STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT ) OF EDUCATION, EDUCATION )
PRACTICES COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 80-1610
)
JOHN MANUEL GONZALES, )
)
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 on 26 and 27 February 1981 at St. Petersburg, Florida.
APPEARANCES
For Petitioner: L. Haldane Taylor, Esquire
1902 Independent Square
Jacksonville, Florida 32202
For Respondent: John M. Walters, Esquire
695 Central Avenue, Suite 102 St. Petersburg, Florida 33701
By Petition for the Revocation of Teacher's Certificate dated 29 July 1980 the Florida Department of Education, Education Practices Commission, Petitioner, seeks to revoke, suspend or otherwise discipline the teaching certificate of John Manuel Gonzalez, Respondent. As grounds therefor it is alleged that Respondent, as Principal of Bardmoor Elementary School, Pinellas County, Florida, sexually harassed female teachers by attempting to hug, kiss and fondle them; offered favors and services to female staff members to obtain special sexual advantages; and used his professional relationship in such a manner as to expose staff to unnecessary embarrassment, degradation and disparagement.
Petitioner called 13 witnesses, the deposition of one witness was admitted as Exhibit 1, Respondent called 11 witnesses, and 6 exhibits were offered into evidence. Objection to Exhibit 2, the testimony of a witness taken in a similar proceeding involving Respondent and the Pinellas County School Board, was sustained. Ruling on the objection to Exhibit 6 was reserved at the hearing.
That exhibit is now admitted into evidence.
Proposed findings submitted by Petitioner and not included herein were not supported by competent substantial evidence or were deemed immaterial to the results reached.
FINDINGS OF FACT
John Manuel Gonzalez is certificated as a teacher by Petitioner and was so certificated at all times here involved.
He was employed in the Pinellas County School System for 13 years until his termination in December 1979. He has been employed in education for 21 years.
In 1972 Respondent became Principal of the new Bardmoor Elementary School in Pinellas County and was Principal at this school until his transfer in the summer of 1979.
Although Respondent categorically denied any improprieties on his part, six teachers testified that during the period between 1972 when Bardmoor was opened and Respondent's departure in 1979 Respondent had kissed them in his office without their consent; four teachers testified that he hugged and attempted to kiss them; two testified Respondent suggested they go on out-of- town trips with him, which they declined; three testified Respondent had touched them on the breast without their consent; one testified to an incident where Respondent held up a pair of child's panties and looked into them while making jocular remarks; and several testified to comments Respondent made to them regarding their figures which they did not appreciate from their principal. The sheer number of the witnesses leads to the conclusion that Respondent did kiss and attempt to kiss those teachers who so testified and made inappropriate comments to teachers. The evidence respecting the touching of breasts is less convincing. No evidence was presented that Respondent offered special favors to obtain sexual advantage.
All witnesses agreed that Respondent is demonstrative and prone to touch the person to whom he is talking; that he frequently put his arm around the shoulder of a teacher while walking down the hallway; and that he evaluated them fairly. Two of these witnesses Respondent attempted to kiss made their lack of appreciation of such conduct known to Respondent and were not so bothered again. Others who were kissed as often as twice per year during the four or five years they taught at Bardmoor acknowledged most of these kisses were "friendly" kisses at the beginning or end of the school year, holidays, or other festive occasions, but insisted these kisses were uncalled for and unwelcome. Their abhorrence of Respondent's advances was obviously more apparent in their testimony than in their actions at the time these advances occurred.
One of the complaining witnesses is the daughter of a longtime employee of the Pinellas County school system and former Superintendent. Although she testified Respondent kissed, attempted to kiss, and even touched her on the breast after she commenced teaching at Bardmoor in 1974, she made no complaint to her father or to other administrative personnel in the school system whom she had known for many years as friends of her family. She also received good evaluations from Respondent.
