STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 77-723

)

DONALD EUGENE MCKINNEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at the Conference Room, Suite 205, Building "B," 6501 Arlington Expressway, Jacksonville, Florida, at 1:00 p.m., July 22, 1977.

APPEARANCES

For Petitioner: J. David Holder, Esquire

Post Office Box 1501 Tallahassee, Florida 32302

For Respondent: L. Haldane Taylor, Esquire

2516 Gulf Life Tower Jacksonville, Florida 32207

ISSUES

1. Whether or not Donald Eugene McKinney was arrested by vice squad officers H.R. Hall and J.N. Henry of the Jacksonville Sheriff's Office, Duval County, Florida, at the St. Johns Marina men's room, and was charged with exposure of sexual organs on September 24, 1976 and entered a plea of guilty on October 12, 1976 to the offense of lewd and lascivious behavior as set out in Section 798.02, Florida Statutes, and due to the above alleged misconduct, has failed to perform his duties as an educator as described in Section 231.09(2), Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes.

   
   

2. Whether or not Donald Eugene McKinney was arrested by vice squad officers H.R. Hall and H.N. Henry of the Jacksonville Sheriff's Office, Duval County, Florida, at the St. Johns Marina men's room, and was charged with exposure of sexual organs on September 24, 1976 and entered a plea of guilty on October 12, 1976 to the offense of lewd and lascivious behavior as set out in Section 798.02, Florida Statutes, and through these acts has violated the substantive provisions of Section 231.28, Florida Statutes and subjected himself to the penalties contained in that section.

   
   

3. Whether or not on September 24, 1976, Donald Eugene McKinney solicited sex with an undercover officer, H.R. Hall, and through the above alleged

   misconduct, has failed to perform his duties as an educator as described in Section 231.09(2), Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes.

   
   

4. Whether or not on September 24, 1976, Donald Eugene McKinney solicited sex with an undercover officer, H.R. Hall, and through the above alleged misconduct, has violated the substantive provisions of Section 231.28, Florida Statutes and subjected himself to the penalties contained in that section.

FINDINGS OF FACT

1. The Respondent, Donald Eugene McKinney, is the holder of Florida Teacher's Certificate Number 178946, Special Postgraduate Rank 1A, and was employed with the Duval County Florida Public School System on September 24, 1976, and prior to that date.

   
   

2. This cause has been brought for consideration based upon a recommendation by the State of Florida, Department of Education, Professional Practices Council, Executive Committee, dated November 15, 1976, addressed to the Commissioner of Education. Upon examination of the recommendation, the Commissioner of Education found probable cause for revocation of the Respondent's teacher's certificate within the meaning of Section 231.28, Florida Statutes, and in accordance with Rule 6A-4.37, Florida Administrative Code.

   This determination by the Commissioner was made on January 27, 1977. Subsequently, a petition for revocation of the teacher's certificate was filed on March 7, 1977, and amended on July 12, 1977. The Respondent answered the original petition by denying the allegations, and stood mute on the allegations found in the amendment to the petition. The allegations contained in the original petition and the amendment to the petition are identified in the section of this recommended order entitled ISSUES. The hearing has been referred to the Division of Administrative Hearings pursuant to the action of April 19, 1977, in which the Professional Practice Council relinquished jurisdiction over the hearing process and requested the hearing to be conducted by the Division of Administrative Hearings.

   
   

3. On September 24, 1976, officer H.R. Hall of the Jacksonville Sheriff's Office vice squad was on duty at the St. Johns Marina, which is located in Jacksonville, Florida. This marina is part of an overall public park known as Friendship Park. The purpose of officer Hall being on duty was to investigate cases of alleged homosexual activity, which were occurring in the men's restroom at the marina. This restroom is available for public use. A rough description of the inside of the restroom is seen in Respondent's Exhibit No. 1 admitted into evidence. This exhibit describes the location of the sinks, urinals and toilets found in the facility. The room is approximately 18 feet long and 10 feet wide.

