RALPH D. TURLINGTON, as )
vs. ) CASE NO. 84-2204
Respondent. )
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 November 20, 1984, in Daytona Beach, Florida.
For Petitioner: L. Haldane Taylor, Esquire
For Respondent: Philip J. Padovano, Esquire
This proceeding was initiated when petitioner, Ralph D. Turlington as Commissioner of Education, filed an administrative complaint on May 15, 1984, against respondent, Milton Aaron Wetherington, a licensed school teacher in Volusia County, Florida, alleging that during school year 1983-84 Wetherington "engaged or attempted to engage in improper relationships of a romantic nature with female high school students assigned to his classes." Petitioner further alleged that such conduct was in violation of Subsection 231.28(1)(c), Florida Statutes, and Rules 68-1.06(3)(a)(e)(h), (4)(c)(a) and (5)(a), Florida Administrative Code. For this petitioner seeks to revoke, suspend or take other appropriate disciplinary action against respondent's teaching certificate.
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 June 20, 1984, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated July 31, 1984, a final hearing was scheduled for November 9, 1984, in Daytona Beach, Florida. At the request of the parties, the matter was rescheduled to November 20, 1984, at the same location.
At the final hearing petitioner presented the testimony of Tammy Van de Hey, Lisa Scott, Kristin Hardy, Wendy Davis, Dr. Allan M. Davis, Barbara S. Davis, William L. Pickhardt, and Gaynelle Posey. It also offered petitioner's exhibits 1-3; all were received in evidence. Respondent testified on his own behalf and presented the testimony of Jeff Ridgedale, Howard B. Gold, Richard Robinson, Jim Matthews and John Deibler.
The transcript of hearing was filed o December 6, 1984. Proposed findings of fact and conclusions of law were filed by petitioner and respondent on December 19, 1984, and January 3, 1985, respectively, and have been considered by the undersigned in the preparation of this order. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.
The issue herein is whether respondent's teaching certificate should be disciplined for the alleged violations set forth in the Administrative Complaint.
Respondent, Milton Aaron Wetherington, holds Florida teacher's certificate number 035136 issued by the State Department of Education covering the areas of physical education, history and administration/supervision. The certificate is valid through June 30, 1991.
This proceeding involves an administrative complaint filed against Wetherington by petitioner, Ralph D. Turlington, as Commissioner of Education. The complaint stems from various complaints lodged with the Volusia County School Board by several students and parents who alleged that Wetherington engaged or attempted to engage in improper relationships of a romantic nature with female high school students assigned to his classes. The filing of the administrative complaint precipitated the instant action.
Wetherington, who is 57 years old, has been a teacher for some twenty seven years, the last seventeen in the Volusia County school system. From 1975 until 1984 Wetherington was a teacher at Spruce Creek School in Port Orange, Florida. Because of the pending disciplinary proceeding, he was reassigned to a non-instructional position as an assistant manager of purchasing and property for school year 1984-85. However, after the charges came to light in early 1984, Wetherington was allowed to continue as a teacher for the remainder of the school year, and was a chaperone on the senior class trip to Walt Disney World. In his twenty seven years of teaching, he has had no prior disciplinary action taken against him.
In school year 1983-84 Wetherington taught a political systems course to first semester seniors. Two of his students were Lisa and Tammy, both seventeen years of age at the time, and the best of friends. Seven of the specific charges in the complaint involve respondent's relationship with Lisa, and to a lesser extent, Tammy.
Lisa lived at home with her mother and step father for a part of her senior year. Because of problems with her stepfather, who beat her, she moved out at the end of January, 1984, to live with a girlfriend. She was involved
with drugs, including cocaine and marijuana, and was experiencing financial problems. Lisa needed a social studies course to graduate, and transferred into Wetherington's class about two weeks after the semester started. She had not met or known Wetherington prior to that time. Wetherington immediately took a special interest in Lisa, and selected her to assist him during office hours with grading papers and the like. Lisa spotted an opportunity to take advantage of the situation, and began cultivating the relationship in an assiduous manner. Her testimony reveals she had two goals in mind: to obtain money from Wetherington and to get a good grade without studying. She also saw the opportunity to get her friend Tammy a good grade since she had access to Wetherington's grade book. The relationship was non-sexual, and all parties agree that Wetherington made no sexual advances or demands upon Lisa.
