presented by the

School Board and by Mr. Lefkowitz, the School Board certainly

has just cause to discipline Mr. Lefkowitz, but, under the

circumstances of this case, it is concluded that a penalty less

than termination is appropriate. The School Board failed to

prove the three most serious charges against Mr. Lefkowitz, but

the violations that the School Board did prove by a

preponderance of the evidence are quite serious. In determining

the penalty recommended herein, consideration has been given to

Mr. Lefkowitz's prior disciplinary history with the School

Board. Consideration has also been given to Mr. Lefkowitz's

expressions of remorse as a mitigating factor and to his lying

to Schoo l Board personnel about his involvement with J.D. and

N.F. as an aggravating factor.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Miami - Dade County School Board

enter a final order;

1. Finding that Neil D. Lefkowitz is guilty of having

committed misconduct in office and of violating School

Board Rules 6Gx13 - 4 - 1.09 and 6Gx13 - 4A - 1.21 ;

2. Suspending Mr. Lefkowitz without pay for a period of

24 months, retroactive to the date on which the School Bo ard

suspended him from his employment without pay; and

3. Imposing such conditions on Mr. Lefkowitz upon his

return to employment as the School Board deems appropriate.

DONE AND ENTERED this 31th day of July, 2003, in

Tallahassee, Leon County, Florida.

S

_________________________________

PATRICIA HART MALONO

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 31th day of July, 2003.

ENDNOTES

1 / At the hearing, counsel for the School Board stated that the

Sc hool Board was not seeking to terminate Mr. Lefkowitz on the

basis of the allegations in paragraphs 6 through 14 of the

Notice of Specific Charges relating to past disciplinary actions

taken against Mr. Lefkowitz but, rather, that these previous

disciplina ry actions were taken into consideration in the

decision to recommend Mr. Lefkowitz's termination.

2 / Students and their parents will be referred to in this

Recommended Order by their initials in order to preserve, at

least in this Recommended Order, the confidentiality of the

students' identity.

3 / Statutory references are to the 2002 version of the Florida

Statutes; the Florida K - 20 Education Code was not effective

until January 7, 2003, after the events giving rise to this

action allegedly occurred.

4 / Although J.D. denied knowing Ms. Legros well, Mr. Lefkowitz

related in the statement that he adopted and introduced into

evidence as Respondent's Exhibit 2 that, from the first time he

met J.D., J.D. talked to him about "her friend," Ms. Legros:

"J.D . continued calling me and continued telling me how her

friend wanted to meet me." Respondent's Exhibit 2.

5 / In her testimony, Ms. Legros first denied telephoning North

Miami Beach High, then admitted having called the school to

report that Mr. Lefkowi tz had threatened her. Ms. Legros also

insisted in her testimony that she had not identified herself as

J.D.'s aunt when she called North Miami Beach High to report

that Mr. Lefkowitz and J.D. were having an "affair";

Mr. Fontana, on the other hand, testi fied that he spoke with a

person who claimed to be "an aunt of one of our students," who

told him about the alleged affair of Mr. Lefkowitz and J.D.

Transcript at page 132. Mr. Fontana's testimony is credited

over that of Ms. Legros.

6 / Transcript at p age 133.

7 / Apparently Mr. Lefkowitz was not a member of the United

Teachers of Dade, and, therefore, no union representative

appeared with him at the Conference - for - the - Record, either.

8 / (Transcript at 91.)

9 / Transcript at page 139.

10 / Mr. Lefko witz was found to have held a child's arms behind

his back when walking him to a corner of the classroom.

11 / N.F. did not testify at the final hearing, although she was

listed as a witness on the School Board's witness list.

12 / Even though Ms. Legros's brief testimony on this alleged

incident is consistent with the Miami - Dade County Police

Department Offense - Incident Report introduced into evidence as

part of Petitioner's Exhibit 1, the information included in the

report consisted only of statements mad e by Ms. Legros and N.F.

and is, therefore, hearsay that cannot form the basis for a

finding of fact in this Recommended Order. See

Section 120.57(1)(c), Florida Statutes (2003). Mr. Lefkowitz

was not placed at or near the apartment by the police, who

a rrived at the apartment three minutes after being dispatched.

The facts that Ms. Legros called the police on the night of

April 21, 2002, and that Ms. Legros and N.F. told the police

that Mr. Lefkowitz had threatened them does not make

Ms. Legros's testim ony on this point sufficiently persuasive to

support a finding of fact that the incident actually happened.

13 / Respondent's Exhibit 2.

COP IES FURNISHED :

Neil D. Lefkowitz

1635 Northeast Miami Gardens Drive, No. 235

North Miami Beach, Florida 33179

Melinda L. McNichols, Esquire

Miami - Dade County School Board

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

Merritt R. Stierheim, Interim Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132 - 1394

Jim Horne, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

1244 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 fro m 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.