STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1184

)

ROBERT GAY RIDGEWAY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter after due notice, at Orlando, Florida, on August 24 and September 16, 1976, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: James W. Markel, Esquire

Markel and Scott Post Office Box 1991

Orlando, Florida 32802

Thomas G. Jarrell, Esquire Markel and Scott

Post Office Box 1991 Orlando, Florida 32802

For Respondent: Alan Todd, Esquire

180 Park Avenue North Post Office Box 986

Winter Park, Florida 32789

Robert Gatton, Esquire

Johnson, Motsinger, Trismen and Sharp

100 East Robinson Street Orlando, Florida 32801

ISSUE

Whether Respondent, between August, 1975 and May 26, 1976, committed acts constituting misconduct in office and immorality, as set forth in the letter to him dated June 10, 1976, from L. Linton Deck, Jr.

This proceeding involves allegations against the Respondent, a teacher employed in the public schools, by the School Board of Orange County, Florida. By letter of May 26, 1976, the Superintendent of schools for Orange County informed the Respondent that he was relieved of duty pending an investigation into allegations made by students concerning possible improper conduct with a student or students. After an investigation into the allegations, the

Superintendent formally charged him with misconduct in office and immorality and suspended him, with pay, pursuant to Section 231.36 and 230.33, Florida Statutes. Respondent requested a public hearing concerning the allegations on June 14, 1976. The school board requested that the Division of Administrative Hearings provide a hearing officer for this purpose by letter from its counsel, dated June 21, 1976.

FINDINGS OF FACT

1. Respondent was employed in the public school system of Orange County in 1972. At the start of the academic year 1975-76, he was a teacher of mathematics at the Union Park Junior High School. In December, 1925, he transferred to the new Liberty Junior High School. Students whom he had taught in the eighth grade at Union Park also were transferred to the new school. During the course of the aforesaid year, the following incidents took place at the schools involving the Respondent and certain of his eighth grade students:

   
   

2. Patricia Renee Riggs - In September, 1975, Riggs was sitting at a desk in the front of Respondent's homeroom conducting voting procedures for student school officers. Respondent, who was sitting on the corner of the desk, took away her pen. She asked for it and he pinched her on the arm. She pinched him back. Riggs testified that Respondent then said, "Do you want me to pinch you down there?" (See Finding No. 6)

   
   

3. In February, 1976, Riggs asked the Respondent for assistance with her course work while in the classroom. He put his hand on her shoulder and she backed away. He walked toward her and pushed her shoulder and she fell in a trash can.

   
   

4. Also during the second term, on one occasion while Riggs was in the back of the classroom, and after having made a facetious remark to Respondent, he put his hands on her shoulders and pinned them back onto a nearby desk.

   
   

5. Another time during the second term, she asked the Respondent for assistance after class. He told her to "Come at 2:00 and we will finger it out."

   
   

6. During March or April, 1976, while Riggs was in the lunch line at school, Respondent approached her, placed his hands under her arms and moved her aside. The above incidents made Riggs uncomfortable to be in Respondent's class. (Testimony of Riggs)

   
   

7. Debra S. Muns - During the first semester at Union Park Junior High School, Muns was wearing a beaded shirt in the classroom one day. Another student asked Respondent to feel the shirt. Muns testified that Respondent stated, "That's not all I would like to feel." (See Finding No. 6)

   
   

8. During the second semester, after arriving in the classroom from a visit to an orthodontist, Muns remarked to the Respondent that her teeth were hurting her. Respondent put his hands on her shoulders and said, "I know a good way to make them stop hurting," or words to that effect.

   
   

9. Also during the second semester, while Muns was looking at a poster on the classroom wall, Respondent placed his hands on the wall above her and, although not touching her, effectively pinned her against the wall. At this time he made a statement concerning tutoring her after class to the effect that

   he didn't have only work in mind. His actions made her feel uncomfortable. (Testimony of Muns)

   
   

10. Lisa Fox - On several occasions during the school year, while asking for assistance with classroom work, Respondent came to her desk and placed his arm on her back and sometimes rubbed her back while assisting her. This bothered her and made her feel uncomfortable. Fox tried to get transferred from Respondent's class early in the year because it was disruptive and she was not doing well in mathematics. She also complained about the class being noisy on several other occasions. (Testimony of Fox)

    
    

11. Penny Seifert - At various times during the school year, Seifert asked for assistance in her work and Respondent knelt by her desk and sometimes placed his hand on her back and rubbed it. On several occasions when Respondent was helping her with mathematics after the regular school period, he pulled up a chair to her desk on the side where she could not get out and rubbed her back.

