STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 85-3689

)

JOHNNY PAUL DAVENPORT, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard by R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, on February 18, 1986, in Vero Beach, Florida.

APPEARANCES

For Petitioner: J. David Holder, Esquire

Post Office Box 1694 Tallahassee, Florida 32302

For Respondent: No appearance.

ISSUE

Whether Respondent's teaching certificate should be revoked or otherwise disciplined on charges that he violated Section 231.28(1), Florida Statutes, and Rule 6B-1.06, Florida Administrative Code, the Principles of Professional Conduct for the Education Profession in Florida.

BACKGROUND

By administrative complaint, dated September 25, 1985, Ralph D. Turlington, as Commissioner of Education, sought to revoke or otherwise discipline Johnny Paul Davenport's ("Respondent") teaching certificate on charges that he violated Section 231.28, Florida Statutes and Rule 6B-1.06, Florida Administrative Code. During the 1984-85 school year, Respondent

allegedly engaged in a "romantic relationship" with a female high school student which culminated in sexual intercourse on several occasions at his apartment. Respondent denied the charges and requested a hearing. On October 23, 1985, this case was referred to the Division of Administrative Hearings for assignment of a hearing officer.

Hearing was thereafter set for February 18, 1986. On February 10, 1986, Respondent, through his counsel, filed notice that neither he nor his attorney would appear at the hearing.

Attached to the notice was an affidavit by which he continued to deny the charges and made other assertions. A telephone conference was subsequently held at which Respondent's counsel was alerted to the hearsay nature of the affidavit and the limitations on the use of hearsay evidence to establish facts in Section 120.57(1) proceedings. Nonetheless, Respondent's counsel reiterated that Respondent, though still denying the charges, would not attend the scheduled hearing.

At the subsequent hearing, Petitioner, Department of Education, Education Practices Commission ("Commission"), presented the testimony of the female high school student, now residing in Kentucky, with whom Respondent allegedly had sexual intercourse.1 The Commission presented the testimony of Cathy King, John Wyatt, James Burns, Peggy Bergren, Augustine Ronald Hudson and Gregory Smith. Petitioner's Exhibit Nos. 1 and 2 and Respondent's Exhibit No. 1 were received in evidence.

Respondent did not attend the hearing.

The transcript of hearing was filed on March 14, 1986. The Commission filed proposed findings of fact on March 24, 1986, which have been adopted in substance and are incorporated in this order. Respondent did not file proposed findings.

Based on the evidence adduced at hearing, the following facts are determined:

FINDINGS OF FACT

1. Respondent holds Florida Teaching Certificate No. 234479 issued by the Florida Department of Education and covering the area of Physical Education. (Request for Admissions, dated December 10, 1985.)

   
   

2. At all times pertinent to this proceeding, Respondent

   
   

   
   

   1

   was employed as a teacher and basketball coach at Vero Beach Senior High School in Vero Beach, Florida. (Request for Admissions, dated December 10, 1985.)

   
   

3. During the 1984-85 school year, Respondent was assigned an early morning duty station on the grounds of Vero Beach Senior High School. P.K., a senior at the school, became acquainted with him by passing him each morning as she rode her bicycle to school. (Petitioner's Exhibit 1, p. ll)

   
   

4. P.K. attended Vero Beach High School for the eleventh and twelfth grades. She participated in various extra curricular school activities such as the Spanish Club, French Club, Latin Club, Junior Classical League and Future Business Leaders of America. She was a member of the Track and Soccer Teams, and captained the Cross-Country Team. She also worked at various part-time jobs after school. In June 1985, she graduated with a "B" average. (Petitioner's Exhibit 1, p.7)

   
   

5. During her attendance at Vero Beach High School, P.K. did not attend any courses taught by the Respondent or participate in any sports which he coached.

