06-001072 Miami-Dade County School Board vs. Nestor Varona Status: Closed Recommended Order on Friday, June 15, 2007.

Summary: Respondent submitted a transcript showing college course credits to Petitioner`s Certification Office, when he had not expended any academic effort in coursework, and therefore committed misconduct in office. Recommend that his employment be terminated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 06 - 1072

)

NESTOR VARONA, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on Octob er 19, 2006, by video teleconference, with the parties

appearing in Miami, Florida, before Patricia M. Hart, a duly -

designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For P etitioner: Jean Marie Middleton, Esquire

School Board of Miami - Dade County

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Mark F. Kelly, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

STATEMENT OF THE ISSUE

Whether the Respondent committed the violat ions alleged in

the Notice of Specific Charges served April 19, 2006, and, if

so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In a letter dated March 16, 2006, the Miami - Dade County

School Board ("School Board") notified Nestor Varona, a teac her

employed by the School Board, that it had suspended him and

initiated dismissal proceedings against him for just cause. The

letter stated as grounds for the School Board action against

Mr. Varona misconduct in office, immorality, lack of good moral

ch aracter, violation of School Board Rules 6Gx13 - 4A - 1.21 and

6Gx13 - 4A - 1.213 , and violation of Florida Administrative Code

Rules 6B - 1.001(3) and 6B - 1.006(5). The School Board noted in

its letter that it was exercising the authority granted in

Sections 1012.3 2 and 1012.33, Florida Statutes (2004) 1 . In a

four - count Notice of Specific Charges served April 19, 2006, the

School Board included the factual basis for its decision,

alleging as follows: "Mr. Varona admitted that he paid for and

received an envelope w ith transcripts for college credit from

Eastern Oklahoma State College and submitted those transcripts

to the District when he knew that he had not attended any

classes or completed any coursework to earn the college

credits." Mr. Varona timely requested a formal administrative

hearing, and the School Board transmitted the matter to the

Division of Administrative Hearings for assignment of an

administrative law judge. Pursuant to notice and after several

continuances, the final hearing was held on October 19, 2006.

At the hearing, the School Board presented the testimony of

Mr. Varona and of Lucy Iturrey; Petitioner's Exhibits 1

through 21 were offered and received into evidence. Mr. Varona

testified in his own behalf, and Respondent's Exhibit 1 was

offer ed and received into evidence.

The transcript of the proceedings was filed with the

Division of Administrative Hearings on March 20, 1007, and the

parties timely submitted 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 - constitu ted 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; § 1001.32,

Fla. Stat. (2004).

2 . Mr. Varona was employed as a sc hool security monitor in

October 1990. In October 1996, the School Board hired

Mr. Varona as a fine arts teacher, and he continued as a full -

time teacher until his full - time status was terminated in

June 2003, when his second non - renewable temporary teach ing

certificate expired. Mr. Varona was re - hired by the School

Board as a temporary instructor in August 2004, and continued

working for the School Board as a classroom instructor until he

was suspended in March 2006.

3 . At the times material to this pro ceeding, Mr. Varona

was a member of the United Teacher s of Dade, which had entered

into a Collective Bargaining Agreement ("Agreement") with the

School Board, effective July 1, 2003, through June 30, 2006.

Article V, Section 1 of the Agreement provides th at the School

Board can dismiss employees only for just cause. Article XXI,

Section 1.a. of the Agreement provides that the School Board can

suspend or dismiss instructional employees during the school

year if the charges against him or her are based on F lorida

Statutes. Finally, Article XXI, Section 2 of the Agreement

provides that dismissals are to be effectuated in accordance

with the Florida Statutes, including Chapter 120, Florida

Statutes.

4 . Prior to the expiration of his temporary teaching

certif icate, Mr. Varona began his efforts to qualify for a

permanent Florida Educator's Certificate. 2 He decided to take

coursework through an entity named Moving on Toward Education

and Training ("MOTET"), which was operated by Dr. William

McCoggle, a teacher and coach at Palmetto Senior High School in

Miami, Florida. Mr. Varona learned through colleagues who had

participated in the program that Dr. McCoggle and MOTET offered

courses for which teachers could obtain college credit that

could be used to satisfy the requirements for certification.

5 . Mr. Varona telephoned Palmetto Senior High School and

inquired about certification courses. He was directed to

Dr. McCoggle, who told Mr. Varona where and at what time he

needed to appear to register for courses.

6 . Mr. Varona arrived at Palmetto Senior High School at

the appointed time and met with Dr. McCoggle. There were

several other teachers present at the time. Mr. Varona obtained

information on the classes and was told by Dr. McCoggle to come

the next week and bring a document showing the courses that he

needed to take, since Mr. Varona had already taken coursework at

Florida International University and Miami - Dade Community

College.

7 . Mr. Varona returned the following week and brought the

information Dr. McCoggle had requested. He registered for three

or four classes and paid Dr. McCoggle and MOTET $2,000.00 as

tuition.