Another complaining witness who Respondent kissed five to seven times over a three- or four-year period never told Respondent not to do that but assumed Respondent knew she didn't want him to do so. She also assumed Respondent's motives were sexual and not the result of his gregarious personality.
Several of the witnesses had disciplinary problems with Respondent. In one case, an altercation arose between Respondent and Ms. Rogero who, on the
last day of the school year, was allowing her class to play games during the morning hours contrary to Respondent's instructions. When questioned by Respondent why this was happening, Ms. Rogero became agitated and argued in a loud voice with Respondent in the presence of her class. Later that afternoon Respondent met Ms. Rogero in the amphitheater and attempted to talk to her. He took her by the wrist and tightened his grip when she tried to pull away. When she jerked her arm free her bracelet abraded the skin on her arm. Her testimony that she yelled for help was not corroborated by another teacher who entered the amphitheater at the time Ms. Rogero pulled free from Respondent's grasp. No sexual connotation to this incident was indicated in Ms. Rogero's testimony.
Another incident purporting to show sexual harassment involved Ms. Rogero being lifted by Respondent as if to put her in an open cardboard box from which she would emerge "as from a cake." Although Ms. Rogero described the incident as embarrassing other witnesses recognized the incident as a joke with Ms. Rogers departing laughing when put down by Respondent before reaching the box.
Respondent's evaluation file was admitted as Exhibit 4. All of these evaluations show satisfactory performance. In the Appraisal Form dated March 15, 1977, items in which a need to improve was indicated involved only parents and community groups. At this hearing the former chairman of the Seminole Park Commission (the community group which Bardmoor serves) gave Respondent high praise for his community activities and relations during the past few years. Other witnesses called by Respondent averred to disciplinary problems Respondent had with some of the complaining witnesses adhering to the School Board's dress code. Some of these complaining witnesses acknowledged having minor disciplinary problems with Respondent.
Following an earlier hearing on charges based upon the same conduct here alleged, the Pinellas County School Board dismissed Respondent and terminated his continuing contract status. Prior to preferring charges and the hearing that led to Respondent's dismissal, Respondent had been offered a position by the School Board as a teacher at Safety Harbor.
Newspaper coverage given to the charges when preferred against Respondent by the School Board and when the results of the earlier hearing were released resulted in these charges becoming widely known in Pinellas County. However, several of the complaining witnesses at Respondent's earlier hearing were not aware of the School Board's action in that case until they were supplied with a copy of that final order by this Petitioner. Some complaining witnesses testified they would not again teach at a school at which Respondent was Principal and the other complaining witnesses testified they would prefer not to teach under Respondent. Witnesses called by Respondent would be happy to teach at a school at which Respondent was Principal.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.
During the course of the hearing it became known to Respondent that the various witnesses called by Petitioner had been provided with a copy of the testimony given by the witness at the previous School Board hearing, a copy of the Hearing Officer's Recommended Order, and a copy of the School Board's Final Order. Whereupon Respondent moved for dismissal of these charges. This motion was denied. The witnesses were not provided with transcripts of testimony other
than their own and both the Recommended Order and the Final Order became public records when published and were available to anyone desiring same. No prejudice to Respondent was shown.
Section 231.28, Florida Statutes, provides, in part, that the Department of Education shall have authority to suspend or revoke the certificate of any person, provided:
It can be shown that such person obtained the teaching certificate by fraudulent means, or has proved to be incompetent to teach or to perform his duties as an employee of the public school system, or to teach in 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 revoca- tion of the teaching certificate, or has refused to comply with the regulations of the State Board of Education or the school
board in the district in which he is employed.
In State ex rel. Tullidge v. Hollingsworth, 146 So. 660 (Fla. 1933) the Court, in discussing moral turpitude, stated at p. 661:
Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when intention- ally committed through error of judgment when wrong was not contemplated. (Citations omitted)
In Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3rd DCA 1981) the Court held that felony possession of a controlled substance does not constitute moral turpitude. The acts with which Respondent is here charged certainly constitute a lesser evil than felony possession.
