STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF BROWARD COUNTY, )

)

Petitioner, )

)

v. ) CASE NO. 83-1147

)

JOHN HAYES, JR., )

)

Respondent. )

) RALPH D. TURLINGTON, as )

Commissioner of Education, )

)

Petitioner, )

)

v. ) CASE NO. 83-2050

JOHN HAYES, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this matter before Marvin E. Chavis, a duly designated Hearing Officer with the Division of Administrative Hearings, on August 22, 23, and 24, 1983, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioners:

Ralph Turlington Craig R. Wilson, Esquire Commission of 315 Third Street, Suite 204 Education West Palm Beach, Florida

School Board of Charles T. Whitelock, Esquire Broward County 1244 Southeast Third Avenue

Fort Lauderdale, Florida

For Respondent: E. Edward McGee, Jr., Esquire

790 East Broward Boulevard Fort Lauderdale, Florida

ISSUES AND BACKGROUND

This case involves the issue of whether the Respondent's teaching certificate should be suspended, revoked, or otherwise disciplined for misconduct with female students as more specifically alleged in the petitions for dismissal and for revocation of Respondent's teaching certificate.

Prior to the formal hearing, Case Nos. 83-1147 and 83-2050 were consolidated for all purposes. At the formal hearing, the Petitioners called as

witnesses the Respondent, John Hayes, Peter David Cavari, Frank P. Scruggs, Paul Woodall, Tracy C. Wynn, Melissa Nichols, Gina Ryder Gina Ferracano, Angela Jacobs, Lori M. Stamos, Jeffrey A. deCook, Debbie DeFilice, Sue Fortaleza, and Dr. Benjamin F. Stephensen. Petitioners also offered the deposition of Sonya Straubinger, who was unavailable to testify at the formal hearing. That deposition is admitted and was considered as a part of the evidence in these proceedings. Prior to hearing the parties entered into a prehearing stipulation and that stipulation was admitted as joint Exhibit 1. The Petitioners offered and had admitted Exhibits 1-8. Exhibits 9, 10 and 11 were made a part of the record in order to demonstrate the unavailability of Sonya Straubinger. The deposition of of Sonya Straubinger is admitted as Petitioners' Exhibit 12. The Respondent testified on his own behalf and called as witnesses Willie Allen, Marion Ferwerda, James Pullen, Scott A. Hoffman, Robert Lamby, Lexie Wilkes, Kenneth R. Black, Jr., Kevin Ryer, Timothy A. Hassett, Kent Schaeffer, Keith Schaeffer, Paul Kruse, and Charles Law. The Respondent offered and had admitted

10 exhibits.

Counsel for each of the Petitioners filed proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with the findings and conclusions contained in this order, they were rejected as being not supported by the evidence or as unnecessary to the resolution of this cause.

FINDINGS OF FACT

1. The Respondent, John Hayes, is an instructional employee of the School Board of Broward County, Florida, holding a continuing contract of employment as a classroom teacher and is assigned as a teacher at Stranahan High School. He has been been a classroom teacher in industrial arts for fifteen years.

   
   

2. Respondent holds teaching Certificate No. 262317, issued by the Department of Education for the State of Florida. This certificate covers the areas of industrial arts and expires June 30, 1984.

   
   

3. During the 1982-83 school year, the Respondent was assigned as a teacher of industrial arts at Stranahan High School. Respondent taught woodworking to those students whose last names began with the letters "A" through "G." In each of his woodworking classes, the Respondent had both male and female students.

   
   

4. On December 8, 1982, two of Mr. Hayes' female students went to an administrative assistant, Peter Cavari, and asked that they be moved from Mr. Hayes' woodworking class. They stated that "things" were happening in the class but that they would rather not say anything about the specific occurrences. Their request to change was denied. The two girls were Debbie Defilice and Sue Fortaleza. Subsequent to this denial, Debbie Defilice and her mother met with Mr. Frank Scruggs, the administrative assistant in charge of students A through G at Stranahan High School and again requested that Debbie be removed from Mr. Hayes' class.

