#376-PPC-886--
DOCKET NO. 376-PPC-886
RODOLFO ESPINOSA, JR.+BEFORE THE STATE
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V.+COMMISSIONER OF EDUCATION
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RUMALDO BELMARES+THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Complainant Rodolfo Espinosa, Jr. filed a complaint
with the Professional Practices Commission against Rumaldo
Belmares, Respondent, alleging that Respondent violated
Principle IV, Standard 4 of the Code of Ethics and Standard
Practices for Texas Educators which states:
The Texas Educator, in accepting a position of
public trust, should measure success by the
progress of each student toward realization of his
potential as an effective citizen.
4. The educator shall make reasonable
effort to protect the student from con-
ditions detrimental to learning, or
health, or safety.
A hearing was conducted before a three member panel of
the Texas Teachers Professional Practices Commission and
Rebecca Elliott, the Hearing Officer appointed by the State
Commissioner of Education, on October 6 - 7, 1986. Joan
Howard Allen was subsequently appointed to be substitute
Hearing Officer.
Complainant is now represented by Carlos Martinez,
Attorney at Law, San Antonio, Texas. Respondent is repre-
sented by Eugene D. Stewart, Attorney at Law, Carrizo
Springs, Texas.
On July 19, 1988, the Hearing Officer issued a Proposal
for Decision recommending that the Commissioner of Education
adopt the minority report and that a reprimand be placed on
the face of Respondent's teaching certificate as a sanction
for violating Principle IV, Standard 4 of the Code of Ethics
and Standard Practices for Texas Educators. Respondent
filed Exceptions to the Proposal for Decision on August 8,
1988; Complainant's Reply to Respondent's Exceptions to
Proposal for Decision was filed on August 23, 1988.
Findings of Fact
After due consideration of the evidence and matters
officially noticed, in my capacity as State Commissioner of
Education, I make the following Findings of Fact:
1. Respondent Rumaldo Belmares was employed as a band
instructor by the CrystalCityIndependentSchool District.
(Record).
2. During the 1985-86 school year, Respondent was
standing next student, a female eighth grade saxaphone
student. Respondent placed one hand on student shoulder and
was leaning across her pointing to music on a music stand.
Respondent's genitals rubbed against the student's arm.
Respondent did not intend to touch the student in a sexually
provocative manner; however, the student told Respondent to
"keep his hands to himself when (they) are by (themselves)
in the room." (Tr. 15-16, 22, 25, 38, 229, 231-232).
3. The evidence supports a finding that Respondent
touched one other female student, student; however, the
record does not prove that the contacts were inappropriate.
The evidence does not support a finding that Respondent
touched student or student. (Record).
4. Respondent was suspended from his previous position
in May of 1980 because of his involvement with a female
student. Specifically, Respondent admits that this high
school student came over to his home at approximately 10:00
p.m. on more than one occasion after having been drinking to
talk to Respondent alone. The student's parents
subsequently complained to the district's administration and
Respondent was suspended. He subsequently resigned rather
than participate in an investigation of the incidents. (Tr.
pp. 233-234).
Discussion
In today's climate of heightened awareness of child
abuse, educators must be particularly sensitive to the
question of whether unintentional contact is offensive. It
is unnecessary in this complaint to resolve whether Respon-
dent's incidental contact was proper; clearly student found
the contact offensive and there is no evidence that she was
a child of heightened sensibilities. The fact that
Respondent's genitals came in contact with a student is
crucial to the resolution.
Respondent's own admission describing an incident at
his previous school district in which he allowed a female
student to come to his home late at night after she had been
drinking is yet another example of Respondent's poor
judgment in exercising his responsibility as an professional
educator and indicates a pattern of irresponsibility.
Teachers must be circumspect in all situations in which they
are alone with students of the opposite gender, even when
their natural spontaneous teaching style must be controlled.
Here, Respondent's continued lack of judgment cannot be
fully excused. Some sanction is appropriate to place
Respondent on notice that he must carefully consider how his
actions will be interpreted by his students, their parents
and the administration.
The Decision in this appeal should not be interpreted
as a wholesale attack on any physical contact with a stu-
dent. Although great deference must be given to protecting
our students from unwanted and offensive contact, profes-
sionals should have some protection from liability for a
single or unproven instance of contact. The Complainant in
these cases must prove by a preponderance of the evidence
that the contact occurred and that it was offensive to a
child of normal sensibilities. In addition, if sexual in-
tent is alleged, that too must be proven by a preponderance
of the evidence. However, I will not jeopardize the cer-
tificate of an educator for incidental contact to a child of
heightened sensibilities. Some balancing of the interests
of the State in protecting its children and the professional
in retaining a certificate must be made.
Given the unintentional nature of the contact, I con-
clude that the minority report should be adopted in part and
that Respondent should be issued a letter of reprimand to be
placed in his file maintained by the Division of Teacher
Certification.
Conclusions of Law
After due consideration of the record, matters offi-
cially noticed, and the foregoing Findings of Fact, in my
capacity as State Commissioner of Education, I make the
following Conclusions of Law:
1. Respondent violated Principle IV, Standard 4 of the
Code of Ethics and Standard Practices for Texas Educators
by allowing his genitals to come in contact with the arm of
a female eighth grade student.
2. A letter of reprimand should be placed in Respon-
dent's file maintained by the Division of Teacher
Certification as a sanction for violating the Code of Ethics
referenced in Conclusion of Law No. 1.
O R D E R
After due consideration of the record, matters offi-
cially noticed, and the foregoing Findings of Fact and Con-
clusions of Law, in my capacity as State Commissioner of
Education, it is hereby
ORDERED that a letter of reprimand be placed in
Respondent's file maintained by the Division of Teacher
Certification as a sanction for violating Principle IV,
Standard 4 of the Code of Ethics and Standard Practices for
Texas Educators.
SIGNED AND ENTERED this _____ day of ______,
19_____.
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W. N. KIRBY
COMMISSIONER OF EDUCATION