STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1482

)

LESTER N. JOHNSON, )

)

Respondent. )

) RALPH D. TURLINGTON, as )

Commissioner of Education )

)

Petitioner, )

)

vs. ) CASE NO. 83-3411

)

LESTER N. JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above cases before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on November 21 and December 5, 1983, in Miami, Florida.

APPEARANCES

For Petitioner: Jesse T. McCrary, Jr., Esquire Case No. 83-1482 3000 Executive Plaza, Suite 800

3050 Biscayne Boulevard

Miami, Florida 33137

For Petitioner: W. Jerry Foster, Esquire

Case No. 83-3411 616 Lewis State Bank Building

Tallahassee, Florida 32301

For Respondent: Alan B. Oppenheimer, Esquire

1515 Northwest 7th Street Miami, Florida 33125

BACKGROUND

Case No. 83-1482 was initiated when Petitioner, School Board of Dade County, voted to suspend without pay and initiate proceedings to dismiss respondent, Lester N. Johnson, from his position as teacher at Miami Lakes Junior High School effective April 20, 1983. This was confirmed in a letter sent to respondent on April 21, 1983 advising that he had been guilty of "immorality and misconduct in office" and that his employment was accordingly

being terminated. Respondent thereafter requested a from hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest his dismissal. The matter was forwarded by petitioner to the Division of Administrative Hearings on May 16, 1983 with a request that a Hearing Officer be assigned to conduct a hearing.

On May 26, 1983 petitioner issued its notice of charges in which it set out in greater specificity the alleged wrongdoing. In brief, it contended that on or about March 23, 1983 Johnson did "unlawfully handle, fondle, or make an assault upon a student. . .in a lewd, lascivious, or indecent manner, by touching (the student's) breast, arms, and buttocks, and/or kissing (her) neck." It further contended this conduct constituted a violation of Subsection 231.36(4)(c), Florida Statutes, since it "amounted to immorality and misconduct in office."

Case No. 83-1482 was set for hearing on August 15, 1983 in Miami, Florida.

A request for a continuance was thereafter made by respondent, and with petitioner's agreement, the final hearing was reschedule to October 26, 1983 at the same location. At the outset of the hearing, petitioner requested a continuance on the ground similar charges had just been filed by the Education Practices Commission, and that for the sake of judicial economy and efficiency, both matters should be consolidated for hearing. The request was granted and the final hearing was continued to November 21 in Miami, Florida.

On October 12, 1983 petitioner, Education Practices Commission, filed an administrative complaint against respondent alleging that because of the previously described conduct, Johnson was guilty of (a) an act of gross immorality, moral turpitude, and personal conduct which seriously reduces his effectiveness as a teacher within the meaning of Subsection 231.28(1), Florida Statutes, d(b) violating Rule 6B-1.06(3)(a),(e), (f) and (h), Florida Administrative Code, and (c) violating Rule 6B-1.01, Florida Administrative Code. For this, it is sought to take disciplinary action against his state teaching certificate. This case was assigned Case No. 83-3411.

Both cases were consolidated for hearing and a final hearing was held on November 21 and December 5, 1983 in Miami, Florida. At the final hearing petitioners presented the testimony of Michelle E. Pinson, the alleged victim, Natalie Blackwell, a student and classmate of Pinson, John M. Kennedy, instructor/teacher at Miami Lakes Junior High, William K. McCard, assistant principal at Miami Lakes Junior High, Ruby Wells, guidance counselor at Miami Lakes Junior High, Dr. Benjamin S. Miller, principal at Miami Lakes Junior High, Dr. Desmond Patrick Gray, Jr., executive director of the division of personnel control for the Dade County Public Schools, Tracy Marie Dixon, a student, and Gwendolyn Yvonne Dixon, Tracy's mother. Petitioners also offered petitioners' exhibits 1-4; all were received in evidence. Respondent testified on his own behalf and presented the testimony of Kristina Allen, a student, Elisha Clark, Jr., Angel Forte, Nadine Gay, and Samuel Lee Footman, Jr., all character witnesses, Robert Antelo, a student, and Arthur David Diamond, an instructor at Miami Lakes Junior High.

The transcripts of hearing (two volumes) were filed on December 30, 1983. Proposed findings of fact and conclusions of law were filed by petitioners on January 16, 1984, and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

The issue herein is whether respondent should be dismissed from employment with the Dade County School Board and have his state teaching certificate disciplined for the alleged conduct described in the notice of charges and administrative complaint.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent, Lester Nathaniel Johnson, is the holder of teacher's certificate number 384068 issued by the State Department of Education. It is valid until June 30, 1990. He is a 1975 graduate of Bethune-Cookman College where he majored in history and sociology, and from Nova University in 1981 where he received a master's degree.

   
   

2. Johnson first began teaching in the Dade County Public School System in September, 1975 and has taught in the System since that time. During school years 1981-82 and 1982-83 he was an instructor at Miami Lakes Junior High School (MLJHS) teaching social studies and history.

