08-005402TTS Miami-Dade County School Board vs. Raimundo Modia Status: Closed Recommended Order on Tuesday, June 2, 2009.

Summary: A 30-day suspension without pay is warranted where band director failed to follow field trip protocol.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-5402

)

RAIMUNDO MODIA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted on February 11, 2009, by video teleconference between

Tallahassee and Miami, Florida, before Administrative Law Judge

Claude B. Arrington of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Janene L. Richard, Esquire

Miami-Dade County School Board

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

Whether Petitioner has just cause to suspend Respondent’s

employment for thirty days without pay based on the allegations

in the Notice of Specific Charges.

PRELIMINARY STATEMENT

At its regularly scheduled meeting on October 15, 2008, the

School Board of Miami-Dade County, Florida (the School Board)

voted to suspend the employment of Raimundo Modia (Respondent)

for 30 days without pay based on allegations of misconduct in

office and violation of School Board Rules 6Gx13-4A-1.21

(pertaining to Responsibilities and Duties) and 6Gx13-4A-1.213

(pertaining to the Code of Ethics) and 6Gx13-6A-1.22 (pertaining

to Field Trips). In taking that action, the School Board relied

upon the provisions of Sections 1001.32, 1012.22(1)(f), 1012.33,

and 447.209, Florida Statutes. 1

Respondent timely requested a formal administrative hearing

to challenge the School Board’s action, the matter was referred

to DOAH, and this proceeding followed.

At all times relevant to this proceeding, Respondent was

the band director of Nautilus Middle School (Nautilus). 2 On

January 21, 2009, the School Board filed its Notice of Specific

Charges which alleged certain facts pertaining to an out-of-

state field trip led by Respondent in April 2008 (the subject

Field Trip). Under circumstances to be described below,

Respondent permitted a high school student to participate in the

subject Field Trip with the Nautilus middle school students

without listing the high school student on the subject Field

Trip roster and without obtaining written permission from the

high school student’s parents. Based on those alleged facts,

the School Board alleged that it had just cause to suspend

Respondent’s employment without pay for a period of one month.

At the final hearing, the School Board presented the

testimony of Matthew Welker (former principal of Nautilus);

Dr. Roseann Sidener (principal of Miami Beach Senior High

School); Dr. Allyn Bernstein (principal of Nautilus); Terri

Chester (Investigator for the School Board’s Civilian

Investigation Unit); Paul Greenfield (Director of the School

Board’s North Regional Center); and Joyce Castro (District

Director of the School Board’s Office of Professional

Standards). The School Board’s pre-marked Exhibits 1-10 and

13-30 were admitted into evidence. The School Board withdrew

its pre-marked Exhibits 11 and 12 following objections to those

Exhibits by Respondent.

Respondent testified on his own behalf and offered the

additional testimony of Ruben Coto (the father of two students

who had been taught by Respondent and a chaperone on the subject

Field Trip), and Fred Goldberg (the father of a student taught

by Respondent and a chaperone on the subject Field Trip).

Respondent offered two Exhibits, both of which were admitted

into evidence.

A Transcript of the proceedings, consisting of one volume,

was filed on April 27, 2009. Each party filed a Proposed

Recommended Order, which has been duly-considered by the

undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was the

constitutional entity authorized to operate, control, and

supervise the public schools in Miami-Dade County, Florida.

2. Petitioner has continuously employed Respondent since

1984 as the band director at Nautilus. The band curriculum

taught by Respondent consists of beginning band, concert band,

jazz band, beginning guitar, guitar ensemble, and classical

guitar ensemble. Respondent runs a very good band program at

Nautilus. Ms. Bernstein, the current principal at Nautilus,

opined that Respondent has done a remarkable job with his band

students.

3. Throughout his 24 years at Nautilus, Respondent has

taken hundreds of field trips both in-state and out-of-state

with band students. As a result of these trips, Respondent is

fully aware of the paperwork required by the School Board to

authorize band students to go on field trips. With the

exceptions to be discussed below, Respondent has correctly

filled out the required paperwork and has otherwise complied

with School Board policies pertaining to field trips.

