MAYLIN ARAGON-CANNET

v.

FLORIDA INTERNATIONAL UNIVERSITY

WOLFSON, J.

Maylin Aragon-Cannet ("Petitioner") attacked Katherine Olivares ("Complainant") at a football tailgate associated with Florida International University ("Respondent") (R. 77). The Respondent charged the Petitioner with the following: (1) endangerment-physical violence toward another person; (2) endangerment-action(s) endangering another's health, safety, or welfare; and (3) personal abuse-conduct directed at any person, "which is intended to cause [*1] fear, distress, or intimidation and would cause fear, distress, or intimidation to a reasonable person or would place a reasonable person in fear of injury or death". Id. The Student Conduct Committee conducted a formal hearing on February 17, 2014. Id. at 144. The Hearing Officer found her responsible for violating section (6)(e)¹, Student Handbook (physical violence toward another person) and section (6)(e)² (endangering another's health, safety, or welfare). The Student Conduct Committee did not find her responsible for violating section (6)(k)2. Id. The Respondent sanctioned the Petitioner as follows: suspension, deferred suspension upon reenrollment, conduct probation, housing exclusion, and counseling consultation. Id. at 144-145.

The Petitioner appealed the Student Conduct and Conflict Resolution Office's ("SCCR Office") administrative decision to the Assistant Vice President for Student Affairs; the Petitioner asserted due process errors and challenged the sanctions' severity. Id. at 149. On March 14, 2014, the Assistant Vice President denied her appeal. Id. at 179. In this administrative certiorari case, the Petitioner challenges the March 14, 2014 order. It is undisputed that this Court has jurisdiction.

A student may challenge a university disciplinary order by certiorari in a circuit appellate court; such "appellate review is a matter of right, as it would be in the case of a plenary appeal". Decker v. Univ. of West Florida, 85 So. 3d 571, 574 (Fla. 1st DCA 2012). When reviewing an administrative order, a panel "must determine whether procedural due process is accorded, whether the essential requirements of the law have been observed, and whether" competent substantial evidence supports the administrative findings and judgment. City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982).

The Petitioner argues that the Hearing Officer denied her procedural due process by failing to disclose to her that Sebastian Osorio, a witness, would testify telephonically; according to the Petitioner, such failure diminished her "right to cross-examine the witness as to" videos, pictures, and documents presented by the Petitioner (Pet. 6 & 8). In opposition, the Respondent contends that it emailed a letter to the Petitioner stating that Mr. Osorio would appear telephonically for the hearing (Resp. Br. 14). The Respondent advances that the Petitioner raised no objection to Mr. Osorio testifying telephonically before the hearing. Id. at 16. Due process in student disciplinary proceedings requires adequate notice, an opportunity to be heard, and substantial evidence to support the penalty. Matar v. Fla. Int'l Univ., 944 So. 2d 1153, 1160 (Fla. 3d DCA 2006) (citing Student Alpha ID No. Guja v. Sch. Bd. Of Volusia County, 616 So. 2d [*2] 1011, 1012 (Fla. 5th DCA 1993)). Student disciplinary proceedings do not require the constitutional safeguards provided to criminal defendants. Matar, 944 So. 2d at 1160. "An Agency violates a person's due process rights if it ignores rules promulgated thereby which affect individual rights". Id. at 1157.

Regarding Mr. Osorio's testimony, section (9)(b)¹, Student Handbook, states that the hearing notice "will include the names of witnesses to be called" (R. 305). Section (9)(b)¹ does not mandate disclosure as to the specific method by which a witness will provide testimony. Id. In this proceeding, the Petitioner does not direct this panel to a provision prohibiting a witness from providing telephonic testimony. According to the record, by letter dated February 11, 2014, the SCCR Office informed the Petitioner that Mr. Osorio would testify by telephone. Id. at 102. Thus, this record contradicts this Student's assertion that the Respondent failed to disclose that Mr. Osorio would testify telephonically (Pet. 8). The record also demonstrates that the Petitioner cross-examined Mr. Osorio. See R. 234-238. Because the Petitioner received notice that Mr. Osorio would testify telephonically and she references no Student Handbook provision barring a witness's telephonic testimony, no procedural due process violations occurred.