One evening during the fall of 1983, Wetherington asked Lisa if she and Tammy wanted to get a pizza after a football game. Lisa agreed and Wetherington gave her $20 to purchase the food. The three met briefly in separate cars at a local Pizza Hut, but after the girls saw other students there, they all drove in Wetherington's car to the Breakers Restaurant and Lounge, an establishment in New Smyrna Beach. They arrived around 12:45 a.m. or so, and after being seated in a booth next to the stage on which a band was playing, they placed an order for pizza. Because of the lateness of the hour, the waitress informed there the kitchen had closed. They then departed the premises and returned to Daytona Beach where all went their separate ways. The two girls claimed Wetherington purchased them an alcoholic drink at the Breakers, but a member of the band, who happened to be a teaching colleague of Wetherington disputed this and observed the three had no drinks during their five to seven minute stay at the restaurant. His testimony is deemed to be more credible and it is found respondent did not "purchase alcoholic beverages for both students" as alleged in the administrative complaint.
At some point in the first semester, Wetherington gave Lisa a key to his house in Holly Hill where he lives alone. According to respondent, he did so since he wanted Lisa to have a place to go in the event she suffered a beating from her stepfather. Lisa visited his house approximately five times in the company of a girlfriend when Wetherington was home, and an undisclosed number of times when he was not at home. One of Wetherington's sons lives at Bunnell, and visited his father regularly. The son kept a stash of marijuana at the house which the son used when he visited. Wetherington acknowledged that this was true, but maintained he did not know where it was hidden at the time. Indeed, he claimed he never used drugs himself, and objected to their use by other persons.
Wetherington gave Lisa instructions to use the key only when she had problems with her stepfather, but Lisa ignored these instructions. While at Wetherington's home, she used both alcohol and marijuana on at least one occasion in his presence. The alcohol (wine) was taken from Wetherington's refrigerator while the marijuana was either brought onto the premises by Lisa, or came from the son's hidden stash. 1/ There is no credible evidence that Wetherington himself used "marijuana and alcohol at his residence with female students" as charged in the complaint.
During the school year, Wetherington gave Lisa a friendship ring valued at $12, some $500 in cash, between $400 and $500 worth of clothes, and lent her an Amoco gasoline credit card for gasoline purchases to get her to and from the part-time job she held. Lisa charged some $120 worth of gasoline on the card as well as $247 in auto repairs. With her mother's consent, and after clearing it with the school principal, he also paid Lisa's mother $500 for the equity in
Lisa's car, transferred the title to his own name, and financed it with a Miami bank. Lisa got to use the car with the understanding that she would pay him
$125 a month, which was Wetherington's obligation on the bank note. Wetherington considered all this to be a "loan," and kept a book detailing the total amount advanced to Lisa.
As a part of the social studies course, Wetherington required each student to prepare a term paper. Wetherington gave fourteen students, including Lisa and Tammy, copies of term papers written in the prior year with instructions to use them as a "format" or "guideline" in preparing their own. Lisa and Tammy simply changed the title page, and turned the papers back in as if they were their own. They each received a grade of 25, which was the highest grade in the class. Lisa claimed she simply did what Wetherington told her to do, and Tammy corroborated this claim. Although Wetherington was negligent in failing to detect that the papers turned in by Lisa and Tammy were identical to those previously given them to be used as a "formats" the evidence does not support a finding that Wetherington gave them the papers for the purpose of evading any academic requirements.
The final charge concerning Lisa and Tammy is that Wetherington "[o]n at least one occasion kissed and hugged a female student." This charge apparently stems from Wetherington kissing Lisa on the cheek one day and giving her a paternal hug. Wetherington does not deny this, but contends it was not romantic in nature but done in a fatherly way.
Wendy was a seventeen year old senior at Spruce Creek High School in school year 1983-94. She is the source of some four separate charges against respondent in the administrative complaint. Wetherington approached her at the beginning of the year and asked if she wanted to be his teacher's aide. She said yes, and he accordingly rearranged her schedule so that she worked in his office or classroom during first period as an aide, and was a student in his social studies class the following period. During the first nine weeks, Wetherington gave Wendy two rings, one for her birthday and the other to simply keep till the end of the school year. He also gave her $230 in cash over this period of time. He kept a log detailing each amount of money given to her, and considered the payments to be a loan.
While working in Wetherington's classroom one day, Wendy walked by Wetherington who pulled her onto his lap and began rubbing her upper thigh. He also approached her one day in his office and put his arms around her waist and pulled her towards him. After she told him, "I don't want this," he released her. She then pulled away and claimed she immediately reported the incident to the principal. The principal could not recall such a conversation. The next day Wetherington apologized to her in his office, but he then turned off the lights in the room and began hugging her. She pushed him away and ran out of the room. Although Wendy again claimed that she immediately reported the incident to the school principal, the principal could not recall such a meeting. In any event, Wendy went to her parents, disclosed the various incidents and gave them the two rings given to her by Wetherington.
The parents were understandably irate, and went to the principal demanding that Wendy be transferred out of Wetherington's class. A meeting was held by the principal, with Wetherington and the two parents in attendance. At the meeting Wetherington simply acknowledged that he admired Wendy very much, that she was a good student, and that the cash given to her ($230) was a loan for car payments and voice lessons because he trusted her. However, Wendy does not own a car, and her another paid for all voice lessons. Moreover, her father
is a physician who has provided well for his family. The mother then wrote Wetherington a check for $230 to repay the "loan." Wendy was also transferred out of respondent's class.