   
   

5. Mr. Paul Woodall, the principal at Stranahan High School, was apprised of these complaints and requests for change and as a result of a preliminary investigation by Mr. Woodall, the matter was turned over to internal security of the School Board of Broward County. Thereafter, the Respondents was suspended from all further teaching duties.

6. During the 1982-83 school year, Tracy Colleen Wynn was a senior at Stranahan Senior High School and was assigned to Respondent's 3rd period Woods I Class. On two different occasions during that school year, the Respondent kissed Ms. Wynn on the cheek out of the presence of other persons.

   
   

7. The first incident occurred the day just prior to the Thanksgiving break as Ms. Wynn was preparing to leave Woods Class at the end of 3rd period. As Ms. Nynn was leaving class, the Respondent wished her a good and safe Thanksgiving and then kissed her on the cheek. She had no reaction to the kiss. She had not been kissed on the cheek by any other teachers.

   
   

8. The second incident occurred near the end of a woods class when Ms. Wynn was working on a set of bookcases. She could not recall the specific date of this incident. At the end of this particular class period, Ms. Wynn had not finished gluing the shelves of the bookcase she was working on. The Respondent stated that he would glue the shelves for her and kissed her on the cheek. She then left the class. There were no other students present in the classroom when this occurred.

   
   

9. On one other occasion during her junior year at Stranahan, Ms. Wynn was kissed on the cheek by the Respondent. On that occasion, Ms. Wynn had fallen in the parking lot and injured her knee and the Respondent helped her into his classroom. At the time she fell, she was on her way to Woods Class. Once inside the classroom, the Respondent, accompanied by Ms. Wynn, went into a small room adjacent to the classroom to call the office and to call Ms. Wynn's mother. Mr. Hayes made the two calls and then kissed Ms. Wynn on the cheek. A short time later Ms. Wynn's mother arrived and took her home. When she fell in the parking lot, Ms. Wynn was very upset and Mr. Hayes had tried to console her and calm her down.

   
   

10. During the school year 1982-83, Melissa Nichols, a junior at Stranahan High School, was a student in Mr. Hayes' Woods Class. On one occasion, early in the school year, while Ms. Nichols was working at the lathe, the Respondent came up behind her and put his arms around her to demonstrate use of the lathe. As Ms. Nichols was using the lathe, the Respondent began patting the sides of her rib cage and patted her all the way down to her hips. He then held her hips and said, "I didn't realize what hips you had." Ms. Nichols then moved away.

    
    

11. Once during a test, Mr. Hayes walked up behind Ms. Nichols and tickled her upper rib cage. This startled her and caused her to fall off the stool she was seated on. During that same test, Mr. Hayes stood behind Ms. Nichols and leaned forward looking over her shoulder and pressing his groin area against her back.

    
    

12. On another occasion, Ms. Nichols had worn a lace blouse to school and the top button would not stay buttoned. She asked Mr. Hayes for a safety pin for her blouse and he stated, "Don't we get a look first." This was said in a joking manner.

    
    

13. Another incident occurred during Woods Class on a day when Ms. Nichols was wearing a shop apron. Mr. Hayes grabbed the front of her apron and lifted her off the floor momentarily.

    
    

14. Gina Rider was a senior at Stranahan High School during the 1982-83 school year. Ms. Rider was also a student in Mr. Hayes' Woods Class. During one class, Mr. Hayes came up behind Ms. Rider while she was working on the lathe. He put his arms around her and showed her how to do a particular thing

    on the lathe. She did something on the lathe which Mr. Hayes thought was good and he then kissed her hand. After she finished working on the lathe, Ms. Rider was just standing around and Mr. Hayes walked up behind her, grabbed her around the waist with his hands, and picked her up off the floor.

