STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) EDUCATION, PROFESSIONAL )

PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1740

)

NEIL E. JENKINS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on August 29, 1979, in Orlando, Florida. By stipulation of the parties, the hearing was officially closed on October 16, 1979. (TR pp. 193, 195) 1/

APPEARANCES

For Petitioner: Robert J. Vossler, Esquire

110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301

For Respondent: Leslie King O'Neal, Esquire and

John L. Graham, Jr., Esquire Post Office Drawer 1991 Orlando, Florida 32802

ISSUE

The issue posed for decision herein is whether or not the Respondent, Neil

1. Jenkins' teacher's certificate should be suspended, revoked, etc., for alleged improper conduct which took place on March 11, 1979. The conduct which is set forth hereinafter in detail is allegedly violative of Sections 231.28(1) and 231.09, Florida Statutes.

   
   

   FINDINGS OF FACT

   
   

   Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, the briefs and the memoranda of law submitted herein, the following relevant facts are found.

   
   

   1. On July 9, 1979, Respondent, a tenured teacher employed by the School Board of Osceola County, filed a written request with the Petitioner requesting an investigation to clear his reputation which had come under attack based on a "Suspicious Incident" report filed by the Sheriff's Department of Orange County

      and an article published in a local paper on June 17, 1979. (Respondent's Composite Exhibit 4.)

      
      

   2. Pursuant to this request, on July 27, 1979, the Professional Practices Council issued a petition for revocation of Respondent's teaching certificate alleging in pertinent part that the Respondent had violated Sections 231.28 and 231.09, Florida Statutes, and Chapters 6A-4.37, 6B-1 and 6B-5, Florida Administrative Code. Respondent filed an answer denying the material allegations of the Complaint and requested a hearing pursuant to Florida Statutes 120.57(1)(b)(3).

      
      

   3. Respondent was employed in the public schools of Osceola County and worked on a continuing contract as Band Director at St. Cloud High School. Respondent holds Florida Teaching Certificate No. 237643, Post Graduate, Rank II, valid through June 30, 1990, covering the areas of music, education and junior college. Respondent began teaching at St. Cloud High school upon graduating from college in 1968 and worked there continuously until he resigned effective June, 1979. Respondent served as Band Director and Chorus Director during that time, as well as teaching basic classes and other classes and assisting at track and cross country teams.

      
      

   4. Over the years, Respondent participated in numerous civic and church activities, including directing the youth choir, participating in the Young Adult Sunday School class, and chaperoning youth parties. Respondent also participated in the churches' portrayal of the Last Supper which was performed each year during Lent at various area churches. Respondent was a respected member of the community of St. Cloud and was the recipient of many civic awards and public recognitions reflecting the excellence of his work in school and church programs. Additionally, Respondent had on occasion prior to March 11, 1979, been observed throughout the community during the course of his activities with students, male and female, in situations where he was either alone or the sole chaperon on overnight trips without concern or comment from anyone, parents or students. (TR 121, 123 and 124)

      
      

   5. On March 11, 1979, the church was presenting its portrayal of the Last Supper in Cocoa, Florida, and Respondent was in the cast that night. Respondent want to the church that afternoon and while there, he met one of his female students who had come to get a ride to Cocoa. Respondent offered her a ride and the two drove to Cocoa. Respondent testified that he had the student's permission to take her to the portrayal. (TR 124, 125)

      
      

   6. After the portrayal, Respondent and the student began to drive back to St. Cloud. They stopped at Burger King to get some food and then began to drive back to St. Cloud. The student later complained of stomach cramps and got into the back seat of Respondent's car. (Th 132) Sometime later, the student asked Respondent to stop the car because she was feeling worse. Respondent pulled off the road into a dirt side road and backed his car into a cattlegap entrance way with his car facing toward the side road. (Petitioner's Exhibit 1) Respondent, in an effort to comfort the student, went to the back seat of his car to see if the student was all right. (TR 135-136)

      
      

   7. Deputy Gary Durrance and Range Gordon Faircloth, who were patrolling the area for poachers and cattle thieves, drove down the road past Respondent's car on the night in question. After seeing the car, Deputy Durrance abruptly turned his unmarked civilian four-wheel-drive truck around halting approximately ten feet from Respondent's car. The vehicles were parked front to front.