Gross immorality constitutes more than failure to adhere to the normal and traditional rules of conduct expected between individuals and is tantamount to moral turpitude as here used. None of the acts alleged to have been committed by Respondent constitute gross immorality or moral turpitude.
No evidence was presented that any criminal charges have ever been preferred against Respondent so no criminal conviction can serve as a basis for disciplinary action against Respondent's certificate. Rifkin v. Florida Real Estate Commission, 345 So.2d 349 (Fla. 4th DCA 1977). Nor was evidence presented that Respondent violated any provision of law, the penalty for which is revocation of teacher's certificate. Although Respondent is alleged to have violated Sections 6B-1 and 6B-5 of the Petitioner's regulations, these citations refer to the Code of Ethics contained in Chapter 6B-1 and to the Standards of Competent Professional Performance contained in Chapter 6B-5, Florida Administrative Code. Violation of no specific provision of either of these chapters was cited, and even though both of these chapters admonish the educator to adhere to the highest standard of conduct, no specific provision has been cited which applied to the acts here involved. Moreover, it is a refusal to comply with these rules that authorizes disciplinary action. This connotes a willful or intentional disregard of those codes of conduct and not an inadvertent or negligent failure to comply. No such willful disregard of any of these rules was shown.
This leaves only the question of whether the acts committed by Respondent constitute personal conduct which seriously reduces his effectiveness as an employee of the School Board. In this connection it is noted that in his position as Principal of Bardmoor, Respondent stood in a position of authority over the teachers assigned to his school. He had the power to hire them, his evaluations could lead to their transfer or not being rehired, and to their obtaining tenure or not. Simply by virtue of his position as principal, with the power inherent in the office, Respondent could obtain compliance from these teachers with requests or conduct that would have been repulsed had they come from a fellow teacher. Accordingly, as a principal, Respondent was in a more advantageous position to harass the teachers under him, sexually or otherwise, than he would have been had he been simply a fellow teacher.
Harassment of teachers by a principal is not appropriate conduct and should not be condoned or tolerated. On the other hand, it is not necessarily conduct that seriously reduced Respondent's effectiveness in some other position in the school system. Removal of Respondent from the position of Principal would take from him the authority over the teachers that made any harassment possible. He could still function effectively as a teacher in any school for which he is certified. The publicity given these incidents would damage Respondent's reputation but would not damage his effectiveness as a teacher.
No competent evidence was presented that Respondent offered favors to obtain sexual advantages from teachings serving under him.
Conduct seriously impairing a teacher's effectiveness in the school system was the issue in Woodward v. Professional Practices Council and School Board of Pinellas County, 388 So.2d 343 (Fla. 1st DCA 1980). It was there held that a teacher who furnished marijuana and beer to students engaged in conduct which seriously reduced his effectiveness in the school system.
Petitioner presented 16 final orders in which teachers' certificates have been revoked because of personal conduct which seriously reduced their effectiveness in the school system. In all of these cases where sexual misconduct was alleged it was between the teacher and a minor female student. In those cases not involving sex the misconduct involved marijuana, alcohol or lewd pictures given or allowed by a teacher to minor students. In all of those cases not only were the acts of the teacher more morally reprehensible per se than the acts complained of here, but also those acts were directed towards
children. Here the objectionable conduct was directed towards highly educated adults and not towards immature junior high or high school students. There is a substantial and material moral difference between an adult male trying to seduce or fondle a junior high school student and the same adult trying to kiss an adult female teacher or even to attempt to seduce that teacher. While the former conduct is morally reprehensible and constitutes conduct which will seriously reduce the effectiveness of the teacher, the latter conduct is not necessarily reprehensible.
