Moses Green, involving substantially the same issues, on 13-14 December 1979 at Clearwater, Florida.
APPEARANCES
For Petitioner, William A. Borja, Esquire
Pinellas County 501 South Ft. Harrison Avenue, Suite 204 School Board: Clearwater, Florida 33516
For Petitioner,
Professional J. David Holder, Esquire Practices 110 North Magnolia Drive Council: Tallahassee, Florida 32302
For Respondent: John M. Walters, Esquire
695 Central Avenue, Suite 502 St. Petersburg, Florida 33701
By letter dated May 7, 1979 Moses Green, Respondent, was advised by the Superintendent of Schools, Pinellas County, Florida, Petitioner, that he was being recommended for dismissal from his position with the Pinellas County Schools and for termination of his continuing contract status. As grounds for such action Respondent is charged with immorality, misconduct in office and gross insubordination pursuant to Section 231.36(6), Florida Statutes, in making improper advances to female students after having been duly warned regarding such conduct. By letter dated December 10, 1979 Green was advised by the Superintendent of Schools that the complaint against Respondent was amended to include conviction of an offense involving moral turpitude.
By Petition for Revocation of Teaching Certificate filed 4 October 1979, the professional Practices Council, (PPC), Petitioner, in Case No. 79-2275, seeks to revoke the teaching certificate of Moses Green, Respondent. As grounds therefor it is alleged Respondent has conducted himself improperly with female students. In the Material Allegations Petitioner alleges that in 1976, while a teacher at Boca Ciega High School, Respondent made improper advances of a sexual
nature to Jacqueline Blackshear and that in 1979, while Dean of Students at Pinellas Park High School, Respondent made improper advances and lewd sexual remarks towards female students and on one occasion forcibly attempted to kiss a female student at the school.
By Amended Petition for Revocation of Teachers Certificate filed 6 December 1979, Petitioner, PPC, realleged the material allegations involving Jacqueline Blackshear and other female students at Pinellas Park High School and modified the earlier material allegation regarding Respondent having been convicted of an offense involving moral turpitude to specify conviction of the offense of contributing to the delinquency of a minor.
At the commencement of the hearing Respondent moved to continue the hearing on the ground that both petitions, as amended, included an allegation that Respondent had been convicted of a crime involving moral turpitude, to wit: attempting to contribute to the delinquency of a minor; that this conviction was on appeal; and that the recent amendment of the petitions did not give Respondent adequate notice.
It is noted that in the original material allegations filed by the PPC one allegation was that Respondent had been convicted of contributing to the delinquency of a minor. Accordingly, Respondent had adequate notice of the charges upon which he was called upon to defend. The motion for continuance was denied. The question regarding the use of this conviction to revoke a certificate or terminate continuing contract status while the conviction is on appeal will be addressed in the conclusions of law.
Respondent's motion to disqualify the School Board's attorney, William A. Borja, was denied after considering testimony presented by one witness who subsequently testified on behalf of Respondent. No basis for disqualification was shown.
Thereafter 22 witnesses were called by Petitioner, 4 witnesses were called by Respondent and 12 exhibits were offered into evidence. Ruling on the admissibility of the transcript of the testimony given by Wendy Parker at a criminal trial of Moses Green (Exhibit 7) was reserved when the exhibit was offered into evidence 13 December 1979. On 14 December the witness appeared and testified. Accordingly there is no longer any basis for the admissibility of this deposition and the objection to the admission of Exhibit 7 is sustained.
Exhibit 8 was a late-filed exhibit containing the deposition of Joyce Blackshear taken after the conclusion of the hearing. This witness, though subpoenaed, was unavailable at the trial by reason of being hospitalized.
Late filed Exhibit 9, the testimony of Laura Mosley given at a previous trial of Green, was offered by Respondent in rebuttal to the testimony of Wendy Parker given at the same trial. A transcript of this testimony was not available at the hearing. Ruling on the admissibility of this to-be-late-filed exhibit was reserved at the hearing and a copy of that testimony has, as yet, not been provided. However, during the discussion on the record regarding the admissibility of this prior testimony, the Hearing Officer ruled "Obviously if Exhibit 7 is not admitted, Laura Mosley's would not be admitted." Laura Mosley and Wendy Parker were both present and testified at the hearing. Accordingly Exhibit 9 when, and if, submitted will not be admitted into evidence and considered.
FINDINGS OF FACT
Respondent, Moses Green, holds Florida Teaching Certificate No. 232099, Graduate, Rank II. He served as dean of students at Boca Ciega High School during the 1976-1977 school year. Thereafter he was reassigned as one of three deans of students at Pinellas Park High school, and he served in this capacity during the 1978-1979 school year.
