05-000011 Miami-Dade County School Board vs. Orlando Chavez Status: Closed Recommended Order on Tuesday, April 12, 2005.

Summary: Respondent cut the computer speaker wires to prevent student misconduct. Recommend a one-week suspension and payment of repair costs as an appropriate discipline for his conduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0011

)

ORLANDO CHAVEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on March 9, 2005, by means of a vide o teleconference link

between Tallahassee and Miami, Florida, before Administrative

Law Judge Michael M. Parrish, of the Division of Administrative

Hearings. The parties were represented at the hearing as

follows:

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

Alex Diaz, Certified Legal Intern

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUES

The issues in this case are whether the Respondent

committed the violations alleged in the Notice of Specific

Charges and, if so, a determination of the appropriate penalty

for such violations.

PRELIMINARY STATEMENT

This case began on December 15, 2004, w hen the School Board

of Miami - Dade County, Florida (Board or School Board), took

action to suspend the Respondent Orlando Chavez without pay for

thirty workdays. The Respondent filed a request for hearing

pursuant to Section 1012.33(6)(a), Florida Statute s, which was

received by the Board on January 3, 2005. The case was promptly

referred to the Division of Administrative Hearings on

January 4, 2005; and on January 11, 2005, the Board furnished

its Notice of Specific Charges to the Respondent. These char ges

alleged that the Respondent was guilty of misconduct in office,

as that term is defined by Florida Administrative Code Rule 6B -

4.009 and that the Respondent had violated School Board Rule

6Gx13 - 4A - 1.21 .

At the hearing, the Board presented the testimony of the

following witnesses: Orlando Chavez, the Respondent; Reinaldo

Benitez, District Director in the Board's Office of Professional

Standards (OPS); Monte Benjamin, sales representative for C & C

International, a Dell Computer (Dell) partner and School Board

vendor; Pedro Garcia, a computer technician; Detective Rafael

Gomez, a School Board Police Officer; Alberto Iber, Assistant

Principal; and Lorenzo Ladaga, Principal. The Board’s

Exhibits 1, 2, 4 and 6 through 10 were admitted into evidence.

The Res pondent testified on his own behalf, but did not

call any additional witnesses. The Respondent did not offer any

exhibits.

Neither party ordered a transcript of the final hearing.

Both parties filed timely proposed recommended orders. The

parties' propo sals have been carefully considered during the

preparation of this Recommended Order.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the

documentary evidence received at the hearing, the following

findings of fact are made:

1. The School Board is responsible for the operation of

the public schools within the school district of Miami - Dade

County, Florida.

2. At all times material to the facts of this case, the

Respondent was a teacher employed by the School Board and was

assigned to a publ ic school within the district, Hialeah Senior

High School (Hialeah High).

3. The Respondent has been a teacher employed by the

School Board for years. Respondent possesses a professional

service contract pursuant to Section 1012.33, Florida Statutes.

Th e Respondent is a business education teacher. Prior to the

incident giving rise to this case, the Respondent had not been

the subject of any disciplinary action by his employer.

4. Prior to teaching at Hialeah High, the Respondent had

been teaching adult students at another school. The adult

students were highly motivated to learn and provided little in

the way of classroom discipline problems. In December of 2003,

the Respondent was assigned to teach English for Speakers of

Other Languages (ESOL) class es to high school age students at

Hialeah High. At Hialeah High the Respondent's classes were

populated primarily by students who had very limited proficiency

in the English language and who, for the most part, had very

limited experience in an American c lassroom setting. Many of

the students had only recently arrived from a variety of

Spanish - speaking countries, including Mexico and many Central

and South American countries. These students, both because of

their limited English language skills and their limited exposure

to an American classroom, presented more than the usual

discipline challenges. At the time of the incident giving rise

to this case, the Respondent had been teaching the ESOL classes

at Hialeah High for only a few weeks.

5. A frequently recurring problem in the Respondent's

classroom was that some of the students would use the classroom

computers to play music CDs and would interrupt the rest of the

class by turning up the volume through the external speakers on

the computers. This prob lem apparently came to a head on

January 27, 2004, when an honor student asked the Respondent if

it was necessary for the class to be interrupted by the students

who were playing music CDs on the classroom computers.

6. After school on January 27, 2004, t he Respondent

decided to solve the music problem by cutting the audio wires

that ran from the monitor to the external speakers on each of

the classroom computers. The Respondent chose to cut the audio

wires because the wires were hardwired into the comput er

monitors and could not readily be unplugged. He cut the speaker

wires on at least 25 of the computers in his classroom. The

Respondent's conduct in this regard was not for the purpose of

damaging school equipment, but was a misguided and poorly

though t out effort to prevent further music playing by the

misbehaving students.

7. The cutting of the speaker wires was an inappropriate

way in which to address student misconduct in the classroom.

More appropriate ways to have prevented such misconduct or to

have addressed such misconduct after it occurred would have been

to take such measures as implementing and enforcing classroom

rules when he first began teaching the ESOL classes, making

disciplinary referrals, seeking assistance from the school

administr ation, or assigning misbehaving students to indoor

suspension.

8. Although the computers are operable, they have no

external speakers and, therefore, cannot make loud sounds. The

inability to make loud sounds compromises the extent to which

the computer s can be used for certain applications.

9. The Respondent's acts of cutting the speaker wires were

intentional acts that damaged the computers. Damage to the

computers caused by intentional acts is not covered by the

warranties on the computers.

