STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF BROWARD COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-304

)

RUSSELL W. ROWE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., conducted a formal hearing in this case on May 12 and 13, 1981, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: William S. Cross, Esquire

3067 East Commercial Boulevard Fort Lauderdale, Florida 33308

For Respondent: Thomas F. Panza, Esquire

4520 Northeast 18th Avenue, Suite 200 Fort Lauderdale, Florida 33334

ISSUE

Whether respondent, an elementary school principal, is guilty of immorality and misconduct in office where he allegedly solicited another to commit a lewd act and was arrested for such solicitation.

By its petition of January 29, 1981, seeking dismissal of Russell W. Rowe ("Respondent") from the Broward County school system, petitioner School Board of Broward County 1/ ("the School Board") alleged that respondent:

. . . is guilty of immorality and/or misconduct in office [in violation of Section 231.36(6), Florida Statutes (1979)] in that [he] on or about January 22, 1981, made to

Sergeant Thomas [sic], a female police officer, an offer of ten dollars for her to engage in

an act of masturbation with him, the act resulting in his being arrested for solicitation of prostitution. (P-6.)

By appeal dated February 6, 1981, respondent denied the allegations and requested a formal hearing; thereafter, the School Board referred this case to the Division of Administrative Hearings.

Final hearing was initially set for March 26, 1981. Upon the parties' joint request for continuance, hearing was rescheduled for May 12 and 13, 1981.

On May 7, 1981, respondent moved to dismiss or strike the School Board's petition for dismissal insofar as it was based on Chapters 6B-3, 6B-4, and 6B-5, Florida Administrative Code--rules promulgated by the State Professional Practices Council. After the School Board filed a responsive memorandum, the motion was denied.

At final hearing, the School Board called as its witnesses: Russell W. Rowe, William T. McFatter, Emil Mosny, Norman Swigler, Sandra Ledegang, Alan L. Van Sant, Emmett R. Thomas, Dollye R. G. Woodside, Barbara N. Simmons, and Geraldine Introcaso. It offered into evidence Petitioner's Exhibit 2/ Nos. 1 through 12, inclusive, each of which was received. The respondent testified in his own behalf and called as his witnesses: Larry Katz, Warren S. Goldstein, Millicent Sworn, Patricia Mason, Perry Rollins, and Ronald Broman; he offered into evidence Respondent's Exhibit 2/ Nos. 1 through 14, inclusive, each of which was received.

On June 24, 1981, the parties submitted proposed findings of fact and conclusions of law. It was agreed that the 30-day time period for submittal of a recommended order to the School Board would commence on that date.

Based upon the evidence adduced at hearing, the following evidentiary and ultimate facts are determined:

FINDINGS OF FACT I.

The Respondent

1. Respondent has been employed by the Broward County School Board for 27 years. He Has served as an elementary school principal for 20 of those years; since 1975 he has been principal of Sanders Park Elementary School, located in Pompano Beach, Florida. (Testimony of Rowe.)

   
   

2. Prior to his alleged misconduct on January 22, 1981, respondent had an unblemished employment record with the School Board. He had never been disciplined. His performance evaluations were always "satisfactory" --the highest rating obtainable. At Sanders Park Elementary, he worked closely with parents and teachers; 3/ his programs were credited with a dramatic rise in student achievement levels. His supervisor considered him an above-average principal, a principal who has proven competent, effective, and efficient. (Testimony of Rowe, Sworn, Swigler, McFatter.)

   
   

3. Since 1972, in addition to his employment by the School Board, respondent has been employed as a part-time instructor at Broward Community College. In that capacity, he has taught various courses, including psychology sociology, and education. Although his alleged January 22, 1981, misconduct caused the School Board to suspend him from his employment, Broward Community College has continued to employ him as an instructor. (Testimony of Rowe, McFatter.)

   
   

4. During the 1980 fall semester, he taught introductory sociology and social problems courses at Broward Community College. In January, 1981, he began teaching an educational course and another social problems course. He ordinarily teaches the social problems course by proceeding through a course textbook, chapter by chapter.