Revocation of Respondent's certificate is the most drastic action that can be taken. Such action will preclude a certificate holder from earning his livelihood in the field in which he has been trained. As stated by the Court in Brod v. Jernigan, 188 So.2d 575, 581 (Fla. 2nd DCA 1966) in a case involving the disciplining of a real estate broker:
Chapter 475 vests in the Florida Real Estate Commission a broad discretionary power and authority to supervise the privi- leged business of real estate broker and to deal firmly with those engaged in it, even to the point of taking away their means of livelihood by revocation or suspension of license. But such potent administrative weapons must always be reasonably and cautiously, and even sparingly, utilized.
The administrative process of the Commission should be aimed at the dishonest and unscrupulous operator, one who cheats, swindles, or defrauds the general public in handling real estate transactions.
Similarly in Pauline v. Borer, 274 So.2d 1 (Fla. 1973) the Court held that the penalty of suspension of a license should always be sparingly and cautiously used and directed at the dishonest and unscrupulous for the protection of the public from the incompetent, dishonest, or immoral holder of the license. It is the demonstration of reprehensible conduct of a nature to harm the public that provides grounds for the revocation of a certificate. All of the 16 cases submitted by the Petitioner involved great potential for harm to young children from acts of the teacher. It is to protect students from such harm that revocation of a certificate is appropriate. That type of reprehensible conduct was not presented in these proceedings.
While the taking of unsolicited liberties by a principal with teachers working under him is not condoned, in this case it is not deemed grounds for revocation of certificate, particularly where less drastic action can provide adequate protection from such conduct in the future. Furthermore, from a punitive point of view Respondent has received adequate punishment in his dismissal by the Pinellas County School Board.
From the foregoing it is concluded that John Manuel Gonzales is guilty of kissing and attempting to kiss without their consent and making inappropriate sexual comments to teachers assigned to Bardmoor Elementary School while he was Principal during the period 1972 until 1979. It is further concluded that these acts constitute sexual harassment and have no place in the school system. It is therefore
RECOMMENDED that John Manuel Gonzales' teaching certificate be suspended for one year to commence with his suspension from duty as principal in the Pinellas County school system on September 25, 1979.
Done and entered this 22nd day of April, 1981.
N. AYERS Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1981.
COPIES FURNISHED:
Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202
John M. Walters, Esquire
695 Central Avenue, Suite 102 St. Petersburg, Florida 33701
Mr. Donald Griesheimer Executive Director
Education Practices Commission
125 Knott Building Tallahassee, Florida 32301
Dr. M. Juhan Mixon, Administrator Professional Practices
Services Section
Florida Department of Education
319 W. Madison Street Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RALPH D. TURLINGTON as
Commissioner of Education,
Petitioner,
vs. CASE NO. 80-1610
EPC FILE NO. 81-001-RA
JOHN M. GONZALEZ,
Respondent.
/
FINAL ORDER
Respondent, John M. Gonzalez, holds Florida Teaching Certificate #099845.
On July 29, 1980, a petition for the revocation or suspension of that certificate was filed against the Respondent. A hearing was held before K. N. Ayers, a hearing officer for the Division of Administrative Hearings, on February 26 and 27, 1981. A Recommended Order was forwarded to the Education Practices Commission under the provisions of Sections 231.261 and 231.262, Florida Statutes.
A duly constituted panel of the Commission met on September 21, 1981 and considered the Recommended Order and the Exceptions filed by the Petitioner. Petitioner was represented by Hal Taylor, Esquire, and the Respondent by John Walters, Esquire. The administrator panel of the Commission adopts the Findings of Fact of the hearing officer's Recommended Order as follows:
FINDINGS OF FACT
John Manuel Gonzalez is certificated as a teacher by Petitioner and was so certificated at all times here involved.
He was employed in the Pinellas County School System for 13 years until his termination in December 1979. He has been employed in education for 21 years.
In 1972 Respondent became Principal of the new Bardmoor Elementary School in Pinellas County and was Principal at this school until his transfer in the summer of 1979.