   
   

3. During school year 1982-83 first period at MLJHS began at 8:45 a.m. and ended fifty-five minutes later at 9:40 a.m. Classes then changed and "homeroom" activities began at 9:45 a.m. and lasted ten minutes. At 9:55 a.m. a bell rang and students had five minutes to go to second period class which began at 10:00 a.m.

   
   

4. The allegations in the notice of charges and administrative complaint relate to an alleged incident which occurred on the morning of March 23, 1983 on the school premises. As clarified by testimony in this cause, the "incident" could not have occurred any earlier than around 9:57 a.m. that morning in respondent's classroom during the break between homeroom and second period. The testimony also shows that after the incident, which took no more than a minute, the complainant would have had to leave the classroom, talk briefly with her girlfriend in the hallway, and still have time to reach a street adjacent to the school building approximately two hundred yards away in a minute or so, or by 9:59 a.m.

   
   

5. Michelle Pinson was a thirteen-year-old seventh grader of MLJHS during the 1982-83 school year. According to Pinson, on the morning of March 23, 1983 she left her homeroom after the bell rang at 9:55 a.m. to attend her second period class, English. She related that she had to walk past respondent's classroom to get to her second period class, and that it normally took her around a minute to a minute and a half to reach Johnson's classroom. At the final hearing, Michelle claimed that while walking past his classroom that morning, he pulled her inside the room, which was empty, shut the door and began "kissing all on (her)" including her neck and face, and "feeling on (her)" including her breasts and genital area. However, some two weeks after the "incident", she had told an assistant state attorney under oath that Johnson had kissed her only on the neck and had not touched her in the genital area. When she started to leave the room, Pinson stated Johnson grabbed her right buttocks and told her not to tell anyone. According to Pinson, the whole incident took no more than a minute. Testimony from a non-interested witness, Arthur Diamond, a science teacher at MLJHS, confirmed the fact that Johnson went to the restroom after the 9:55 a.m. bell rang, chatted for a minute or two with Diamond, and could not have returned to his classroom until around 9:57 a.m. Therefore, if

   such an incident did in fact occur, it could not have happened until after 9:57 a.m.

   
   

6. After leaving the classroom, the first person Michelle saw was Natalie Blackwell, a longtime friend and classmate, and related to her what had happened. Natalie attempted to corroborate Michelle's story, and stated that she saw a hand grab Michelle's buttocks as she left the classroom, and as she passed by the classroom she saw the hand belonged to Johnson. Natalie's version of the story must be tempered by several considerations. First she testified the incident occurred after lunch rather than in the morning. Secondly, she was a student in Johnson's class and had just been suspended for ten days for fighting. When she returned Johnson refused to allow her to do makeup work for the time she was suspended and consequently she received a failing grade. For this, Natalie had threatened to "get" Johnson. Finally, Natalie had also received several detentions from Johnson prior to the "incident" and was dating Michelle's brother at the same time. Therefore, her testimony is not found to be credible, and has been disregarded.

   
   

7. "A little bit before" 10:00 a.m., Michelle was found walking down Ludlam Avenue by an instructor some two hundred yards or so from the main building. Michelle had walked that distance after she claimed the "incident" had occurred and after she had spoken to Natalie. The undersigned finds it highly unlikely that Michelle could have had an encounter with Johnson after 9:57 a.m., which lasted no more than a minute, then talked briefly with her friend in the hallway, and then walked some two hundred yards from the building, all within a span of a minute or so.

   
   

8. After being stopped by the instructor on Ludlamd Avenue, Pinson returned to the main building and was seen by the assistant principal several minutes after 10:00 a.m. wandering in the hallway. He immediately approached her and noted she had tears in her eyes and was sobbing. Pinson told the assistant principal that she had an encounter with Johnson. Both went to the principal's office where an interview was conducted with Pinson, and later with Johnson.

   
   

9. After conducting an investigation, school authorities turned the mattter over to petitioners, School Board of Dade County and Education Practices Commission (EPC), who then initiated these proceedings.

   
   

10. Respondent denied the incident occurred and that he had not even seen Michelle during the break between homeroom and second period class. On the morning in question, Johnson had supervised a breakfast program for students from 8:00 a.m. to 8:40 a.m. in the cafeteria, taught a first period class form 8:45 a.m. to 9:55 a.m. When the bell rang to change classes, the students departed the classroom and Johnson then left his classroom to visit the restroom down the hall. As noted earlier, this was confirmed by another teacher, Arthur Diamond, who testified that Johnson followed him into the restroom right after the bell rang where they briefly chatted and then both departed, returning to their respective classrooms around 9:57 a.m.