5. The third chapter discusses variations in human sexuality, including such topics as homosexuality, prostitution, lesbianism, and pornography. To supplement the text, he frequently invites persons with special expertise or personal experience in an area to lecture his class. In connection with the topic of prostitution, he has interviewed prostitutes in the past for the purpose of obtaining information for his course. During January, 1981, Fort Lauderdale was experiencing a substantial increase in the number of prostitutes and street walkers openly soliciting business along Federal Highway: it was recognized as a growing community social problem. Respondent was aware of this prostitution problem aid had previously interviewed several prostitutes along Federal Highway. During the later part of January, at a time when Fort Lauderdale was experiencing this increasing prostitution problem, respondent--in his Broward Community College social problems course--was preparing to teach the third chapter of the course textbook, the chapter covering prostitution. (Testimony of Rowe, R-9.)

   
   

   II.

   The Alleged Misconduct

   
   

6. At approximately 5:15 p.m., on January 22, 1981, respondent was driving south on Federal Highway, en route to check on his boat which was moored nearby. Heavy traffic brought him to a standstill at the corner of Southeast 18th Court and South Federal Highway. There he observed a young, casually dressed female standing on the sidewalk. [Unknown to respondent, she was Officer Sandra Ledegang, a Fort Lauderdale police officer working as a decoy on South Federal Highway. Her task was to stand on the corner and arrest men, referred to as "Johns," who approached her and made offers with reference to prostitution.] Respondent exchanged glances with Officer Ledegang. He interpreted her gestures and facial movements as a typical "come-on" (Tr. 13-53); 4/ he believed she was a prostitute. He then pulled alongside the rear of a nearby building, and she walked to his car. He rolled down his window and they engaged in some general conversation for several minutes. He asked her if she was a police officer, and she said no. She, in turn, asked him if he was a police officer, and he said no. Respondent indicated that she looked like a police officer; she reassured him she wasn't. After inquiring about prices for different sexual favors, he asked, "Do you do hand jobs;" she answered "yes." (Tr. 13-62.) He asked her the price, but she resisted giving a figure. Instead, she asked him what it was worth to him; she insisted he name a price. He continued asking her to name the price. After several minutes of this back-and-forth conversation, she advised him that she didn't have time to talk, turned away, and began walking back towards the corner. Respondent, wanting to continue the conversation, called her back, and said, "How about $10?" or words to that effect. She immediately told him to pull across the street behind a restaurant-

   -which was a signal for her back-up officers to move in. Within seconds, Lieutenant Van Sant and Sergeant Thomas surrounded respondent, and arrested him for soliciting for prostitution. (Testimony of Rowe, Ledegang, P-1, P-2.)

   
   

7. During the conversation between respondent and Officer Ledegang, there was no exchange of money, and no physical contact. No disrobing took place. Although prostitutes ordinarily require payment prior to performing sexual favors, Rowe did not have $10 with him at the time. (Testimony of Rowe, Ledegang.)

8. At the time of his arrest, respondent was noticeably nervous and upset. In response to questions from the police officers, he identified himself as an elementary school principal, but offered no other explanation for his conduct. (Testimony of Ledegang, Van Sant, Thomas.)

   
   

9. The charge against respondent--solicitation for prostitution in violation of Section 796.07(3)(b), Florida Statutes--was subsequently nolle prossed; consequently, respondent has neither been convicted nor acquitted of the charge. The court records concerning the offense have been sealed by order of the County Court of Broward County. (Testimony of Rowe, P-11.)

   
   

10. Respondent's arrest was reported in one six-inch news article published by a newspaper of general circulation within the county. (Testimony of McFatter.)

    
    

    III.

