03-004041 Miami-Dade County School Board vs. Daniel J. Epstein Status: Closed Recommended Order on Wednesday, May 26, 2004.

Summary: Respondent downloaded pornographic videos on classroom computer when students were present, then viewed them and masturbated in his classroom during school hours when students were not present. Recommend Respondent be dismissed from employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4041

)

DANIEL J. EPSTEIN, )

)

Respondent. )

________________________________ )

RECOMMENDED ORDER

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

on Febru ary 11, 2004, 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: Madelyn P. Schere, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Leslie Holland, Esquire

801 Northeast 167th Street, Second Floor

North Miami Beach, Florida 33162

STATEMENT OF THE ISSUE

Whether the Respondent's employment as a teacher with the

Petitioner should be terminated.

PRELIMINARY STATEMENT

In a letter dated October 23, 2003, the School Board of

Miami - Dade County, Florida ("School Board") advised Daniel

J. Epstein that it had taken action to suspend him and that it

was initiating proceedings to dismiss him from his employment as

a teacher. The Sc hool Board stated in the letter that it based

its action on charges of immorality, misconduct in office, and

incompetency. Mr. Epstein, through his attorney, timely

requested a hearing before the Division of Administrative

Hearings. The School Board tran sferred the matter to the

Division of Administrative Hearings on October 31, 2003, for

assignment of an administrative law judge. Pursuant to notice,

the formal administrative hearing was held on February 11, 2004.

On November 17, 2003, the School Board f iled a Notice of

Specific Charges that contained three counts and detailed the

facts on which the School Board based its charges of

incompetency, misconduct in office, and immorality. The School

Board alleged in its Notice of Specific Charges that Mr. Eps tein

viewed pornographic web sites on the classroom computer provided

by the School Board for his use; viewed pornography during the

workday, while students were in the classroom; and masturbated

in his classroom while watching pornography on the School Bo ard

computer located in his classroom. The School Board charged in

Count I of the Notice of Specific Charges that Mr. Epstein's

conduct violated School Board Rules 6Gx13 - 4A - 1.21 and 6Gx13 - 6A -

1.112 and, therefore, constituted incompetency as defined in

Flo rida Administrative Code Rule 6B - 4.009(1)(a)1.; in Count II

that Mr. Epstein's conduct violated Florida Administrative Code

Rules 6B - 1.001(2) and/or (3) and 6B - 1.006(3)(a) and/or (4)(c)

and was so serious that it impaired his effectiveness in the

school sy stem and, therefore, constituted misconduct in office

as defined in Florida Administrative Code Rule 6B - 4.009(3); and

in Count III that Mr. Epstein's conduct constituted immorality

as defined in Florida Administrative Code Rule 6B - 4.009(2). The

School Boa rd further charged in the Notice of Specific Charges

that these violations warranted Mr. Epstein's dismissal from

employment with the School Board pursuant to

Section 1012.33(4)(c), Florida Statutes (2003). 1

Prior to the formal hearing, the parties filed a joint Pre -

hearing Stipulation, in which they stipulated to certain facts

that will be incorporated into the findings of fact herein. At

the hearing, the School Board presented the testimony of

Sergeant Bradley Rosh, Miami - Dade County Public Schools polic e;

Pedro Valdes, microsystems technician; Michele Lam, media

specialist; Linda Van Leer, former assistant principal at Twin

Lakes Elementary School ("Twin Lakes Elementary"); Jesus Vigo,

microsystems technician; Maria de Leon, principal of Twin Lakes

Eleme ntary; and Reinaldo Benitez, district director in the

Office of Professional Standards. Joint Exhibit 1 and

Petitioner's Exhibits 1 through 7 and 9 through 14 were offered

and received into evidence. Petitioner's Exhibit 8 was offered

into evidence but r ejected. Mr. Epstein testified in his own

behalf, presented the testimony of Carlos Plasencia, Ph.D., a

psychotherapist, and proffered the testimony of Reinaldo

Benitez. Respondent's Exhibits 1 and 2 were offered and

received into evidence.

The one - volum e transcript of the proceedings was filed with

the Division of Administrative Hearings on April 12, 2004. The

parties timely filed their proposed findings of fact and

conclusions of law. 2

FINDINGS OF FACT

Based on the oral and documentary evidence presen ted 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 - constituted school board

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

free public schools within t he School District of Miami - Dade

County, Florida. Article IX, Florida Constitution; § 1001.32,

Fla Stat (2004).

2. At all times material to this proceeding, Mr. Epstein

was employed by the School Board as a music teacher at Twin

Lakes Elementary, under a continuing contract with the School

Board.

3. Mr. Epstein was first employed by the School Board in a

part - time position in February 1978. Mr. Epstein took a full -

time teaching position at Twin Lakes Elementary in 1980, where

he taught continuously unti l he was given an alternate work

assignment in June 2003. Mr. Epstein has not previously been

the subject of disciplinary action by the School Board.

4. Mr. Epstein consistently received satisfactory annual

evaluations during his employment at Twin Lakes Elementary.

