STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2275

)

MICHAEL B. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on September 15 and 30, 1986, in Miami, Florida.

APPEARANCES

For Petitioner: Frank A. Harder, Esquire

Twin Oaks Building, Suite 100 2780 Galloway Road

Miami, Florida 33165

For Respondent: Dan J. Bradley, Esquire

DUFRESNE AND BRADLEY, P.A.

2950 Southwest 27th Avenue, Suite 310 Coconut Grove, Florida 33133

PRELIMINARY STATEMENT

By formal notice of charges, Petitioner, School Board of Dade County, alleged that Respondent, Michael B. Smith, was guilty of immorality and misconduct in office, and, therefore, subject to dismissal pursuant to Section 231.36(4)(c), Florida Statutes. The gravamen of Petitioner's charge is that Respondent committed a lewd, lascivious or indecent assault upon a female student; committed a lewd, lascivious or indecent act in the presence of a female student; borrowed money from a student; and was absent an excessive number of days from his teaching duties.

At final hearing Petitioner called as witnesses: Colleen Ann Dougherty, Bobby Felts, Robert W. Fowler, Marjorie Wessel, James E. Moore, and Desmond Patrick Gray, Jr. Petitioner's exhibits 1-3 were received into evidence.

Respondent testified on his own behalf, and his exhibit 1 was received into evidence.

The final volume of the transcript of hearing was filed October 20, 1986, and the parties were granted leave through November 4, 1986, to timely file proposed findings of fact. Respondent elected to file proposed findings, and the findings have been addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Michael B. Smith (Smith), has been continuously employed as a teacher by Petitioner, School Board of Dade County (School Board) since 1977. During the 1985-86 school year, Smith was employed under a continuing contract as a work experience teacher at Miami Norland Senior High School.

   
   

   The Assault and Loan

   
   

2. Among the students in Smith's second period work experience class was Colleen Ann Dougherty (Colleen); a 15 year old female and 10th grade student. Colleen had been a student of Smith's since September 1985, and they enjoyed a good student- teacher relationship until the events which gave rise to these proceedings. 1/

   
   

3. On February 10, 1986, Smith asked Colleen to remain after class. Once the other students had left the classroom, and Colleen and he were alone, Smith engaged Colleen in a brief conversation concerning the progress of her outside employment. Gauging the conversation at an end, Colleen picked up her purse and book bag preparatory to moving to her next class, but was distracted when Smith asked her what was in her purse. As Colleen looked into her purse, which was hanging from her right shoulder, Smith placed his left hand on her right hip and his right hand on her left shoulder. When Colleen looked up, Smith pulled her toward him, and kissed her on the lips. Smith's conduct was uninvited and unexpected; Colleen, disconcerted, left the classroom.

   
   

4. On February 11, 1986, Smith was covering Colleen's first period class for her regular teacher. After the class had started, Smith asked Colleen into the hall and, exhibiting his divorce papers and a sense of urgency, asked to borrow $50.00 by the end of third period. Colleen informed Smith that she did not know if she could get the money by then since she would need to go to her boy friend's house for the bank book. Thereupon, Smith gave Colleen a pass to visit her friend Jessica to see about transportation.

   
   

5. After arranging for transportation with Jessica, Colleen returned to Smith, who was still standing in the hall outside the classroom, and informed him that Jessica and she could get the money. At this time, Smith told Colleen that he liked her and suggested that they meet at school one night so he could repay the money. When Colleen expressed a lack of understanding concerning Smith's comments, he told her to look down and said, "even standing next to you excites me." On looking down, Colleen observed that Smith had an erection. Colleen quickly changed the subject and left with Jessica to get the requested

   $50.00 from the bank, which she later gave to Smith.

   
   

6. Colleen was troubled by what had transpired and was afraid that if she reported the incident the administration would not credit her statements over those of a teacher. However, on Wednesday, February 12, 1986, Colleen told her boss what had transpired between Smith and her, and on the evening of February 12, 1986, she informed her grandmother. On February 13, 1986 Colleen, together with her boss and grandmother, informed the principal of Miami Norland Senior High School concerning the events of February 10-11, 1986. Smith was subsequently suspended from his teaching position, and this administrative proceeding duly followed.