8 . When Mr. Varona went to Palmetto Senior High School for

the third time, Dr. McCoggle gave him a sealed, white envelope

and told him t o take the envelope and turn it in, unopened, at

the School Board's Certification Office.

9 . Mr. Varona gave the unopened envelope to Ruby Howard at

the School Board's Certification Office. The envelope contained

a transcript showing credit for college c ourses from Eastern

Oklahoma State College.

10 . Mr. Varona did not attend any classes, complete any

assignments, take any tests, or engage in any academic effort

whatsoever to obtain the college credits reflected on the

transcript from Eastern Oklahoma St ate College.

11 . At the times material to this proceeding, Mr. Varona

had substantial family responsibilities and was in poor health,

and he decided at some point that he was going to leave the

teaching profession and would not pursue a permanent Florida

Educator's Certificate. He was, however, at the times material

to this proceeding, a classroom teacher employed by the School

Board.

12 . Although he was later notified that the college

credits he had submitted to the Certification Office were no

good and that he would be entitled to a small refund of the

money he paid for the classes, he did not pursue the matter

further because of his decision to leave teaching and not pursue

permanent certification.

13 . The activities of Dr. McCoggle and MOTET and the

Miami - Dade County school teachers who obtained credit without

attending classes or making any academic effort were the subject

of a grand jury investigation and report, filed July 18, 2005,

that was submitted to the Superintendent of the Miami - Dade

County school system. Mr. Varona's name was included in the

list of 106 teachers who had submitted transcripts showing

college credit for classes they had not attended, and the School

Board initiated investigations of each of these teachers.

14 . The matter was widely reported in the local

newspapers.

15 . The evidence presented by the School Board is

sufficient to establish that Mr. Varona committed misconduct in

office and an act of immorality. Although Mr. Varona denied

having knowingly submitted false colleg e credits to the School

Board's Certification Office for purposes of accumulating

credits toward his professional certification, his denials are

not persuasive. Under the circumstances, he should have known

that the envelope contained a transcript showing college course

credit and he knew he had made absolutely no academic effort to

obtain those credits. Mr. Varona's testimony that he asked

Dr. McCoggle on numerous occasions when the classes would be

held is, likewise, unpersuasive; after a time he must h ave

realized that there would be no classes held, and his failure to

withdraw the Eastern Oklahoma State College transcript from the

Certification Office supports the reasonable inference that he

intended these credits to be applied toward professional

cer tification.

CONCLUSIONS OF LAW

16 . 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 (2006).

17 . Because this case is a proceeding to terminate

Mr. Varona'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 preponderance of the e vidence. 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).

18 . The School Boa rd charged Mr. Varona in Count I of the

Notice of Specific Charges with violation of School Board

Rules 6Gx13 - 4A - 1. 21 ; in Count II with lack of good moral

character in violation of Section 1012.32(1), Florida Statutes,;

in Count III with a violation of 6Gx 13 - 4A - 1. 213 and of Florida

Administrative Code Rules 6B - 1.001 and 6B - 1.006; and in Count IV

with misconduct in office.

19 . Section 1012.33, Florida Statutes, sets out the

grounds on which instructional personnel on professional service

contracts may be su spended and dismissed and 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 only for just ca use.

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: misconduct

in office, incompetency, gross

insubordination, willful neglect of duty, or

conviction of a crime involving moral

turp itude.

* * *

6)(a) Any member of the instructional

staff, excluding an employee specified in

subsection (4) [employees under continuing

contracts] , may be suspended or dismissed at

any time during the term of the contract for

just cause as provided in p aragraph (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; but, if the charges

are not sustained, the employee shall be

immediately reinstated, and his or her back

salary shall be paid. If the employee

wishes to contest the charges, the employee

must, within 15 days after receipt of the

written notice, submit a written request for

a hearing.

20 . The definitions of the categories of "just cause"

id entified in Section 1012.33(1)(a), Florida Statutes, are

defined in Florida Administrative Code Rule 6B - 4.009 and provide

"[t]he basis for charges upon which dismissal action against

instructional personnel may be pursued are set forth in

Section 231.36, F lorida Statutes [now codified in

Section 1012.33, Florida Statutes]." Before addressing the

violations alleged against Mr. Varona, however, it is necessary

to conform the charges set out in the Notice of Specific Charges

to the categories of "just cause" identified in

Section 1012.33(1)(a), Florida Statutes.

21 . Violations of School Board rules do not, of

themselves, constitute just cause to suspend or dismiss an

employee pursuant to Section 1012.33(1)(a) and (6)(a), Florida

Statutes. 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 school board. . . ." There is nothing in the

Florida Statutes that indicates that School Board employees are

subject to suspension or dismissal for failing to adhere to this

statutory directive unless the violation of School Board rules

falls within one of the categories of "just cause" set forth in

Section 1012.33(1)(a) and (6)(a), Florida S tatutes. In this

case, the School Board rules that Mr. Varona allegedly violated

fall within the definition of "misconduct in office" found in

Florida Administrative Code Rule 6B - 4.009(3), and the charges

against him will be treated as a charge of miscond uct in office.