Although he did not receive an annual evaluation for the 2002 -

2003 school year, he received a satisfactory observation during

that year. In addition, Mr. Epstein was named Teacher - of - the -

Year at Twin Lakes Elementary during the 1988 - 1989 sch ool year. 3

5. Mr. Epstein had daily access to a computer that was

owned by the Miami - Dade County public school district and placed

in his classroom. The classroom computers were to be used to

develop instructional programs and to gather lesson materials

from the Internet. Mr. Epstein and all of the teachers at Twin

Lakes Elementary were required to read and adhere to the school

district's Acceptable Use Policy for the Internet.

6. Late in the 2001 - 2002 school year, Mr. Epstein asked

Jesus Vigo, a micros ystems technician, to check his computer

because Mr. Epstein could not access the Internet. Mr. Vigo

checked the Internet history file to find out when Mr. Epstein

had last accessed the Internet. In the history file on

Mr. Epstein's classroom computer, M r. Vigo found several

addresses for pornography web sites.

7. After he made certain that Mr. Epstein's computer was

operating properly, Mr. Vigo reported to Michele Lam, the

computer coordinator and media specialist at Twin Lakes

Elementary, that he had f ound "questionable" web sites on

Mr. Epstein's computer.

8. Ms. Lam believed that Mr. Epstein had most likely

visited these web sites accidentally, and she told Mr. Vigo not

to tell anyone that he had found the addresses on Mr. Epstein's

computer. Instea d, Ms. Lam told Mr. Vigo that he should

regularly monitor Mr. Epstein's computer.

9. Mr. Vigo monitored Mr. Epstein's computer once a week,

at random, for approximately four months, until he left his job

at Twin Lakes Elementary. During this time, Mr. Vi go found no

questionable web - site addresses in the Internet history on

Mr. Epstein's computer. No one regularly monitored

Mr. Epstein's computer after Mr. Vigo left Twin Lakes

Elementary.

10. A new microsystems technician, Pedro Valdes, began

work at Twi n Lakes Elementary in September 2002, and, in

January 2003, new computers were installed in all the

classrooms. These computers operated through the Miami - Dade

County public school district's mainframe computer, and the

software loaded onto the computers was approved by and licensed

to the school district. The mainframe also had a filter that

prohibited access to certain web sites from the school

district's computers.

11. In February 2003, Mr. Epstein complained to Ms. Lam

that he was having problems wit h his computer. When Mr. Valdes

tried to fix the computer, he found that several software

programs had been loaded onto the computer. Mr. Epstein

admitted that he had loaded Netscape, an Internet browser, so

that he could access music sites that he could not access using

the school district's Internet browser. Although he tried,

Mr. Valdes was not able to fix Mr. Epstein's computer

completely, and he moved on to other work.

12. Finally, in April 2003, Mr. Valdes fixed Mr. Epstein's

computer and made cer tain that all of the school district's

software was working properly. In early May 2003, however,

Mr. Epstein told Mr. Valdes that he could not get into his

computer. Mr. Valdes examined the computer and, when he saw

that the computer's recycle bin was f ull, he decided to empty

it. When Mr. Valdes opened the recycle bin, he saw that there

were several addresses for pornography web sites, as well as

addresses for other types of web sites.

13. When Mr. Valdes discovered these web - site addresses,

Mr. Epste in admitted to Mr. Valdes that he had downloaded and

viewed pornographic videos on the school district computer, in

addition to using the computer's Internet access to locate and

download information from music and instructional web sites.

Mr. Epstein als o admitted to Mr. Valdes that he had deliberately

by - passed the school district's Internet filter in order to gain

access to the pornographic material.

14. Mr. Valdes told Mr. Epstein that he should not view

such web sites on the school district's compute r, but he agreed

not to tell anyone about his discovery. Nonetheless, after he

thought about it, Mr. Valdes felt obligated to report his

discovery to Ms. Lam because he considered the matter so

serious. Mr. Valdes was visibly upset when he told Ms. Lam

a bout the pornography web site addresses.

15. Ms. Lam and Mr. Valdes went to the office of Maria

de Leon, the principal of Twin Lakes Elementary, and told her

what Mr. Valdes had discovered on Mr. Epstein's computer.

Ms. de Leon called Mr. Epstein to her office and, among other

things, told him to cease using his classroom computer for any

purpose.

16. Mr. Epstein had been downloading pornography from the

Internet and viewing pornographic videos in his classroom on the

computer provided by the school dist rict for approximately seven

months prior to Mr. Valdes's discovery of the pornography web

site addresses. Mr. Epstein knew that access to these

pornography web sites was blocked by the filter on the school

district's mainframe computer, which is the reas on he devised a

strategy for circumventing the filter.

17. Mr. Epstein downloaded pornographic videos onto the

school district's computer at night, during the workday when

students were in his classroom, and during the workday when no

students were in the classroom. Mr. Epstein always turned the

computer monitor off when he was downloading pornography during

class time, so that the students could not glance at his

computer and see the material he was downloading. Mr. Epstein

also hid the downloaded porno graphic videos in folders hidden

within other folders, so that it would not be obvious to a

substitute teacher who logged onto his classroom computer that

pornographic videos were stored in the computer.