4. The School Board has developed specific field trip

procedures that have been adopted as School Board Rule 6Gx13-6A-

1.22 (Field Trips). The rule provides, in relevant part, as

follows:

Trips for students are permitted which

have value in meeting educational

objectives, are directly related to the

curriculum . . .

In the planning of field trips, absences

from school should be restricted to the

least number of school days possible. The

educational purpose and length of the filed

trip must be approved by the principal.

Provisions for students to make up

assignments for classes missed due to

participation in field trips must be in

accordance with procedures outlined in Board

Rule 6Gx-5A-1.04 - - Student Attendance. A

signed parental permission form must be on

file at the school prior to student’s

participation.

. . . A roster is to be submitted along

with the field trip application request that

includes the names, addresses and telephone

numbers of all students who are eligible to

participate in the field trip regardless of

the student’s decision to participate in

said trip. . . .

5. The School Board has also adopted a Field Trip

Handbook, which sets forth the responsibilities of the field

trip sponsor under the heading “Sponsor’s Responsibilities”

(Petitioner’s Exhibit 25, at Bates stamp page 168). Among the

delineated Sponsor’s Responsibilities, the sponsor is to secure

completed and signed parent permission form from each student

who will participate in the field. The sponsor is to place

emphasis on complete medical information. The sponsor is to

ensure that all chaperones have available and accessible to them

during the trip a copy of all parental permission forms with

emergency contact information.

2005 Field Trip

6. Matthew Welker served as principal of Nautilus during

the 2004-2005 school year. During the Spring term of the 2004-

2005 school year, Respondent sponsored a field trip for the

Nautilus band to attend a music festival in Tennessee. Prior to

the field trip, Mr. Welker was informed by parents of band

students that Respondent intended to take one or more high

school students on the field trip. Mr. Welker met with

Respondent prior to the field trip to remind him of the field

trip procedures and further advised him that he should arrange

to ensure that only Nautilus students attend the festival.

7. While the field trip was in progress, Mr. Welker

learned that Respondent had permitted a former Nautilus band

student to participate in the festival with the Nautilus band.

The former Nautilus student was in high school when he was

permitted to participate in the festival with the Nautilus band.

Prior to seeing him at the festival, Respondent did not know

that the former Nautilus student, who had traveled to the

festival independently of the Nautilus band, would be at the

festival. Respondent did not violate the festival rules by

permitting the former student to participate in the festival.

8. On or about May 31, 2005, following Respondent’s return

to Nautilus, Mr. Welker conducted a “Conference for the Record”

with Respondent, which was memorialized by a Memorandum

(Petitioner’s exhibit 1). 3 The Memorandum provides, in relevant

part, as follows:

. . . On Friday, August 13, 2004, you

received documentation and in-service

training regarding District and school site

Field Trip procedures.

On Friday, April 15, 2005, I conducted a

personal conversation in my office with you

regarding information that I received

regarding the possibility that two former

Nautilus Middle School students who are

currently enrolled at Miami Beach High

School would be participating with our

students at the Smokey Mountain Music

Festival in Tennessee. You indicated that

you needed their presence to fill out the

band. I stated to you that these students

were not authorized to participate in the

field trip nor were they eligible to

participate in the festival as

representatives of Nautilus Middle School.

I further stated to you that no student or

person who is not enrolled or directly

affiliated with Nautilus Middle School may

attend or participate in the festival. You

stated that you understood.

On April 29, 2005, I received information

regarding the presence of a Miami Beach

Senior High School student who was allowed

by you to participate in the festival

competition representing Nautilus Middle

School. The student was also allowed to

represent the school in both the ensemble

and solo musical performances.

On Wednesday, May 11, 2005, I questioned

you regarding the participation of the

students and you confirmed the fact the

student was present at the festival and

participated in performances representing

Nautilus Middle School. I asked why you

permitted the student to attend and perform

after I gave you specific directions to the

contrary. You responded that you needed the

student to fill out the band.