    
    

12. During the second semester she stayed after class once to ask Respodent a question and he attempted to back her into a corner of the classroom. She pushed him in the stomach to move him aside.

    
    

13. These events bothered her and made her feel uncomfortable. Once she kissed him on the cheek to be "friendly" with him. (Testimony of Seifert)

    
    

14. Virginia Niemensky - In May, 1976, this student was erasing the blackboard in the classroom. She tripped and the eraser flew out of her hand and hit the Respondent in the head. He retrieved it, put chalk on it, and started placing it in her hair. After asking him to stop, Respondent wrestled her to the floor, pinned her arms with his knees and proceeded to place chalk on her clothes.

    
    

15. Mary Atkisson - At various times during the year, Mary purchased pencils from the Respondent. At such times, she would hand him a nickel and he would try to hold her hand.

    
    

16. During the last half of the second semester she asked the Respondent for assistance with a mathematics problem. He came back to her desk, knelt by the open side and kept "scooting over" toward her to the point where she crawled out over the closed side of her desk to avoid him and left the classroom. On another occasion during the second semester, Mary was having a conversation with two other students, Teresa Skipper and Danny Smith. Teresa had stated that she was cold. Respondent heard the conversation and said to Teresa and Danny, "Why don't you two warm up." Danny responded, "Me warm up with you?" Respondent replied, "It is not my week for boys."

    
    

17. During the second semester, Mary was once in the classroom before the other students arrived and asked the Respondent, "Why is it cold here?" He responded, "Because it encourages my favorite body contact sport."

    
    

18. Respondent told a joke during class in which he asked if the students had heard the joke about the constipated mathematician who had to work it out with a pencil.

    
    

19. During the latter part of the second semester, she told Respondent that she had made a mistake in a mathematics problem and he said, "In doing that, you did it right, because, you know, you are beautiful and I love you." When she later asked him what he meant by the statement, he said, "Pelly, I love

    my students in every Christian sense of the word." She was upset by this and the "scooting" incident. (Testimony of Atkissan)

    
    

20. Mary O'Connell - During the second semester, Mary went to the front of the classroom to ask Respondent if he would move her seat in the classroom. Respondent took her wrist and laid her backwards against a desk.

    
    

21. On another occasion, she was sitting at her desk and raised her hand to ask Respondent a question. He came to her desk and she asked him if she could go to another classroom. While she asked him, he pinched the skin on her arm. This bothered and upset her. (Testimony of O'Connell)

    
    

22. Beverly Young - In May, 1976, Beverly called the Respondent to her desk to assist her with her work. He bent down beside her desk and while responding to her question, rubbed her back. She told him that Lisa Fox had given a cold to her and that he would have to get on her for doing so. Respondent answered, "I will get on to her but not for giving you a cold," or words to that effect. He also asked her if she would share her cold with him or give it to him. The incident made her uncomfortable, although they were joking at the time. (Testimony of Beverly Young).

    
    

23. Teresa Skipper - In May, 1976, Teresa requested that Respondent help her with her work. He came back to her desk, assisted her, and whispered "Do you understand?" She replied, "Yes, sir." Then she felt his tongue touch her ear whereupon she asked him to leave her alone. The incident upset and disturbed her. (Testimony of Skipper)

    
    

24. In the latter part of January, 1976, Joyce Krapf, guidance counselor at Liberty Junior High school, received a call from Renee Riggs' mother complaining about "off color" remarks made by Respondent in the class and asking her to speak to Renee about the situation. During approximately the same period, an English instructor in the school, who taught a number of the same students who were in Respondent's classes, became aware of certain of the incidents involving Respondent by conversations of students in his classroom.

    He made the guidance counselor aware of this information. She talked to several of the girls and then reported the information to the school principal. As a result, the principal talked to some of the students and then, in February, called the Respondent into his office for a conference. He specifically mentioned the remark Respondent was alleged to have made during the "blouse" incident and complaints of having put his arms around the students at their desk, and warned him that he should exercise care in the future to avoid having physical contact with the students or making remarks that would embarrass them or which could be misinterpreted by them. He further stated that if any other such incidents were reported, he would have to ask for a full investigation and that therefore Respondent should make every effort not to be placed in a situation where he could be accused of improper conduct. Respondent said that he would do the best he could to avoid such problems in the future.