18. Mr. Epstein never viewed pornographic videos wh en

students were in his classroom. He did, however, view the

videos during the times of the school day when he was expected

to plan and prepare lessons, and he also viewed these videos

after the students had left school for the day, generally

between 3:00 p.m. and 4:30 p.m. 4 Mr. Epstein viewed pornographic

videos and masturbated in his classroom approximately 15 to 20

times during the spring of 2003, after the students had left

school for the day but during the time he was expected to work

on lesson plans . When he viewed pornographic videos and

masturbated in his classroom, Mr. Epstein was careful to lock

the classroom door. 5

19. Mr. Epstein took precautions to conceal his activities

because he knew that his activities violated School Board rules,

and he also did not want the materials to be discovered by a

student, a substitute teacher, or anyone else.

20. Even though Mr. Epstein took care to see that his

classroom door was locked when he viewed pornographic videos and

masturbated in his classroom, ther e was a risk that he would be

interrupted. The Twin Lakes Elementary custodial and

administrative staff, including secretaries, had keys to all of

the classrooms. Occasionally, a parent would return to school

with a student who had left something in a cl assroom, and a

school employee would escort the parent and student to the

classroom and use his or her key to enter the classroom.

21. The pornographic material that Mr. Epstein downloaded

and viewed on his classroom computer did not involve children.

It was, however, obscene, as defined by the School Board in its

Acceptable Use Policy for the Internet. 6

22. Ms. de Leon decided to try to keep information about

Mr. Epstein's activities confidential because she was very

concerned about the reaction of the parents of the children

attending Twin Lakes Elementary and of the community as a whole.

Ms. de Leon knew that many of the parents of the children

attending Twin Lakes Elementary were conservative Catholics who

were very protective of their children. 7 Ms . de Leon believed

that if news of Mr. Epstein's activities became known in the

community, Twin Lakes Elementary "would have been in the first

page of the [Miami] Herald for quite a long time." 8

23. On May 6, 2003, the day Mr. Valdes discovered the

pornog raphy web - site addresses on Mr. Epstein's computer,

Mr. Epstein went to Linda Van Leer, the assistant principal at

Twin Lakes Elementary, and asked that she put him on the agenda

for the faculty meeting scheduled for that afternoon.

Ms. de Leon had, by th is time, notified Ms. Van Leer of the

situation involving Mr. Epstein and of her decision to limit

knowledge of the matter to as few people as possible.

Mr. Epstein told Ms. Van Leer that he intended to make a

statement to the faculty to assure the facult y members that the

pornography he downloaded and viewed did not involve children

and that he never viewed pornography when students were in the

classroom.

24. Ms. Van Leer was as concerned as Ms. de Leon about the

disruption at Twin Lakes Elementary if in formation about

Mr. Epstein's activities became known in the community, and she

also believed that Mr. Epstein did not appreciate the

ramifications of his announcing his activities to the faculty.

Ms. Van Leer denied Mr. Epstein's request to speak to the

faculty and told him not to speak of the matter to anyone except

Ms. de Leon.

25. Ms. de Leon reported Mr. Epstein's activities to the

Miami - Dade County Public Schools police on May 6, 2003, and the

investigation was assigned to Bradley Rosh on May 13, 20 03.

Sergeant Rosh found Mr. Epstein very cooperative during the

investigation, and Mr. Epstein prepared a statement in which he

described the nature and extent of his activities.

26. Sergeant Rosh submitted his preliminary investigation

report on July 16 , 2003, in which he concluded that the

allegations that Mr. Epstein had violated the School Board's

Acceptable Use Policy for the Internet and the responsibilities

and duties of School Board employees were substantiated. The

investigative report was sent to the Office of Professional

Standards for final disposition.

27. Reinaldo Benitez, a district director of the Miami -

Dade County Public Schools Office of Professional Standards,

convened a Conference - for - the - Record on August 11, 2003, to

discuss the inve stigative report and the charges against

Mr. Epstein, to review his record, and to discuss his future

employment status with the School Board. Mr. Benitez,

Mr. Epstein, Ms. de Leon, and Marie Harrison, Business Director

of ACCESS Center 1, participated in the Conference - for - the -

Record.

28. As reflected in the Summary of the Conference - for - the -

Record dated August 22, 2003, the findings in the investigative

report were discussed with Mr. Epstein, who admitted that he was

guilty of the charge that he had dow nloaded pornographic videos

into the school district's computer located in his classroom,

that he was aware when he did so that he was violating School

Board rules, and that he had used very poor judgment.

Mr. Epstein apologized for his actions, and he re quested that,

if he were allowed to resume teaching, he be provided a computer

without access to the Internet.

29. According to the Summary of the Conference - for - the -

Record, Mr. Epstein was assigned to an alternative work location

at his home at the begin ning of the 2003 - 2004 school year. 9

30. As reflected in the Summary of the Conference - for - the -

Record, Mr. Epstein was offered the option of submitting his

resignation, which he refused. Directives were issued to

Mr. Epstein at the Conference - for - the - Reco rd, including a

directive that he not visit Twin Lakes Elementary at any time.