   
   

6. She became acquainted with him in December 1984. During lunch time she helped him keep statistics for the high school basketball team, which he coached. In January 1985, she would routinely spend her lunch hour in his office, visiting with him and keeping basketball statistics. (Petitioner's Exhibit 1, p. l3)

   
   

7. By the first week of February 1985, her relationship with the Respondent had changed and become more intimate. In lieu of her attending track practice after school, the Respondent picked her up at school and drove her to his apartment, where they had sexual intercourse. Respondent then drove her back to school where she retrieved her bicycle. (Petitioner's Exhibit 1, p. 15 )

   
   

8. During February and March 1985, Respondent and P.K. engaged in sexual intercourse at his apartment on 10 to 15 different occasions. (Petitioner's Exhibit 1, p. l6)

   
   

9. On most of these occasions, Respondent drove P.K. from the high school to his apartment, had sexual intercourse with her, then returned her to school to retrieve her bicycle. When this occurred, she would skip track or cross country practice. On one or two occasions he picked her up at her place of part-

   time after-school employment, took her to his apartment and had sexual intercourse. (Petitioner's Exhibit 1, p.l6)

   
   

10. On Valentines Day in 1985, Respondent sent her an arrangement of roses which were delivered to the office at Vero Beach High School. (Request for Admissions, dated December 10, 1985: Petitioner's Exhibit 1, p. 19)

    
    

11. Toward the end of March 1985, P.K. told her mother about her relationship with Respondent.

    
    

12. During the two months in which Respondent repeatedly engaged in sexual intercourse with P.K., he told her that he loved her. During the Summer of 1985, he asked her if she would marry him, and she agreed. (Petitioner's Exhibit 1, p. 22)

    
    

13. During the period of time in which they were sexually intimate, Respondent told her that she should find a method of birth control and use it. (Petitioner's Exhibit 1, p. 22)

14. On one occasion in February 1985, Respondent and P.K. visited the local beach after school. There were other students from the high school present on the beach at the time. (Petitioner's Exhibit 1, p.24: Tr. p.ll)

    
    

15. After P.K. told her mother about her sexual relations with Respondent, school officials were contacted and advised of the situation. The Superintendent of Schools for the Indian River County School District immediately initiated an investigation into the matter. During the course of the investigation, school officials interviewed P.K. and questioned her extensively concerning the contents, furnishings and physical layout of Respondent's apartment in an attempt to either confirm or disprove her allegations. After obtaining from her a detailed description of Respondent's apartment and furnishings, Assistant Principal Gregory Smith and Personnel Director Douglas King visited Respondent's apartment. They found that her description was accurate, including her description of quilts located on the floor in Respondent's bedroom closet and a bag of frozen clams in his freezer. (Tr. pp. 36-39)

    
    

16. When school officials interviewed Respondent, he told them that during the evening of March 22, 1985--when P.K. had indicated that she and the Respondent were together--he was with John Wyatt, a friend, until approximately 11 or 12 o'clock. Although he and Mr. Wyatt were together on the evening of March 22, 1985, watching an NCAA basketball game, Respondent drove Mr. Wyatt home at approximately 9 p.m., at which time he told Mr. Wyatt that he was going to pick up P.K. at Gringo's Restaurant, where she worked after school. (Tr. p. 14,40)

    
    

17. During the course of the School Board's investigation, the local news media learned of the matter and began providing extensive coverage of the allegations and investigation. The three newspapers serving the Vero Beach area, as well as local radio and television stations, provided extensive coverage of the incident. (Petitioner's Exhibit 2 Tr. pp. l9,28)

    
    

18. As a result of the extensive coverage by the news media, allegations against Respondent became well known among students, faculty and staff at Vero Beach High School. As a result of the notoriety, P.K. suffered embarrassment and disparagement. Her friends avoided her for several weeks. A member of the school basketball team confronted her on more than one occasion because he was upset over Respondent's resignation. (The basketball player felt that this ruined his chance of going

    to college Respondent had been helping him in that effort.) On another occasion, a student pointed out P.K. to a reporter who was on campus gathering information about the incident. P.K. was so upset and embarrassed that the Principal recommended that she leave school for a day or so. (Petitioner's Exhibit 1, pp. 40, 41 Tr. pp.l7, 28, 30)

    
    

19. In addition to the embarrassment and disparagement which P.K. suffered as a result of the notoriety surrounding the incident, her grades suffered. (Tr. pp.23,24)

    
    

20. P.K. had a good reputation for truth and veracity at Vero Beach Senior High School. (Tr. pp.24,28)

    
    

21. P.K. received mental health counseling to help her deal with mental and emotional problems resulting from her relationship with Respondent and the notoriety surrounding the incident. (Tr. pp.43,44)

    
    

22. Prior to her involvement with Respondent, P.K. planned to attend college. Her relationship with Respondent and its after effects contributed, at least in part, to her subsequent decision to forego college. (Petitioner's Exhibit 1, pp. 45,46)

    
    

23. Respondent's sexual involvement with a female high school student, recognized by administrators, teachers and students as improper conduct, has seriously diminished his effectiveness as a teacher.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1985).