    
    

25. Toward the end of the school year, the guidance counselor brought to the principal's attention the alleged incident involving Teresa Skipper. The principal again talked to the Respondent, informed him of the complaint and gave him the option of resigning his position or requesting an investigation. Respondent chose the latter course of action. (Testimony of Boyte, Krapf, Dominey)

    
    

26. Respondent is an excellent teacher of mathematics and goes out of his way to assist students and other teachers alike. He enjoys a fine reputation as

    an academician and for good character in the community in which he lives. (Testimony of Boyte, Way, Dominey, Gary, Bloxsom, Case)

    
    

27. On May 28 and July 21, 1976, Respondent voluntarily underwent polygraph examinations concerning certain of the incidents forming the basis of the charges against him. During these examinations, he specifically denied touching or placing his tongue in the ear of Teresa Skipper. Concerning his alleged statement regarding Debra Muns' blouse, he claimed he had said "If I did [touch her blouse], I would touch more than that," rather than "That's not all I would like to feel." He further denied stating to Renee Riggs, "Do you want me to pinch you down there?" Although conceding that he had made certain of the other statements and engaged in certain of the actions complained of, he denied any sexual intent or desire on his part. It was concluded by the polygraph examiner that Respondent had not attempted deception in any of his statements or responses and therefore was telling the truth. (Testimony of Levy, Respondent'S Exhibit l; Stipulation)

    
    

28. Upon entering the teaching profession in Orange County, Florida, Respondent signed a statement acknowledging that he had read the Code of Ethics of The Education Profession. (Testimony of Respondent, Petitioner's Exhibit 1)

    
    

29. The Respondent testified as a witness and denied stating to Biggs, "Do you want me to pinch you down there?" There was no corroboration of Riggs' testimony in this regard, even though another student was nearby at the time.

    In view of this fact and the delay in reporting the alleged remark to school authorities, it is found that the making of the alleged statement was not established. In like manner, due to the absence of corroboration and the delay in reporting the remark, it is found that Respondent's version of the statement that he made to Muns, i.e., "If I did [touch her blouse], I would touch more than that," is accepted rather than the alleged statement, "That's not all I would like to feel." However, his denial of touching Teresa Skipper's ear with his tongue is not accepted in the light of the circumstances surrounding the incident.

    
    

30. Respondent sought to explain various other of his statements and actions directed to his students by asserting that, in most instances, they were designed to create warmth or rapport. Hence, the telling of the joke concerning the mathematician and his use of the term "finger it out." With regard to the scooting incident involving Mary Atkisson he stated, "when she first moved away, I shouldered up to her to just tease her more about it..." His explanation for putting his arms around students at their desks was that when he would kneel to help them with their problems, he had to grasp the back of the chair in order to keep his balance. He admitted, however, that he occasionally patted tbe students on the back for encouragement. His explanation for the statement concerning after school tutoring, that he "had more than work in mind," was designed to tell the students that mathematics could be fun and was not all work. As to the lunch line incident with Riggs, he claimed that she had blocked his progress in the line and that he first said, "Excuse me," and then put his hands on her waist and moved her aside. He further claimed that some of the statements and incidents were precipitated by the students themselves and that he was merely attempting to restore order and get on with the classroom work. The evidence bears out the foregoing explanations and they were accepted as credible. (Testimony of Respondent)

    
    

    CONCLUSIONS OF LAW

31. Respondent is charged with misconduct in office and immorality under Section 231.36, F.S. Section 231.36(6) provides in part that any member of the instructional staff may be dismissed after opportunity for public hearing on charges of immorality or misconduct in office. The statute further provides that the purpose of the hearing is to determine upon the evidence submitted whether the charges have been sustained and, if so, "either to dismiss said employee or fix the terms under which said employee may be reinstated."

    
    

32. The stated basis for the charges were set forth in general terms in the 1etter of Superintendent Deck, dated June 10, 1976, which, as later amended, reads as follows:

    
    

    "1. Between August, 1975, and May 26, 1976, you made improper advances to numerous female students.

    1. Between August, 1975, and May 26, 1976, you made numerous and improper remarks having sexual connotations to female students.

    2. Between August, 1975, and May 26, 1976, you engaged in classroom conduct that is inconsistent with the standards of public conscience and good morals."