    
    

15. During the 1982-83 school year, Lisa Champion was a student in Mr. Hayes' 6th period Woods Class. Ms. Champion had a habit of sticking out her tongue and once after Mr. Hayes had spoken to her about something, she stuck out her tongue and Mr. Hayes touched her tongue with his tongue.

    
    

16. On four or five occasions, the specific dates being unknown, Mr. Hayes stood behind Lisa while she worked on the lathe. Each time he put his arms around her to demonstrate something on the lathe, his arms were around her in such a way that they came in contact with her breasts.

    
    

17. Gina Ferracano was a student in Mr. Hayes' 2nd period Woods Class at Stranahan High School during the 1982-83 school year. On several occasions during class, Mr. Hayes patted her rear with the palm of his hand. Mr. Hayes also stood behind Gina and put his arms around her while demonstrating the use of the lathe. His arms did not come in contact with her breasts.

    
    

18. On one occasion, Gina was trying to hang a broom up and could not reach high enough to do it. Mr. Hayes walked up behind her and grabbed her on her rib cage just below her breast and lifted her up to put the broom away.

    
    

19. From August 1982, to December, 1882, Lori Stamos was a student in Mr. Hayes' 5th period Woods Class. At the time she was a senior at Stranahan High School. On several occasions, Mr. Hayes tickled the upper part of her rib cage. Each time this occurred, she just asked him to stop. Once or twice, Mr. Hayes hit her "butt" with the palm of his hand. On some occasions, Mr. Hayes commented to Lori what a nice figure she had.

    
    

20. One particular day, at the end of the first 9 week period, Lori was in the backroom on the west side of the woodworking laboratory grading papers for Mr. Hayes. There were no other students present. Mr. Hayes came into the backroom and told her she was doing a good job and then kissed her on the cheek.

    
    

21. Mr. Hayes instructed Lori on the equipment in Woods Class. Be would stand in back of her while instructing her on the lathe and would put his arms around her. His arms did not come into contact with any particular part of her body.

    
    

22. Debbie DeFilice was a senior at Stranahan High School during the 1982-

    83 school year and was a student in Respondent's 6th period Woods Class. Sue Fortaleza and Lisa Champion were also in this class. Once during class, Mr. Hayes walked up behind Debbie and picked her up. He picked her up by placing his hands on each side of Debbie's rib cage. His hands also came in contact with her breast. On another occasion, the Respondent leaned against her during an exam. In leaning over her and looking over her shoulder, the Respondent's groin area pressed against Debbie's back. Her examination could have been viewed from the side rather than over Debbie's shoulder.

    
    

23. During one of the classes, Sue Fortaleza was complaining to Debbie DeFilice that she felt she was fat and needed to lose weight. This conversation was taking place near Mr. Hayes' desk. Mr. Hayes overheard the conversation and told Debbie DeFilice that he preferred Sue's "butt" over hers but that her breasts made up for it. The original conversation had not been directed at Mr.

    Hayes and the girls made no comment in response to his statement. No other teacher had ever made that type of comment to them. As Debbie and Susan walked away, the Respondent patted Sue on the "butt" with the palms of both hands.

    
    

24. Susan Fortaleza was a senior at Stranahan High School during the 1982-

    83 school year and was a student in Mr. Hayes' 6th period woodworking class. In December 1982, Susan requested a change from Mr. Hayes' woodworking class. This request was made because of some incidents involving Mr. Hayes.

    
    

25. Once while sitting on a stool in class, Mr. Hayes placed the palms of his hands on her buttocks. On another occasion, Susan was seated on Mr. Hayes' stool grading papers. Mr. Hayes grabbed her rib cage just below her breasts and picked her up off of the stool. His hands came into contact with her breasts.

    
    

26. During an exam, Susan was seated on a stool at one of the workbenches taking the exam. Mr. Hayes came up behind her and leaned against her with his groin or genital area coming in contact with her back. There was room on either side of her for Mr. Hayes to walk up and look at her exam.

