19-002468TTS Miami-Dade County School Board vs. Oscar D. Rizo Status: Closed Recommended Order on Monday, May 18, 2020.

Summary: School Board failed to prove by a preponderance of evidence that teacher's conduct constituted misconduct in office, immorality, or a violation of School Board policies justifying his suspension and termination.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M IAMI - D ADE C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 19 - 2468TTS

O SCAR D. R IZO ,

Respondent .

/

R ECOMMENDED O RD ER

This case came before Administrative Law Judge Darren A. Schwartz of

the Division of Administrative Hearings ( " DOAH " ) for final hearing on

February 4 and 5, 2020, in Miami, Florida.

A PPEARANCES

For Petitioner: Christopher J. La Piano, Esquire

Mi ami - Dade County School Board

1450 Northeast Second Avenue, Suite 430

Miami, Florida 33132

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 - 1 526

S TATEMENT OF T HE I SSUE

Whether just cause exists for Petitioner to suspend without pay and

terminate RespondentÔs employment as a teacher.

P RELIMINARY S TATEMENT

By letter dated May 9, 2019, Petitioner, Miami - Dade County School Board

( " School Board " ), notified Respondent, Oscar D. Rizo ( " Respondent " ), of the

School BoardÔs intent to suspend without pay and terminate his employment

as a teacher. On May 9, 2019, Respondent timely requested an

administrative hearing. Subsequently, the School Board refer red the matter

to DOAH to assign an Administrative Law Judge to conduct the final

hearing. The Notice of Specific Charges contains certain factual allegations,

and based on those factual allegations, the School Board charged Respondent

with Misconduct in O ffice (Count I) and Immorality (Count II).

The final hearing was initially set for July 8, 2019. On June 27, 2019,

Respondent filed an unopposed motion to continue the final hearing. On

July 1, 2019, the undersigned entered an Order resetting the final he aring for

September 19, 2019. On September 5, 2019, Respondent filed another

unopposed motion to continue the final hearing. On September 6, 2019, the

undersigned entered an Order resetting the final hearing for November 20

and 21, 2019. On November 19, 20 19, the undersigned sua sponte entered an

Order resetting the final hearing for February 4 and 5, 2020. On January 31,

2020, the School Board filed a motion in limine to exclude testimony

regarding RespondentÔs character.

The final hearing was conducted on February 4 and 5, 2020. At the outset

of the hearing, the undersigned addressed the School BoardÔs motion in

limine. After hearing argument on the motion from counsel for the parties,

the undersigned granted the motion, in part.

At the hearing, the S chool Board presented the testimony of K.S., V.S.C.,

Damaris Perez , and Edward Torrens. Respondent testified on his own behalf

and presented the additional testimony of Bernice Charley, Steven C. Webb,

Thelma Fornell, Joseph Tolliver, and Minnie Hightower. The School BoardÔs

and RespondentÔs Exhibits 1 through 19 were received into evidence based on

the stipulation of the parties, subject to hearsay objections. 1

The two - volume final hearing T ranscript was filed at DOAH on March 20,

2020. On March 30, 202 0, Respondent filed a proposed recommended order.

On March 30, 2020, the School Board filed an unopposed motion for extension

of time until April 2, 2020, to file its proposed recommended order. The

School BoardÔs proposed recommended order was not filed u ntil 8:00 a.m. on

April 3, 2020, one - day late. On April 9, 2020, the undersigned entered an

Order granting the motion.

There is no prejudice to Respondent as a result of the School BoardÔs

late - filed proposed recommended order. Accordingly, the partiesÔ proposed

recommended orders have been considered in the preparation of this

Recommended Order. On November 19, 2019, the parties filed their Joint

Pre - Hearing Stipulation, in which they stipulated to certain facts. These facts

have been incorporated into this Recommended Order as indicated below.

Unless otherwise indicated, all rule and statutory references are to the

versions in effect at the time of the alleged violations.

F INDINGS OF F ACT

Background

1. The School Board is a duly constituted school bo ard charged with the

duty to operate, control, and supervise the public schools within Miami - Dade

County, Florida.

1 At the conclusion of the hearing, the parties stipulated that students N.E., C.Z., T.C., and

S.M., were unavailable, and that their deposition testimony, included within the School

BoardÔs Exhibit No. 12 and Respondent Ôs Exhibit Nos. 16 through 18, could be received in

evidence in lieu of their live testimony.