The Petitioner argues that the Respondent did not list Officer Manuel as a witness and did not provide her with five (5) days' notice regarding his appearance as a witness (Pet. 8). The Respondent concedes that it failed to disclose him as a witness (Resp. Br. 17). However, the Respondent argues that the Petitioner suffered no prejudice since she cross-examined him at the hearing and because his testimony about her arrest and the witness statements "came as no surprise" to the Petitioner. Id. at 17-18.

Section (9)(b), Student Handbook, requires that the Respondent send a hearing notice to charged students "at least five (5)" days before a hearing, and this hearing notice "will include the names of witnesses" and indicate whether the Hearing Officer "received any additional information to be used in the hearing after the" Respondent conducted the "information session" (R. 305) (emphasis added).¹ Before the hearing, the SCCR Office disclosed the evidence for use during the hearing and the witness list to the Petitioner. The witness list did not include Officer Manuel (R. 102). In disciplinary proceedings, the harmless error rule applies. See Matar, [*3] 944 So. 2d at 1158 ("FIU's failure to strictly 'comply with the procedural requirements of the rule must be considered at most harmless error"). During the hearing, Officer Manuel testified that he participated in preparing the comprehensive report regarding this incident, and that he wrote his name on each witness statement (R. 242:19-25). Although he admitted that he "didn't take any of the pictures," he testified that he "did the follow-up investigation". Id. at 243:2-8. Because this Petitioner received the police report and supplemental reports with witness statements, Id. at 94-101, she suffered no inability to cross-examine Officer Manuel. Thus, harmless error occurred.

The Petitioner complains that the Hearing Officer and conduct committee possessed unredacted, supplemental police reports while she received redacted police reports (Pet. 8). The Respondent argues that the redactions included "the names of the persons providing the witness statements and the names of the persons mentioned in the statements" (Resp. Br. 18). The Respondent contends that the Petitioner suffers no prejudice since the report provides "what the witnesses stated in their handwritten statements", which this Petitioner received. Id. at 18-19. Section (7)(e), Student Handbook, states that a student possesses "the right to inspect all of the information that will be presented against" her "at least three (3)"days "before the Student Conduct proceeding" (R. 305). Section (7)(e) does not require that a student receive completely un-redacted reports.

Before the hearing, the SCCR Office emailed the supplemental reports to the Petitioner as an attachment (R. 93). The reports do not identify which witness provided a particular statement to the police. Id. at 100. Significantly, both reports state: "THE INFORMATION BELOW IS CONFIDENTIAL-FOR USE BY AUTHORIZED PERSONNEL ONLY". Id. at 100-101 (capitals in original). The reports also include stamps stating: "FIU POLICE DEPARTMENT NOT TO BE DISSEMINATED FURTHER EXCEPT AS PROVIDED BY LAW". Id. (capitals in original). Thus, the redactions suggest that the police redacted the witness names in compliance with a statute, regulation, or policy.

In this administrative certiorari proceeding, the Petitioner cites no regulation, statute, or case law authorizing her to receive un-redacted reports or mandating that the Respondent provide un-redacted reports. The SCCR Office emailed a letter to this Petitioner regarding her second hearing; this letter identified Ms. Marte, Lazaro Median, and Sebastian Osorio as the witnesses [*4] who would testify against her during the second hearing (R. 102). Before the first hearing, the SCCR Office emailed this student a No-Contact Order, which clearly identified the Complainant as Katherine Olivares. Id. at 15. Furthermore, before the first hearing, the SCCR Office sent an email to the student, which identified Ms. Marte, Lazaro Medina, and Sebastian Osorio as witnesses. Id. at 38. Although the reports did not identify the victim or witnesses by name, the record demonstrates that the Petitioner knew the witness names before the hearing. Thus, she. suffered no prejudice by receiving the un-redacted reports.

