14-002997TTS Miami-Dade County School Board vs. Inocente Lariosa Status: Closed Recommended Order on Friday, January 16, 2015.

Summary: Respondent was not guilty of misconduct in office, gross insubordination, or of any conduct that rose to the level of violating any School Board policy. Recommend dismissal of all charges.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 2997TTS

INOCENTE LARIOSA,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Admini strative Law Judge

Jessica Enciso Varn for final hearing by video teleconference on

October 31, 2014, with sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Cristina Rivera Correa, Esquire

Miami - Dade County School Boar d

1450 Northeast Second Avenue , Suite 430

Miami, Florida 33132

For Respondent: Mark S. Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Post Office Box 4940

Clearwater, Florida 33761 - 1538

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner to suspend

Respondent without pay and terminate RespondentÓs employment.

PRELIMINARY STATEMENT

On June 18, 2 014, the Miami - Dade County School Board (School

Board) voted at its regularly scheduled meeting to suspend

Respondent, Inocente Lariosa, without pay and initiate dismissal

proceedings against him. Mr. Lariosa timely requested an

administrative hearing. O n June 24, 2014, the School Board

referred the matter to the Division of Administrative Hearings

(DOAH). On July 2, 2014, the undersigned scheduled the hearing

for September 3, 2014.

A week before the hearing, on August 25, 2014, the School

Board filed it s Notice of Specific Charges. On that same day ,

Mr. Lariosa requested a continuance, which was granted; the

hearing was re - scheduled for October 31, 2014.

The School Board charged Mr. Lariosa with the following

violations in five counts: (1) misconduc t in office; (2) gross

insubordination; and (3) violation of School Board policies 3210,

3210.01, and 3213. At hearing, the School Board presented the

testimony of Rosa Bergen, James Parker, Leidys Lopez, and Helen

Piña. Mr. Lariosa testified on his own behalf. School Board Ós

Exhibits 1 - 11 and 13 were admitted into evidence.

The one - volume T ranscript was filed on December 15, 2014 .

B oth parties timely submitted proposed recommended orders, which

were given consideration in the preparation of this Recom mended

Order. Unless otherwise indicated, all rule and statutory

references are to the versions in effect at the time of the

alleged violations.

FINDING S OF FACT

1. The School Board is the entity authorized to operate,

control, and supervise the public s chools in Miami - Dade County,

Florida.

2. Mr. Lariosa has been employed as a teacher by the School

Board since 1997. He has worked in various positions, including

vocational adult education, special education, elementary

education, virtual high school e ducation, and most recently, as a

co - teacher in a k indergarten class.

3. In November 2004, during his tenure as a vocational

adult teacher, Mr. Lariosa received a written reprimand for an

incident that occurred in 2002. In the reprimand, Mr. Lariosa

wa s directed to cease and desist from any future inappropriate

contact with students; to cease and desist from buying gifts for

students; and to refrain from engaging in any behavior that gave

the appearance of impropriety.

4. Along with the reprimand, Mr . Lariosa received a list

entitled ÐHow to Use Common Sense and Professional Judgment to

Avoid L egal Complications in Teaching,Ñ which included the

statement: ÐKeep your hands and other parts of your body to

yourself.Ñ

5. Mr. Lariosa Ós tenure as a co - tea cher in a k indergarten

classroom began in the Fall of 2013. His co - teacher was

Ms. Lo pez and between the two teachers, they managed a large

group of students.

6. One of their students was A.N., a k inde rgartner with a

speech impairment. According to Mr. Lariosa, who worked with

A.N. on a daily basis, A.N. was able to communicate in complete

sentences.

7. On March 19, 2014, both teachers were in the classroom

with the students. Ms. Lopez wa s at the front of the classroom

teaching. Mr. Lar iosa was at a kidney table , waiting for

Ms. LopezÓs lesson to finish. A.N., who had been working on a

computer , approached Mr. Lariosa and told him that she had a

headache.

8. Mr. Lariosa, in an effort to try and relieve her

discomfort, placed one hand on her foreh ead to keep her head

stable , and with the other hand, briefly rubbed the back of h er

nec k .