Mr. Epstein was also advised to "keep the information presented

in this conference confidential and not to discuss this with any

students or staff. Finally, Mr. Epstein was ad vised that,

following a review by the School Board's attorneys, he would be

notified of the recommended disciplinary action, which could

include dismissal.

31. On August 13, 2003, Ms. de Leon submitted her

recommendation to Margarita Alemany - Moreno, Assis tant

Superintendent in ACCESS Center 1, that Mr. Epstein be

terminated from his employment with the Miami - Dade County Public

Schools. Ms. Alemany - Moreno sent this recommendation to

Virginia Bradford, Assistant Superintendent in the Office of

Professional Standards, with the concurrence of the staff of

ACCESS Center 1.

32. Mr. Benitez convened a meeting with Mr. Epstein on

September 26, 2003, to address his pending dismissal by the

School Board at its meeting on October 22, 2003. Ms. de Leon

and Ms. Harri son were also in attendance. Mr. Benitez informed

Mr. Epstein that the recommendation for his dismissal was based

on charges of immorality, misconduct in office, and

incompetency. Mr. Epstein was offered the option of resigning

his position or pursuing d isability retirement, which he

declined.

33. Mr. Epstein submitted a statement dated September 29,

2003, in response to the August 22, 2003, Summary of the

Conference - for - the - Record. In this statement, Mr. Epstein did

not withdraw his admission that he h ad downloaded and viewed

pornographic videos on the school district's computer located in

his classroom.

34. The Superintendent of Schools notified Mr. Epstein in

a letter dated October 8, 2003, that he was recommending to the

School Board that Mr. Epstei n be dismissed from his employment.

The School Board suspended Mr. Epstein and initiated dismissal

proceedings at its October 22, 2003, meeting.

35. Mr. Epstein believes that he has had a sexual problem

since he was a teenager, when he first became attra cted to

pornography. He began using the computer in his classroom to

download and view pornography after his wife discovered

pornography on their home computer. She became angry, and he

decided to move his activities to his classroom computer in

order to avoid further family conflict.

36. Approximately three years ago, Mr. Epstein was

diagnosed with a "sexual addiction," and he began sessions with

a sexual therapist. Mr. Epstein attended four individual

therapy sessions, but was released in December 200 2.

Mr. Epstein attended small group therapy sessions for

approximately 12 weeks during the time he was seeing Mr. Gray,

and he also attended weekly sessions of an "accountability

recovery group" from March 2001 until December 2003, when he

began working a t the Sam Ashe music store.

37. On September 15, 2003, Carlos Plasencia, a mental

health counselor, examined Mr. Epstein and initially diagnosed

Mr. Epstein with "sexual disorder not otherwise specified."

Dr. Plasencia's diagnosis has evolved, and he now believes that

Mr. Epstein's diagnosis is "impulse control disorder," with a

sexual component. 10 Mr. Epstein is in therapy with

Dr. Plasencia, and, at the time of the final hearing, he had

been taking Zoloft, an anti - depressant prescribed by a

psychiatrist , for approximately two months. 11

38. In Dr. Plasencia's opinion, Mr. Epstein's addiction to

pornography began approximately 27 years ago, developed slowly

over the course of 24 years, and progressed faster than usual

over the course of the last two to thr ee years." According to

Dr. Plasencia, Mr. Epstein feels powerless to overcome the

compulsion to view pornography; he has tried to stop this

behavior and has been unable to do so, even though it has

disrupted his family and, now, poses a threat to his job . 12 In

Dr. Plasencia's opinion, "[c]hances are very likely Mr. Epstein

was preoccupied with the attainment of pornography while he was

in school. I agree with that because he was viewing it in

school and downloading it in school." 13

39. Although Dr. Plase ncia acknowledged that Mr. Epstein's

addiction to pornography is a preoccupation that has

significantly interfered with his life and the life of his wife

and son, Dr. Plasencia does not consider Mr. Epstein emotionally

unstable, in the sense that he does n ot have extremes in mood or

behavior.

40. Mr. Epstein has always been open during his therapy

with Dr. Plasencia and has demonstrated a genuine desire to fix

his problem. He has been motivated and has followed

Dr. Plasencia's suggestions. Dr. Plasencia believes that

Mr. Epstein's prognosis for recovery is good.

41. Mr. Epstein considers himself a "recovering" sexual

addict and explains his behavior at Twin Lakes Elementary in the

spring of 2003 as a "relapse." 14

Summary

42. The evidence presented by th e School Board establishes

that Mr. Epstein has committed misconduct in office.

Mr. Epstein admitted that he deliberately by - passed the Internet

filter in the school district's mainframe computer and accessed

pornography web sites on his classroom compute r; that he

downloaded pornographic videos onto his classroom computer while

students were in the classroom, during planning periods when the

students were in school but not in his classroom, and after the

students were dismissed from school; that he viewed pornographic

videos on the classroom computer during planning periods when

the students were in school but not in his classroom and after

the students were dismissed from school; and that he frequently

masturbated in his classroom while he watched pornogr aphic

videos. Mr. Epstein admitted that he engaged in the activities

described above for approximately seven months prior to

May 2003, although the evidence presented by the School Board

establishes that addresses for pornography web sites were found

in M r. Epstein's classroom computer as early as June 2002.