The Petitioner notes that the Hearing Officer indicated "at least 4 times on the record" that the Petitioner "chose not to provide a statement at the police station until she spoke with her mother", and such action negatively affected the Petitioner's right to a fair and impartial hearing (Pet. 10). The Respondent notes that the Hearing Officer explained that Officer Manuel's testimony regarding the Petitioner invoking her right to silence involved explaining why the record did not include her written statement since it included written statements from the Complainant and other witnesses (Resp. Br. 21). The "right against self-incrimination" applies "not only to criminal matters but also administrative proceedings". Best Pool & Spa Service Co., Inc. v. Romanik, 622 So. 2d 65, 66 (Fla. 4th DCA 1993). Section (11)(g), Student Handbook, guarantees the right to avoid providing self-incriminatory testimony (R. 21). The prohibition against commenting upon a defendant's silence applies to "prosecutorial comments on a defendant's post-arrest silence." Parker v. State, 124 So. 3d 1023, 1025 (Fla. 2d DCA 2013) (emphasis added) (citing Green v. State, 27 So. 3d 731, 735 (Fla. 2d DCA 2010). The harmless error rule applies where a prosecutor comments upon a defendant's right to silence. Parker, 124 So. 3d at 1025.

In this certiorari proceeding, the Petitioner asserts that the Hearing Officer commented upon her silence (Pet. 10). In response to the Petitioner's objections, the Hearing Officer stated that Officer Manuel merely told "the sequence of events, and that's why we don't have a statement, because you decided to invoke your rights"; the Hearing Officer indicated that invoking one's right to silence was "fine" (R. 240:2-6). See Id. at 240:18-21 & 242:6-8. Regarding a hearing officer's prosecutorial or judicial role, the Respondent includes the "SCCR Director" within the definition of hearing officer (R. 297). The Respondent appears to relegate hearing officers to a quasi-judicial role and generally does not define a hearing officer in a [*5] prosecutorial manner.² However, the SCCR Director "will determine" whether "further fact finding is needed and whether there is enough information to file charges". Id. Thus, the SCCR Director may act in both a quasi-prosecutorial and quasi-judicial role.

Here, Karen Jones, the SCCR Office's Associate Director, emailed the charges to the Petitioner for the second hearing after the Petitioner's successful appeal. Id. at 77-78. In contrast, Kristen Kawczynski, the SCCR Office's Director, presided over the hearing at issue here and submitted the final order to the Petitioner. Although the SCCR Office may act in both a quasiprosecutorial and quasi-judicial manner, Kristen Kawczynski did not submit the charges leading to the administrative order pending before this panel. Thus, Ms. Kawczynski acted in a quasijudicial capacity as the Hearing Officer. Because Ms. Kawczynski did not act in a quasiprosecutorial role, the prohibition against commenting on a defendant's right to silence does not apply here.

The Petitioner asserts that the Hearing Officer refused to ask the Complainant questions related to whether she consumed alcohol immediately before the incident at issue (Pet. 11). The Petitioner argues that her due process right to fully cross-examine the Complainant became "especially necessary" where the Complainant served as the key witness. Id. at 12. According to the Petitioner, the ability to question the Complainant became significant to her self-defense argument that she struck the Complainant because the Complainant initially "lunged at her". Id. The Respondent asserts that the record demonstrates that the fact-finders knew that before the altercation, the Complainant consumed alcohol (Resp. Br. 23). According to the Respondent, testimony from the Petitioner and Mr. Osorio as well as a photograph submitted by the Petitioner established that the Complainant consumed alcohol. Id. See R. 202 & 236. The Respondent contends that section 12(f)(7), Student Handbook, grants the Hearing Officer "discretion to limit witnesses and testimony to avoid" duplicating evidence (Resp. Br. 23).