    
    

27. During the 1982-83 school term, Sonya Straubinger was a student at Stranahan High School and was enrolled in Mr. Hayes' 5th period Woods Class. On two or three occasions, between August 20, 1982, and December 1982, Sonya was late for Woods Class and when she entered the classroom, Mr. Hayes patted her on the "butt" and commented that she was late. He did this a joking manner. On one occasion, Mr. Hayes, while showing Sonya how to take roll, sat her on his lap. Once, while Sonya was standing in the finishing room, Mr. Hayes picked her up from behind. There was no apparent reason for him to pick her up and when he lifted her his arms came in contact with the lower part of her breasts.

    Although she did not approve of the physical contact, Sonya considers Mr. Hayes an excellent teacher and a nice man.

    
    

28. While teaching students to use the lathe, Mr. Hayes instructed by standing behind or slightly to one side of the student and placed his arms around the student with his hands holding the student's hands as the tool was used. This procedure was used with male and female students.

    
    

29. Respondent is considered by his students, peers, and supervisors to be an excellent instructor. He is very safety conscious and designed the present safety features and layout of the woodworking laboratory at Stranahan High School.

    
    

30. Improper physical contact with female students by a male teacher impairs the effectiveness of the teacher to instruct those students.

    
    

    CONCLUSIONS OF LAW

    
    

31. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this action.

    
    

32. The Respondent is charged with immoral acts and improper conduct with ten (10) female students at Stranahan High School. Petitioner, Broward County School Board, charges that these acts constitute a violation of Section 231.36, Florida Statutes (1981) which provides in relevant part:

    
    

    (1)(a) Each person employed

    as a member of the instructional staff in any district school

    system shall be properly certificated and shall be entitled to and shall receive a written contract as specified in chapter 230. All such contracts, except continuing contracts as specified in subsection (4), shall

    contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

    * * *

    (6)(a) Any member of the instructional staff, excluding an employee specified in subsection (4) , may be suspended or dismissed at any time during the term

    of the contract; however, the charges against him must be based on just cause as provided in paragraph (1)(a).

    
    

    Broward County School Board also has charged that these acts constitute a violation of Rules 6B-1.01, 6B-1.08 and 6B-4.09, Florida Administrative Code. Rule 6B-1.06 provides in relevant part:

    
    

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual teacher's certificate, or the other penalties as pro- vided by law.

    3. Obligation to the student requires that the individual:

       1. Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.

          
          

33. Petitioners, Commissioner of Education and the Education Practices Commission, have charged in DOAH Case No. 83-2050 that the misconduct, which is the subject of the Broward County School Board Petition, also constitutes a violation of Section 231.28, Florida Statutes (1982) and Rule 6B-1.06, Florida Administrative Code (quoted above). Section 231.28 provides in relevant part:

    
    

    1. The Education Practices Commission shall have authority to suspend the teaching certificate of any person

       as defined in s.228.O4l(9) or (10) for a period of time not to exceed 3 years, thereby denying him the right to teach for that period of time, after which the

       holder may return to teaching as provided in subsection (4) to revoke the teaching

       certificate of any person, thereby denying him the right to teach for a period of

       time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4)

       to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law, provided it can be shown that such person:

       1. Obtained the teaching certificate by fraudulent means;

       2. 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;

       3. Has been guilty of gross immorality or an act involving moral turpitude;

       4. Has had his certificate revoked in another state;

       5. Has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation;

       6. Upon investigation, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board;

       7. Has breached a contract, as provided in s. 231.36(2); or

       8. Has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of

          the teaching certificate.

          
          

34. Petitioners contend that the acts committed by Respondent constitute misconduct in office under Section 231.36, Florida Statutes, and gross immorality or acts involving moral turpitude under Section 231.28, Florida Statutes. Although these grounds are not defined within Sections 231.36 and 231.28, Rule 6B-4.09, Florida Administrative Code, does provide some guidance as to the kind of conduct prohibited under these sections. "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 service in the community." Rule 6B- 4.09(3), Florida Administrative Code.