    
    

25. Section 231.28(1), Florida Statutes (1985), authorizes the Commission to revoke or otherwise discipline an individual's teaching certificate if it is shown, inter alia, that the individual is guilty of gross immorality or acts involving moral turpitude: has engaged in personal conduct which seriously reduces his effectiveness as an employee of the school board; or has otherwise violated provisions of law or rules of the State Board of Education, the penalty for which is the revocation of a teaching certificate.

    
    

26. In license revocation proceedings such as this, the

    critical matters in dispute must be shown by evidence which is "indubitably as substantial as the consequences." Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).

    
    

27. In the instant case, the Commission has sustained its evidentiary burden and established that Respondent violated Section 231.28(1)(c), (f), and (h), Florida Statutes, by entering into a romantic relationship with a female student at the school where he was employed, and engaging in sexual intercourse with her at his apartment. Such misconduct and the resulting notoriety have seriously reduced Respondent's effectiveness as an employee of the Indian River County School Board.

    
    

28. Rule 6B-1.06(2), Florida Administrative Code, provides that a violation of any of the principles stated in the rule "shall subject the individual to revocation or suspension of the individual teacher's certificate." Rule 6B-1.06(3)(a), Florida Administrative Code, provides that an educator "shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety." Respondent violated this rule by exposing P.K. to conditions reasonably interpreted to be harmful to her learning or her health and safety.

    
    

29. Rule 6B-1.06(3)(e), Florida Administrative Code, provides that an educator "shall not intentionally expose a student to unnecessary embarrassment or disparagement." Respondent violated this rule by engaging in an improper sexual relationship with a female student when he knew, or should have known, such a relationship would become public knowledge and subject her to unnecessary embarrassment and disparagement.

    
    

30. Rule 6B-1.06(3)(h), Florida Administrative Code, provides that an educator "shall not exploit a professional relationship with a student for personal gain or advantage." Respondent violated this rule by exploiting his student/teacher relationship with P.K. for his personal gain and advantage.

    
    

31. Recommended Penalty. Teachers are held to rigorous moral standards because of their critical role in educating our children:

A school teacher holds a position of great trust. We entrust the custody of our children to the teacher. We look to the teacher to educate and prepare our children for adult lives. To fulfill this trust, the

teacher must be of good moral character to require less would jeopardize the future lives of our children.

Tomerlin v. Dade County School Board, 318 So.2d 159, 160 (Fla. 1st DCA 1975). Acts which may be morally permissible in some quarters may be considered immoral when committed by a teacher. See, e.g. Adams v. State Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981). A teacher breaches his moral obligations and betrays the special trust placed in him when, for his own gain, he exploits his professional relationship with a student. Such conduct is morally reprehensible. Here, without doubt, Respondent breached the special trust placed in him by engaging in sexual intercourse with a female student at the high school where he taught. No mitigating or extenuating evidence has been presented. Because of the seriousness of Respondent's misconduct, and its adverse effects on the female student, as well as on his own effectiveness as a teacher, permanent revocation of his Florida teaching certificate is warranted.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Respondent's Florida teaching certificate be permanently revoked for violating Section 231.28(1), Florida Statutes, and rules of the State Board of Education.

DONE and ORDERED this 9th day of April, 1986, in Tallahassee, Florida.

R. L. CALEEN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1986.

ENDNOTE

1/ In this order, the student will be identified by her initials, P.K.

COPIES FURNISHED:

J. David Holder, Esquire

P. O. Box 1694

Tallahassee, Florida 32302

Robert P. Hammons, Esquire

P. O. Box 1388 Corbin, KY 40701

Docket for Case No: 85-003689

Orders for Case No: 85-003689