Although Respondent categorically denied any improprieties on his part, six teachers testified that during the period between 1972 when Bardmoor was opened and Respondent's departure in 1979 Respondent had kissed them in his office without their consent; four teachers testified that he hugged and attempted to kiss them; two testified Respondent suggested they go on out-of- town trips with him, which they declined; three testified Respondent had touched them on the breast without their consent; one testified to an incident where Respondent held up a pair of child's panties and looked into them while making jocular remarks; and several testified to comments Respondent made to them regarding their figures which they did not appreciate from their principal. The sheer number of the witnesses leads to the conclusion that Respondent did kiss and attempt to kiss those teachers who so testified and made inappropriate comments to teachers. The evidence respecting the touching of breasts is less convincing. No evidence was presented that Respondent offered special favors to obtain sexual advantage.
All witnesses agreed that Respondent is demonstrative and prone to touch the person to whom he is talking; that he frequently put his arm around the shoulder of a teacher while walking down the hallway; and that he evaluated them fairly. Two of these witnesses Respondent attempted to kiss made their lack of appreciation of such conduct known to Respondent and were not so bothered again. Others who were kissed as often as twice per year during the four or five years they taught at Bardmoor acknowledged most of these kisses were "friendly" kisses at the beginning or end of the school year, holidays, or other festive occasions, but insisted these kisses were uncalled for and unwelcome. Their abhorrence of Respondent's advances was obviously more apparent in their testimony than in their actions at the time these advances occurred.
One of the complaining witnesses is the daughter of a long-time employee of the Pinellas County School system and former Superintendent. Although she testified Respondent kissed, attempted to kiss, and even touched her on the breast after she commenced teaching at Bardmoor in 1974, she made no complaint to her father or to other administrative personnel in the school system whom she had known for many years as friends of her family. She also received good evaluations from Respondent.
Another complaining witness who Respondent kissed five to seven times over a three or four-year period never told Respondent not to do that but assumed Respondent knew she didn't want him to do so. She also assumed Respondent motives were sexual and not the result of his gregarious personality.
Several of the witnesses had disciplinary problems with Respondent. In one case, an altercation arose between Respondent and Ms. Rogero who, on the last day of the school year, was allowing her class to play games during the morning hours contrary to Respondent's instructions. When questioned by Respondent why this was happening, Ms. Rogero became agitated and argued in a loud voice with Respondent in the presence of her class. Later that afternoon Respondent met Ms. Rogero in the amphitheater and attempted to talk to her. He took her by the wrist and tightened his grip when she tried to pull away. When she jerked her arm free her bracelet abraded the skin on her arm. Her testimony that she yelled for help was not corroborated by another teacher who entered the amphitheater at the time Ms. Rogero pulled free from Respondent's grasp. No sexual connotation to this incident was indicated in Ms. Roger's testimony.
Another incident purporting to show sexual harassment involved Ms. Rogero being lifted by Respondent as if to put her in an open cardboard box from which she would emerge "as from a cake." Although Ms. Rogero described the incident as embarrassing, other witnesses recognized the incident as a joke with Ms. Rogero departing laughing when put down by Respondent before reaching the box.
Respondent's evaluation file was admitted as Exhibit 4. All of these evaluations show satisfactory performance. In the Appraisal Form dated March 15, 1977, items in which a need to improve was indicated involved only parents and community groups. At this hearing the former chairman of the Seminole Park Commission (the community group which Bardmoor serves) gave Respondent high praise for his community activities and relations during the past few years. Other witnesses called by Respondent averred to disciplinary problems Respondent had with some of the complaining witnesses adhering to the School Board's dress code. Some of these complaining witnesses acknowledged having minor disciplinary problems with Respondent.
Following an earlier hearing on charges based upon the same conduct here alleged, the Pinellas County School Board dismissed Respondent and terminated his continuing contract status. Prior to preferring charges and the hearing that led to Respondent's dismissal, Respondent had been offered a position by the School Board as a teacher at Safety Harbor.