   8. Deputy Durrance got out of the truck and asked Respondent to get out of his car. Respondent complied, gave Deputy Durrance his driver's license and voluntarily told him that he was a teacher at St. Cloud High School and that he was with a student. Deputy Durrance asked the student's age and requested to see some identification from her, whereupon Respondent went back to the car and got the student's driver's license. (TR 137-139)

      
      

   9. After seeing the student's driver's license and learning that she was a minor, Deputy Durrance called his shift commander for assistance and Corporal Rutzler came to assist the Deputy. Corporal Rutzler and Deputy Durrance decided to take Respondent and the student with them to the toll plaza at the Bee Line Expressway to call the watch commander for further instructions.

      
      

   10. After the officers called the watch commander, Respondent and the student were later allowed to leave to proceed back to St. Cloud.

       
       

   11. Respondent was not charged with any crime. The officers did not attempt to contact the student's parents and no medical examination was performed on the student. (TR pp. 31 and 32)

       
       

   12. On or about March 11, 1979, Deputy Durrance filed a "Suspicious Incident" report with the Orange County Sheriff's Department. The report alleged finding a car parked on a dirt road and the occupants of the car were Respondent and a nude white female. The evidence in this regard is clear that the officers never got closer than seven feet from the rear seat of Respondent's car when it is alleged that the student was nude. (TR 39, 78 and 142)

       
       

   13. This report was forwarded to the Superintendent of Schools of Osceola County by a Sheriff's Department employee which was eventually publicized in a local newspaper. (Respondent's Composite Exhibit 4) When the Superintendent received the report, he called Respondent in and questioned him about the incident. Respondent denied any wrongdoing or improper conduct. In this regard, the student also denied any wrongdoing or improper conduct. (TR 62, 78)

       
       

   14. At the hearing, Deputy Durrance renewed the assertion made in the incident report that he and Ranger Faircloth saw a nude white female in the back seat of Respondent's car. (TR 11) Deputy Durrance admitted during the hearing that they got no closer to Respondent's car than the front tire. (TR 27) Photographs of the car showed that it had high bucket seats, making it difficult to see into the back seat and also making it very easy for the student to have concealed herself behind the seat had she been nude. (Respondent's Composite Exhibit 1 consisting of three Polaroid photographs.)

       
       

   15. The student appeared and testified at the hearing that she was wearing a light tan sweater on the evening in question, which was very large and easily covered her entire body while she was seated. (TR 74)

       
       

   16. Several students testified that Respondent and the subject student were often together, but the overwhelming weight of the evidence is that their relationship was not improper or any different from Respondent's relationship with other students. (TR 180)

       
       

   17. James Heberlin and Bruce DeBoard, both Osceola School Board Members, testified that they would vote to rehire Respondent as an employee of the School Board. Mr. DeBoard also testified that he received several letters from citizens supportive of Respondent and had received no letters opposing him. (TR

       104 and 173)

   18. Mrs. Ramona Norman, mother of the female student involved in the subject incident, testified that she trusted Respondent as a teacher with her daughter and did not believe that any improper conduct occurred during the subject incident or at any other time. Mrs. Norman also testified that her daughter had been treated medically before and after the March 11, 1979, incident for stomach and adolescent emotional problems. (TR 177)

       
       

   19. Reverend Myra James, former minister at Respondent's church, testified that Respondent was very active in church activities, particularly with youth groups. She added that he was very conscientious, dedicated and interacted extremely well with youth. (Tr 162) Based on her familiarity with Respondent, Reverend James could not perceive the Respondent engaging in any untoward conduct with a student as alleged.

       
       

   20. The student involved in the subject incident testified respecting the alleged incident. She confirmed Respondent's testimony that Respondent pulled over to a side road in an effort to comfort her and that nothing improper occurred then, or ever, between Respondent and herself. (TR 62 and 78)

       
       

   21. There was no evidence offered to support the allegation that the Respondent's effectiveness as a teacher was reduced because of the alleged incident. See Boyette v. Professional Practices Council, 346 So.2d 598, 600. To the contrary, two School Board Members as well as other students testified that the Respondent continued to enjoy a good reputation in the community as a teacher and that the subject incident has had no adverse affects on his ability to function as a teacher. (TR 104, 173 and 175)

       
       

       CONCLUSIONS OF LAW

       
       

   22. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.57(1), Florida Statutes.