2. The School Board hired Respondent in 2010 as a teacher at Campbell

Drive K - 8 Center ( " Campbell Drive " ), a public school in Miami - Dade Cou nty.

During the 2016 - 2017 and 2017 - 2018 school years and at all times relevant to

this case, Respondent was employed at Campbell Drive as an intensive

reading teacher pursuant to a professional services contract.

3. At all times material to this case, Resp ondentÔs employment with the

School Board was governed by Florida law, the School BoardÔs policies, and

the collective bargaining agreement between the School Board and the

United Teachers of Dade ( " UTD " ).

4. The alleged conduct giving rise to the School BoardÔs proposed

suspension and termination of Respondent occurred during the 2016 - 2017

and 2017 - 2018 school years.

Allegations Involving K.S.

5. The School Board alleges in paragraph 10 of the Notice of Specific

Charges that during the 2016 - 2017 school year Respondent made grossly

inappropriate physical and verbal sexual contact with K.S. At the time of the

alleged conduct, K.S. was a femal e 12 - year - old student in RespondentÔs

seventh - grade intensive reading class. Specifically, paragraph 10 of the notic e

alleges:

During the course of the school year, beginning

sometime after the Winter Recess, he would touch

her private area over her clothing. On one day

during lunch, the Respondent requested that this

student come to his room during lunch to make up

a test. When she arrived in the room, the

Respondent initiated physical sexual contact with

the student. In addition to touching the girl

beneath her clothes, the Respondent exposed

himself to her and had her touch his private area.

After the brief encounter , the girl exited the room.

During the course of the school year the

Respondent also asked her to engage in sexual acts

and made sexual comments to her.

6. The School Board further alleges in paragraph 10 of the notice that

during the 2017 - 2018 school ye ar, when K.S. was a student in RespondentÔs

eighth grade intensive reading class, " Respondent requested a sexual favor

from [K.S] on a small note that he had handed her. "

7. At hearing, Respondent vehemently denied making any sexual

comments or engagin g in any sexual contact with K.S. 2

K.S.Ôs Written Sworn Statement to Detective Webb

8. On March 2, 2018, K.S. was interviewed by Detective Steven Webb,

with the School BoardÔs police department, regarding alleged inappropriate

sexual conduct by R espondent against her. That same day, K.S. gave a

written sworn statement to Detective Webb, received into evidence as

RespondentÔs Exhibit No. 11. In this sworn statement, K.S. stated that

during the 2016 - 2017 school year, Respondent " became sexually acti ve with

students, he did multiple things. " K.S. went on state that Respondent:

started off by touching my private area and then he

advanced a couple of days later by pulling his

pen[ n ]is ( sic ) out and grabbing my hand and,

placing it there . One day he sen t a student to get

me from the cafeteria and on the pass it stated that

I had to make up a test, but when I entered his

class he rubbed my breast, and started to suck

them for about 10 to 15 seconds, and then I pushed

him away. He was dropping my grade unt il I did

the things he wanted me to do with him which is to

have sex, give him head, thing of that nature.

Recently, about 2 - 3 weeks ago he asked me to do

things with him and thatÔs a reason to why I left

early recently.

2 K.S. did not complete her seventh - grade school year at Campbell Drive. Before the school

year ended, the principal of Campbell Drive asked K.S. to leave the sc hool because of

disciplinary problems involving physical altercations with other students and defiant

behavior. K.S. subsequently enrolled in Villa Prep Academy, a private school where she

completed her seventh - grade year. K.S. did not attend Villa Prep Ac ademy for very long

because she was dismissed from that school during the early part of her eighth - grade year.

In December 2017, K.S. re - enrolled in Campbell Drive. Upon her return, K.S.Ôs mother

requested that she be put in RespondentÔs classroom and K.S. was a student in RespondentÔs

eighth - grade intensive reading class for the remainder of the 2017 - 2018 school year.

9. There was nothing mentioned in K.S.Ôs written sworn statement about

Respondent engaging in any inappropriate conduct toward K.S. while she sat

at her desk in RespondentÔs classroom.