Wendy acknowledged that she "took advantage" of Wetherington, and characterized their relationship as simply a friendship. In a note written to him in a school yearbook at the end of the year, she apologized for "putting (him) through hell" and wished she "could erase it all." Wetherington denied any romantic involvement with Wendy, and acknowledged only that he had kissed her twice on the cheek, once at a football game and another time outside his house. He attributes Wendy's story to emotional problems she was experiencing that fall caused by her relationship with a married man.
Wetherington portrayed himself as a teacher genuinely interested in his students. He estimated he has given financial aid in the form of loans and gifts to students over the years in excess of $10,000. Because he has raised seven children of his own, he vigorously denied having any illicit or sinister purpose in his dealings with Lisa and Wendy. Instead, he contended he was merely helping them overcome personal and financial problems so that they would be better persons after graduation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
In the administrative complaint, Wetherington is charged with violating Subsection 23l.28(1)(c), Florida Statutes. That subsection authorizes the Education Practices Commission to discipline a licensee if he:
(c) Has been guilty of gross immorality or an act involving moral turpitude.
Wetherington is also charged with violating Rules 6H-1.06(3)(a), (e), (h), (4)(c), (e) and (5)(a), Florida Administrative Code. Rule 68-1.06 constitutes the Principles of Professional Conduct for the Education Profession in Florida and authorizes disciplinary action against a licensee if he fails to adhere to the following pertinent principles:
(3)(a) Shall make reasonable effort to protest the student from conditions harmful to learning or to health and safety.
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(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
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(h) Shall not exploit a professional relation- ship with a student for personal gain or advantage.
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(4)(c) Shall not use institutional privileges for personal gain or advantage.
(e) Shall offer no gratuity, gift, or favor to obtain special advantages.
(5)(a) Shall maintain honesty in all professional dealings.
Initially, it is noted that the administrative complaint is quite specific, and details the exact charges made against respondent. It also enumerates the specific rules and statutory elements which petitioner is charged with violating. Accordingly, the undersigned has disregarded various accusations against Wetherington which do not appear in the complaint, and testimony concerning his loss of effectiveness as a teacher since he has not been so charged. 2/ The evidence will be viewed to determine whether the factual allegations have been proven, and if so, whether they constitute a violation of the cited rules as well as "gross immorality" and "acts involving moral turpitude" within the meaning of Subsection 231.28(1)(c), Florida Statutes. Finally, the charge that Wetherington has violated Rule 68- 1.01(3), Florida Administrative Code, must be dismissed since the agency itself has held that disciplinary action under that rule is inappropriate. Turlington v. Carroll, DOAH Case No. 81-2652, Final Order entered December 21, 1982.
Because this proceeding is penal in nature, School Board of Pinellas County v. Noble, 384 So.2d 205 (Fla. 1st DCA 1980), and respondent's teaching certificate is at stake, an "elevated standard of proof . . . applies." Smith
v. School Board of Leon County, 405 So.2d 183, 186 (Fla. 1st DCA 1981). That is to say, the proof must be sufficient to clearly convince the finder of fact that Wetherington is guilty of gross immorality and acts involving moral turpitude as well as violating the cited rules.
The administrative complaint basically contains two sets of charges, one dealing primarily with Lisa and to a small degree Tammy, and the other involving a third female student, Wendy. The charges will be dealt with separately.
It is alleged in paragraph (4)(a) through (g) of the complaint that Wetherington engaged in seven specific acts with Lisa and Tammy during school year 1983-84, which in turn constituted a violation of various rules and statutes. The evidence does not sustain the allegations that respondent "took two female students to an establishment where alcoholic beverages were served, and purchased alcoholic beverages for both students," "engaged in the consumption of marijuana and alcohol at his residence with female students, proposed marriage to a female student," or "provided female students with term papers from a previous year's class and altered the cover page of one to reflect authorship by a female student." There is, however, clear and convincing evidence to support a finding that Wetherington "provided a female student with gifts, cash gifts, loans, use of a gasoline credit card, and a key to his residence," lowed female students to consume marijuana and alcohol while in his presence at his residence" on at lease one occasion, and "on at least one occasion, kissed and hugged a female student."
Paragraph 5(a) through (d) of the complaint alleges that Wetherington engaged in four specific acts with Wendy which were in violation of the law. The evidence reveals that Wetherington did indeed on several occasions (give) her money and/or offers of same," "on one occasion gave her rings," on one occasion, but not several as charged in the complaint, "inappropriately touched her thighs" (but not buttocks), and "on two occasions held her and attempted to kiss her while in his office." However, in conjunction with the latter charge, he did not tell her "I just want to love you."