   
   

4. At around 3:30 p.m. on the aforementioned date, officer Hall entered the restroom and took a position against the far wall which faces the two toilets. These toilets are located in stalls, and there are partition walls separating the toilets and the toilet near the door from the two urinals. There were no doors on the toilets on the day in question. Officer Hall observed a male seated on the first toilet fondling his penis, to the extent that the man had achieved an erection. At this point the Respondent had also entered the restroom and was standing by the area of the sinks. McKinney had observed officer Hall watching the man in the first toilet stall and was of the opinion that the man and officer intended to commit some form of sexual activity. Because of this opinion, McKinney made some comment that it was alright for Hall

   and the other unidentified male to do so and he, McKinney, would wait. Prior to this brief conversation with officer Hall, McKinney had been in the restroom and observed that the two toilets were being used and observed officer Hall standing in the restroom. He had left the restroom and come back and that was the point at which he engaged officer Hall in the conversation.

   
   

5. The purpose that McKinney had for coming to the restroom was twofold. He felt that he needed to use the facilities for the intended purpose, but also indicated that he understood that homosexual activity occurred in that location and he expected that he might be able to engage in that activity with someone once he entered the facility. There is some difference in testimony as to the time that McKinney came to the location, his estimate being approximately 3:45

   p.m. and officer Hall's estimate being between 3:30 p.m. and 3:45 p.m. By either account, McKinney had come to the location after completing the assigned duties of his employment for that day. (On September 24, 1976, McKinney was actively employed as and administrative assistant to the principal of Windy Hill Elementary School, Duval County, Florida).

   
   

6. After McKinney spoke to Hall, officer Hall followed the unidentified male out of the restroom. While officer Hall was outside the restroom, McKinney entered one of the toilets and seated himself. Again, there is a difference in testimony between McKinney and Hall as to exactly which of the two toilets he sat on, McKinney and Hall as to exactly which of the two toilets he sat one, McKinney saying that he was in stall number two identified on the diagram and Hall saying that he was located in number one. Regardless of the true location, officer Hall stood and observed McKinney masturbating while McKinney was seated on the toilet, with his penis exposed. At that point of observation McKinney had an erection. McKinney then stood up and moved to the location of the urinals. He did not expose his sexual organs while moving from the location of the toilets to the location of the urinals. Once he was standing at the urinal, McKinney removed his penis from his pants and masturbated. This was observed by officer Hall. During the course of McKinney's activity at the toilet and at the urinal, other persons were coming in and out of the restroom. After Hall watched McKinney at the urinal for a brief period of time, he motioned by a gesture of his head, that McKinney should follow him outside. McKinney's testimony was that he thought that the officer might wish to perform some homosexual activity with him, specifically oral sex, and he followed Hall outside. McKinney recalls that the officer suggested that he go to the officer's car. To which McKinney recalls responding that he felt that it was too dangerous and that he had better go home. Officer Hall does not recall that conversation. Officer Hall and McKinney do agree that at some point after they arrived outside the restroom, McKinney said "I'm not looking to suck, I want to be sucked." At this point in time, officer Hall identified himself as a police officer and arrested the Respondent for exposure of his sexual organs.

   
   

7. Subsequent to the arrest, within approximately a week, the Respondent resigned his position with the Duval County School System. He then took a job with the School System in Mecklenburg County, North Carolina. There was no testimony that the incident in the restroom was ever revealed to the public in general or to the members of the faculty at the Windy Hill Elementary School, children, or parents of those children. The only persons that were informed of the incident were those persons in administration who were working directly in the personnel and security department, and the principal of Windy Hill Elementary School.

   
   

8. Buford Galloway, Director of Evaluation, Duval County School Board, Duval County, Florida, offered testimony in the hearing. He indicated that he

   had investigated approximately 30 cases of homosexual activity by personnel of the school system in Duval County, to include six or eight cases of lewd and lascivious conduct. Mr. Galloway indicated that in those instances where the homosexual activity became a matter of public knowledge, the effectiveness of the teacher was reduced. Potentially he felt that effectiveness of a teacher would be reduced in a situation such as the Respondent's should it become a matter of public knowledge. As stated before, the incident involving the Respondent has not become a matter of public knowledge, in either Duval County, Florida or Mecklenburg County, North Carolina. Continuing an examination of the question of reduced effectiveness, there was not testimony offered which competently spoke to the quality of McKinney's performance in his duties after the events of September 26, 1976. His stay in Duval County was only for a short period of time before resigning, and not sufficient enough to allow a competent opinion on his performance there. For the remainder of the 1976-77 academic year, following his resignation in the Duval County School System, the Respondent served as an elementary teacher in the Mecklenburg County School System. No officials from Mecklenburg County testified about his effectiveness in their system.