    Respondent's Intent and Motive

    
    

11. Respondent explains that Officer Ledegang appeared to be an unusually articulate individual who could provide information about prostitution which would be useful to his social problems course; that by assuming the role of a customer--using an investigatory technique known as "participant- observationist"--he could effectively elicit such information. He asserts that, at the time, he did not believe his actions were unlawful or immoral: he had interviewed prostitutes, in like manner, numerous times before. He contends that his question, "What about $10?" was intended to continue the discussion on prices and avoid termination of the interview. (Testimony of Rowe.)

    
    

12. Respondent's explanation of his motive and purpose in interviewing Officer Ledegang and asking the question, "What about $10?" is accepted as persuasive. It is plausible, as admitted by both the school superintendent and area supervisor. It was corroborated by independent evidence. Ronald Broman, principal of Mary McLeod Bethune Elementary School, testified that respondent stated--approximately a month before the alleged incident--that he was interviewing prostitutes on the beach in connection with his course at the community college. Broman responded that it appeared to be "an interesting and possibly a difficult assignment. . ." (Tr. 12-399.) Furthermore, since respondent lacked sufficient funds to pay for the ostensible sexual favor--and payment precedes performance--it may be reasonably inferred that his purpose was to elicit information, not sexual acts. Lastly, the offending question which was the cause of his arrest and this dismissal proceeding consists of three words: "What about $10?" 5/ When considered in the context of the conversation between respondent and Officer Ledegang, this question is ambiguous and susceptible to different interpretations. Instead of constituting an unlawful request that another commit a lewd act, it may reasonably be construed as part of a price bargaining exchange. (Testimony of Broman, McFatter, Swigler, Ledegang.)

    
    

13. The School Board failed to effectively discredit or rebut respondent's explanation of his conversation with Officer Ledegang. In light of the above, it is concluded that, respondent, in conversing with Officer Ledegang, (1) intended only to elicit information on prostitution which could be useful to his community college course; and (2) did not intend to commit an immoral or unlawful act.

    
    

    IV.

    Community Reaction to Respondent's Alleged Misconduct

14. Respondent's arrest on the charge of soliciting for prostitution was reported in one county-wide newspaper. Public reaction was mild and relatively quiet. The reaction of students, teachers, and principals in the Broward County school system was favorable toward respondent: there was virtually no negative comment. (Testimony of Mason, McFatter, Sworn, P-14.)

    
    

15. The superintendent--upon whose recommendation the School Board instituted this dismissal proceeding--admitted that the immorality of conduct, i.e., whether it offends the public's conscience, can be measured by public reaction:

    
    

    [Superintendent of Schools]

    1. I would say the reaction to the. . . [Respondent's alleged misconduct] would reflect public conscience, yes.

       [Counsel for Respondent]

       Q. Has the reaction been overwhelming in support of Mr. Rowe?

       A. As far as the petition and the letters and responses that I've had, yes sir. (Tr. 13-106.)

       
       

       He also testified that public reaction should be used to measure whether respondent's effectiveness and fitness as a School Board employee has been diminished. When asked if there had been any overwhelming negative reaction to respondent's alleged misconduct and arrest, the superintendent replied:

       
       

       A. I haven't any overwhelming negative reaction.

       1. At any time?

          A. No. (Tr. 13-107.)

          
          

          (Testimony of McFatter.)

          
          

16. Respondent's alleged misconduct and subsequent arrest have not impaired his effectiveness as a principal in the Broward County school system. The superintendent's opinion to the contrary is rejected as unpersuasive since it was based on his experience with several teachers who were guilty of sexual acts with school children. Such offenses are materially different from the charge against respondent. 6/ The faculty of Sanders Park Elementary School unanimously support respondent and petitioned the School Board:

    
    

    We, the faculty of Sanders Park Elementary School in Pompano Beach, stand whole heartedly behind our principal, Russell W. Rowe.

    
    

    Mr. Rowe is known as a fair man and an honest man. He has been at our sides when we needed him in professional and personal crises. We look up to him as our leader. He has the utmost respect from our faculty and students. We feel he is an excellent administrator and friend to all. Mr. Rowe is our guiding light in these troubled times of education. He is the motivation behind the fine academic work at Sanders Park. Our love and respect for Mr. Rowe is never ending.

