16-001693PL Pam Stewart, As Commissioner Of Education vs. Jean-Baptiste Guerrier Status: Closed Recommended Order on Monday, June 20, 2016.

Summary: Hearsay evidence was insufficient to prove that Respondent engaged in inappropriate conduct involving female students.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF

EDUCATION,

Petitioner,

vs. Case No. 16 - 1693PL

JEAN - BAPTISTE GUERRIER,

Respondent.

_______________________________/

RECOMMENDED ORDER

On May 9, 2 016, a duly - noticed hearing was held by video

teleconference at locations in Miami and Tallahassee, Florida,

before F. Scott Boyd, an Administrative Law Judge assigned by the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles T. Whit elock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street, Suite E

Fort Lauderdale, Florida 33316

For Respondent: Michelle A. Delancy, Esquire

Hamilton, Miller, & Birthisel, L LP

150 Southeast 2nd Avenue, Suite 1200

Miami, Florida 33131 - 1579

STATEMENT OF THE ISSUE S

The issues to be determined are whether Respondent, Jean -

Baptiste Guerrier, made inappropriate comments to, or engaged in

inapprop riate conduct with, female students, or inappropriately

discussed the topic of sex with his class, as alleged in the

Administrative Complaint ; and , if so, what sanction is

appropriate.

PRELIMINARY STATEMENT

On or about August 12, 2013, Pam Stewart, as Comm issioner of

Education (Commissioner or Petitioner), filed an Administrative

Complaint against Mr. Jean - Baptiste Guerrier (Mr. Guerrier or

Respondent). Respondent subsequently filed an Election of Rights

form on September 5, 2013, disputing the allegations in the

Administrative Complaint and requesting a formal hearing. On

March 27, 2014, the case was referred to the Division of

Administrative Hearings for assignment of an A dministrative L aw

J udge.

The p arties attempted to settle this matter. However, on

March 24, 2016, Petitioner filed a Motion to Re - open Case,

asserting that the parties had not been able to enter into a

settlement agreement. The motion was granted.

The hearing was conducted on May 9, 2016, by video

teleconference. The parties stipulat ed to certain facts, which

were accepted and have been incorporated into the Findings of

Fact below. At hearing, Petitioner presented the testimony of

Ms. Ana Sanchez, an investigator for the Miami - Dade County School

Board , and Ms. Anne - Marie DuBoulay, th e d istrict d irector of the

Office of Professional Standards for Miami - Dade County Public

Schools. Petitioner offered Exhibits P - 1, P - 4, P - 6, and P - 8

through P - 10, which were admitted into evidence. Exhibit P - 4, a

district investigative report prepared by Ms. Sanchez, was

admitted over objection that it was hearsay, as discussed below.

Respondent testified on his own behalf.

The Transcript was filed on May 25, 2016. Both parties

filed proposed recommended orders that were considered in the

preparation of this Recommended Order.

Citations to statutes and rules are to those versions in

effect between August 2011 and August 2012, the time the conduct

is alleged to have occurred. 1/

FINDING S OF FACT

1. The Commissioner is responsible for investigating and

pro secuting misconduct allegations against individuals holding

Florida educator 's certificates.

2. Mr. Guerrier held Florida Educator ' s Certificate 596926,

covering the areas of English and m iddle g rades, which was valid

through June 30, 2015.

3. At all tim es pertinent hereto, Mr. Guerrier was employed

as a vocational education teacher at D.A. Dorsey Education Center

School in the Miami - Dade County School District.

4. Mr. Guerrier primarily taught English to students who

had dropped out of school earlier an d were returning for

vocational education. Some of his students were adults , and some

were still minors.

5. On August 2, 2012, Ms. Ana Sanchez, an investigator for

the Miami - Dade County School Board, received a case alleging that

Mr. Guerrier had made in appropriate comments of a sexual nature

to his students and had inappropriately touched female students.

6. Ms. Sanchez interviewed students and prepared an

investigative report detailing what each student told her

regarding Mr. Guerrier ' s conduct in clas s. She did not

personally observe Mr. Guerrier ' s conduct in the classroom.

7. On September 6, 2012, Mr. Guerrier wrote a letter to

Ms. Anne - Marie DuBoulay, the district director of the Office of

Professional Standards. In the letter, Mr. Guerrier indic ated

that he had read the allegations and that he denied them.