10. A representative of the Dell computer company examined

the damage to the computers and stated that Dell did not make

repairs to that type of damage. The best solution the Dell

representative could propose was to replace all of the monitors

with cut speaker wires with new monitors that had new external

speakers attached. The Dell representative stated that such

replacement would cost $129.00 per computer.

11. The damage caused by the Respondent's cutting of the

computer wires can be readily and inexpensivel y repaired. The

parts necessary to repair the computers cost about $2.00 for

each computer. The time necessary to repair the damaged

computers is approximately five minutes per computer.

12. The Respondent has already purchased with his own

funds the pa rts necessary to repair all of the computers in his

classroom, and he has delivered those parts to the principal at

Hialeah High. The Respondent volunteered on several occasions

to perform the work necessary to repair the computers he

damaged. The Respon dent's offers to perform the repair work

were declined. For reasons not adequately explained in the

record in this case, the computer technicians at Hialeah High

have not yet repaired the subject computers. It would take

approximately two hours of techni cian time to repair all of the

computers in the Respondent's classroom. The damage to the

computers caused by the Respondent could have been repaired

within a very few days of the date on which the damage occurred.

13. When asked about the damage to the computer wires, the

Respondent readily admitted what he had done and readily

acknowledged that it was a foolish and inappropriate thing for

him to have done. He did not hesitate to accept responsibility

for the consequences of his conduct and, as mentione d above,

bought the necessary parts and offered to do the necessary

repair work.

14. Respondent’s intentional destruction of School Board

property failed to reflect credit upon himself and on the school

system, and showed a lack of professional judgment.

15. On September 21, 2004, the Respondent’s principal and

the assistant superintendent who had authority over Hialeah High

recommended a 30 - work day suspension without pay. The School

Board, at its regularly scheduled meeting of December 15, 2004,

took a ction to suspend the Respondent without pay for 30

workdays.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

case.

17. Section 1012.33, Florida Statutes, provides, in

pertinent part:

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

the instructional staff in any district

school system shall be properly certified

pursuant to s. 1012.56 or s. 1012.57 or

employed pursuant to s. 1012.39 and shall be

entitled to and shall receive a written

contract as specified in this section. All

such contracts, except continuing contracts

as specified in subsection (4), shall

contain provisions for dismissal during the

term of the contract o nly for just cause.

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State of Board of Education:

misconduct in office, incompetency, gross

insubordination, willful neglect of duty, or

conviction of a crime in volving 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). The district school board

must notify the employee in writing whenever

charges are made against the employee and

may suspend such person without pay. . . .

18. The criteria for suspension and dismissal in Florida

Administrative Code Rule 6B - 4.009 include the following:

The basis for charges upon which dismissal

action against instructional personnel may

be pursued are set forth in Section 231.36,

Florida Sta tutes [now recodified at §

1012.33, Fla. Stat.]. The basis for each of

such charges is hereby defined:

* * *

(3) Misconduct in office is defined as

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B -

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C., which is so serious as to

impair the individual’s effectiveness in the

school system.

19. Pertinent provisions of the Code of Ethics of t he

Education Profession in Florida included in Florida

Administrative Code Rule 6B - 1.001 read as follows:

(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 pa rents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct (emphasis added).

20. Florida Administrative Code Rule 6B - 1.006 contains the

Principles of Professional Conduct for the Educat ion Profession

in Florida, which read as follows, in pertinent part:

(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

[emphasis added].

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

part:

RESPONSIBILITIES AND DUTIES

1. 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 in a manner that will

reflect credit upon themselves and the

school system .

22. It appears rather obvious that, by cutting the speaker

wires on at least 25 computers, the Respondent has committed the

violations charged in the Notice of Specific Charges. It is

equally obvious that such violations warrant some form of

disciplin ary action. In cases of this nature, School Boards

have a somewhat broad range of discretion in determining what

disciplinary action should be imposed. In the exercise of that

discretion, School Boards should keep in mind some sense of

proportionality; i .e., in determining the seriousness of the

punishment to be imposed, the School Boards should keep in mind

the seriousness of the violation.

23. Foolish and uncalled for as it was, the Respondent's

conduct at issue here did not cause any serious harm and did not

result in any serious consequences. Although it is true that

the computers in the Respondent's classroom have lacked

functioning external speakers for more than a year, the lengthy

delay in repairing the computers was not a natural consequence

of the Respondent's conduct. Rather, the computers in question

could have been, and should have been, repaired within a matter

of days following the event. During the course of the

investigations into this matter, it appears that School Board

administrators were of the view that they were dealing with a

malicious destructive act that resulted in more than four

thousand dollars worth of damage to school property. In

reality, what we have here is a foolish act born of frustration

that caused only minor damage to the computers, damage that

could have been promptly repaired with a very small expenditure

of money and effort.

24. Upon consideration of all of the foregoing, the

undersigned is of the view that a penalty proportionate to the

severity of the Responde nt's violations is a one - week suspension

without pay and a requirement that the Respondent pay for the

repairs to the computers. (He has already paid for the parts,

but should also be required to pay the reasonable cost of the

computer technician's labor to repair the computers.)

RECOMMENDATION

Based on the foregoing, it is RECOMMEN DED that a final

order be issued in this case suspending the Respondent without

pay for one week and requiring the Respondent to pay for the

cost of the repairs made necessary by his foolish conduct.

DONE AND ENTERED this 12th day of April, 2005, in

Talla hassee, Leon County, Florida.

S

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doa h.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of April, 2005.

COPIES FURNISHED :

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

Madelyn P. Schere, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Dr. Rudolph F. Crew, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132

Honorable John Winn

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399 - 0400

Daniel Woodring, 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 ca se.