43. The evidence establishes that Mr. Epstein took

precautions such as turning off the computer monitor when

downloading pornographic videos while children were in his

classroom, hiding the computer f olders containing the

pornographic videos in other folders, and locking his classroom

door when he viewed pornographic videos and masturbated. It may

reasonably be inferred, however, that he took these precautions

to keep his activities hidden from studen ts and school personnel

and not primarily to protect his students from harm. At the

time he was committing these acts, Mr. Epstein knew his behavior

violated School Board rules; he knew that he was exercising poor

judgment; and he knew that, if he were di scovered downloading

and viewing pornographic videos and masturbating in his

classroom, his job could be in jeopardy.

44. By downloading and viewing pornographic videos on his

classroom computer, Mr. Epstein violated the School Board's rule

prohibiting th e transmission of obscene material, and

downloading and viewing pornographic videos on his classroom

computer and masturbating in his classroom constitute conduct

unacceptable in a School Board employee.

45. Mr. Epstein viewed pornographic videos and mast urbated

during his workday rather than planning lessons and engaging in

other pursuits that would enhance his abilities as a teacher.

The School Board, therefore, paid Mr. Epstein for time during

which he did not work. Mr. Epstein could not use his home

computer to download and view pornography videos because he

feared discovery and disruption of his family life, so he used

the classroom computer provided by the school district to

satisfy his compulsion to view pornographic videos.

46. Downloading and vi ewing pornographic videos and

masturbating may not be considered objectionable when done in

the privacy of one's home; these acts are, however, not

consistent with the public conscience and good morals when, as

here, they are done in the public space of an elementary school

classroom. Nonetheless, the evidence presented by the School

Board is not sufficient to establish that Mr. Epstein's

activities have become public knowledge.

CONCLUSIONS OF LAW

47. The Division of Administrative Hearings has

jurisdict ion over the subject matter of this proceeding and of

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

Florida Statutes (2004).

48. Because this case is a proceeding to terminate

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

i nvolve 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 preponderance of the evidence. McNeill v.

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

All en 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).

49. Section 1012.33(4), Florida Statutes, provides in

pertinent part:

(c) Any member of the district

admin istrative or supervisory staff and any

member of the instructional staff, including

any school principal, who is under

continuing contract may be suspended or

dismissed at any time during the school

year; however, the charges against him or

her must be bas ed on immorality, misconduct

in office, incompetency, gross

insubordination, willful neglect of duty,

drunkenness, or conviction of a crime

involving moral turpitude, as these terms

are defined by rule of the State Board of

Education. Whenever such charge s are made

against any such employee of the district

school board, the district school board may

suspend such person without pay; but, if the

charges are not sustained, he or she shall

be immediately reinstated, and his or her

back salary shall be paid. I n cases of

suspension by the district school board or

by the district school superintendent, the

district school board shall determine upon

the evidence submitted whether the charges

have been sustained and, if the charges are

sustained, shall determine ei ther to dismiss

the employee or fix the terms under which he

or she may be reinstated. If such charges

are sustained by a majority vote of the full

membership of the district school board and

such employee is discharged, his or her

contract of employment shall be thereby

canceled. Any such decision adverse to the

employee may be appealed by the employee

pursuant to s. 120.68 provided such appeal

is filed within 30 days after the decision

of the district school board.

50. Pursuant to Section 1012.33(4)(c ), the School Board

charged Mr. Epstein with incompetency, misconduct in office, and

immorality. These terms are defined in Florida Administrative

Code Rule 6B - 4.009 and provide "[t] he basis for charges upon

which dismissal action against instructional pe rsonnel may be

pursued are set forth in Section 231.36, Florida Statutes [now

codified in Section 1012.33, Florida Statutes]."

Incompetency

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

School Board charged Mr. Epstein with incompetency as a resu lt

of inefficiency because he failed to perform his duties as

prescribed by Section 1012.53(2), Florida Statutes.

Specifically, the School Board charged that Mr. Epstein engaged

in conduct unbecoming an employee of the School Board, in

violation of School Board Rule 6Gx13 - 4A - 1.21 , and that he

violated the School Board's Acceptable Use Policy for the

Internet, which is adopted as School Board Rule 6Gx13 - 6A - 1.112 .

52. Florida Administrative Code 6B - 4.009(1) provides in

pertinent part:

Incompetency is d efined as inability or

lack of fitness to discharge the required

duty as a result of inefficiency or

incapacity. Since incompetency is a

relative term, an authoritative decision in

an individual case may be made on the basis

of testimony by members of a p anel of expert

witnesses appropriately appointed from the

teaching profession by the Commissioner of

Education. Such judgment shall be based on

a preponderance of evidence showing the

existence of one (1) or more of the

following:

(a) Inefficiency: (1) repeated failure to

perform duties prescribed by law

(Section 231.09, Florida Statutes) [now

codified as Section 1012.53, Florida

Statutes]; (2) repeated failure on the part

of a teacher to communicate with and relate

to children in the classroom, to such an

extent that pupils are deprived of minimum

educational experience; or (3) repeated

failure on the part of an administrator or

supervisor to communicate with and relate to

teachers under his or her supervision to

such an extent that the educational prog ram

for which he or she is responsible is

seriously impaired.

