STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2275

)

MOSES GREEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K.N. Ayers, held a public hearing in the above styled case consolidated with Case No. 79-1389, Pinellas County School Board v. Moses Green, involving substantially the same issues, on 13-14 December 1979 at Clearwater, Florida.

APPEARANCES

For Petitioner: J. David Holder, Esquire

110 North Magnolia Drive Tallahassee, Florida 32302 (Professional Practices Council)

For Petitioner: William A. Borja, Esquire

501 South Ft. Harrison Avenue, Suite 204 Clearwater, Florida 33516

(Pinellas County School Board)

For Respondent: John M. Walters, Esquire

695 Central Avenue, Suite 502 St. Petersburg, Florida 33701

PROCEDURAL BACKGROUND

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, re-alleged 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 questions 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. The 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 Mosely 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

1. Respondent, Moses Green, holds Florida Teaching Certificate No. 232099, Graduate, Rank II. He served as dean of students at Boca Ciega 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.

   
   

2. 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.

   
   

3. 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 Jackiie 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.

   
   

4. 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.

   
   

5. 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.

6. 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.

   
   

7. 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.

   
   

8. 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.

   
   

9. 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.

   
   

10. 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.

    
    

11. 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.

    
    

12. 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.

    
    

13. 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.

    
    

14. 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.

    
    

15. 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

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of these proceedings.

    
    

17. Section 231.28, Florida Statutes, provides generally that the Department of Education shall have authority to suspend the teaching certificate of any person for a period of time not exceeding 3 years, 10 years, or permanently, thereby denying him the right to teach for that period of time, provided:

    
    

    It can be shown that such person . . . has been guilty of gross immorality or an act involving moral turpitude . . . 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 . . . .

    
    

18. Rule 6B-4.09, Florida Administrative Code, provides definitions of some of the above grounds for dismissal of instructional and administrative personnel from school systems including:

    
    

    (2) 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.

    
    

    (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 moral turpitude.

19. Actions of a male teacher involving sexual connotations or suggestions towards female high school students constitute immorality. Such conduct is wholly inconsistent with acceptable standards of public conscience and good morals. Teachers occupy a position of authority over students both in directing their actions as well as their minds. The exercise of this authority must be accomplished with great care and circumspection. Because of this position of great influence, the teacher must be more careful and adhere to a higher standard towards students than does one not occupying such a position of authority. Because of the inherent dangers from a misunderstanding by the student of a teacher's innocent actions, the teacher must also be very careful to avoid actions or words that could be misunderstood or misconstrued by the student. This is particularly true for male teachers' relations with female high school students. Here Respondent not only failed to avoid any appearance of evil, but also actively engaged in physical contact and in discourses having direct sexual implications with numerous female students. This constitutes gross immorality for a teacher.

    
    

20. Moral turpitude as defined above is a crime of baseness, vileness and depravity in the private and social duties man owes to his fellow man or society in general. It is a gross violation of accepted standards of conduct. Actions of a male teacher towards female students could involve moral turpitude while the same acts or conduct by a male student would not involve moral turpitude. The actions of Respondent having sexual connotations towards the female students could be equated to the crime of contributing to the delinquency of a minor. Such a crime involves moral turpitude even though it is only a misdemeanor.

    
    

21. The personal conduct of Respondent which led to the charges and to the testimony here presented has seriously reduced Respondent's effectiveness in the Pinellas County School System. Not only have the charges received widespread publicity in local news as a result of three criminal proceedings brought against Respondent, but also the charges have become known to the faculty and students of the schools at which Respondent served. His ability to discipline students has been seriously impaired by his increased vulnerability even to unfounded charges by students. Because of the publicity, parents are likely to be apprehensive about their daughters being placed under Respondent's supervision. It could well be said that Respondent's effectiveness in the Pinellas County school system has been destroyed.

    
    

22. 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 he 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.

    
    

23. 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.

    
    

24. 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. Revoking a certificate removes the teacher from eligibility to teach in all county school systems in Florida. This is a drastic action and should be taken only after a conviction has become final. That position has not been reached in this case. Accordingly, my recommendation is made without a finding that Respondent has been convicted of a crime involving moral turpitude.

    
    

25. Respondent has been employed in the education field for more than 20 years. He has undoubtedly been a capable teacher and administrator and could continue to be, but for his improper conduct towards female students. He was given adequate opportunity to correct this problem by the school administration with the explicit warning and a period of probation. Unfortunately, he failed to adhere to the standards specifically prescribed for him.

    
    

26. From the foregoing it is concluded that Moses Green is guilty of gross immorality, of acts involving moral turpitude and that because of his personal conduct his effectiveness has been seriously reduced in the Pinellas County school system. It is therefore

RECOMMENDED that the teaching certificate of Moses Green be revoked. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of

January, 1980.

K. N. AYERS Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

COPIES FURNISHED:

J. David Holder, Esq.

110 N. Magnolia Drive Tallahassee, FL 32302

William A. Borja, Esq. Suite 204

501 S. Ft. Harrison Avenue Clearwater, FL 33516

John M. Walters, Esq. Suite 502

695 Central Avenue

St. Petersburg, FL 33701

Docket for Case No: 79-002275

Orders for Case No: 79-002275