K.S. Ôs Audio Record ed Interview with Detectives Webb and Ochoa

10. In a subsequent audio recordi ng interview of K.S. on March 2, 2018, by

Detective Webb and Detective Gil Ochoa, received into evidence as the School

BoardÔs Exhibit No. 5, K.S. initially described the cafeteria pass incident as

follows:

11. K.S. stated she left the cafeteria with her food tray in hand and went

to RespondentÔs classroom. Upon entering RespondentÔs classroom, she began

telling him things about her family. K.S. stated Respondent then took away

her food tray, set the tray down, and pulled her over to another area of the

ro om, at which time he touched her breasts over her shirt, lifted up her shirt

and sports bra, exposed her breasts, and sucked on one of her breasts for

about 10 to 15 seconds. K.S. stated she got scared and left the classroom, and

that is all he did that da y.

12. K.S. failed to mention anything about Respondent pulling out his

penis on this occasion until asked specifically about it by Detective Ochoa

near the conclusion of the interview. School BoardÔs Ex . 5 at 13:22. K.S. then

stated that she saw his peni s, but she was scared and looked away. K.S.

made no mention of Respondent placing her hand on his penis.

13. During this interview, K.S. went on to describe another occasion in

RespondentÔs class that occurred after school was dismissed for the day.

Acc ording to K.S., on this particular occasion, Respondent asked her " to give

him head " and " to have sex with him. " However, according to K.S., it never

happened. K.S. further stated that recently (two to three weeks ago),

Respondent asked that she " give him head. "

14. There was no mention in this interview of Respondent touching K.S.Ôs

vaginal area or dropping her grades.

15. The entire audio recorded interview lasted approximately 15 minutes.

At the conclusion of the interview, K.S. was asked if ther e was anything else

that she remembered that she wanted to add. K.S. declined and she did not

state any other alleged inappropriate physical and verbal sexual contact by

Respondent.

K.S.Ôs Testimony at Hearing

16. At the final hearing, K.S. testified tha t toward the beginning of the

2016 - 2017 school year, Respondent moved her seat next to his because she

was easily distracted by the other students and failed the first test.

Subsequently, the following exchange occurred between counsel for the

School Board and K.S.:

Q: Now, during that school year, did Mr. Rizo ever

do anything inappropriate to you during class time?

A: Yes.

Q: All right. Can you explain to the Judge what he

would do to you?

A: He would, like, walk by, Ócause since I was

sitting so cl ose to him, he would just touch me, like,

my private areas or heÔll just, like go down on my

arm, like that. Stuff like that.

Q: All right. Now, this would occur during class

time?

A: Yes.

Q: When specifically -- was there a specific time that

it would occur during class time?

A: Mainly when we were testing or doing our work.

T . Vol. 1, p p. 28 - 29.

17. Counsel for the School Board went on to question K.S. about the

testing process and RespondentÔs efforts to curtail students chea ting on tests.

K.S. testified that students placed raised stapled manila folders on their

desks to prevent students from seeing each otherÔs tests. Counsel for the

School Board then asked K.S., in leading fashion: " So it was this time, during

the testing, when he would touch you? K.S. responded: " Yes. " Id. , Vol. 1,

p p. 29 - 30.

18. However, K.S. could not describe the number of times " this occurred "

during the 2016 - 2017 school year. Moreover, this alleged inappropriate

touching supposedly occurred while 20 t o 25 other students were in the

classroom.

19. At hearing, K.S. testified at one point that RespondentÔs touching of

her vaginal area occurred every time they had tests, but she acknowledged

that the raised stapled manila folders were not always present o n the

studentsÔ desks during testing. At hearing, K.S. further acknowledged that

had the inappropriate touching occurred as she testified to, any student at

any point could have looked and seen Respondent caressing her in her

vaginal area.

20. Counsel for the School Board then inquired of K.S. if there was " ever

anything more serious that [Respondent] did to [her] " that school year ( 2016 -

2017 ) . In response, K.S. described the alleged cafeteria pass incident as

follows:

A: I was in lunch -- because I was in s eventh grade

at the time, seventh grade goes to lunch before

anybody, and he sent one of his eighth grader

students with a pass to go to get me. Because in

order to leave the lunchroom, you have to have a

pass. Security didnÔt let you leave the lunchroom.

Security called me and told me that my teacher was

calling me to make up a test.

When I got in the room, I had my tray in my hand,

and he took my tray, put it down, he exposed

himself. And then there was a corner and he, like,

put me in the corner and h e sucked on my breast.