9. Ms. Lopez, who had an unobstructed vie w of the kidney

table, saw Mr. Lariosa rubbing A.N.Ós neck. She testified that

his interaction with A.N. was very brie f Ï - possibly lasting just a

few seconds. A.N. did not pull away from Mr. Lariosa, nor did

she react in any manner to Mr. LariosaÓs actions. A.N. simply

walked away after he tried to alleviate her discomfort.

10. Ms. Lopez , who is apparently easily alarme d, felt

uncomfortable with what she saw, wrapped up her lesson, and asked

Mr. Lariosa to supervise the class while she stepped out.

Ms. Lopez went directly to the office to report Mr. LariosaÓs

actions with A.N.

11 . Mr. Lariosa credibly testi fied that he had no intention

of hurt ing A.N., and had no sexual intention when he very briefly

rubbed A.N.Ó s neck. Consistent with his testimony, Ms. Lopez

testified that Mr. Lariosa rubbed A.N.Ós neck in plain sight,

with no attempt to conceal the brief touching .

12 . Based on Ms. LopezÓs report, a n investigation ensued,

and eventually led to the School Board initiating dismissal

proceedings.

13 . The brief rubbing of A.N . Ós neck, as described by

Mr. Lariosa, amounted to nothing more than a teacher attempting

t o relieve a young studentÓs discomfort. Common sense dictates

that k ind ergarten students are more inclined , as compared to

older students, to hug or be hugged by their teachers , patted on

the back by teachers , or to walk hand in hand with their

teacher s . Momentarily r ubbing a young childÓs neck after she has

complained of a headache (or a sore knee after a fall) is

cert ainly within the realm of reasonable physical contact with a

k indergarten student.

1 4 . Mr. LariosaÓs conduct did not constitute miscondu ct in

office or gross insubordination and did not violate the School

Board Ós policies specified in the Notice of Specific Charges.

CONCLUSIONS OF LAW

15 . DOAH has jurisdiction of the subject matter of and the

parties to this proceeding pursuant to sectio ns 120.569 and

120.57(1), Florida Statutes.

16 . The School Board must prove, by a preponderance of the

evidence, that Mr. Lariosa committed the violations alleged in

the Notice of Specific Charges, and that such violations

constitute Ðjust causeÑ for susp ension and termination.

§§ 1012.33(1)(a) & (6), Fla. Stat.; Mitchell v. Sch. Bd. , 972 So.

2d 900, 901 (Fla. 3d DCA 2007); Gabriele v. Sch. Bd. o f Manatee

Cnty. , 114 So. 3d 477, 480 (Fla. 2d DCA 2013).

17 . The preponderance of the evidence standard req uires

proof by Ðthe greater weight of the evidenceÑ or evidence that

Ðmore likely than notÑ tends to prove a certain proposition.

Gross v. Lyons , 763 So. 2d 276, 280, n.1 (Fla. 2000).

18 . Whether Mr. Lariosa committed the charged offenses is a

question of ultimate fact to be determined by the trier of fact.

Holmes v . Turlington , 480 So. 2d 150, 153 (Fla. 1985).

19 . ÐJust causeÑ is defined in section 1012.33(1)(a) to

include misconduct in office and gross insubordination.

20 . Mr. Lariosa has been char ged with misconduct in office,

gross insubordination, and a violation of three School Board

polic i es .

21 . Section 1001.02(1), Florida Statutes, grants the

State Board of Education authority to adopt rules pursuant to

sections 120. 536(1) and 120.54 in ord er to implement provisions

of law conferring duties upon it.

22 . Exercising its rulemaking authority, the State Board of

Education has defined Ðmisconduct in officeÑ in rule 6A - 5.056(2),

which provides:

(2) ÐMisconduct in OfficeÑ means one or more

of the following:

(a ) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in

Rule 6B - 1.001, F.A.C.;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C.;

(c) A violation of the adopted school board

policies;

(d) Behavior that disrupts the studentÓs

learning environment ; or

(e) Behavior that reduces the teacherÓs

ability or his or her colleagueÓs ability to

effectively perform duties.

23 . Rule 6A - 10.080, titled ÐCode of Ethics of the Education

Profession in FloridaÑ (formerly numbered as rule 6B - 1.001), is

repeated in relevant part in School Board Policy 3210.01. They

provide :

A. The educator values the worth and dignity

of every perso n, 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.

B. The educatorÓs primary professional

concern will always be for the student and

for the development of the studentÓs

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integr ity.