53. Section 1012.53(2), Florida Statutes, provides in

pertinent part: "Members of the instructional staff of the

public schools shall perform all duties prescribed by rules of

the district sc hool board. . . ."

54. School Board Rule 6Gx13 - 4A - 1.21 , which defines the

responsibilities and duties of permanent School Board personnel,

provides in pertinent part:

I. Employee Conduct

All persons employed by The School Board of

Miami - Dade County, Flo rida 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.

Unseemly conduct or the use of abusive

and/or profane language in the workplace is

expressly prohibited.

55. School Board Rule 6Gx13 - 6A - 1.112 , Acceptable Use

Policy for the Exploration and Utilization of the Internet as a

Tool for Learning, Acceptable Use Policy for the Internet, which

applies to elementary and secondary school instruction, provides

in pertinent part:

Purpose of the rule

The purpose of this rule is to establish a

policy for the acceptable use of the

Internet as a tool for learning in the

School District of Miami - Dade County,

Florida (hereinafter referred to as

District). In summary, the rule affirms

that neither employees nor students may use

the Internet to do any action or receive

and/or communicate any language that the

employee or student could not d o in person.

Any act or work prohibited by federal,

state, and/or local law or regulation,

including Miami - Dade County Public Schools

(M - DCPS) Rules, and/or collective bargaining

agreement if done by a M - DCPS employee or

student in person is similarly for bidden by

this rule to be done by any employee or

student by or through the Internet.

Additionally, the rule reflects that there

is no expectation of privacy in the use of

e - mail or Internet communications when such

communications occur over M - DCPS provid ed

equipment by M - DCPS employees, students, or

others.

Purpose of access to the Internet

The purpose of providing students and

employees access to the Internet is to

promote academic excellence in the

District's educational objectives. This

computer tec hnology provides resource

sharing, innovation and communication that

will held launch today's schools into the

information age.

* * *

II. Acceptable Use Policy

Utilization of the Internet by students and

employees must be in support of and

consistent w ith the educational objectives

of the District. When utilizing the

Internet all users must adhere to the

provisions of this rule and the standards of

conduct established in the M - DCPS Code of

Student Conduct (both elementary and

secondary), Code of Conduc t for Adult

Students , the Code of Ethics for the

Education Profession in the State of

Florida , and School Board Rule 6Gx13 - 4A -

1.21 , Responsibilities and Duties.

Aansmission of any material in

violation of local, state, and federal

law or regu lation is prohibited. This

includes, but is not limited to

copyright material, threatening or

obscene material or material protected

by trade secret.

* * *

X. Inappropriate Material

On a global network it is impossible to

control effe ctively the content of data and

an industrious user may discover

inappropriate material. Inappropriate

material is that material that is determined

inconsistent with the goals, objectives and

policies of the educational mission of the

District.

Access an d use of the Internet is for use as

a regular instructional activity. It is the

user's responsibility not to initiate access

to materials that are inconsistent with the

goals, objectives and policies of the

educational mission of the District.

XI. Disci plinary Actions for Improper Use

The act of accessing the Internet through

the District's network signifies that the

user will abide by the provisions of this

rule.

Any user violating this rule, or applicable

local, state, or federal law or regulation

is subject to loss of network access

privileges and any other disciplinary

actions, as reflected in the M - DCPS Code of

Student Conduct (both elementary and

secondary), Code of Conduct for Adult

Students , the Code of Ethics for the

Education Profession in the State of

Florida , applicable collective bargaining

units, and School Board Rule 6Gx13 - 4A - 1.21 .

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

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

failed to conduct himself in a manne r that reflected credit on

himself and that he violated the School Board's Acceptable Use

Policy for the Internet by downloading and viewing material that

the School Board has classified as obscene material. School

Board Rules 6Gx13 - 4A - 1. 21 and 6Gx13 - 6A - 1 .112 do not, however,

prescribe duties relating to a teacher's carrying out his or her

instructional responsibilities.

57. Even though the School Board can prove inefficiency as

a result of a teacher's repeatedly failing to perform the duties

prescribed b y School Board rule, the charge of incompetency as

defined in Florida Administrative Code Rule 6B - 4.009(1)

encompasses a teacher's inability or lack of fitness to

discharge the duties related to the responsibility to provide a

minimum educational experienc e to his or her students. The

School Board conceded that it was not challenging Mr. Epstein's

ability as a teacher, and it has failed to prove by a

preponderance of the evidence that Mr. Epstein failed to perform

any duties defined by School Board rule or that he deprived his

students of a minimal educational experience. The School Board

has, therefore, failed to prove by a preponderance of the

evidence that Mr. Epstein is incompetent to teach as a result of

"inefficiency," as that term is defined in Flor ida

Administrative Code Rule 6B - 4.009(1)(a).

Misconduct in Office

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

School Board charged Mr. Epstein with having committed

misconduct in office because he violated Florida Administrative

Code Rule 6B - 1 .001(2) and/or (3) and Florida Administrative Code

Rule 6B - 1.006(3)(a) and/or (4)(c) and because his violations

were so serious that his effectiveness in the school system was

impaired.