       
       

   23. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

       
       

   24. The authority of the Petitioner is derived from Chapter 231, Florida Statutes, and Rules 6A and 6B, Florida Administrative Code.

       
       

   25. In view of Respondent's and the subject student's vehement denial that any improper conduct occurred, as alleged, Respondent's "above reproach" reputation and the absence of any medical evidence indicative of sexual activity by the Respondent, insufficient evidence was offered to establish that the Respondent engaged in any improper conduct based on the events outlined herein on March 11, 1979, or that Respondent's effectiveness as a School Board employee has been reduced.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of law, it is hereby,

RECOMMENDED:

That the Administrative Complaint filed herein against Respondent, Neil E. Jenkins, be DISMISSED IN ITS ENTIRETY.

ENTERED this 15th day of November, 1979, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTE

1/ Pursuant to leave, the parties were afforded an opportunity to submit Proposed Findings of Fact, Conclusions of Law and Recommendations which have been considered by the undersigned in the preparation of this Recommended Order. The parties submitted their memoranda approximately October 25, 1979.

COPIES FURNISHED:

Robert J. Vossler, Esquire

110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301

Leslie King O'Neal, Esquire and John L. Graham, Jr., Esquire Post Office Drawer 1991 Orlando, Florida 32802

Professional Practices Council Room 3, 319 West Madison Street

Tallahassee, Florida 32301

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

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

IN RE: NEIL JENKINS CASE NO. 79-1740

/

ORDER

THIS CAUSE came on to be heard before the State Board of Education, duly assembled, upon the Petition of Lynnl Guettler as Chairman of the Professional Practices Council for the revocation of the teacher's certificate of the Respondent, NEIL JENKINS, Department of Education Certificate Number 237643.

This Board having reviewed the findings and the recommendations of the Hearing Officer for the Division of Administrative Hearings and further having reviewed the entire record; and the Board having had due deliberation thereon, the Board makes the following findings of fact and conclusions of law.

The Respondent presently holds Florida Teacher's Certificate Number 237643 valid through June 30, 1990. The Board adopts the Findings of Fact contained in the Recommended Order of the Hearing Officer for the Division of Administrative Hearings as its own, which is by reference made a part hereof, but rejects the conclusion and recommendation of the Hearing Officer and concludes that sufficient evidence was offered to establish that the Respondent engaged in improper conduct, and, as a consequence of the Hearing Officer's findings:

that Respondent and student began to drive back to St. Cloud; they stopped at Burger King to get some food, and then began to drive back to St. Cloud; the student later complained of stomach cramps and got into the back seat of Respondent's car; some time later, the student asked the Respondent to stop the car because she was feeling worse; Respondent pulled off the road into a dirt side road and backed his car into a cattlegap entrance way with his car facing toward the side road;

this Board concludes that, by his failure to exercise sound judgment, the respondent did not "make reasonable effort to protect the student from conditions harmful to learning or to health and safety" as required by 6B- 1.02(2)(c), Rules of the State Board of Education.

ORDERED AND ADJUDGED that the Hearing Officer's Findings of Fact be adopted and that the teaching certificate of NEIL JENKINS be suspended for a period of two years, as provided in S231.28, Florida Statutes.

DONE at the State Board of Education meeting in open session at Tallahassee, Florida, on the 22nd day of January, 1980.

EXECUTED AND RENDERED on 15th day of February, 1980.

Bob Graham, Governor; Chairman

George Firestone, Secretary of State

Jim Smith, Attorney General

Gerald A. Lewis, Comptroller

Bill Gunter, Treasurer

Ralph D. Turlington, Commissioner of Education; Secretary-Executive 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 copies of the foregoing Order in the matter of Neil E. Jenkins were sent to Mr. James E. Bradwell, Robert J. Vossler, Esquire, John L. Graham, Jr., Esquire and Leslie King O'Neal, Esquire, by U.S. Mail on this 18th day of February, 1980.

Hugh Ingram, Administrator

Docket for Case No: 79-001740

Orders for Case No: 79-001740