   
   

7. In choosing to credit Colleen's recollection of the events of February 10-11, 1986, as opposed to Smith's, I am not unmindful of minor discrepancies in the proof. However, the candor and demeanor of Colleen, coupled with the

   corroborating proof, compels the conclusion that Smith did commit, without invitation or provocation, the acts set forth in paragraphs 3-5, supra.

   
   

8. Smith's conduct was inconsistent with the standards of public conscience and good morals, and was sufficiently notorious to bring himself and his profession into public disgrace or disrespect. Due to the notoriety of his conduct, Smith's service in the community, as well as his effectiveness in the school system, has been severely impaired.

   
   

   The Excessive Absences

   
   

9. The proof establishes that Smith was absent from his employment on 26 days during the 1985-86 school year. Five of those days, and possibly six, were for personal reasons, rather than illness. While teachers are generally allowed only 4 personal days each school year, the School Board offered no evidence to rebut the proof that the additional 1-2 days were authorized by Smith's supervisor, or that all time off was duly approved.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

11. Section 231.36(4)(c), Florida Statutes, provides:

    
    

    Any member of the district administrative or supervisory staff and any member of the

    instructional staff, including any principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duly, drunkenness, or conviction of a crime involving moral turpitude.

    
    

12. The allegations in this case are that Smith violated Section 231.36(4)(c), immorality and misconduct in office, by committing a lewd, lascivious or indecent assault upon a female student; by committing a lewd, lascivious or indecent act in the presence of a female student; and by exploiting his professional relationship with a student for personal gain or advantage. The proof established that Smith is guilty as charged. See: Tomerlin v. Dade County School Board, 318 So.2d 159 (Fla. 3d DCA 1975)

RECOMMENDATION

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

That the School Board enter a Final Order sustaining the suspension of Respondent, Michael B. Smith, from his employment, and dismissing Respondent, Michael B. Smith, from his employment with the School Board.

DONE AND ENTERED this 21st day of November, 1986, in Tallahassee, Florida.

WILLIAM J. KENDRICK

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 21st day of November, 1986.

ENDNOTES

1/ For the first semester Colleen received a grade of A-1-A, and for the second semester a grade of F-2-A (F in work related class and A for on-the-job training). While Colleen received her "F" grade before the incidents in question, there is no proof that Colleen and Smith enjoyed anything less than a good student- teacher relationship at the time, or that Colleen harbored any resentment or prejudice toward Smith that would taint her credibility.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2275

Respondent's proposed findings of fact are addressed as follows:

1. Not relevant.

2. Addressed in paragraph 1.

3. Addressed in paragraph 1.

4. Not relevant.

5. Addressed in paragraph 2.

6. Addressed in paragraphs 3-7.

7. Addressed in paragraphs 3-7.

8. Addressed in paragraphs 3-7.

9. Addressed in paragraphs 3-7.

10. Addressed in paragraphs 3-7.

11. Addressed in paragraph 8.

12. Addressed in paragraphs 3-7.

13. Addressed in paragraphs 3-7.

COPIES FURNISHED:

Frank A. Harder, Esquire

Twin Oaks Building, Suite 100 2780 Galloway Road

Miami, Florida 33165

Dan J. Bradley, Esquire DUFRESNE AND BRADLEY, P.A.

Suite 310

2950 S.W. 27th Avenue Coconut Grove, Florida 33133

Dr. Patrick Gray Associate Superintendent

Division of Professional Standards Dade County Public Schools

1550 North Miami Avenue - Suite 100 Miami, Florida 33136

Honorable Ralph D. Turlington Commissioner of Education The Capitol

Tallahassee, Florida 32301

Docket for Case No: 86-002275

Orders for Case No: 86-002275