It is next necessary to determine whether the above acts fall within the proscriptions contained in Rules 6B-1.06(3)(a), (e), (h), (4)(c), (e), and (5)(a), Florida Administrative Code, and constitute gross immorality and acts
involving moral turpitude within the meaning of Subsection 231.28(1)(c), Florida Statutes. In this regard, while such an analysis would be most helpful, petitioner has not identified the specific acts which it believes violate a particular rule or statute, but has simply concluded in its proposed order that all charges have been proven.
To begin with, none of the proven acts violate Rule 68-1.06(5)(a), which requires a licensee to "maintain honesty in all professional dealings," or Rule 68-1.06(4)(c), which prohibits a licensee from "using institutional privileges for personal gain or advantage." Further, he did not exploit "a professional relationship with a student for personal gain or advantage", Rule 68-1.06(3)(h), Florida Administrative Code, and even though he offered both Lisa and Wendy a "gratuity, gift, or favor" he did not obtain any "special advantages as required by Rule 68-1.06(4)(e), Florida Administrative Code. However, by allowing marijuana and alcohol to be consumed by students, he failed "to make
(a) reasonable effort to protect the student from conditions harmful to learning
.or to health and safety," Rule 68-1.06(3)(e), Florida Administrative Code.
Gross immorality and acts involving moral turpitude are not defined in Subsection 231.28(1), Florida Statutes. However, the terms "immorality" and "moral turpitude" are defined in Rules 6B-4.09(2) and (6), Florida Administrative Code. They read as follows:
(2) 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 disre- spect and impair the individual's service in the community.
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(6) Moral Turpitude is a crime that
is evidenced by an act of baseness, vile- ness or depravity in the private end social duties which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
While the term immorality is admittedly a broad and general term, and any violation thereof must be proven by "substantial" evidence, Sherburne v. School Board of Suwannee County, 455 So.2d 1057, 1061 (Fla. 1st DCA 1984), possession of marijuana has been held to constitute immorality under Chapter 231. Adams v. State Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981). But Wetherington is not charged with possession of marijuana as was the case in Adams. Instead, the only proven allegation is that he "(a)llowed female students to consume alcohol and marijuana while in his presence at his residence. whether this conduct equates to gross immorality is the key issue.
Because teachers are held to a high standard of conduct, Tomerlinson v. Dade County School Board, 318 So.2d 159 (Fla. 1st DCA 1975), the undersigned concludes that by having alcohol and marijuana (even though it was not his own) on his premises, and permitting a student to use both while he was present, Wetherington is guilty of gross immorality. Further, by inappropriately touching Wendy on her thigh, and pulling her close on two occasions, he has
violated the same statute. This conduct, however, does not equate to acts involving moral turpitude within the meaning of the law. Similarly, a fatherly hug and kiss on the cheek to Lisa, and the giving of gifts, loans and cash to Lisa and Wendy neither constitutes gross immorality or acts involving moral turpitude. While they demonstrate extremely poor judgement on the part of Wetherington, they do not violate the statute upon which petitioner relies.
In its proposed order, petitioner suggests that Wetherington's teaching certificate be permanently revoked. This penalty is apparently premised on the belief that all charges have been proven, and that Wetherington has lost his effectiveness as a teacher by virtue of his misconduct. But not all of the charges have been sustained, and Wetherington has not been charged with a violation of Subsection 231.28(1)(f). A review of the record reveals that respondent has violated Rules 6B-1.06(3)(a) and (e), as well as Subsection 231.28(1)(c). He has also exhibited extremely poor judgement in his dealings with students. At the same time, it is noted that the two students who precipitated this action openly admitted they took advantage of Wetherington and had ulterior motives in these relationships. It is also noted that respondent has taught for twenty seven years and has no prior blemishes on his record. Under these circumstances, it is recommended that respondent be placed on probation for three years and allowed to continue employment during his probationary period only as a non-instructional employee of the school board.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found GUILTY of violating Rules 6B-
the Conclusions of Law portion of this order. All other charges should be DISMISSED. It is further
RECOMMENDED that respondent be placed on probation for three years and that he be retained by the school board during his probationary period only as a non- instructional employee.
DONE and ENTERED this 22nd day of January, 1985, in Tallahassee, Florida.
DONALD R. ALEXANDER
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1985.
1/ This is supported by the testimony of the principal, who testified that Wetherington acknowledged to her that students had used alcohol and marijuana in his home, and by Wetherington himself who testified that Lisa had drank a glass of wine in his presence.
2/ To do this, petitioner would have been obliged to charge respondent with having "been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board" pursuant to Subsection 23l.28(1)(f). It did not do so.
L. Haldane Taylor, Esq.
331 E. Union St. Jacksonville, Florida 32202
Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302