T . Vol. 1, p p. 32 - 33.

21 . However, moments later, K.S. described the incident differently:

First he pushed me to the corner, and then after he

sucked my breast, then he exposed himself. And

then I was just scared. And he -- when h e exposed

himself, he grabbed my arm and he made me touch

his area, and then I grabbed my tray, I threw it

away, and then I left.

Id. at p . 33.

22. According to K.S., she was in RespondentÔs classroom on this

particular occasion between five or ten minu tes. The corner of RespondentÔs

classroom is located right next to the door entering the room. K.S. testified

that the incident occurre d with just Respondent and K.S. in the classroom,

but with the other student who had retrieved K.S. from the cafeteria st ill

waiting outside the door when K.S. left RespondentÔs classroom.

23. At hearing, counsel for the School Board also asked K.S., in leading

fashion, whether she ever told the police officers that Respondent would

" suck on your breasts or try to have se x with you multiple times? " In

response, K.S. testified: " I told them -- I told them the suck on my breast part,

when he exposed him. And then when they asked about my eighth - grad e -

year, I told them how he wrote on a sticky note that I want to give him head,

like oral sex È. " In consistently , K.S. testified in her deposition that

Respondent wrote on the sticky note: " Can I eat her? " According to K.S. in

her deposition, Respondent picked up the sticky note, showed it to K.S., and

she grabbed it from him and thr ew the note away. School BoardÔs E x. 11 ,

p . 11. At hearing, K.S. testified that Respondent handed her the sticky note

and that she then threw it away.

24. K.S. and Respondent never communicated by telephone, text, e - mail,

or social media.

25. There a re no witnesses to any of the alleged incidents.

26. K.S. never reported any alleged inappropriate conduct by Respondent

to her parents, a teacher, or school administrators.

27. However, at hearing, K.S. testified she told V.S.C. about RespondentÔs

conduct toward her during the 2016 - 2017 school year when V.S.C. came to

her house on a single occasion sometime during K.S.Ôs eighth grade school

year.

Allegations Involving V.S.C.

28. The School Board alleges in paragraph 11 of the Notice of Specific

Charges that during the 2017 - 2018 school year, Respondent also made

inappropriate comments to V.S.C . during his role as an afterschool care

supervisor, and that he would " bump up against " V.S.C., " rubbing himself on

her buttocks area . "

29. V.S.C. was not a student in RespondentÔs classroom. The alleged

inappropriate conduct occurred while V.S.C., a female 14 - year - old eighth

grade student at Campbell Drive, attended the schoolÔs Students with a Goal

( " SWAG " ) afterschool program.

30. SWAG is an outdoor progr am where students can engage in a variety

of recreational activities. Respondent was one of six school staff members

that participated in the program. At any given time, there were

approximately 100 students in attendance. Students could play soccer,

baske tball, football, dodge ball, board games, or do homework. Students could

freely rotate through the different activities by simply notifying the adult

conducting the desired activity. Respondent primarily engaged in soccer, but

would occasionally participat e in other activities.

31. At hearing, Respondent vehemently denied making any sexual

comments or engaging in any sexual contact with V.S.C.

V.S.C.Ôs Audio Recorded Interview with Detective Bernice Charley

32. On March 6, 2018, V.S.C. was interviewed by D etective Bernice

Charley, with the School BoardÔs police department, regarding alleged

inappropriate sexual conduct by Respondent against her. An audio recording

of the interview was received into evidence as the School BoardÔs Exhibit 8. 3

33. During the i nterview, V.S.C. stated that while she and Respondent

were at SWAG during the 2017 - 2018 school year, Respondent told her he

wanted to slap her face with his penis; he asked her if she liked it rough

(referring to sex); and he told her his penis was his " th ird leg. " According to

V.S.C., she and Respondent would engage in a verbal " back and forth, " and

he would say these comments in front of other students at SWAG .

34. Additionally, V.S.C. stated she and Respondent would " bump " into

each other at SWAG. Accord ing to V.S.C., Respondent would bump into her

side or back from behind.

35. During the interview, V.S.C. stated she had a bad memory. V.S.C. was

reluctant to speak and there were many long pauses by her after questioning

by Detective Charley.

36. After m uch prodding and requests by Detective Charley for V.S.C. to

" open - up, " V.S.C. actually stated: " ThereÔs nothing to talk about because

nothing did happen. " School BoardÔs Ex . 8 , at 38:48 - 38:52.

