STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )

)

Petitioner, )

vs. ) CASE NO. 84-1905

)

CHARLES L. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on 0ctober 2, 1984, in Gainesville, Florida.

APPEARANCES

For Petitioner: J. David Holder, Esquire

Post Office Box 1694 Tallahassee, Florida 32302

For Respondent: Arthur G. Haller, Esquire

771 Northwest 23rd Avenue, Suite 1

Gainesville, Florida 32601 BACKGROUND

This proceeding was initiated when petitioner, Ralph D. Turlington, as Commissioner of Education, filed an administrative complaint on May 15, 1984, against respondent, Charles L. Smith, a licensed teacher, alleging that on January 29 and February 5, 1984, respondent telephoned a former student at Dunnellon High School and asked that the student relay a message to a teacher's aide to the effect that Smith would get even with her for testifying against him in a prior disciplinary hearing. Petitioner contends this misconduct is a violation of Rule 6B-1.06 (3)(h) and (5)(m), Florida Administrative Code, by ".

. exploiting a professional relationship with a student for personal gain or advantage" and by seeking ". . . reprisal against an individual who testified against him concerning violations of Florida Statutes and Rules of the State Board of Education."

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the charges. The matter was referred by petitioner to the Division of Administrative Hearings on May 24, 1984, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated June 15, 1984, a final hearing was scheduled for October 2, 1984, in Gainesville, Florida.

At the final hearing petitioner presented the testimony of Pretis Griffin, a former student at Dunnellon High School; Clara Davis, his grandmother; Ruth

Annette Edwards, a teacher's aide at Dunnellon High School; and George D. Tomyn, assistant principal at Dunnellon High School. It also offered petitioner's Exhibits 1-3; all were received in evidence. Respondent testified on his own behalf and presented the testimony of Alice Smith, his wife. He also offered respondent's Exhibit 1, which was received in evidence.

The transcript of hearing was filed on October 17, 1984. Proposed findings of fact and conclusions of law were filed by petitioner and respondent on October 26 and November 2, 1984, respectively, and have been considered by the undersigned in the preparation of this order. Proposed 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's teaching certificate should be disciplined for the alleged violations set forth in the administrative complaint.

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

FINDINGS OF FACT

1. Respondent, Charles L. Smith, holds a temporary state teaching certificate number 514251 issued by the State Department of Education covering the area of physical education. He has been a teacher for fourteen years and holds a master's degree in special education. He is presently the head football coach and a physical education instructor at Stewart High School in Lumpkin, Georgia.

   
   

2. This is not respondent's first involvement with a disciplinary proceeding. On June 8, 1983, petitioner, Ralph D. Turlington, as Commissioner of Education, filed an administrative complaint against Smith alleging that while he was employed as a teacher at Dunnellon High School (Marion County) in school year 1982-83, he made derogatory statements to students and engaged in improper conduct of a sexual nature with a minor female student. The matter eventually culminated in an administrative hearing held on August 11, 1983, where one of petitioner's witnesses was Ruth Annette Edwards, a teacher's aide in Smith's class. Her testimony in that proceeding has been received in evidence as petitioner's Exhibit 3. The testimony can be characterized as damaging, for Edwards gave testimony which tended to corroborate the allegations against Smith.

   
   

3. Although the Hearing officer recommended that Smith be found guilty of all charges and that his certificate be revoked for two years, in its Final Order rendered on November 9, 1983, the Education Practices Commission (EPC) expressed "strong doubts that the incident (with the female student) actually occurred" and instead placed respondent on probation for one year and imposed the following conditions:

   
   

   The Respondent will break no laws, nor any rules of the State

   Board of Education. The Respondent will perform in a satisfactory manner as a teacher, and will cause reports of his performance to be forwarded

   to the Education Practices Commission.

   Therefore, under the terms of pro- bation, if respondent violates any state law or EPC rule during the ensuing year, he risks the loss of his teaching certificate.

   
   

   The probation period expires on November 9, 1984.

   
   

4. Respondent's contract to teach at Dunnellon High School was not renewed in school year 1983-84. However, Smith's failure to teach there was not due to the EPC disciplinary action, but rather was attributable to his failure to pass the mathematics part of the teacher certification examination. Because of this, he weighed alternative offers from Alachua County School Board and the State of Georgia, and accepted the latter offer because of its higher pay.

   
   

5. Sometime prior to 10:30 a.m. on Sunday morning, January 29, 1984, the Clara Davis household in Dunnellon, Florida, received a telephone call. Mrs. Davis answered the telephone and was asked by the caller to speak to her grandson, Pretis Griffin, then nineteen years old and a senior at Dunnellon High School who resided with her. Pretis was a former student in Smith's English class in 1982-83, and also knew him from varsity athletics. Mrs. Davis responded that Pretis was still asleep and hung up. The same caller telephoned back a few minutes later and said he was calling long distance from Gainesville and needed to talk to Pretis. She roused Pretis, who answered the call. Pretis testified the caller identified himself as respondent and sounded like Smith. Although Smith denied he made the call, it is found that Smith did indeed telephone Pretis on January 29. After the two made small-talk initially, Smith then asked Pretis if he would do him a favor. Pretis said "yes," and Smith said "I want you to tell Mrs. Edwards something." Pretis asked "What," and Smith replied, "Tell Mrs. Edwards thanks for what she's done, and I will get back at her through her husband." After some more small-talk, the two ended the conversation by Smith saying, "Don't forget to tell her," followed by a "little laugh." After the call ended, Pretis told his grandmother the caller was Coach Charles Smith.