8. On or about October 5, 2012, the Miami - Dade County

School District notified Mr. Guerrier that he would be

recommended for suspension without pay and dismissal.

9. On or about October 8, 2 012, Mr. Guerrier submitted his

resignation from his position at the Miami - Dade County School

District.

10. On October 10, 2012, Ms. DuBoulay prepared a memorandum

for the file indicating that Mr. Guerrier had resigned and that

the investigative informati on had been transmitted to

Professional Practices Services of the Florida Department of

Education.

11. On August 12, 2013, an Administrative Complaint was

filed against Mr. Guerrier by the Commissioner. It was

subsequently sent to the Division of Adminis trative Hearings.

12. At hearing, Ms. Sanchez testified that she interviewed

several students from Mr. Guerrier ' s classes. She testified that

some students told her that Mr. Guerrier often made inappropriate

comments about sex and female anatomy to his students. She

testified that students told her that he inappropriately touched

students. She testified that students told her that he had asked

female students, " What would you do for a grade? " She testified

that Elijah Del ' Valle, a 21 - year - old student , told her that he

saw Mr. Guerrier pulling a female student ' s G - string, confirming

the female student ' s statement to her.

13. The investigative report prepared by Ms. Sanchez

indicated that D.W., a 25 - year - old female student, told

Ms. Sanchez that Mr. Gu errier would make sexual comments to his

female students on a daily basis. The report indicates that D.W.

told Ms. Sanchez that Mr. Guerrier asked her in class if he could

see her private parts and asked " what she would do for the

grade. "

14. The repor t indicates that K.L., a minor female student,

told Ms. Sanchez that Mr. Guerrier rubbed her stomach and asked

her to kiss him. The report indicates that K.L. told Ms. Sanchez

that Mr. Guerrier told a story in class about a student who had

reported him an d that he told his class that the student was mad

because he would not have sexual relations with her. The report

indicates that K.L. told Ms. Sanchez that Mr. Guerrier told K.L.

that her boyfriend " could not handle her. " The report says that

K.L. told M s. Sanchez that she witnessed Mr. Guerrier pull G.C. ' s

underwear in class.

15. The report indicates that J.S., a minor female student,

told Ms. Sanchez that Mr. Guerrier always used inappropriate

slang terms for female anatomy in class and that she heard

Mr. Guerrier ask K.L. to show him her private parts. The report

indicates that J.S. told Ms. Sanchez that she saw Mr. Guerrier

touching K.L. ' s stomach. The report indicates that J.S. told

Ms. Sanchez that Mr. Guerrier told one female student, " What if I

turn off the lights and tell you to undress? " The report

indicates that J.S. told Ms. Sanchez that she did not recall

which student Mr. Guerrier made this comment to.

16. The report indicates that Mr. Del ' Valle, an adult male

student, told Ms. Sanchez t hat he observed Mr. Guerrier flirting

with female students and making sexual remarks in class. The

report indicates that Mr. Del ' Valle told Ms. Sanchez that

Mr. Guerrier would ask his female students what they would do for

a grade. The report indicates t hat Mr. Del ' Valle told

Ms. Sanchez that he saw Mr. Guerrier pull a student ' s pants from

behind during class and then ask the young lady where she was

going. The report indicates that Mr. Del ' Valle told Ms. Sanchez

that Mr. Guerrier was always looking at t he female students when

they walked by and would rub his shoulder and arm against them.

17. The report indicates that G.C., a minor female student,

told Ms. Sanchez that she saw Mr. Guerrier rub K.L. ' s belly area

and say, " let me lick that belly ring of y ours. " The report

indicates that G.C. told Ms. Sanchez that Mr. Guerrier is always

brushing himself up against the female students. The report

indicates that G.C. told Ms. Sanchez that Mr. Guerrier told a

story in class about a student who had reported h im and that that

student was mad because he had not had sexual relations with her.

The report indicates that G.C. told Ms. Sanchez that she once

asked Mr. Guerrier for help with a lesson and that he pulled her

G - string when she was getting up from the cha ir and pulled her

back down.

18. Mr. Guerrier testified at hearing that he did not do

any of the things he was accused of. Mr. Guerrier said that his

accusers had a motive to fabricate their stories because they

were very poor students. He said that som e of them slept in

class, others texted through out class, and others did not show up

at all. He stated that some of them had no grades in his grading

book and that he had no basis to give them a grade. He stated

the students went to a counselor and fabri cated the stories. 2/

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes

(2015).