37. After further pauses, prodding, and requests by Detec tive Charley for

V.S.C. to " open up, " V.S.C. stated that Respondent also touched her breasts

one time while they were at SWAG. According to V.S.C., this incident

occurred with her shirt on.

38. The School Board argues in its proposed recommended order tha t

V.S.C. also described another incident while she and Respondent were at his

classroom. According to V.S.C., Respondent was standing at his desk and

V.S.C. was standing in the doorway, at which time Respondent stated to

V.S.C.: " me and you here and now, " followed by Respondent tapping on his

desk. V.S.C. interpreted this comment as meaning that Respondent wanted

3 The audio recorded interviews of K.S. and V.S.C. (School BoardÔs Exhibits 6 and 8) are

contained on a thumb - drive accompanying the School BoardÔs written exhibits received into

evidence at the hearing.

to have sex with her. According to V.S.C., other students were present when

Respondent allegedly made the comment. Notably, this alleged incident is not

referred to in the Notice of Specific Charges. The noti c e was, therefore,

insufficient to inform Respondent of the School BoardÔs contention.

39. The entire recorded interview lasted approximately 52 minutes. Much

of the interview involved Detectiv e CharleyÔs repeated efforts to redirect

V.S.C. and her attempts to have V.S.C. " open - up. "

V.S.C.' s Testimony at Hearing

40. At the final hearing, V.S.C. could not even remember whether she was

in seventh or eighth grade during the 2017 - 2018 school year.

41. In any event, V.S.C. testified that during the 2017 - 2018 school year,

she attended Campbell Drive and the afterschool SWAG program.

Respondent and V.S.C. did not have much interaction in the SWAG program.

V.S.C. testified that she did not really parti cipate in any of the SWAG

activities; rather, she would either just " hang - out with [her] friends or sleep , "

or watch her frien ds and Respondent play soccer. However, most of V.S.C.Ôs

time was spent sleeping near a tree, far away from where Respondent spent

most of his time with the soccer group.

42. When asked if Respondent ever did anything inappropriate to her

during the SWAG program, V.S.C. testified that he talked about his " private

part " to her, saying that " it was big, " and referring to it once as " his third

leg. "

43. Counsel for the School Board then asked V.S.C. in leading fashion:

" Okay. Did he ever mention anything that he would like to do with his

private part, " to which V.S.C. responded, " I donÔt remember. I just know that

he talked about it once. " T . Vol. 1, p . 82.

44. V.S.C. described unspecified things that Respondent allegedly said to

V.S.C. as " playful, like, in an inappropriate way, " and " weird. "

45. Counsel for the School Board then asked V.S.C. in leading fashion: " Do

you remember te lling these things that he would say to you to the police at a

given point, " to which V.S.C. responded, " I barely remember. ItÔs, like, such a

long time ago now. " Id . at p . 83.

46. As with her recorded interview with Detective Charley, V.S.C. was

relucta nt to testify at hearing and there were many long pauses by her after

questioning by the School BoardÔs counsel.

47. After further prodding and requests by the School BoardÔs counsel to

describe " the things he would say to you, other than his talking abou t his

private part, " V.S.C. described the aforementioned verbal incident in

RespondentÔs classroom. On cross - examination, V.S.C. acknowledged this

comment was loud enough so that other students could hear it and that she

read a sexual connotation into the comment. Id. at p . 97.

48. Counsel for the School Board again asked V.S.C. if Respondent ever

made any other comments to her during SWAG, to which V.S.C. responded, " I

canÔt remember. " Id . at p . 85.

49. Subsequently, the following exchanges occurred betw een counsel for

the School Board and V.S.C . :

Q: Did he ever threaten to slap you with anything? "

A: Yeah, w ith his penis.

Q: What did he say?

A: He said he wants to, like, slap me in the face

with his penis.

Q: And when did he say that?

A: I think in SWAG. Yeah, it was in SWAG.

* * *

Q: Do you remember Mr. Rizo touching you in any

other way other than bumping you with his hip or

anything like that?

A: When we would play fight, he would, like, put

his pelvis, like, on my back area.

Q: What would he do with his pelvis?

A: He would just, like, be there, like, behind me

and play fighting me.