   
   

6. The next day, Monday, January 30, Pretis approached Ruth Edwards at school and told her respondent had telephoned him and wanted to convey a message. Pretis then told her "Coach Smith said thanks for what you done and he'll get you back through your husband." Upon hearing this, Edwards simply shrugged and walked away.

   
   

7. The following Sunday, February 5, 1984, the Davis household received another telephone call for Pretis prior to 10:30 a.m. According to Pretis, it was the same caller as the previous Sunday, and despite Smith's denial, it is found that respondent made a second call to Pretis on February 5, 1984. After making small-talk, Smith eventually asked if his message had been delivered and what Edwards' response had been. When Pretis responded that he had, and that Edwards had merely shrugged and walked away, Smith commented "Oh, she thought it was a joke," and Pretis said "I guess." The two then discussed an upcoming basketball game at Dunnellon the following Saturday night and the fact that Smith might attend the game.

   
   

8. In the next day or so, Pretis told Edwards at school that Coach Smith had telephoned again and that he might attend the high school basketball game that weekend. Edwards gave no visible response to Pretis' comment.

9. Edwards, who readily acknowledged she dislikes Smith, initially claimed that Pretis relayed three separate messages to her from Smith, and also gave a more threatening account of the conversations between Pretis and Smith.

   However, it is found that only two calls took place, and the substance of the calls was accurately portrayed by Pretis. After Pretis told Edwards that Smith had telephoned a second time, she went to the assistant principal and advised him that Smith had threatened her. Later, Edwards and Pretis were interviewed, and the matter was then turned over to the Marion County School Board, and eventually referred to petitioner. That prompted the issuance of the administrative complaint herein.

   
   

10. Smith, who has never met Edwards' husband, denied making the calls. He seemed fully aware of the terms of his probation, and recognized that any violation might jeopardize his teaching certificate. He contended it would be "stupid" to threaten Edwards because it would lead to the exact predicament he finds himself in. On the two mornings in question, he claimed he was either at work (as a clerk at a 7-11 store in Gainesville) or in church. However, his

    wife was unable to confirm this because of the passage of time since January and February, 1984. Until the hearing, Smith has not seen nor spoken to Edwards (or her husband) since the administrative hearing conducted in August, 1983 and has never carried out any threats against her.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. In the administrative complaint, Smith is charged with violating two Department rules when he telephoned a former student on January 29 and February 5, 1984. First, it is alleged that he violated the prohibition against "exploit(ing) a professional relationship with a student for personal gain or advantage" [Rule 6B-1.06(3)(h)], and secondly, with "seek(ing) . . . reprisal against (an) individual who has reported a violation of Florida School Code or State Board of Education Rules" [Rule 6B-1.06(3)(m)]

    
    

13. In his proposed order, Smith contends that no professional relationship between him and Pretis Griffin existed when the calls were allegedly made, and therefore no violation of the rule has occurred. On the other hand, petitioner argues that the two once had a professional relationship, and such a relationship still carried over to the time when the calls were made. Neither party has cited any agency precedent or policy in support of their respective positions, nor has any evidence been offered in support of a particular interpretation. The rule itself provides that a teacher "[s]hall not exploit a professional relationship with a student for personal gain or advantage." The undersigned concludes that the intent of the rule is to prohibit teachers from exploiting a professional relationship with students who are either in their classrooms or the same school at the time such "exploitation" occurs. Such an interpretation is consonant with the plain ordinary meaning of the rule, is logical, and prevents a teacher from using his professional position to influence a student's conduct lest the student be subjected to a lower grade, disciplinary action or some other form of detrimental action. Conversely, the Department's interpretation would lead to illogical results, and has no record foundation in this proceeding. Cf. Anheuser-Busch, Inc. v. Dept. of Business Regulation, 393 So.2d 1177 (Fla. 1st

    DCA 1981). Accordingly, Smith's contact with a former student in a different state does not amount to exploitation of a professional relationship within the meaning of the rule, and this portion of the administrative complaint should be dismissed.

    
    

14. The second violation revolves around Smith allegedly "seek(ing) . . . reprisal against (an) individual who has reported a violation of Florida School Code or State Board of Education rules" as proscribed by Rule 6B-1.06(3)(m) Florida Administrative Code. Here again, the parties differ as to what type of conduct is proscribed by the rule. Petitioner asserts that the rule was intended to apply not only to those who threaten a person who has reported a violation, but also where threats against those who testify have been made. Respondent takes a more narrow view, and argues that the rule applies only when a threat has been made against one who reports a violation. Because Edwards was merely a witness in the prior disciplinary proceeding, and reported no violation by Smith, the rule has no application to this case. Again, the parties have offered no agency precedent or policy or record foundation to support their interpretations.