Section (11)(e), Student Handbook, guarantees a charged student the right to question "witnesses in accordance with" formal hearing procedures (R. 306). Pursuant to section (12)(j)5, "the student may pose questions directly to the witness except where the witness feels uncomfortable or is the Complainant.... In these situations, the questions will be presented in [*6] writing to the Hearing Body or Hearing Officer who will then ask the witness the question." Id. The transcript shows that the Hearing Officer prohibited the Petitioner from crossexamining the Complainant about alcohol usage (R. 260:2-8). During the Petitioner's opening statement, she alluded to the Complainant consuming alcohol (R. 17:22-23 & 18:8-10), and Sebastian Osorio testified that he and the Complainant consumed alcohol at the tailgate. Id. at 236:7-11. Because the hearing body heard the Petitioner reference the Complainant's alcohol consumption and Mr. Osorio's admission that he and the Complainant consumed alcohol, prohibiting the Petitioner from asking the Complainant about her alcohol consumption constitutes harmless error. In context with the overall testimonial evidence, harmless error becomes more apparent considering that (1) the Complainant testified that the Petitioner punched her in the nose and made her bleed (R. 263:12-17; 267:7-8; & 272:9-11); (2) Mr. Osorio testified that the Petitioner struck the Complainant, Id. at 228:9-10, and (3) both Mr. Osorio and Ms. Marte testified that they observed the Complainant bleeding after the attack. Id. at 221:3-5 & 229:3-4. Furthermore, in response to the Petitioner's asking whether the Complainant tried to hit the Petitioner first, Ms. Marte testified that the Complainant "didn't do anything". Id. at 225:9-11. Additionally, Mr. Osorio testified that the Complainant and Petitioner did not communicate before the incident, and the Complainant did not attack the Petitioner first. Id. at 229:15-23 & 230:5-8.

The Petitioner complains that FIU students, similarly situated with her, "received far less punishment for more severe altercations" (Pet. 15). The Respondent contends that her conduct "was extremely serious" and supports the sanctions (Resp. Br. 24). According to the Respondent, the sanctions comply with those available as listed in the Student Handbook. See Student Handbook § 14(a). Section (15)(f)2.i., Student Handbook, states that the appellate officer "may modify the sanction" upon finding that the Petitioner proved her allegation. When this Petitioner challenged her sanctions' severity, she submitted a Miami Herald article discussing (1) an "Airsoft rifles" incident between football players and (2) a parking lot verbal altercation involving three (3) football players (R. 163-164). Although the article references criminal charges against one (1) football team member, the article does not indicate whether the Respondent commenced disciplinary proceedings against these students or the specific sanctions imposed by the Respondent. Id. at 163. On appeal to the Respondent's appellate officer, the [*7] Petitioner also submitted articles discussing a football coach participating in a "brutal bar fight" and a baseball player who faced rape charges in the Bahamas. Id. 170-173. Neither article indicated the Respondent sanctions imposed upon these individuals. Id. She also submitted an article from Fox News, which discussed a baseball player accused of rape; this article notes that the Respondent allowed this player to continue his sports activity while the matter remained pending. Id. at 177. This Petitioner did not include in the record submitted to the Respondent's appellate officer any written statements from the students and coach discussing the sanctions imposed upon them. Thus, the Petitioner did not submit competent evidence justifying her assertion that the Respondent sanctioned her more harshly than others. Stated differently, the articles provide no sanctions to compare the particular sanctions imposed upon this Petitioner. Considering the above, the Respondent's appellate officer correctly denied her appeal as to the sanctions' severity.

Therefore, because the Petitioner fails to demonstrate that the Respondent's appellate officer violated procedural due process or the law's essential requirements and because there exists competent substantial evidence to support the administrative findings and judgment, the Petition for Writ of Certiorari is DENIED.

VENZER

FERNANDEZ, and TINKLER-MENDEZ, JJ., concur. ANDREA R. WOLFSON

JOSE FERNANDEZ

ELLEN SUE VENZÉR