20. Petitioner is responsible for filing complaints and

prosecuting allegations of misconduct against instructional

personnel holding educator certificates. §§ 1012.795(1) and

1012.796(6), Fla. Stat.

21. Petitioner seeks to take action against Respondent ' s

educator certificate as pr ovided in sections 1012.795 and

1012.796 , Florida Statutes . A proceeding to impose discipline

against a professional license is penal in nature, and Petitioner

bears the burden to prove the allegations in the Administrative

Complaint by clear and convinci ng evidence. Dep ' t of Banking &

Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris

v. Turlington , 510 So. 2d 292 (Fla. 1987).

22. Clear and convincing evidence has been said to require:

[T]hat the evidence must be found to be

credible; the f acts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion as

to the facts in issue. The evidence must be

of such weight that it produces in the mind

of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

23. Respo ndent is substantially affected by Petitioner ' s

intended decision to discipline his Florida educator 's

certificate and has standing to maintain this proceeding.

Count 1

24. At the time of the alleged conduct, section

1012.795(1)(d) provided that persons w ho are " guilty of gross

immorality or an act involving moral turpitude as defined by rule

of the State Board of Education " may have their licenses

disciplined by the Education Practices Commission.

25. The Ethics in Education Act, c hapter 2008 - 108, Laws o f

Florida, added the phrase " as defined by rule of the State Board

of Education. " It is unclear whether this new language was

intended to modify only " an act involving moral turpitude " or if

it instead modifies the entire phrase " gross immorality or an ac t

involving moral turpitude. " The absence of a comma after the

word " immorality " suggests that it modifies the entire phrase.

In any event, when construing penal statutes, any statutory

ambiguity should be resolved in favor of Respondent. Cilento v.

Sta te , 377 So. 2d 663, 668 (Fla. 1979) (where criminal statute is

ambiguous, construction most favorable to accused should be

adopted). Cf. also § 775.021, Fla. Stat. ( " The provisions of

this code and offenses defined by other statutes shall be

strictly cons trued; when the language is susceptible of differing

constructions, it shall be construed most favorably to the

accused. " ). The first portion of section 1012.795(1)(d) is only

violated if an educator is guilty of gross immorality as defined

by rule of the State Board of Education. Petitioner did not cite

to any rule of the State Board of Education defining " gross "

immorality, and none was found.

26. There was a hearsay objection to those portions of the

testimony of Ms. Sanchez as to what students told h er, or what

she testified that her report said that students told her. This

testimony was hearsay. As discussed at hearing, section

120.57(1)(c), Florida Statutes (2015) , states in part that

" [h]earsay evidence may be used for the purposes of supplementi ng

or explaining other evidence, but it shall not be sufficient in

itself to support a finding. "

27. Exhibit P - 4 was also objected to by Respondent as

hearsay. The document was admitted, because chapter 120 allows

the admission of hearsay, with the cavea t that it was hearsay and

could only be used to supplement or explain other competent

evidence, and could not its elf support a finding of fact.

28. The foundation for admission of the investigative

report as a business record under section 90.803(6), Flor ida

Statutes (2015) , was not fully laid. In any event, it is clear

that the relevant information about Mr. Guerrier ' s actions was

not supplied by Ms. Sanchez or other person with knowledge acting

within the course of regularly conducted business activity.

Reichenberg v. Davis , 846 So. 2d 1233, 1234 (Fla. 5th DCA 2003)

(report of investigator which contained witness interviews not

admissible because not based on knowledge of an agent of the

business). All of the information in the report about

Mr. Guerrie r ' s actions was provided by students, not employees,

and so was hearsay within hearsay. M.S. v. Dep ' t of Child . &

Fams . , 6 So. 3d 102, 104 (Fla. 4th DCA 2009) ( " The general rule

is that a hearsay statement which includes another hearsay

statement is admis sible only when both statements conform to the

requirements of a hearsay exception. " ) (quoting Harris v. Game &

Fresh Water Fish Comm ' n , 495 So. 2d 806, 809 (Fla. 1st DCA 1986).

29. No students testified. Neither the testimony of

Ms. Sanchez nor her in vestigative report provided evidence that

would support a finding that Respondent was guilty of gross

immorality. Ag . for Health Care Admin . v. Genesis Eldercare

Nat ' l Ct r s . , Inc., d/b/a Oakwood Ctr . , Case No s . 02 - 3849 ; 02 - 3850

(Fla. DOAH Mar . 21, 2003; F la. AHCA Apr . 22, 2003). No other

record evidence supports that charge.