   
   

9. After his arrest, the Respondent was charged with engaging in lewd and lascivious behavior in violation of Section 798.02, Florida Statutes. He entered a plea of guilty in absentia and paid a $25.00 fine in response to the charges. The subject plea was entered on October 12, 1976. On May 18, 1977, an order of expungment was issued in accordance with Section 901.33, Florida Statutes, a copy of this order of expungment may be found as Respondent's Exhibit No. 2 admitted into evidence.

   
   

10. Based upon these facts the Petitioner, has made a series of charges. The initial contention by the Petitioner is that the Respondent has violated Section 231.09(2), Florida Statutes, based upon the arrest of September 24, 1976, for the incident previously reported in these facts, and the plea of guilty on October 12, 1976 to the offense of lewd and lascivious behavior, a violation of Section 798.02, Florida Statutes. (The Petitioner is limited specifically in this contention, to any violation which might be shown under Section 231.09(2), Florida Statutes. This limitation is established by the answer to Interrogatory No. 8, propounded by the Respondent to the Petitioner. This answer to the Interrogatory serves as a bill of particulars and identifies Section 231.09(2), Florida Statues, as the basis of the claim in paragraph 3., of the original petition. Therefore any consideration of other subsections of Section 231.09, Florida Statutes, other than Section 231.09(2), Florida Statutes, is barred). The particular subsection, i.e., Section 231.09(2), Florida Statutes states the following:

    
    

    "EXAMPLES FOR PUPILS. - Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals,

    and embrace every opportunity to inculcate by precept and example, the principals of truth, honesty and patriotism and the practice

    of every Christian virtue."

    
    

    In the case of Meltzer v. Board of Public Instruction of Orange County, Florida, etc., et al., 548 F.2d 559 (5th Circuit Court of Appeals), that Court held Section 231.09(2), Florida Statutes to be unconstitutional. However, on petition for rehearing and petition for rehearing en banc reported, at 553 F. 2d 1008, the Unites States Fifth Circuit Court of Appeals granted rehearing with the right for oral argument and the opportunity to submit supplemental briefs,

    with the date of the oral argument to be announced in the future. The rehearing has not been held at the time of this recommended order. Consequently, the undersigned will report whether the evidential facts ad demonstrated, establish a violation under the language of Section 231.09(2), Florida Statutes, with the caveat that this section may not withstand the final order of the court in Meltzer, supra. Should Section 231.09(2), Florida Statutes, be upheld, the act of being arrested and pleading guilty to a violation of Section 798.02, Florida Statutes, would not violate Section 231.09(2), Florida Statutes. A violation would not be established because the order of expungment of May 18, 1977, entered in accordance with Section 901.33, Florida Statutes, would not allow punishment on the basis of the entry of the plea, because the order places the Respondent in the same position he would be in had the crime never occurred.

    This expungment would not prohibit the assessment of a penalty under the terms of Section 231.28, Florida Statutes, based upon the underlying evidential facts in the incident that led to the arrest and subsequent plea herein. These facts establish that the Respondent failed to labor faithfully and earnestly for the advancement of the pupils in their deportment and morals, in accordance with Section 231.09(2), Florida Statutes, assuming this latter section is constitutional. The evidential facts spoken of are those pertaining to the Respondent's motivation in coming to the Marina and what he did while in the restroom. No other violation of Section 231.09(2), Florida Statutes, under this contention, has been proven.

    
    

11. Another contention found in the petition is that the matters pertaining to the arrest on September 24, 1976, and subsequent plea of guilty on October 12, 1976, as established above, constitute a substantive violation of Section 231.28, Florida Statutes, and would lead to action against the license on that basis. In pertinent part, Section 231.28(1), Florida Statutes, and would lead to action against the license on that basis. In pertinent part, Section 231.28(1), Florida Statutes, states that the license can be suspended or revoked provided:

    
    

    "It can be shown that such person obtained a teaching certificate by fraudulent means, has proved to be incompetent to teach or to perform his duties as an employee of the public school system, or to teach or to operate a private school, or has been guilty

    of gross immorality or an act involving moral turpitude, or has had his certificate revoked in another state, or has been convicted of

    a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation, or upon investigation has been found guilty of personal conduct which seriously reduces

    his effectiveness as an employee of the school board, or has otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate, or has refused to comply with the regulations of the state board of education or the school board of the district in which he is employed."