Q: Did he ever try to touch you sexually in any

way?

A: I guess, yeah, if heÔs doing that, if heÔs behind me

like that.

Id. at p p. 87 and 92.

50. V.S.C. never reported any alleged inappropriate conduct by

Respondent to her parents, teachers, or school administrators.

51. At hearing, V.S.C. acknowledged that she and K.S. were friends.

52. At hearing, V.S.C. admitted that she and Respondent were never

alone during the SWAG program and that she was always close to the other

students.

53. At hearing, nothing was mentioned about Respondent touching

V.S.C . Ôs breasts.

Allegations involving N.E.

54 . In para graph 12 of the Notice of Specific Charges, the School Board

alleges that " Respondent also made sexual advances and over the clothing

sexual contact with a third female student [N.E.] du ring the 2017 - 2018 school

year. "

55. However, N.E. did not testify liv e at hearing and the School Board did

not present any eyewitness testimony in support of the allegations.

56. At hearing, Respondent vehemently denied making any sexual

comments or engaging in any sexual contact with N.E.

Ultimate Findings of Fact

57 . At hearing, the undersigned had the opportunity to observe the

testimony and demeanor of Respondent, K.S., and V.S.C. The testimony of

Respondent is credited and is more persuasive than the testimony of K.S. and

V.S.C., which is not credited or persuasiv e.

58. Notably, K.S.Ôs and V.S.CÔs versions of the events as set forth in their

statements to the police and testimony at hearing were vague, differed in key

respects, and much of their testimony and statements to the police were

obtained through patently leading questions. Moreover, V.S.C. admitted that

her memory is bad and that " thereÔs nothing to talk about because nothing

did happen. " I t is also inconceivable that K.S. would have returned to

RespondentÔs classroom for intensive reading during the 2017 - 2018 school

year had the alleged conduct during the 2016 - 2017 school year actually

occurred. Had the alleged incidents occurred as testified about by K.S. and

V.S.C., who were friends, it is also expected that there would have been

eyewitnesses .

59 . In s um, the persuasive and credible evidence adduced at hearing

demonstrates that Respondent did not engage in inappropriate physical and

verbal sexual contact with K.S., V.S.C., or N.E. , as alleged in the Notice of

Sp ecific Charges, and Respondent did not eng age in conduct with K.S.,

V.S.C., or N.E . , which constitutes misconduct in office or immorality. 4

4 K.S. and N.E. were also friends. As detailed above, N.E. did not testify at the hearing.

However, an audio statement and a written statement purportedly authored by N.E., both of

which are hearsay, were received into evidence at the final hearing as the School BoardÔs

Exhibit Nos. 6 and 16, respectively. Although hearsay is admissible in administrative

proceedings, this does not necessarily mean that the undersigned must use the hearsay in

r esolving a factual issue. The statements cannot be used as the sole basis to support a

finding of fact, because they do not fall within an exception to the hearsay rule. Furthermore,

the statements do not supplement or explain other non - hearsay evidence. S ee § 120.57(1)(c),

Fla. Stat. ( " Hearsay evidence may be used for the purpose of supplementing or explaining

other evidence, but it shall not be sufficient in itself to support a finding unless it would be

admissible over objection in civil actions. " ). At h earing, the parties stipulated to the receipt

into evidence of N.E.Ôs deposition testimony in lieu of her live testimony. Even if the audio

statement and written statement could be used by the undersigned, however, the audio

statement, written statement, a nd deposition testimony would not be given any weigh t based

on the live testimony Respondent presented at hearing. Unlike N.E., who did not testify live

C ONCLUSIONS OF L AW

6 0 . DOAH has jurisdiction of the subject matter and the parties to this

proceeding pursuant to sections 120.569 and 120.57(1), Florida S tatutes.

6 1 . Respondent is an instructional employee, as that term is defined in

section 1012.01(2), Florida Statutes. The School Board has the authority

to suspend and terminate instructional employees pursuant to sections

1012.22(1)(f), 1012.33(1)(a), an d 1012.33(6)(a).