    
    

11. The evidence is sharply conflicting in this proceeding but it is found that no encounter between Johnson and Pinson occurred on the morning of March 23, 1983.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

13. Because this proceeding is penal in nature, and may result in the loss of a valuable professional license, the proceeding takes on added significance in terms of evidentiary requirements on the part of petitioners. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st SCA 1981). In other words, an "elevated standard of competent evidence" is required, Smith v. School Board of Leon County, 405 So.2d 183, 186 (Fla. 1st DCA 1981), and the proof must be commensurate with the potential penalty. Henderson Signs v. Department of Transportation, 397 So.2d 769, 773 (Fla. 1st DCA 1981); Bowling, 394 So.2d at

172. In their proposed orders, counsel for the Education Practices Commission and the School Board have recommended the most serious statutory penalties possible, a permanent revocation of Johnson's teaching certificate and dismissal from his present teaching job. Accordingly, the "prosecutor's proof (must) be as serious-minded as the intended penalty is serious." Bowling, 394 So.2d at 172.

1. Initially, it should be pointed out that no evidence whatsoever was presented by EPC which demonstrated that Johnson's effectiveness as a teacher was seriously reduced by virtue of his conduct. Cf. Boyette v. State Professional Practices Commission, 346 So.2d 598 (Fla. 1st DCA 1977). Secondly, the EPC may not impose discipline on teachers for violation of Rule 6B-1.01, Florida Administrative Code. See Turlington v. Carroll, DOAH Case No. 81-2656, Final Order entered December 21, 1982. Accordingly, those portions of the EPC's administrative complaint must fail.

   
   

2. The remaining charges must rise or fall on the credibility of the testimony of the various witnesses in this proceeding. In both the notice of charges and administrative complaint, it is alleged that Johnson "did unlawfully handle, fondle, or make an assault upon Michelle Pinson in a lewd, lascivious, or indecent manner."

   
   

3. The evidence is sharply conflicting with one version of what happened the morning in question supporting the allegations while the other negates the charges. The undersigned concludes that the testimony of Johnson, as corroborated in part by Diamond, is more credible and trustworthy than that of the complainant and her primary witness, Natalie Blackwell. This is especially true since the story related by the complainant, when coupled with the testimony of others, makes it highly improbable that Michelle could have an encounter, talk with a classmate, and then be seen walking down a street some two hundred yards away in less than two minutes. Given the "elevated standard" of proof in teacher disciplinary cases, the evidence falls short of establishing the allegations, and the administrative complaint and notice of charges should be dismissed. Smith, 405 So.2d at 186.

   
   

4. In view of the fact that respondent has been suspended without pay, he is entitled to reinstatement and back-pay retroactive to his date of suspension on April 20, 1983.

RECOMMENDATION

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

RECOMMENDED that all charges against respondent be DISMISSED and that he be reinstated and given back-pay retroactive to April 20, 1983.

DONE and RECOMMENDED this 8th day of February 1984, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1984.

COPIES FURNISHED:

Jesse T. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800

3050 Biscayne Boulevard

Miami, Florida 33137

W. Jerry Foster, Esquire

616 Lewis State Bank Building Tallahassee, Florida 32301

Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 N.E. 2nd Avenue Miami, Florida 33132

Mr. Donald Griesheimer Executive Director

Education Practices Commission Knott Building

Tallahassee, Florida 32301

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

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RALPH D. TURLINGTON, as

Commissioner of Education, Petitioner,

vs. CASE NO. 83-1482

LESTER N. JOHNSON,

Respondent.

/

FINAL ORDER

The Respondent, Lester N. Johnson, holds Florida teaching certificate number 384068. The Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the certificate.

The Respondent requested a formal hearing, and a hearing was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Panel, pursuant to Section 120.57(1), Florida Statutes, which is attached hereto and made a part of this Order.

A panel of the Education Practices Commission met on March 30, 1984 in Tallahassee, Florida, to take final agency action.

The panel adopts the Findings of Fact, Conclusions of Law, and Recommendation of the Recommended Order. Case No. 83-120-RT against the Respondent is hereby DISMISSED.

DONE and ORDERED this 9th day of April, 1984.

CAROLYN WILSON, Presiding Officer

COPIES FURNISHED:

Arthur Wallberg, Esquire Attorney General's Office

Judith Brechner, General Counsel

Marline Greenfield, Administrator Professional Practices Services

Jerry Foster, Esquire

616 Lewis State Bank Building Tallahassee, FL 32301

Allen Oppenheimer, Esquire 1515 N.W. 7th Street Miami, FL 33125

Jesse T. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800

3050 Biscayne Boulevard

Miami, FL 33137

Dr. Leonard Britton Superintendent

Dade County Schools 1410 N.E. Second Avenue Miami, FL 33132

Donald R. Alexander, Esquire Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, FL 32301

I HEREBY CERTIFY that a copy of the foregoing Final Order in the matter of RDT v. Lester Johnson has been furnished to Alan B. Oppenheimer, Esquire, by

U.S. Mail, this 12th day of April, 1984.

DONALD L. GRIESHEIMER, Clerk

Docket for Case No: 83-001482

Orders for Case No: 83-001482