Moses Green has been in the field of education since his graduation from Florida A & M University more than 21 years ago. After teaching several years in South Carolina and Georgia he came to Boca Ciega High School in Pinellas County in 1964 where he started as a teacher. He served as dean of students at Boca Ciega High school from 1974 until 1977 when he was transferred to Pinellas Park High School as a dean of students.
In October 1976 enroute from his home to school in a vehicle described both as a van and a motor home, Respondent stopped to give a ride to Jacqueline Blackshear and Stephanie Bellamy, two ninth grade students at Boca Ciega High School. When they entered the van Jackie sat on the housing covering the engine between the two front seats facing the rear of the van and Stephanie sat in the front right-hand passenger's seat. Enroute to school Respondent commented that Jackie was growing up and placed his hand on the inside of Jackie's thigh. At the time, Jackie was enroute to school for cheerleader practice and was wearing shorts. Jackie looked and moved towards Stephanie and Respondent removed his hand. Before arriving at school Respondent again placed his hand on Jackie's thigh and removed it when she moved. Upon arrival at school Respondent told Stephanie to get out as he wanted to talk to Jackie. When Stephanie left the van, Respondent was standing facing Jackie whose back was to the closed door. Respondent grabbed Jackie and attempted to kiss her. She pushed away, opened the door and left the van. When she left the van, Jackie was upset and Stephanie suggested she tell her parent. Near noontime Jackie went to Gail Weston, a physical education teacher at Boca Ciega High School and told her about the incident in Respondent's van. Stephanie accompanied Jackie on this visit. Ms. Weston described Jackie as nervous and upset. After a few minutes of conversation Ms. Weston realized that it was not something she could handle and she told Jackie and Stephanie that they needed to tell their story at the Dean's office and she took them to Jean Johnson, a dean of students at Boca Ciega High School. There both girls told their story to Ms. Johnson who prepared a statement for them to sign. The story repeated to Ms. Johnson was essentially the same told to Ms. Weston.
After typing up their statements, Ms. Johnson told Mr. Demps, the principal. He had the girls brought to him, where the story was again repeated. Demps called Respondent in and confronted him with the story. He also advised his area superintendent and the director of personnel, who investigated the allegations made by these two girls. Demps also arranged for a meeting with Jackie's and Stephanie's parents the following day.
Following the investigation, Green, on October 19, 1976 was issued a letter of reprimand (Exhibit 1) for his role in the events that had come to the school's attention regarding the two girls noted above and warned that a recurrence of such conduct would result in dismissal.
By letter dated 9 November 1976 Respondent was sent another letter (Exhibit 2) regarding a reported and inappropriate remark made by Green to another female student, which Respondent had denied, and the letter suggested Respondent and the girl take lie detector tests.
By letter dated December 29, 1976 (Exhibit 3) the Superintendent of Schools advised Respondent that the results of the polygraph test he had voluntarily taken indicated his answers were deceptive, while the girl's polygraph test indicated her responses were honest. Respondent was placed on probation for the remainder of the 1976-1977 school year and for all of the 1977-1978 school year.
Although his principal at Boca Ciega High School, Mr. Demps, considered Respondent's effectiveness at Boca Ciega High School seriously impaired by the notoriety given to the events involving Respondent in 1976, he remained at Boca Ciega High School for the remainder of that school year. For the school year 1977-1978 Respondent was transferred to Pinellas Park High School as dean of students. Upon his transfer to Pinellas Park High School, Demps gave Respondent a good evaluation report.
During Respondent's first year at Pinellas Park High School, no incidents were reported to form the basis of any of the charges here considered. This school year 1977-1978 included the probation period set by Exhibit 3.
The school year 1978-1979, while Respondent was dean of students at Pinellas Park High School, produced the majority of complaints and testimony at this hearing regarding improper comments made to female students by Respondent, improper contact of a sexual nature with female students by Respondent, and corroboration of this testimony by other witnesses.
Ten female students who attended Pinellas Park High School during school year 1978-1979 testified against Respondent regarding incidents between Respondent and these students of a sexual nature. Some of these incidents involved contact or attempted contact such as hugging, kissing or attempting to kiss, touching breasts or attempting to do so, and rubbing the front of his body against students' backsides when passing them when adequate room for passing without contact existed. Several testified to improper comments made to them by Respondent such as "You have a nice set of tits," "I'd like to get in your pants," "You have a nice pair of legs," "Why don't we go to a motel," "You drive an old man crazy," "You have a nice butt and look good in those pants," "One of these days it's going to be you and me," and similar comments regarding female students' anatomy.
Much of this testimony was corroborated by other witnesses who overheard the remarks or observed the bodily contact. Additionally, some of the witnesses had complained to their parents or to other faculty members shortly after the incidents. Others first came forward with their complaints when they learned the police were investigating Green's conduct at the school and they became convinced their isolated incidents wouldn't appear unbelievable.