    
    

    For reasons stated above, the order of expungment of May 18, 1977, together with the fact that the Respondent was never convicted of Section 798.02, Florida Statutes, would prohibit the revocation of his certificate on that basis alone. Nonetheless, based on the evidential facts set forth in the preceding paragraph,

    the Respondent, " . . . has been guilty of gross immorality or an act involving moral turpitude . . .," Section 231.28(1), Florida Statutes. These evidential facts do not show that the Respondent is guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, according to the terms and conditions of Section 231.28(1), Florida Statutes, and no other substantive provisions of Section 231.28(1), Florida Statutes, have application. Moreover, although Section 231.28(3), Florida Statutes, states that a plea of guilty in any court, to one of the offenses listed in Section 231.28(1), Florida Statutes, constitutes a prima facie proof of grounds for revocation of the certificate, this is effectively rebutted by the expungment of May 18, 1977.

    
    

12. The third overall claim against the Respondent was that he solicited sex with officer Hall which is contended as a violation of Section 231.09(2), Florida Statutes. In addressing this contention, the discussion of the constitutionality of Section 231.09(2), Florida Statutes, entered into before would have application in considering this third point. Therefore, assuming that the section is held to be constitutional, the Respondent solicited sex with the undercover officer and by doing so has failed to labor faithfully and earnestly for the advancement of the pupils and their deportment and morals, in violation of Section 231.09(2), Florida Statutes. This solicitation is established by the Respondent's conduct with the officer in the restroom and by his activities outside the restroom in stating that "I'm not looking to suck, I want to be sucked." Petitioner has failed to establish a violation of any other substantive element of Section 231.09(2), Florida Statutes.

    
    

13. Finally, Petitioner has claimed through petition that the Respondent violated the conditions of Section 231.28, Florida Statutes, by soliciting sex with the undercover officer, Hall. In considering the particular language of Section 231.28(1), Florida Statutes, the conduct of the Respondent discussed in the above paragraph, constituted an act of gross immorality and an act involving moral turpitude, as stated in Section 231.28(1), Florida Statutes. These evidential facts do not show that the Respondent is guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board according to the terms and conditions of Section 231.28(1), Florida Statutes. There has been no showing of any further violation of Section 231.28(1), Florida Statutes, by the act of soliciting sex with the undercover officer, as described in the preceding paragraph.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction in this cause.

    
    

15. At the conclusion of the case of the Petitioner, the Respondent made a motion for directed verdict on all claims set forth in the petition. Consideration of that motion was withheld pending the opportunity to review certain cases cited by the parties. That review has been achieved and the motion for a directed verdict made by the Respondent is denied, subject to the final decision on the constitutionality of Section 231.09(2), Florida Statutes, in the case of Meltzer v. Board of Public Instruction of Orange County Florida, etc., et al., supra.

    
    

16. The Respondent offered certain affidavits and attached psychiatric reports as Petitioner's Exhibits 9 and 10, respectively. An opportunity was afforded the parties to submit memoranda on the question of the admission of those exhibits which have been objected to by the Petitioner on the grounds of

    hearsay. Upon consideration of the objection, the objection is sustained, and the exhibits are denied admission. They are denied admission because they do not constitute generally regarded exceptions to the rule against the admissibility of hearsay evidence, nor do they qualify for admission under the authority of Section 120.58(1)(a), Florida Statutes. They do not comply with the conditions of the latter provision in that they were not offered as supplementary or explanatory evidence, but were offered standing alone to establish a material fact in dispute, and as such are not competent evidence upon which a finding of fact may be based.