C. Aware of the importance of maintaining

the respect and confidence of oneÓs

colleagues, students, parents, and other

members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

24 . The Principle s of Professional Conduct for the

Education Prof ession in Florida are found in r ule 6A - 10.081

(formerly numbered as rule 6B - 1.006). It states, in relevant

part:

(3) Obligation to the students requires that

the individual:

(a) Shall make reasonable effo rt to protect

the student from conditions harmful to

learning and/or to the studentÓs mental

and/or physical health and/or safety.

* * *

(f) Shall not intentionally violate or deny

a studentÓs legal rights.

* * *

(5) Obligation to t he profession of

education requires that the individual:

* * *

(d) Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individualÓs performance

of professional or work responsibilities with

the orderl y processes of education or which

creates a hostile, intimidating, abusive,

offensive, or oppressive environment; and,

further, shall make reasonable effort to

assure that each individual is protected from

such harassment or discrimination.

25. School Board Policy 3210, titled ÐStandards of Ethical

Conduct,Ñ provides in part:

All employees are representatives of the

District and shall conduct themselves, both

in their employment and in the community, in

a manner that will reflect credit upon

themselve s and the school system.

An instructional staff member shall:

* * *

3. make a reasonable effort to protect the

student from conditions harmful to learning

and/or to the studentÓs mental and/or

physical health and/or safety;

* * *

21. not use abusive and/or profane language

or display unseemly conduct in the workplace;

* * *

22. not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individualÓs performance

of professional or wo rk responsibilities or

wi th the orderly processes of education or

which creates a hostile, intimidating,

abusive, offensive, or oppressive

environment; and, further, shall make

reasonable efforts to assure that each

individual is protected from such harass ment

or discrimination;

26. School Board Policy 3213 , titled ÐStudent Supervision

and Welfare,Ñ provi des in relevant part:

Protecting the physical and emotional well -

being of students is of paramount importance.

Each instructional staff member shall

ma intain the highest professional, moral, and

ethical standards in dealing with th e

supervision, control, and protection of

students on or off school property.

* * *

E. Staff members shall not inappropriately

associate with students at any time in a

manner which may give the appearance of

impropriety, including, but not limited to,

the creation or participation in any

situation or activity which could be

considered abusive or sexually suggestive or

involve illegal substances such as drugs,

alcohol, or tobacco.

27. Mr. LariosaÓs actions, which am ounted to a brief

rubbing of a k indergartnerÓ s neck after she compl ained of a

headache, do not constitute misconduct in office. He did not

violate any of the above provisions.

2 8 . Lastly, Ðgross insubor dinationÑ is defined in rule 6A -

5.056(4) as the Ðintentional refusal to obey an order, reasonable

in nature, and given by and with proper authority, misfeasance,

or malfeasance as to involve failure in the performance of the

required duties. Ñ

29 . Here, th e only directive was found in a reprimand from

2004, accompanied by a list of Ðcommon senseÑ guidelines. Both

were issued a decade before this event, when Mr. Lariosa worked

with adult vocational students, and they were general in nature.

Mr. Lariosa was no t given a direct order that he refused to obey

while working as a k indergarten teacher ; and even assuming it

constitutes a direct order, Mr. LariosaÓs physical contact with

A.N. was not inappropriate.

30 . The School Board failed to prove, by a preponde rance of

the evidence, that Mr. Lariosa is guilty of misconduct in office,

gross insubordination, or of any conduct rising to the level of a

violation of any School Board policy.

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 dismissing the charges against Mr. Lariosa

and reinstating him with full back pay and benefits.

DONE AND ENTERED this 16th day of January , 2015 , in

Tallahassee, Leon County, Florida.

S

JESSICA ENCISO VARN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.sta te.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of January , 2015 .

COPIES FURNISHED:

Mark S. Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Post Office Box 4940

Clearwater, Florida 33761 - 1538

(eServed)

Cristina Rivera Correa, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue , Suite 430

Miami, Florida 33132

(eServed)

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahasse, Florida 32399 - 0400

(eServed)

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahasse, Florida 32399 - 0400

(eServed)

Albert M. Carvalho, Supe rintendent

Miami - Dade County Public Schools

1450 N ortheast Second Avenue, Suite 912

Miami, Florida 33132

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommen ded Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.