* * *

Action Taken

1. You were advised that this incident

represents a violation of School Board Rule

6Gx-4A-1.21 Responsibilities and Duties.

2. You were directed to follow all School

Board and school-site rules and policies

regarding field trips.

3. You were directed that no student who

is not enrolled as a seventh or eighth grade

student at Nautilus Middle School may

participate in any extra-curricular

activity, co-curricular activity,

performance, or field trip.

These directives remain in effect as of

the date of the conference and are restated

to prevent adverse impact to the operation

of the work unit and the services provided

to students. Any non-compliance by you with

respect to these directives will necessitate

further review and the possible imposition

of disciplinary measures. . . .

Copies of the following documents were given

to you and discussed at the conference:

Miami-Dade County School Board Rule 6Gx-

4A-1.21 Responsibilities and Duties

The Code of Ethics of the Education

Profession in Florida

Field Trip Procedures

Common sense suggestion for instructional

personnel . . .

9. The Memorandum also contained the following statement:

You were advised that the information

presented in the conference is confidential

and you were directed not to disclose or

discuss the information presented with

students and staff.

10. The Memorandum contains no statement that the

Respondent had been reprimanded or otherwise disciplined because

of the 2005 field trip.

2008 Field Trip

11. Respondent sponsored the subject Field Trip for

certain members of the Nautilus band to the Fiesta Val National

Festival in Gatlinburg, Tennessee, in April 2008. The subject

Field Trip left on Wednesday, April 23, 2008, and returned on

Sunday, April 27, 2008. The Nautilus band participants

consisted of members of the following: the concert band, jazz

band, guitar ensemble, and classical guitar ensemble. The

participants included Respondent, the band students, and

volunteer, adult chaperones.

12. Respondent, his students, and parents of band members

began planning for the trip in October 2007. Fund raisers were

held to help defray the costs of the trip. Respondent and the

band members worked hard to prepare for the trip.

13. As the sponsor of the subject Field Trip, Respondent

was required to complete several forms, including a Field Trip

Request Form, a Field Trip Chaperone List, Field Trip Permission

Request Form, Travel Expense Report, and a Field Trip Roster.

14. The Field Trip Permission Request Form (School Board’s

Exhibit 7) includes the following statement:

PARENT PERMISSION SLIPS for participating

students must be on file in the Office of

the Principal prior to the field trip.

[Emphasis is in the original.]

15. Both the School Board Rule on field trips and the

Field Trip Handbook clearly require a signed parental permission

form for each participating student prior to the field trip.

16. The parental permission forms for the subject Field

Trip required the parent or guardian to give permission for the

student to participate in the subject Field Trip, provide

emergency contact information, and authorize medical treatment

for the student in the event of accident or illness. 4

17. The Field Trip Roster, which identifies all student

participants, is used to excuse the days the students are absent

from school because of the field trip.

18. As of the afternoon of April 22, 2008, Respondent had

completed or otherwise secured all appropriate paperwork. The

subject Field Trip had been approved by Dr. Bernstein as the

principal of Nautilus and by the appropriate Regional Director.

19. At approximately 3:00 p.m. on April 22, 2008,

Respondent heard that a drummer who had been scheduled to go on

the subject Field Trip may have gotten into trouble. Because he

was packing musical instruments and equipment for the trip,

Respondent did not further investigate. Between 4:30 p.m. and

5:15 p.m. on April 22, 5 Dr. Bernstein reached Respondent on his

cell phone and informed him that a band member who played drum

for the jazz band and the guitar ensemble had been suspended

from school (the suspended drummer) and would not be permitted

to go on the subject Field Trip, which was scheduled to leave

early the next day. Dr. Bernstein stated that Respondent would

have to find one of his other students to fill in.

20. The jazz band and the guitar ensemble could not have

performed without a replacement for the suspended drummer. The

concert band and the classical guitar ensemble could have

performed without the suspended drummer.