6 2 . The School BoardÔs allegations are limited to those contained within

the Notice of Specific Charges. M a cMillian v. Nassau C n ty. Sch. Bd. , 629

So. 2d 226, 228 (Fla. 1st DCA 1995); Trevisani v. DepÔt of Health , 908 So. 2d

1108, 1109 (Fla . 1st DCA 2005); Cottrill v. DepÔt of Ins. , 685 So. 2d 1371, 1372

(Fla. 1st DCA 1996). The School Board has the burden of proving, by a

preponderance of the evidence, that Respondent committed the violations

alleged in the Notice of Specific Charges and th at such violations constitute

" just cause " for dismissal. §§ 1012.33(1)(a) and (6)(a), Fla. Stat.; Dileo v. Sch.

Bd. of Dade C n ty. , 569 So. 2d 883, 884 (Fla. 3d DCA 1990).

6 3 . The preponderance of the evidence standard requires proof by " the

greater weig ht of the evidence " or evidence that " more likely than not " tends

to prove a certain proposition . Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla.

2000). The preponderance of the evidence standard is less stringent than the

standard of clear and convincing ev idence applicable to loss of a license or

certification. Cisneros v. Sch. Bd. of Miami - Dade C n ty. , 990 So. 2d 1179

(Fla. 3d DCA 2008).

6 4 . Whether Respondent committed the charged offenses is a question of

ultimate fact to be determined by the trier - of - fac t in the context of each

at hearing, the undersigned had an opportunity to observe the demeanor of the live

witnesses who testif ied. Unlike N.E., the live witnesses at the final hearing were subject to

cross - examination. The testimony of Respondent is inherently more trustworthy, more

persuasive, and credited over the hearsay statements and deposition testimony of N.E., who

did not testify live at the hearing.

alleged violation. Holmes v. Turlington , 480 So. 2d 150, 153 (Fla. 1st DCA

1985); McKinney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995).

6 5 . Sections 1012.33(1)(a) and (6)(a) provide, in pertinent part, that

instructional sta ff may be terminated during the term of their employment

contract only for " just cause. " §§ 1012.33(1)(a) and (6)(a), Fla. Stat. " Just

cause " is defined in section 1012.33(1)(a) to include " misconduct in office " and

" immorality. "

6 6 . Section 1001.02(1), Fl orida Statutes, grants the State Board of

Education authority to adopt rules pursuant to sections 120.536(1) and

120.54 to implement provisions of law conferring duties upon it.

6 7 . Consistent with this rulemaking authority, the State Board of

Education h as defined " misconduct in office " in Florida Administrative Code

R ule 6A - 5.056(2), which provides, in pertinent part:

(2) " Misconduct in Office " means one or more of the

following:

* * *

(b) A violation of the Principles of Professional

Condu ct for the Education Profession in Florida as

adopted in Rule 6A - 10.081, F.A.C.;

(c) A violation of the adopted school board rules;

(d) Behavior that disrupts the student's learning

environment; or

(e) Behavior that reduces the teacher's ability or h is

or her colleagues' ability to effectively perform

duties.

68 . Rule 6A - 5.056(2)(b) incorporates by reference Florida Administrative

Code R ule 6A - 10.081, which is titled " Principles of Professional Conduct for

the Education Profession in Florida. " Rule 6A - 10.081(1)(a) and (2)(a)

provides, in pertinent part:

(1) Florida educators shall be guided by the

following ethical principles:

(a ) 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 to all.

(b) The educatorÔs primary professional concern will

always be for the student and for the development

of the studentÔs potential. The educator will

therefore strive for professional growth and will

seek to exercise the best professional judgment and

integrity.

(c) Aware of the importance of maintaining the

respect and confidence of oneÔs 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.

(2) Florida educators shall comply with the

following disciplinary princip les. Violation of any of

these principles shall subject the individual to

revocation or suspension of the individual

educatorÔs certificate, or the other penalties as

provided by law.

(a) Obligation to the student requires that the

individual:

1. Shall make reasonable effort to protect the

student from conditions harmful to learning and/or

to the student's mental and/or physical health

and/or safety.

* * *

5. Shall not intentionally expose a student to

unnecessary embarrassment or disparagemen t.

6. Shall not intentionally violate or deny a student's

legal rights.

* * *

8. Shall not exploit a relationship with a student

for personal gain or advantage.

69 . Consistent with its rulemaking authority, the State Board of

Education has defi ned " immorality " in rule 6A - 5.056(1), which provides:

(1) " Immorality " means conduct that is inconsistent

with the standards of public conscience and good

morals. It is conduct that brings the individual

concerned or the education profession into public

d isgrace or disrespect and impairs the individualÔs

service in the community.