59. Florida Administrative Code Rule 6B - 4.009(3) provides:

(3) Misco nduct 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 s o serious as

to impair the individual's effectiveness in

the school system.

60. Florida Administrative Code Rule 6B - 1.001, Code of

Ethics of the Education Profession in Florida, provides in

pertinent part:

(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 maintai ning

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.

61. Based on the findings of fact herein, the School B oard

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

did not exercise the best professional judgment and integrity

over a period of at least seven months when he regularly

downloaded pornographic videos onto his classroom computer while

stud ents were present in the classroom and viewed pornographic

videos and masturbated in his classroom during the school day,

when he was expected to be planning lessons and engaging in

other activities related to his role as an elementary - school

music teacher .

62. In addition, as set forth above in paragraph 56, the

School Board has proven by a preponderance of the evidence that

Mr. Epstein violated School Board Rules 6Gx13 - 4A - 1. 21 and 6Gx13 -

6A - 1.112 . Mr. Epstein's violations of School Board rules

governing appropriate conduct and use of the Internet exhibit

the failure to exercise the level of professional judgment

expected from our public school teachers.

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

has also proven by a preponderance of the e vidence that

Mr. Epstein did not sustain the highest degree of ethical

behavior. The term "ethical" means, according to Webster's

Third New International Dictionary, Unabridged (2002), " being in

accord with approved standards of behavior or a socially or

professionally accepted code[;] conforming to professionally

endorsed principles and practices." As discussed below,

Mr. Epstein's behavior violated the generally - accepted standards

for the education profession in Florida.

64. Florida Administrative Code Rule 6B - 1.006, Principles

of Professional Conduct for the Education Profession in Florida,

provides in pertinent part:

(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.

* * *

(4) Obligation to the public requires that

the individual:

* * *

(c) Shall not use instituti onal privileges

for personal gain or advantage.

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

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

violated Rule 6B - 1.006(3)(a). Contrary to his obligation to

protect his students, M r. Epstein created conditions that were

potentially harmful to his students' learning and mental health

and safety. The precautions Mr. Epstein took to ensure that

neither students nor school staff members were aware that he

downloaded and viewed pornogra phic videos and masturbated in his

classroom were taken to protect himself, not others.

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

has also proven by a preponderance of the evidence that

Mr. Epstein violated Rule 6B - 1.006(4)(c). Mr. Epste in

appropriated for his own use a computer owned by the school

district and placed in his classroom for instructional and

academic purposes and viewed pornographic videos and masturbated

during his workday, when he was being paid to prepare lessons

and gat her instructional material. Mr. Epstein, therefore,

misused his institutional privileges for his own personal

gratification and denied the school system the benefit of his

attention to his responsibilities during the workday.

67. Although the School Boar d has established that

Mr. Epstein violated Florida Administrative Code Rules 6B -

1.001(2) and (2) and 6B - 1.006 (3)(a) and (4)(c), it must also

establish that Mr. Epstein's conduct was "so serious as to

impair the [his] effectiveness in the school system." The court

in Purvis v. Marion County School Board , 766 So. 2d 492, 498

(Fla. 5th DCA 2000), concluded that some conduct is so serious

that, even without a public scandal or evidence of impaired

effectiveness, it can appropriately be inferred that a teache r's

effectiveness in the school system has been impaired. In

Purvis , the teacher lied under oath and resisted arrest, and the

court found that, because the offense undermined the teacher's

trustworthiness, his impaired effectiveness in the school system

c ould be inferred. See id. ; Walker v. Highlands County School

Board , 752 So. 2d 127 (Fla. 2d DCA 2000)(impaired effectiveness

can be inferred when conduct is sufficiently serious; court

distinguished situation where conduct took place at school from

one in which conduct was private). In this case, Mr. Epstein

showed such a profound lack of good judgment that it is

appropriate to infer that his effectiveness in the school system

was impaired.

Immorality

68. In Count III of the Notice of Specific Charges, the

School Board charged Mr. Epstein with immorality. Florida

Administrative Code Rule 6B - 4.009(2) provides in pertinent part:

(2) Immorality is defined as conduct that

is inconsistent with the standards of public

conscience and good morals. It is condu ct

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.

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

proven that Mr. Eps tein's conduct was not consistent "with the

public conscience and good morals." The School Board has,

nonetheless, failed to prove that Mr. Epstein is guilty of

immorality because it has failed to prove that his conduct was

notorious.

69. Webster's Third New International Dictionary,

Unabridged (2002) defines "notorious" as "widely and unfavorably

known or discussed for something reprehensible or scandalous or

for some negative quality or trait." In this case, due to the

efforts of Ms. de Leon and other School Board employees,

apparently only a few School Board employees know of

Mr. Epstein's conduct.

Mitigation

70. Mr. Epstein suggests that, in consideration of certain

mitigating factors, a penalty of 30 - days' suspension without pay

would be the approp riate discipline in this case. Mr. Epstein

presented uncontroverted evidence establishing that, when the

addresses for pornography web sites were discovered on his

classroom computer, he readily confessed that he downloaded and

viewed pornographic videos, and he was cooperative during the

investigation by the Miami - Dade County Public Schools police.