21. Shortly after his conversation with Dr. Bernstein on

the afternoon of April 22, 2008, Respondent began receiving

calls from parents of band students who were worried that the

subject Field Trip would be cancelled. Rueben Coto, a band

parent and volunteer chaperon for the subject Field Trip, called

Respondent between 5:30 and 6:00 p.m. on April 22. Respondent

was uncertain as to what would happen and stated to Mr. Coto:

“Look, I don’t think we’re going to be able to pull this off

because we don’t have a drummer. We can’t perform without a

drummer.” (Transcript, page 157, beginning at line 14).

22. Mr. Coto located a replacement drummer for the

suspended drummer. The replacement drummer (a male) was an ex-

Nautilus band member who in April 2008 was a senior at Miami

Beach Senior High School. Respondent told Mr. Coto to get

something in writing from the replacement drummer’s parents

giving permission for the replacement drummer to go on the

subject Field Trip. The replacement drummer’s mother never gave

written permission for her son to go on the subject Field Trip.

Mr. Coto did not follow up on Respondent’s request to obtain

written permission from the replacement drummer’s mother.

23. On the morning of April 23, 2008, Respondent knew that

the replacement drummer’s mother had not signed a written

parental permission form. 6 Respondent did not attempt to contact

Dr. Bernstein or any other administrator after learning that the

replacement drummer did not have written permission to

participate in the subject Field Trip. Respondent permitted the

replacement drummer to travel with the other students on the bus

to and from Tennessee and to participate in certain of the

activities of the Fiesta Val.

24. While the subject Field Trip was in progress,

Dr. Sidener, principal of Miami Beach Senior High, received a

complaint from the band director at her school that the

replacement drummer was absent from school and did not attend

band rehearsal because he was on the subject Field Trip.

Dr. Sidener immediately called Dr. Bernstein to determine

whether she knew that the replacement drummer was participating

in the subject Field Trip.

25. Dr. Sidener did not excuse the replacement drummer’s

absences from Miami Beach Senior High for the school days on

which the replacement drummer participated in the subject Field

Trip. The subject Field Trip was unrelated to the replacement

drummer’s curriculum at Miami Beach Senior High.

26. The subject Field Trip participants returned to Miami

as scheduled on April 27, 2008.

27. Prior to Dr. Sidener’s call, Dr. Bernstein was unaware

that the replacement drummer was on the subject Field Trip.

Respondent did not inform Dr. Bernstein before or during the

subject Field Trip that the replacement drummer would be

participating in the subject Field Trip.

28. Immediately after Dr. Sidener’s call, Dr. Bernstein

requested that the School Board’s Civilian Investigation Unit

(CIU) conduct an investigation as to the replacement drummer’s

participation in the subject Field Trip. 7

29. The CIU investigation report was forwarded to the

School Board’s Office of Professional Standards (OPS) for a CFR

with Respondent. After the CFR, OPS sought input as to the

appropriate discipline from Dr. Bernstein and Mr. Greenfield

(the Administrative Director for the North Regional Center).

OPS convened a disciplinary review team, which reviewed all

available information. The disciplinary review team recommended

to the Superintendent that Respondent’s employment by suspended

without pay for 30 days. Following his review, the

Superintendent adopted the recommendation from the disciplinary

review team and forwarded the recommendation to the School

Board. At its meeting of October 15, 2008, the School Board

voted to suspend Respondent’s employment for a period of 30 days

without pay.

30. The School Board followed all relevant procedures

leading up to its vote to discipline Respondent by suspending

his employment for 30 days. Although Respondent has served his

30-day suspension without pay, Respondent timely requested a

formal administrative hearing to challenge the suspension.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties to this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

32. Because Petitioner seeks to suspend without pay

Respondent’s employment and does not involve the loss of a

license or certification, Petitioner has the burden of proving

the allegations in its Administrative Complaint by a

preponderance of the evidence, as opposed to the more stringent

standard of clear and convincing 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).

33. 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)).