    The elementary school principals of Broward County support respondent, as do officials in the Parent Teacher's Associations. Respondent's reinstatement as a principal at Sanders Park Elementary School is supported by a broad cross- section of the educational community. If reinstated, it is likely that he will continue to perform his duties effectively. (Testimony of Rowe, McFatter, Swigler, Simmons, Katz, Goldstein, Sworn, Mason, Rollins, Broman, R-14.)

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes (1979).

    
    

18. The School Board charges respondent with immorality and misconduct in office and seeks to dismiss him under the authority of Section 231.36(6), Florida Statutes (1979):

    
    

    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 immorality, misconduct in office,. . .

    Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay, but if charges are not sustained he shall be immediately reinstated, and his back salary shall be paid. In cases of suspension by the school or by the superintendent, the school board shall determine upon the evidence submitted whether the charges have been sustained and, if said charges are sustained, either to dismiss said employee or fix the terms under which said employee may be reinstated.

    
    

    Immorality and misconduct in office, as used in Section 231.36(6), supra, have been defined by the State Professional Practices Council: 7/

    
    

    6B-4.09 Criteria for Suspension and Dismissal.

    1. 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.

    2. 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.

19. By his posthearing filing, respondent contends that the above rules are inapplicable because they were not contained in the School Board's Petition for Dismissal. Such contention is rejected because respondent was placed on notice by the parties' joint Prehearing Stipulation that his compliance with these rules was at issue. Both parties presented evidence at hearing with respect to respondent's alleged violation of such rules; respondent did not request a continuance based on the School Board's failure to reference the rules in its petition. Neither has he shown that he was prejudiced by the Board's action. Cf., Hovnantian Florida, Inc. v. Division of Florida Land Sales, So.2d (Fla. 1st DCA, Case No. YY-314, Opinion filed July 7, 1981).

    
    

20. The School Board contends that respondent is guilty of immorality and misconduct in office because of his alleged request that Officer Ledegang commit a lewd act, and his subsequent arrest.

    
    

21. The parties admit 8/ that respondent--due to his alleged request to Officer Ledegang--was arrested and charged with soliciting for prostitution, a second degree misdemeanor proscribed by Section 796.07(3)(b), Florida Statutes (1979):

    
    

    (3) It shall further be unlawful in the state:

    (b) To solicit, induce, entice, or procure another to commit prostitution, lewdness, or assignation with himself or herself.

    
    

    A solicitation that another engage in masturbation for hire constitutes a request that another commit lewdness and falls within this statutory prohibition. Section 796.07(1)(b), Florida Statutes (1979); see, Health Clubs, Inc. v. State, 338 So.2d 1324 (Fla.4th DCA 1976).

    
    

22. It is respondent's arrest on such a criminal charge which constitutes an element of the School Board's case; the question is not whether he is guilty of such a crime. The School Board did not charge respondent with having committed such a crime. Arrest for a criminal offense does not establish guilt. If the School Board intended to establish respondent's guilt of a criminal offense, it was required to provide sufficient notice in its charges. In this case, no such notice was given. Consequently, no conclusion will be drawn concerning respondent's guilt or innocence of a criminal charge which was ultimately nolle pressed. Cf., Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966).

    
    

23. Section 231.36(6), supra, the section under which the charges have been brought, is, in effect, a penal statute:

    
    

    [I]t imposes sanctions, including suspension or dismissal of an employee under continuing contract when he is found guilty of violating the statute's prescriptions. School Board of Pinellas County v. Noble, 384 So.2d 205 (Fla. 1st DCA 1980).

    
    

24. In enforcing such a statute, evidence "in both form and persuasiveness. . .may 'substantially' support some types of agency actions, yet be wanting as a record foundation. . ." for others. Bowling v. Department of Insurance, 394 So.2d 165, 171 (Fla. 1st DCA 1981).