7 0 . School Board Policy 3210, Standards of Ethical Conduct, provides, in

pertinent 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 themselves and the

school system.

A. An instructional staff member shall:

* * *

3. make a reasonable effort to protect the student

from conditions harmful to lear ning and/or to the

student's mental and/or physical health and/or

safety;

* * *

7. not intentionally expose a student to

unnecessary embarrassment or disparagement;

8. not intentionally violate or deny a student's legal

rights;

* * *

10. not exploit a relationship with a student for

personal gain or advantage;

* * *

14. not use institutional privileges for personal gain

or advantage;

* * *

21. not use abusive and/or profane language or

display unseemly conduct in the workplace;

7 1 . School Board Policy 3210.01, Code of Ethics, provides, in pertinent

part:

All members of the School Board, administrators,

teachers and all other employees of the District,

regardless of their position, because of their dual

roles as public servants and educators are to be

bound by the following Code of Ethics. Adherence

to the Code of Ethics will create an environment of

honesty and integrity and will aid in achieving the

common mission of providing a safe and high

quality educatio n to all District students.

Application

This Code of Ethics applies to all members of the

Board, administrators, teachers, and all other

employees regardless of full or part time status. It

also applies to all persons who receive any direct

economic bene fit such as membership in Board

funded insurance programs.

Employees are subject to various other laws, rules,

and regulations including but not limited to The

Code of Ethics for the Education Profession in

Florida and the Principles of Professional Cond uct

of the Education Profession in Florida, F.A.C.

Chapter 6A - 10.081, the Code of Ethics for Public

Officers and Employees, found in F.S. Chapter 112,

Part III, and Policy 3129, which are incorporated

by reference and this Code of Ethics should be

viewed a s additive to these laws, rules and

regulations. To the extent not in conflict with any

laws, Board policies, or governmental regulations,

this Code of Ethics shall control with regard to

conduct. In the event of any conflict, the law,

regulation, or Board policy shall control.

Fundamental Principles

The fundamental principles upon which this Code

of Ethics is predicated are as follows:

* * *

Each employee agrees and pledges:

A. To abide by this Code of Ethics, making the well -

being of the s tudents and the honest performance

of professional duties core guiding principles.

B. To obey local, State, and national laws, codes

and regulations.

C. To support the principles of due process to

protect the civil and human rights of all

individuals.

D. To treat all persons with respect and to strike to

be fair in all matters.

E. To take responsibility and be accountable for

his/her actions.

* * *

G. To cooperate with others to protect and advance

the District and its students.

* * *

Conduct Regarding Students

Each employee:

A. shall make reasonable effort to protect the

student from conditions harmful to learning and/or

to the student's mental and/or physical health

and/or safety;

* * *

E. shall not intentionally e xpose a student to

unnecessary embarrassment or disparagement;

F. shall not intentionally violate or deny a student's

legal rights.

* * *

H. shall not exploit a relationship with a student

for personal gain or advantage.

7 2 . As detailed above, the School Board failed to prove that Respondent

made grossly inappropriate physical and/or verbal sexual contact with K.S.,

V.S.C., or N.E. as alleged in the Notice of Specific Charges. As such, the

School Board failed to prove that Respondent engaged in conduct which

constitutes misconduct in office, immorality, or a violation of School Board

Policy 3210 or 3210.01.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that Petitioner, Miami - Dade County School Board, enter a

final order rescinding the suspension and termination of Respondent,

Oscar D. Rizo, and reinstate Respondent with full back pay and benefits.

D ONE A ND E NTERED this 18th day of Ma y , 2020 , in Tallahassee, Leon

County, Florida.

S

D ARREN A. S CHWARTZ

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 Admini strative Hearings

this 18th day of May , 2020 .

C OPIES F URNISHED :

Christopher J. La Piano, Esquire

Miami - Dade County School Board

1450 Northeast Seco nd Avenue , Suite 430

Miami, Florida 33132

(eServed)

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2 9605 U.S. Highway 19 North , Suite 110

Clearwater, Florida 33761 - 1526

(eServed)

Alberto M. Carv a lho, Superintendent

Miami - Dade County Public Schools

1450 N ortheast Second Avenue, Suite 912

Miami, Florida 33132

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Richard Corcoran , Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.