       
       

33. The evidence establishes that Respondent, indeed, engaged in conduct and made remarks, as alleged. Although the word "advances" is not entirely appropriate since it connotes that overtures were made with a view to further desired action, which was not the case here, such lack of precision in the allegation is not considered significant. It is apparent that Respondent's physical contact with a number of female students as set forth in the foregoing Findings of Fact would be considered "improper" in a school setting under any circumstances. Similarly, the various remarks made by Respondent to female and other students, though not blatantly prurient in nature, certainly may be considered "improper" and to have sexual connotations. Taken together, the conduct and oral statements of the Respondent as to his students constitute classroom conduct that is "inconsistent with the standards of public conscience and good morals."

    
    

34. The ultimate question is whether the acts and words of the Respondent rise to the level of the statutory grounds for removal, i.e., misconduct in office and immorality. Although those terms are not defined in the statute, the rules of the Professional Practices Council, a group that deals with ethical standards for the teaching profession in Florida, defines the grounds for dismissal as set forth in Section 231.36. In Rule 6B-4.09, F.A.C., these definitions are found:

    
    

    6B-4.09 Criteria for suspension and dismissal.- The basis for charges upon which dismissal action against instructional personal may

    be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:

    * * * * *

    1. Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct

       sufficiently notorious to bring the individual

       concerned or the education profession into public disgrace or disrespect and impair, the individual's service in the community.

    2. Miscoduct in office is defined as a violation of the Code of Ethics of the Education Profession so serious as to

    impair the individual's effectiveness in the school system.

    
    

    Although not specifically alleged, Rule 6B-1.02, which states the ethical obligations of a teacher to students, provides in paragraph (2)(d) that the educator "Shall conduct professional business in such a way that he does not expose the student to unnecessary embarrassment or disparagement." In weighing Respondent's conduct against the above standards, it is clear that it is encompassed therein. His ill-chosen and suggestive remarks were contrary to acceptable moral standards when considering the youth of the individuals and the mixed classes to which they were addressed. (See Pyle v. Washington County School Board, 238 So.2d 121 (Fla. 1st DCA 1970). His repeated physical encounters with female students were entirely out of place in the classroom and subjected those girls to acute embarrassment and apprehension. It may well be true that Respondent's intentions were merely to create a friendly and relaxed atmosphere in his classes, but the fact remains that the vast majority of incidents involved only female students. An isolated act or remark of the kind exhibited by the Respondent might well be dismissed as inconsequential, but the continuing nature of the conduct, particularly when it is considered that it recurred a number of times after Respondent had been counseled and warned by the school principal to cease the sort of actions complained of by parents and students, created an intolerable situation. Respondent's conduct was sufficiently notorious to bring him and the education profession into public disrespect and impaired his service and effectiveness in the community and school system. It is therefore concluded that the allegations of misconduct in office and immorality were established.

    
    

35. The remaining question concerns the action that should be taken as to Respondent's status as an instructor in the school system of Orange County. It is indeed unfortunate that such an individual, who possesses a fine background and has demonstrated excellent qualifications and competence as a teacher, should find himself in his present position. The evidence shows that both he and a number of his students viewed many of his comments and actions in a joking manner until late in the school year. Regardless of the motivation underlying his actions and the willing participation of his students up to a certain point, the conclusion is inescapable that either he is remarkably insensitive to the normal conduct reguired of a teacher, or simply refuses to adhere to such requirements. Whichever may be the case, his position in the Orange County School system has become untenable and the school board is justified in dismissing him as a teacher.

RECOMMENDATION

That Respondent Robert Gay Ridgeway be dismissed from employment as an instructor with the Orange County public school system for misconduct in office and immorality, pursuant to Section 231.36(6), Florida Statutes.

DONE and ENTERED this 25th day of October, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1976.

COPIES FURNISHED:

John W. Bowen, Esquire Post Office Box 305 Orlando, Florida 32802

James W. Markel, Esquire Markel and Scott

Post Office Box 1991 Orlando, Florida 32802

Robert Gatton, Esquire Johnson, Motsinger, Trismen

& Sharp

100 East Robinson Street Orlando, Florida 32801

Alan Todd, Esquire

180 Park Avenue North Post Office Box 986

Winter Park, Florida 32289

Docket for Case No: 76-001184

Orders for Case No: 76-001184