Newspaper coverage given to the charges when preferred against Respondent by the School Board and when the results of the earlier hearing were released resulted in these charges becoming widely known in Pinellas County. However, several of the complaining witnesses at Respondent's earlier hearing were not aware of the School Board's action in that case until they were supplied with a copy of that final order by this Petitioner. Some complaining witnesses testified they would not again teach at a school at which Respondent was Principal and the other complaining witnesses testified they would prefer not to teach under Respondent. Witnesses called by Respondent would be happy to teach at a school at which Respondent was Principal.
The panel rejects the exceptions filed by the Petitioner. The panel considers exceptions 7, 8 and 9 to be objections to the legal conclusions of the recommended order, and they are ruled on below.
CONCLUSIONS OF LAW
The panel does not conclude that the activity as found in the recommended order constitutes gross immorality or an act of moral turpitude. The panel notes, as stated in the Conclusions of Law of the Recommended Order, that in Respondent's position as principal of Bardmoor, Respondent stood in a position of authority over the teachers assigned to his school. He had the power to hire them, his evaluations could lead to their transfer or not being hired, and to their obtaining tenure or not. Simply by virtue of his position as principal, with the power inherent in the office, Respondent could obtain compliance from these teachers with requests or conduct that would have been repulsed had they come from a fellow teacher. Accordingly, as a principal,
Respondent was in a more advantageous position to harass the teachers under him, sexually or otherwise, than he would have been had he been simply a fellow teacher. Harassment of teachers by a principal is not appropriate conduct and should not be condoned or tolerated.
However, the panel disagrees with the hearing officer in his further conclusion that Respondent's qualifications as a teacher or to hold a certificate are not affected by his "sexual harassment" of teachers under his supervision. Only one portion of Section 231.28 is relevant to this cause. That is, is Respondent guilty of personal conduct which has seriously reduced his effectiveness as an employee of the school board? This statute does not provide for a separate consideration of Respondent's effectiveness as a teacher or an administrator.
The panel concludes that the Respondent is guilty of conduct which seriously reduces his effectiveness as an employee of the school board. The hearing officer in the Recommended Order found the Respondent guilty of "sexual harassment." He further found that charges based on this same conduct resulted in the dismissal of the Respondent by the Pinellas County School Board. The panel notes that effectiveness as a teacher, and certainly as an administrator, is reduced when female colleagues are apprehensive of entering a room alone with the Respondent. All members of this administrator panel have reviewed the entire record in this cause. It is therefore,
ORDERED that certificate #099845 held by Respondent, John M. Gonzalez, is hereby revoked for a period of three years. The revocation shall be effective as of July 23, 1980, the date probable cause was found by the Department of Education.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of October, 1981.
Mildred Dunlap, Presiding Officer
Filed in the records of the Education Practices Commission and copies furnished to all parties this 12th day of October, 1981.
Donald L. Griesheimer, Clerk
| Issue Date | Proceedings |
|---|---|
| Oct. 13, 1981 | Final Order filed. |
| Apr. 22, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 05, 1981 | Agency Final Order | |
| Apr. 22, 1981 | Recommended Order | Respondent was too gregarious and touched people against their will. Recommend suspension of certificate. |
PROFESSIONAL PRACTICES COUNCIL vs. JOHN A. LETTELLEIR, 80-001610 (1980)
PINELLAS COUNTY SCHOOL BOARD vs. CLARENCE DAVIS, 80-001610 (1980)
PINELLAS COUNTY SCHOOL BOARD vs. JIM WILKINS, 80-001610 (1980)
PINELLAS COUNTY SCHOOL BOARD vs JOSEPH TOUMEY, 80-001610 (1980)
PINELLAS COUNTY SCHOOL BOARD vs JEROME JACKSON, 80-001610 (1980)