    
    

15. The rule provides that a teacher "[s]hall seek no reprisal against any individual who has reported a violation of Florida School Code or State Board of Education Rules as defined in Section 231.28(1), Florida Statute." In the case at bar, the alleged threat was made against a witness in Smith's prior disciplinary case, and not against one whose complaint triggered the initiation of the proceeding. Despite this distinction, the undersigned concludes that the rule contemplates not only the complaining person who initiates the proceeding, but also a witness who "reports" or testifies about certain illicit conduct in his or her testimony. In reaching this conclusion, the undersigned is not unmindful of Bach v. Fla. State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) which held that penal statutes and rules should be strictly construed in favor of a respondent. But to adopt respondent's narrow view would exceed the bounds of reasonableness, and produce an illogical and unwarranted result. Therefore, it is concluded that if Smith indeed sought reprisal against Edwards, such action was in violation of Rule 6B-1.06(3)(m).

    
    

16. The evidence reveals that Smith made the following comment to a former student to convey to Edwards: "Tell Mrs. Edwards thanks for what she done, and I will get back at her through her husband." No actual contact was made by Smith with Edwards, or her husband, nor did he ever follow up the above message with further threats or action. Indeed, he never saw or spoke to Edwards until the hearing in this case. Although the threat may not have been intended to be serious, and was spoken only in jest, nonetheless Edwards claimed she was fearful that Smith might seek reprisal against her for her testimony in Smith's case. Therefore, it is concluded that a violation of the rule, albeit minor in nature, has occurred as charged in the administrative complaint.

    
    

17. Respondent's present probation ends on November 9, 1984. In view of the minor nature of the so-called "threat" to Edwards, and his lengthy teaching record with only one blemish, an additional one-year probation period is appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Rule 6B-1.06(3)(m)

and that he be placed on probation for a period of one (1) year.

DONE AND ENTERED this 8th day of November, 1984, at 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 November, 1984.

COPIES FURNISHED:

J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302

Arthur G. Haller, Esquire

771 N.W. 23rd Avenue, Suite 1

Gainesville, Florida 32301

Donald L. Griesheimer Executive Director

Education Practices Commission Department of Education

Knott Building Tallahassee, Florida 32301

Honorable Ralph D. Turlington Commissioner of Education

The Capitol

Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

RALPH D. TURLINGTON, as

Commissioner of Education,

Petitioner,

FINAL ORDER

vs. DOAH CASE NO. 94-1905

CHARLES L. SMITH,

Respondent.

/

Respondent, CHARLES L. SMITH, holds Florida teaching certificate number 514251. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the certificate.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the panel pursuant to Section 120.57(1), F.S.; it is attached to and made a part of this Order.

A panel of the Education practices Commission met on January 17, 1985, in Tampa, Florida, to take final agency action. The Petitioner was represented by

J. David Holder, Esquire. The Respondent was represented by Karen Rhodes, Esquire. The panel has reviewed the entire record in the case.

FINDINGS OF FACT

The panel adopts the Findings of Fact of the Recommended Order. The panel adopts as an additional Finding of Fact that Ruth Edwards provided the Department of Education with a sworn affidavit in the prior disciplinary hearing which supported the allegations against Respondent. (Petitioner's First Exception to Findings of Fact)

CONCLUSIONS OF LAW

The panel adopts the Conclusions of Law of the Recommended Order with the exception of the Conclusions regarding Rule 6B-1.06(3)(h), F.A.C., and the characterization of the violation as "minor in nature." The panel finds and concludes that a violation of Rule 6B-1.06(3)(h), F.A.C., occurred in that a pofessional relationship existed between Respondent and Pretis Griffin which Respondent exploited for personal gain. The panel further concludes that the Respondent's violation of Rule 6B-1.06(3)(m), F.A.C., was not "minor in nature," because threats are not minor in nature.

PENALTY

Based upon its review of the entire record and upon Respondent's violation of Rules 6B-1.06(3)(h) and 6B-1.06(3)(m), F.A.C., which were not "minor in nature," the panel hereby determines that the recommended penalty be increased. Respondent's certificate is hereby suspended for two (2) years.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within thirty (30) days of the date of filing.

DONE AND ORDERED this 31st day of January, 1985.

MARJORIE HANKINS, Presiding Officer

I HEREBY CERTIFY that a copy of the foregoing Final Order in the matter of RDT v. Charles L. Smith has been furnished to Karen Rhodes, Esquire, by U.S. Mail, this 7th day of February, 1985.

DONALD L. GRIESHEIMER, Clerk

Copies furnished to:

Marlene Greenfield, Administrator Professional Practices Services

Susan Tully, Esquire Attorney General's Office

Judith Brechner, General Counsel

J. David Holder, Esquire, Karen Rhodes, Esquire

711 Northwest 23rd Avenue

Suite 1

Gainesville, Florida 32601

Hon. Donald R. Alexander Hearings Officer, D.O.A.H. The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 84-001905

Orders for Case No: 84-001905