25. In Bowling, the court avoided resurrecting the pre-APA 9/ "clear and convincing proof" standard for license revocation proceedings [also considered penal, in effect]. Instead, the court enunciated a "substantiality of evidence" rule:

    
    

    In anyone's judgment, a judge's no less than any other, certain factors present "in the record" of penal proceedings fairly detract from the substantiality of evidence which is weighty enough for less consequential purposes. One such factor is a grave penalty. In determining "the substantiality of evidence," which is to say in ascertaining what we call the facts, a judge takes the penalty into account for the same reason that compels him, in ascertaining the law, to impose a "strict" construction on the penal statute.

    
    

    Id. at 172. The court found that when a standard of conduct to be enforced is debatable and not made explicit by statute or rule, when the conduct complained of is past and beyond the respondent's power to conform it to an agency standard announced prospectively, when the proceeding may result in the loss of a valuable business or professional license [here, respondent's livelihood and reputation in the community are at stake]:

    
    

    . . .the critical matters in issue must be shown by evidence which is indubitably as "substantial" as the consequences.

    
    

    . . .the violation of a penal statute is not to be found on loose interpretations and problematic evidence, but the violation must in all its implications be shown by evidence which weighs as "substantially" on a scale suitable for evidence as the penalty does on the scale of penalties. In other words, in a world ensnarled by false assumptions and hasty judgments, let the prosecutor's proof be as serious-minded as the intended penalty is serious.

    
    

26. By applying the above standard of proof to the evidence of record in this case, it is concluded that the School Board failed to establish respondent's guilt of immorality and misconduct in office, within the meaning of Section 231.36(6), by evidence weighing as substantially on a scale of evidence, as the penalty on a scale of penalties. Consequently, the charges of violating Section 231.36(6), Florida Statutes (1979), and Sections 6B-4.09(2), (3), and

    6B-5.07, Florida Administrative Code, have not been sustained and should be dismissed. Reinstatement of respondent in his position as principal of Sanders Park Elementary School is, therefore, appropriate. Section 231.36(6), supra.

    
    

27. The parties have submitted proposed findings of fact which have been considered in developing this recommended order. To the extent such proposed findings are not incorporated herein, they are rejected as irrelevant to the results reached or unsupported by the evidence.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the School Board enter a final order dismissing the charges against respondent and reinstating him to his former position.

DONE AND ORDERED this 23rd day of July, 1981, in Tallahassee, Florida.

1. L. CALEEN, JR. 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 day 23rd of July, 1981.

ENDNOTES

1/ Since the Broward County School Board both directed that the petition for dismissal be filed and is the agency which must take final action in this proceeding, it is the proper party-petitioner. Accordingly, the style of this case has been modified, by substituting the School Board for William T. McFatter, Superintendent of Schools.

2/ Petitioner's and Respondent's Exhibits will be referred to as "P- " and "R- ," respectively.

3/ Respondent is one of the few white principals in charge of a predominantly black elementary school.

4/ Reference to the transcript of the hearing conducted on May 12, 1981, will be abbreviated as "Tr. 12- ," and May 13, 1981, as "Tr. 13- ."

5/ The participants to the conversation were uncertain as to the exact words of this question.

6/ Here, the complained-of misconduct occurred after hours and outside the school setting, did not involve children, and consisted only of verbal conversation.

7/ Renamed the Education Practices Commission by Chapter 80-190, Laws of Florida (1980).

8/ See, Prehearing Stipulation, p. 3.

9/ Chapter 120, Florida Statutes, the Administrative Procedure Act.

COPIES FURNISHED:

William S. Cross, Esquire

3067 East Commercial Boulevard Fort Lauderdale, Florida 33308

Thomas F. Panza, Esquire Suite 200

4520 Northeast 18th Avenue Fort Lauderdale, Florida 33334

Edward J. Marko, Esquire Suite 233, Bayview Building 1040 Bayview Drive

Fort Lauderdale, Florida 33338

Docket for Case No: 81-000304

Orders for Case No: 81-000304