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

Petitioner has charged Respondent with “misconduct in office.”

The State Board has defined the term “misconduct in office” by

Florida Administrative Code Rule 6B-4.009(3), as follows:

(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, 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.

35. In prosecuting Count I, Petitioner relies on Florida

Administrative Code Rule 6B-1.001, which sets forth the Code of

Ethics of the Education Profession in Florida, as follows:

(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.

36. In prosecuting Count 1, Petitioner also relies on

Florida Administrative Code Rule 6B-1.006, which sets forth the

Principles of Professional Conduct for the Education Profession

in Florida and provides, in relevant part, as follows:

(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.

* * *

(4) Obligation to the public requires

that the individual:

* * *

(b) Shall not intentionally distort or

misrepresent facts concerning an educational

matter in direct or indirect expression.

(c) Shall not use institutional

privileges for personal gain or advantage.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

37. It is appropriate to discuss the violations alleged in

Counts II, III, and IV before determining whether Respondent is

guilty of misconduct in office as that term is defined by State

Board rules.

38. There can be no meaningful debate as to whether

Respondent's failure to comply with the Field Trip protocol

constituted a violation of School Board Rule 6Gx13-6A-1.22

(pertaining to Field Trips), as alleged in Count IV of the

Notice of Specific Charges. The failure clearly constituted a

violation of the rule pertaining to Field Trips.

39. The School Board established that Respondent’s failure

to comply with the Field Trip protocol should be considered to

be more than a mere paperwork snafu. The chaperones on the

subject Field Trip had no emergency contact information for the

replacement drummer and no authorization to seek medical

treatment for him in the event of an accident or illness.

Further, with Respondent’s knowledge and permission, the

replacement drummer was absent without authorization from his

school on a field trip unrelated to his high school curriculum.

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

Petitioner has charged Respondent with violation of School Board

rule 6Gx13-4A-1.21, which sets forth policy pertaining to the

responsibilities and duties of School Board employees. As a

School Board employee, Respondent is expected to comply with the

Rule, which provides as follows:

All persons employed by The School Board

of Miami-Dade County, Florida are

representatives of the Miami-Dade County

Public Schools. As such, they are expected

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system. Unseemly conduct or the

use of abusive and/or profane language in

the workplace is expressly prohibited.

41. As to Count II, Respondent’s failure to comply with

the Field Trip protocol reflected poorly on Respondent and on

the School Board, thereby establishing the violation alleged in

Count II. There was no allegation and no proof that Respondent

engaged in unseemly conduct or the use of abusive and/or profane

language.

42. As to Count III, Respondent’s failure to comply with

the Field Trip protocol violated School Board Rule 6Gx13-4A-

1.213, which requires School Board employees to comply with all

regulations, to be efficient and effective in the delivery of

job duties, and to honestly perform his professional duties as

alleged in Count III. Despite the extenuating circumstances,

the undersigned concludes that Respondent knowingly failed to

comply with the Field Trip protocol. There is no doubt that

Respondent knew that a written permission form was required for

the replacement drummer; he knew the replacement drummer did not

have a written permission form; and, despite that knowledge, he

permitted the replacement drummer to participate in the subject

Field Trip without informing his principal or any other

administrator of the situation. Consequently, it is concluded

that the School Board established the violation alleged in Count

III of the Notice of Specific Charges.

43. The conclusions reached as to Counts II, III, and IV

underpin the conclusion reached as to Count I and establish that

Respondent engaged in misconduct in office by violating the Code

of Ethics of the Education Profession as adopted in Flordia

Administrative Code Rule 6B-1.001 and the Principles of

Professional Conduct for the Education Profession in Florida as

adopted in Florida Administrative Code Rule 6B-1.006, as alleged

in Count I. The School Board established that Respondent failed

to exercise the best professional judgment, he failed to

discharge his responsibilities with integrity, and he knowingly

failed to comply with rules designed to protect students and the

school system.