30. Up until July 8, 2012, the State Board of Education had

defined the term " moral turpitude, " at least as it relates to

crimes, in Florida Administrative Code Rule 6A - 5.056(6) ent itled,

" Criteria for Suspension and Dismissal, " which provided:

(6) Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and social duties,

which, according to the accepted standards of

the time a man ow es to his or her fellow man

or to society in general, and the doing of

the act itself and not its prohibition by

statute fixes the moral turpitude.

31. This is almost identical to the definition of moral

turpitude adopted by the Florida Supreme Court in Florida Bar v.

Davis , 361 So. 2d 159 (Fla. 1978) ( " A crime involves moral

turpitude if it is an act of baseness, vileness, or depravity in

the private and social duties which a man owes to his fellow men

or to society in general. " ) .

32. After July 8, 201 2, rule 6A - 5.056 was amended to define

" moral turpitude " as pertaining to specifically listed crimes.

33. No competent evidence, only the hearsay or hearsay

within hearsay evidence already discussed, was offered by

Petitioner to prove that Respondent was guilty of acts of moral

turpitude under either definition.

34. Petitioner failed to prove by clear and convincing

evidence that Respondent violated section 1012.795(1)(d).

Count 2

35. Section 1012.795(1)(g) provided that the Education

Practices Commissi on may suspend the educator 's certificate of a

person who, upon investigation, has been found guilty of personal

conduct that seriously reduces that person ' s effectiveness as an

employee of the district school board.

36. There was no evidence showing redu ction of

effectiveness presented at hearing.

37. Petitioner failed to prove by clear and convincing

evidence that Respondent violated section 1012.795(1)(g).

Count 3

38. Count 3 alleges that Respondent is in violation of

section 1012.795(1)(j), in that h e has violated the Principles of

Professional Conduct for the Education Profession. Counts 4

through 6 are subsidiary to Count 3 and go on to allege specific

violations of these principles. Count 3, therefore, does not

constitute a distinct disciplinary violation.

Counts 4, 5, and 6

39. The only evidence that Respondent committed any

violation of the Principles of Professional Conduct for the

Education Profession , as alleged in Counts 4, 5, and 6, was again

hearsay, or double hearsay.

40. Petitioner f ailed to prove by clear and convincing

evidence that Respondent violated section 1012.795(1)(j) or any

portion of Florida Administrative Code R ule 6A - 10.081(3).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDE D that the Education Practices Commission

enter a final order dismissing the Administrative Complaint

against Jean - Baptist e Guerrier.

DONE AND ENTERED this 20th day of June , 2016 , in

Tallahassee, Leon County, Florida.

S

F . SCOTT BOYD

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.state.fl.us

Filed with the Clerk of the

Division of Adm inistrative Hearings

this 20th day of June , 2016 .

ENDNOTE S

1/ There were no changes to sections 1012.795 or 1012.796,

Florida Statutes, from the 2012 legislative session. Prior to

July 8, 2012, Florida Administrative Code R ule 6A - 5.056 required

a viol ation of the Principles of Professional Conduct for the

Education Profession in Florida to be " so serious as to impair

the teacher ' s effectiveness in the school system " in order for

that violation to constitute " just cause " for suspension or

dismissal -- a r equirement deleted in the amended rule. Since the

record evidence was insufficient to show a violation of the

p rinciples, this additional element need not be addressed.

2/ While Mr. Guerrier ' s testimony was not very credible, it was

not his burden to pr ove his version of events. Rather, the

burden was on the Commissioner to establish the conduct it

alleged. See Bose Corp. v. Consumers Union , 466 U.S. 485, 508

(1984) ( " When the testimony of a witness is not believed, the

trier of fact may simply disrega rd it. Normally the discredited

testimony is not considered a sufficient basis for drawing a

contrary conclusion. " ).

COPIES FURNISHED:

Gretchen K. Brantley, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 316

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Michelle A. Delancy, Esquire

Hamilton, Miller, & Birthisel, LLP

150 Southeast 2nd Avenue , Suite 1200

Miami, Florida 33131 - 1579

(eServed)

Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street , Suite E

Fort Lauderdale, Florida 33316

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Maria n Lam b eth, Bureau Chief

Bureau of Professional

Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the righ t 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.