    
    

35. The rule does not define "gross immorality" but does provide the following definition for immorality:

    
    

    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. Rule 6B-4.09(2) , F.A.C.

    The term "gross immorality" refers to acts which are serious and not minor in nature and which involve a flagrant disregard of the standard of moral conduct embodied in the above rule. See Education Practices Commission v. David Michael Knox, DOAH. Case No. 82-056 (May 18, 1981, Final Order Entered June 29, 1981) and Negrich v. Dade County Board of Public Instruction, 143 So.2d 498 (Fla. 3d DCA 1962).

    
    

36. The term "moral turpitude" has been defined in State ex rel Tullidge

    v. Hollingsworth, 146 So. 660 (Fla. 1933) as:

    
    

    Moral turpitude involves the idea

    of inherent baseness or depravity in the private social relations or duties owed by man to man, or man to society. (Citations omitted) . 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 unintentionally committed through error of judgment

    when wrong was not contemplated. Id. at 661.

    
    

37. The acts of physical contact such as patting or touching young teenage women on the buttocks, picking them up, kissing them on the cheek, touching their tongue, and tickling them are acts which constitute misconduct in office. These acts also constitute acts of moral turpitude as contemplated by Section 231.28(1)(e), Florida Statutes. The evidence failed to establish that the physical contact between Mr. Hayes and the girls, while instruction on the lathe was being given, was misconduct or an act involving moral turpitude. Comments by Mr. Hayes upon the figures and breasts of female students also constitute misconduct in office and an act of moral turpitude. Such improper activity creates an unfavorable learning atmosphere for the students and impairs the Respondent's effectiveness as a teacher. These acts also constitute a violation of the Principles of Professional Conduct for the Education Profession in Florida. More specifically the Respondent has failed to make reasonable effort to protect those female students discussed above from conditions harmful to learning or to health or safety in violation-of Rule 6B-1.06(3)(a), Florida Administrative Code.

    
    

38. It is therefore concluded that Respondent is guilty of the violations charged in Counts One through Eight and Count Ten of the Administrative Petitions in Case Nos. 83-1147 and 83-2050.

    
    

39. Penalty. License revocation is an extreme and drastic penalty which should be applied only in the most flagrant cases. Taylor v. State Beverage Department, 194 So.2d 321 (Fla. 2d DCA 1962) . In the instant case, the acts committed by Respondent were improper and showed poor judgment, but were not the type of conduct which causes serious or permanent injury to the victim. The girls in question had no particular or strong emotional reaction to what occurred and several still considered the Respondent to be a good teacher. Respondent is an excellent instructor and has given 15 years good service to the teaching profession. There was no evidence of any prior disciplinary action against the Respondent. Under these circumstances, permanent revocation of the Respondent's teaching certificate is not an appropriate penalty.

RECOMMENDATION

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

RECOMMENDED

1. That a final order be entered by the Broward County School Board finding the Respondent guilty of the violations as stated above and dismissing him from his employment with the School Board of Broward County and denying any claim he may have for back pay.

   
   

2. That a final order be entered by the Education Practices Commission finding Respondent guilty of the violations as state above and revoking his teaching certificate No. 262317 for a period of three (3) years.

DONE AND ENTERED this 14th day of March, 1984, in Tallahassee, Florida.

MARVIN E. CHAVIS

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 14th day of March, 1984

COPIES FURNISHED:

Craig R. Wilson, Esquire

315 Third Street, Suite 204 West Palm Beach, Florida 33401

Charles Whitelock, Esquire 1244 Southeast 3rd Avenue

Ft. Lauderdale, Florida 33301

Donald L. Greisheimer Executive Director Department of Education

Education Practices Commission Room 125, Knott Building Tallahassee, Florida 32301

C. Edward McGee, Jr., Esquire Suite 302, Dania Bank Bldg. 790 East Broward Blvd

Ft. Lauderdale, Florida 33301

Docket for Case No: 83-001147

Orders for Case No: 83-001147