Misconduct in office

22 . "Misconduct in office is defined as a 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 Flor ida 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. " Fla. Admin. Code R. 6B -

4.009(3).

23 . Florida Administrative Code Rule 6B - 1.001, the 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 exerci se 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 hi ghest

degree of ethical conduct.

24 . Florida Administrative Code Rule 6B - 1.006, the

Principles of Professional Conduct for the Education Profession

in Florida, provides in pertinent part:

(1) The following disciplinary rule shall

constitute the Principl es 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.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

* * *

(h) Shall not submit fraudulent information

on any document in connection with

professional activities.

2 5 . 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, Florida are

representat ives 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.

26 . School Board Rule 6Gx13 - 4A - 1.213 , which is the School

Board's Code of Ethics, incorporates by reference and makes

applicable to all of the School Board's employees the Code of

Ethics of the Education Profession in Florida.

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

has p roven by a preponderance of the evidence that, by

submitting to the School Board's Certification Office a

transcript that he should have know contained college course

credit for which he expended no academic effort, Mr. Varona did

not exercise the best pro fessional judgment and integrity, did

not maintain hones ty in all professional dealings, and submitted

fraudulent information on to the Certification Office . The

School Board has, therefore, proven by a preponderance of the

evidence that Mr. Varona violat ed Florida Administrative Code

Rule 6B - 1.001(2) and (3); School Board Rule 6Gx13 - 6A - 1. 213 , and

Florida Administrative Code Rule 6B - 1.006(5)(a) and (h).

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

has also proven by a preponderance of the ev idence that

Mr. Varona 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

pr ofessionally accepted code[;] conforming to professionally

endorsed principles and practices." Mr. Varona's behavior

violated the generally - accepted standards for the education

profession in Florida.

29 . Although the School Board has met its burden of

es tablishing that Mr. Varona violated Florida Administrative

Code Rules 6B - 1.001(2) and (3), School Board Rule 6Gx13 - 4A.213 ,

and 6B - 1.006 (5)(a) and (h), it must also establish that

Mr. Varona's conduct was "so serious as to impair the [his]

effectiveness in the school system" in order to establish that

Mr. Varona committed misconduct in office. Based on the

findings of fact herein, the School Board has proven by a

preponderance of the evidence that Mr. Varona's effectiveness in

the school system was impaire d. The general scheme of providing

Miami - Dade County school system teachers with college course

credit without their having to expend an y academic effort was

widely known in the community, and Mr. Varona's name was

included in a list of those teachers par ticipating in the scheme

appended to the Grand Jury Report issued July 18, 2005.

Mr. Varona's honesty, integrity, and trustworthiness were,

therefore, called into question and he could not longer reflect

credit on himself or 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 teacher's effecti veness

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 could be

inf erred. 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 cond uct was private). In this case, Mr. Varona's

behavior was such that it is appropriate to infer that his

effectiveness in the school system was impaired.

Lack of good moral character

30 . The School Board has also cites lack of good moral

character as a b asis for dismissing Mr. Varona from his

employment as a teacher. Section 1012.32( 1) , Florida Statutes ,

provides in pertinent part: "T o be eligible for appointment in

any position in any district school system, a person shall be of

good moral character; sh all have attained the age of 18 years,

if he or she is to be employed in an instructional capacity; and

shall, when required by law, hold a certificate or license

issued under rules of the State Board of Education or the

Department of Children and Family S ervices, . . . ." Neither

Section 1012.32(1) nor Section 1012.33(1)(a), Florida Statutes,

identifies "good moral character" as a basis for the suspension

or dismissal of a teacher employed under a professional service

contract. Finally, and significantly , "immorality" as a basis

for suspension or dismissal applies only to School Board

personnel employed under a continuing contract, which does not

apply to Mr. Varona. Cf. § 1012.33(4)(a) and § 1012.33(1)(a),

Fla. Stat. "Lack of good moral character" cann ot, therefore, be

a basis for dismissing Mr. Varona.

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 finding that Nestor Varona violated

Section 1 012.33(1)(a) and (6)(a), Florida Statutes, by

committing misconduct in office and dismissing Mr. Varona from

his employment.

DONE AND ENTERED this 15th day of June, 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA M. HART

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Build ing

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 15th day of June, 2007.

ENDNOTES

1 / All references herein to the Florida Statutes are to the 2004

edition unless otherwise noted.

2 / It is noted that the record is virtually silent as to the

dates material to this proceeding.

COPIES FURNISHED:

Jean Marie Mi ddleton, Esquire

School Board of Miami - Dade County

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

Nestor Varona

14820 Southwest 63 Street

Miami, Florida 33193

Mark F. Kelly, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

Dr. Rudolph F. Crew, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, No. 912

Miami, Florida 33132 - 1394

Jeanine Blomberg, Interim Commissioner

Department of Education

Turlingto n Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

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.