The uncontroverted evidence also establishes that, since

December 2003, Mr. Epstein has been in therapy with a mental

health counselor for a sexual disorder a nd that the mental

health counselor believes that Mr. Epstein is motivated to

continue in therapy. On the other hand, the uncontroverted

evidence also establishes that Mr. Epstein cannot control his

need to view pornography.

71. The School Board is respo nsible for ensuring the

safety of the children entrusted to the Miami - Dade County Public

Schools, and the issue in this case is whether the School Board

should continue Mr. Epstein's employment as an elementary school

teacher. Having considered all of the evidence presented by

Mr. Epstein, including his history of satisfactory teaching

performance and his lack of prior discipline, it is concluded

that the seriousness and duration of Mr. Epstein's conduct, as

well as his inability to exercise good judgment even when he

knew that his actions violated School Board rules and could

jeopardize his job, warrants dismissal from his employment with

the School Board.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

enter a final order finding that Daniel J. Epstein committed

misconduct in office and that he should be dismissed from his

employment as a teacher pursuant to Section 1012.33(4)(c),

Florida Statutes.

DONE AND ENTERED t his 26th day of May, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA HART MALONO

Administrative Law Ju dge

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 26th day of May, 2004.

ENDNOTES

1 / Unless otherwise noted, citations to the Florida Statutes are

to the 2003 edition.

2 / On May 3, 2004, the date the parties' proposed recommended

orders were due to be filed, Mr. Epstein's attorney, Leslie

Holland, teleph oned this office and stated that, due to a

medical emergency involving herself and her daughter, she would

not be able to file Mr. Epstein's proposed recommended order on

that date. Ms. Holland requested a one - day extension of time

for filing the proposal , which was granted over the School

Board's objections. Ms. Holland's proposal was received at the

Division of Administrative Hearings at 7:38 p.m. on May 4, 2004,

and is considered timely.

3 / The School Board conceded at the final hearing that it did

n ot question Mr. Epstein's teaching ability.

4 / Students were dismissed from school at 3:00 p.m. every day

except Wednesday, when they were dismissed at 2:00 p.m.

Teachers were dismissed every day at 3:20 p.m. Teachers were

expected to use the time afte r the students were dismissed as

planning time.

5 / His classroom had no windows.

6 / According to Mr. Epstein, the videos showed "scenes of oral

sex (a woman servicing a man)." Petitioner's Exhibit 7.

7 / This perception was based on the reaction of p arents and the

community to an incident involving a teacher at another

elementary school located near Twin Lakes Elementary. Parents

protested at the elementary school, and Telemundo, a Spanish -

language television network, broadcast the protest. School w as

disrupted for several days, and, although the teacher involved

was not terminated, she was transferred to another school and

ultimately forced to retire because of the parents' protests.

8 / Transcript at page 59.

9 / Mr. Epstein continued teaching at Twin Lakes Elementary

through June 9, 2003. He was assigned to one of the School

Board's regional offices from June 10, 2003, until the end of

the 2002 - 2003 school year.

10 / The DSM - IV (Diagnostic and Statistical Manual - IV) does not

contain a diagnosi s of "sexual addiction" or "addiction to

pornographic material," and Dr. Plasencia opined that either

"sexual disorder not otherwise specified" or "impulse control

disorder" accurately describes Mr. Epstein's problem.

11 / Dr. Plasencia, whose doctorate is in "Interdisciplinary Arts

and Sciences, Specialization in Marriage and Family Therapy,"

testified that "Zoloft has the effect of helping with depressive

feelings, helping with anxiety feelings, which may very well be

at the very, very root of the cause o f Mr. Epstein's addiction."

Transcript at page 131. Dr. Plasencia also stated that one of

the side effects of Zoloft was a decrease in sexual desire,

which would help Mr. Epstein; Dr. Plasencia acknowledged,

however, that not every patient experiences th is side effect.

This testimony is too vague and qualified to support a finding

that Mr. Epstein currently has his addiction to pornography

under control.

12 / Dr. Plasencia also stated that, in his professional opinion,

Mr. Epstein does not pose a threat to children: "I don’t

believe that he is a pedophile. I don’t believe that that

excites him at all. I don’t believe that that's the focus of

any of his fantasy. It's not in his particular profile."

Transcript at page 136. It is uncontroverted that Mr . Epstein

is not a pedophile and does not view pornography containing

children. The School Board did not, however, base its charges

against Mr. Epstein on such allegations that he posed a threat

to children in the sense meant by Dr Plasencia. Accordingly ,

Dr. Plasencia's opinion on this point is largely irrelevant to

the issues presented in this case.

13 / Transcript at page 144

14 / Petitioner's Exhibit 5 (Mr. Epstein's statement of

September 29, 2003).

COPIES FURNISHED:

Madelyn P. Schere, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Leslie Holland, Esquire

801 Northeas t 167th Street, Second Floor

North Miami Beach, Florida 33162

Merrett R. Stierheim, Interim Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132 - 1394

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Honorable Jim Horne, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.