    
    

17. Assuming that Section 231.09(2), Florida Statutes, is ultimately held to be constitutional, the evidential facts developed and discussed in the findings of fact section of this recommended order, pertaining to the masturbation in the public place, and soliciting the officer to commit a sexual act, constitute a violation of that section, by showing the Respondent failed to labor faithfully and earnestly for the advancement of the pupils in their deportment and morals. No other substantive violation of Section 231.09(2), Florida Statutes, has been shown. Based upon these violations, the Respondent is subject to the penalties found in Section 231.28, Florida Statutes. Should the Section 231.09(2), Florida Statutes, be held to be unconstitutional, there is no violation and no penalty can accrue.

    
    

18. Based upon the evidential facts pertaining to the act of masturbation in the public facility and the solicitation for sex with the officer as established in the findings of fact section of this recommended order, the Respondent has been guilty of gross immorality and an act involving moral turpitude, in violation of Section 231.28, Florida Statutes, and is subject to the penalties contained therein. No further violation of Section 231.28, Florida Statutes, has been shown in this case.

RECOMMENDATIONS

It is recommended that the Florida Teacher's Certificate Number 178946, Special Postgraduate Rank 1A, held by the Respondent, Donald Eugene McKinney, be revoked, and that the revocation take effect, notwithstanding the eventual outcome of the consideration of Section 231.09(2), Florida Statutes, taking place in the case of Meltzer v. Board of Public Instruction of Orange County Florida, etc., et al., supra, and the Respondent's previous excellent employment record.

DONE and ENTERED this 6th day of September, 1977, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

J. David Holder, Esquire Post Office Box 1501 Tallahassee, Florida 32302

L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 77-723

)

DONALD EUGENE MCKINNEY, )

)

Respondent. )

)

AMENDMENT TO AND CORRECTION OF RECOMMENDED ORDER

The recommended order dated September 6, 1977, is hereby amended and corrected to include the following additional sentence in the section entitled Recommendations: The period of revocation recommended is one year.

DONE AND ENTERED this 7th day of September, 1977, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

J. David Holder, Esquire Post Office Box 1501 Tallahassee, Florida 32302

L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207

Mr. Tom Benton

Professional Practice Council

319 West Madison Street Room 1

Tallahassee, Florida

================================================================= AGENCY FINAL ORDER

================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA

IN RE: DONALD EUGENE McKINNEY DOAH CASE NO. 77-723

/

ORDER

THIS CAUSE came on to be heard before the State Board of Education, duly assembled, upon the Petition of Thomas E. Benner, as Chairman of the Professional Practices Council, for the revocation of the teaching certificate of the Respondent, DONALD EUGENE McKINNEY, Department of Education Certificate Number 1787946.

The Board having reviewed the findings and the recommendations of the DOAH Hearing Officer and further having reviewed the entire record; and

It appearing that the Respondent has been granted all procedural and other constitutional rights in the premises, and the Board having had due deliberation thereon, the Board makes the following findings of fact and conclusions of law:

1. The Respondent presently holds Florida Teaching Certificate Number 178946 valid until the 30th day of June, 1986.

   
   

2. The Board adopts the Recommended Order of the Hearing Officer as its own except for the penalty stated therein.

ORDERED AND ADJUDGED that the Hearing Officer's Order is hereby adopted and that the teaching certificate of the said DONALD EUGENE McKINNEY, Respondent, Department of Education Number 1789446, be and the same is hereby revoked for a period of 4 years commencing September 24, 1976.

DONE at the State Board of Education meeting in open session at Tallahassee, Florida, on the 18th day of October, 1977.

EXECUTED AND RENDERED on this 18th day of November, 1977.

REUBIN O'D. ASKEW, GOVERNOR; Chairman

BRUCE A. SMATHERS, Secretary of State

ROBERT L. SHEVIN, Attorney General

GERALD A. LEWIS, Comptroller

BILL GUNTER, Treasurer

RALPH D. TURLINGTON, Commissioner of Education, Secretary-Exec Officer

DOYLE CONNER, Commissioner of Agriculture

As and constituting the State Board of Education of Florida as assembled for the purposes herein.

Duly recorded in the official records of the State Board of Education of Florida.

I HEREBY CERTIFY that the foregoing Order in the matter of Donald Eugene McKinney was finalized and copies were mailed to L. Haldane Taylor, Esq. and Donald Eugene McKinney, this 22nd day of November, 1977

by U.S. Mail.

HUGH INGRAM, Administrator Professional Practices Council

Docket for Case No: 77-000723

Orders for Case No: 77-000723