44. The School Board also established that Respondent’s

misconduct was sufficiently serious to impair his effectiveness

in the school system. 8

45. The School Board has the discretion to discipline

Respondent. The School Board can suspend Respondent’s

employment without pay for a period of 30 days or it can impose

a lesser form of discipline, such as a reprimand. The

recommendation that follows is based on a total review of the

facts including, without limiting, to the serious nature of

Respondent’s misconduct, the prior instructions Respondent had

been given as to field trip protocol, the Respondent’s

distinguished career with the School Board, and the extenuating

circumstances that surround the subject Field Trip.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

Law, it is RECOMMENDED that Petitioner enter a final order

adopting the Findings of Fact and Conclusions of Law contained

in this Recommended Order. It is further RECOMMENDED that the

final order uphold the suspension of Respondent's employment

without pay for 30 days.

DONE AND ENTERED this 2nd day of June, 2009, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of June, 2009.

ENDNOTES

1 / All statutory references are to Florida Statutes (2008).

2 / Each school referred to in this Recommended Order is a public

school in Miami-Dade County, Florida.

3 / The Memorandum is dated March 31, 2005, which appears to be a

scriviner’s error since the Memorandum is signed on May 31,

2005, and the events discussed in the Memorandum occurred after

March 31, 2005.

4 / The School Board also requires the parent or guardian to sign

a form which purports to release the School Board, Nautilus, and

the sponsor of “any responsibility in the case of an accident or

illness while on this trip.” Such written releases of

responsibility are of dubious legality.

5 / There was a conflict in the evidence as to the time on

April 22 when the conversation between Dr. Bernstein and

Respondent occurred. At one point, Respondent testified that he

talked to Dr. Bernstein around 5:30 (Transcript, page 154, line

18) and he later testified that the conversation occurred at

approximately 4:36 p.m. (Transcript, page 155, line 8).

Dr. Bernstein did not remember the time of the conversation.

(Transcript, page 56, line 21).

6 / At page 58 of the Transcript, beginning at line 15,

Respondent testified as follows in response to questions from

his attorney:

Q. So, it was your understanding that

night [April 22, 2008] that the mother was

going to give permission to Mr. Coto.

A. Oh, yeah.

Q. Did you check the next morning to see

whether that happened [sic].

A. I asked N. [the replacement drummer]

the next morning, and he told me, “Yeah, my

mother let me go.”

And I even asked him for the note, but he

never brought it in. He said that the

mother never did anything. She didn’t have

time. She was packing and they went to

sleep. Because everything happened so fast

[sic].

7 / In its Proposed Recommended Order, the School Board proposed

findings of fact that suggest Respondent misled the CIU

investigator. The undersigned has declined to adopt those

proposed findings because the Notice of Specific Charges does

not allege that Respondent lied to or misled the investigator.

Due process prohibits a district school board from disciplining

a teacher based on matters not alleged in the notice of charges,

unless those matters have been tried by consent. See Lusskin v.

Agency for Health Care Administration , 731 So. 2d 67, 69 (Fla.

4th DCA 1999). Further, Respondent was not formally disciplined

by Mr. Welker for the 2005 field trip and his response to the

investigator was not false or misleading.

8 / This conclusion is based on the testimony presented by the

school administrators and on existing case law that permits a

conclusion that effectiveness has been impaired where the

conduct the teacher engaged in speaks for itself in terms of its

seriousness and its adverse impact on the teacher’s

effectiveness. See Walker v. Highlands County School Board ,

752, So. 2d 127, 128-129 (Fla. 2d DCA 2000); Purvis v. Marion

County School Board , 766 So. 2d 492, 498 (Fla. 5th DCA 2000);

and Summers v. School Board of Marion County , 666 So. 2d 175,

175-176 (Fla. 5th DCA 1995).

COPIES FURNISHED :

Janeen L. Richard, Esquire

Miami-Dade County School Board

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Alberto M. Carvalho, Superintendent

Miami-Dade County School Board

1450 Northeast 2nd Avenue, Suite 912

Miami, Florida 33132

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington 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.