Some of these students tolerated and perhaps encouraged the comments to provide them leverage to insure a cover-up for numerous "skips" of classes. Some of these witnesses skipped classes without punishment due to Respondent's position as dean and to whom their infractions were referred.
Respondent denied each and every testimonial utterance of misconduct on his part while admitting the situation described by the witnesses, in which the improper actions of Respondent were said to have occurred, were real. During his testimony Respondent referred to school records which would corroborate his testimony, but he made no effort to produce these records or to account for their non-production.
Respondent was subjected to three criminal trials on charges stemming from allegations of fact similar to those testified to in these proceedings. He was acquitted on charges alleging battery and false imprisonment and convicted of the offense of attempting to contribute to the delinquency of a minor. Those trials resulted in considerable publicity and the allegations became well-known throughout the Pinellas County School System. Several witnesses testified that Respondent's effectiveness in the Pinellas County School System was totally destroyed by virtue of the notoriety gained by Respondent due to this adverse publicity.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.
Grounds for dismissal of the instructional staff of school systems are contained in Section 231.36(6), Florida Statutes, which provides in pertinent part:
Any member of the district administrative or supervisory staff and any member of the
instructional staff, including any principal, may be suspended or dismissed at any time during the school year, provided that the charges against him must be based on im- morality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude.
Petitioner's, Pinellas County School Board, notice of intent to dismiss Respondent was based on charges of immorality, misconduct in office and gross insubordination before the amendment of having been convicted of an offense involving moral turpitude was added.
These charges are defined in Rule 6B-4.09, Florida Administrative Code, which provides in pertinent part:
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.
Misconduct 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.
Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
* * *
(6) Moral Turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
The Code of Ethics of the Education Profession in Florida is contained in Chapter 6B-1, Florida Administrative Code, Rule 6B-1.02 thereof provides in pertinent part:
(2) In fulfilling his obligation to the student, the educator--
Shall make reasonable effort to protect the student from conditions harmful to learning or to health and safety.
Shall conduct professional business in such a way that he does not expose the student to unnecessary embarrassment or disparagement.
(f) Shall not use professional relationships with students for private advantages.
The acts of Respondent in attempting to kiss or actually kissing a student or students, attempting to or touching the breasts of a student or students, and making sexually-related comments to female students constitutes immorality as defined above. A teacher is required to adhere to a higher standard of conduct in dealing with students than is another student, for example, in the school system. Because the teacher has been given a certain degree of authority over the students at his school, public conscience and good morals require that he not abuse that position of authority in his treatment of and conduct towards female students. The actions of Respondent shown by the testimony here presented constitutes immorality as above defined.
Applying the facts presented to the provisions of law quoted above loads to the conclusion that the acts of Respondent in touching and making sexual comments to students of a nature tending to embarrass the student also violates the code of ethics and constitutes misconduct in office. By virtue of Respondent's position as dean of students he had the power to grant special considerations or favors to students. It is apparent that he used that position, and the powers concomitant thereto, in excusing some of these female students for skips during the period he was making sexual comments to them. This, too, constitutes misconduct in office.
In Exhibit 1 Respondent was expressly told that male teachers in a high school must observe strict rules when dealing with female students and at no time should they put their hands on them or make any remarks that could be construed as suggestive. This constituted a direct order to Respondent to desist from such conduct. By failing to comply with this directive, Respondent was guilty of gross insubordination as defined in Rule 6B-4.08, Florida Administrative Code, above quoted.
The final allegation upon which Petitioner seeks to take action against Respondent involves the conviction of a crime involving moral turpitude.
The evidence is uncontradicted that Respondent was found guilty of the offense of attempting to contribute to the delinquency of a minor. This is a crime involving moral turpitude, even though only a second degree misdemeanor is involved. A more serious question is whether this conviction, which is now on appeal, can form the basis for disciplinary action against Respondent prior to the conviction having become final.
Section 924.14, Florida Statutes, provides:
An appeal by a defendant from either the judgment or sentence shall stay execution of the sentence, subject to the provisions of s. 924.065.
Section 924.065 provides for supersedeas and appeal bonds pending appeal and when such bond is filed the appellant is entitled to bail. The law pertaining to superseding or staying the execution of a judgment or sentence is closely related to that controlling the defendant's release from custody pending appeal. 15 Fla. Jur 2d Criminal Law Section 966.
Since, for a non-capital offense, the filing of an appeal entitles the defendant to bail as a matter of right, it is obvious that the judgment finding Defendant guilty has not become final. Dismissing a teacher from continuing contract status should not be based upon a finding of guilty which has not become final. To do so could cause irreparable harm to the individual yet result in no benefit to the school board. The school board could suspend the teacher without pay pending completion of the appellate process following the trial court's finding and suffer no harm. On the other hand, if the teacher was dismissed based upon a finding of guilty which was reversed on appeal, the school board would be in the anomalous position of owing back pay to a teacher who still may be subject to dismissal after the new trial.
