STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3994

)

JOHN EVANS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in this case on March 3, 1987 in Lake City, Florida. The issue for determination is whether Respondent's Teaching Certificate should be revoked or otherwise disciplined on allegations 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.

APPEARANCES

For Petitioner: Carolyn Thompson LeBoeuf, Esquire

Brooks LeBoeuf & LeBoeuf 863 East Park Avenue Tallahassee, Florida 32301

(904) 222-2000

For Respondent: Thomas W. Brooks

Meyer, Brooks, and Cooper, P.A. 911 East Park Avenue Tallahassee, Florida 32302

(904) 681-9343

BACKGROUND

This proceeding arose by the filing of an Administrative Complaint by Ralph

D. Turlington, As Commissioner of Education, against the Respondent, John Evans, on September 22, 1986. Respondent's Motion to Strike paragraph 7 of the Administrative Complaint was granted. Subsequently, Petitioner filed a Motion For Leave to Amend Administrative Complaint to substitute Betty Castor as Commissioner of Education and to bring the closing paragraph into conformity and compliance with recent litigation. The motion was granted with paragraph 7 of the Amended Administrative Complaint being stricken. The Amended Administrative Complaint alleges that during the school year of 1985/86, the Respondent was guilty of conduct involving gross immorality and moral turpitude. The Amended Administrative Complaint alleges that during the school year of 1985/86, on two

1. separate occasions, the Respondent kissed and sexually fondled a minor female high school student who was a student in two (2) of Respondent's classes.

   As a result of the allegations of misconduct, the Amended Administrative Complaint alleges that the Respondent's Teaching Certificate should be disciplined pursuant to the provisions of Section 231.28(1)(c)(f)(h), Florida Statutes and Rule 6B-106(3)(a)(e)(h) and 4(c)(d)(h), Florida Administrative Code.

   
   

   In support of the charges, Petitioner presented the testimony of Adrianne Lewis, James Ellis Rutledge, James David Ellis, Silas Pittman, Kenneth D. Herring, Richard Ring, Judy Mescot, and Umesh Mhatre. Petitioner's Exhibits Nos. 1 and 4 were received into evidence. A ruling on the admissibility of Petitioner's Exhibit No. 3 was reserved. After considering the argument of counsel, the objection of Respondent to the admissibility of Petitioner's Exhibit No. 3 is sustained and all testimony in regard to Petitioner's Exhibit No. 3 is stricken.

   
   

   Respondent testified on his own behalf and presented the testimony of Jim Conner, Anna Foster, Misty Michelle Baldwin, Kathleen Bates, Stephanie Fegle, Brenda K. Bryant, Ken Stark, John Dwight Evans, Jr., Thomas Allen Grubs, Thomas Bankston, Rodney S. Dicks, Isaiah Coker and Denise Duncan Lewis. Respondent presented no exhibits for introduction into evidence.

   
   

   Additionally, Respondent's objection to testimony in regard to prior consistent statements made by the witness, Adrianne Lewis was taken under advisement. After considering argument of counsel, the objection is sustained and all testimony in regard to the prior consistent statements by Adrianne Lewis is stricken.

   
   

   The parties submitted posthearing proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

   
   

   1. Respondent holds Florida Teaching Certificate 237129, covering the areas of social studies and work experience coordinator.

      
      

   2. At all times material hereto, the Respondent was employed as a social studies instructor at Columbia High School in the Columbia County School District.

      
      

   3. Respondent has been a school teacher since January, 1967 and has taught school in the Columbia County School District since 1968, excluding two (2) years for military service.

      
      

   4. Respondent has a good record as a teacher in the Columbia County School District and has never been accused of any professional misconduct in the past.

      
      

   5. Adrianne Lewis (Lewis) was a sixteen (16) year old student at Columbia High School in the first semester of the 1985/86 school year and became acquainted with the Respondent when she was a student in his third and sixth period classes.

   6. Lewis did not start in Respondent's sixth period class until two (2) weeks after the beginning of school in August, 1985 and was required to make up work missed during the first two (2) weeks.

      
      

   7. Respondent has a consistent policy with regard to make-up work which requires all students to make up work either before or after school and not during class.

      
      

   8. During the first six (6) weeks of school, Lewis made up several tests that she had missed both before and after becoming a student of Respondent.

      
      

   9. The complaining witness, Adrianne Lewis, testified that on two (2) separate occasions, most probably in September, 1985, the first time during a school pep rally and the second time while she was taking a make-up test after school, the Respondent, among other things, kissed her on the mouth and neck, fondled her breasts, rubbed and fondled her derriere, attempted to put a balloon under her shirt and asked why she was afraid of him and sex. However, the more credible evidence is that: (a) On September 13, 1985, Lewis went to Respondent's classroom during a school pep rally to take a make-up test, arriving around 2:50 p.m. She was given a copy of the test by Respondent and took the test in Respondent's classroom; (b) After Lewis turned in the test, Respondent spent approximately ten (10) minutes with Lewis discussing a problem she was having; (c) During the time Lewis was in the Respondent's classroom and office, Ken Stark was in an adjoining classroom with connecting windows which had only a portion of the view blocked; (d) Later in September, 1985, Lewis stayed after school to take another make-up test, arriving around 3:30 p.m. She was given a copy of the test by Respondent and took the test in Respondent's classroom; (e) During the time Lewis was in Respondent's office turning in the test, Respondent's elder son, John D. Evans, III was present and observed no misconduct on Respondent's part in regard to Lewis and; (f) Respondent, at no time during these two (2) occasions or any other occasion, improperly touched Lewis or engaged in any misconduct with respect to Lewis.

      
      

   10. During the second six (6) weeks of school, Lewis began missing class regularly. Due to a School Board policy concerning unexcused absences, Respondent consulted with Tom Grubb, Guidance Counselor, and was instructed to contact Lewis' parents. Respondent was unable to contact Lewis' parents or her grandmother, with whom she lived, but did contact her aunt, Denise Lewis. Respondent informed Denise Lewis of Lewis' absences and the need for Lewis to makeup her work or risk failing. Respondent's conversation with Denise Lewis occurred during the week of October 28, 1985 and about one (1) week later Denise Lewis conveyed the message to Lewis. Lewis did not mention the alleged improper touching by Respondent to Denise Lewis at this time but did say that Respondent did not like her and was going to fail her anyway.

       
       

   11. When Denise Lewis informed Lewis' grandmother of her absences, Lewis became upset because her grandmother had not previously known about Lewis' absences.

       
       

   12. On or about October 31, 1985, Lewis reported to Sergeant James Rutledge that she had been improperly touched and fondled by a teacher but did not disclose the teacher's name.

       
       

   13. During the week of November 6, 1985, Lewis again reported to Sergeant Rutledge that she had been improperly touched by a teacher but did not disclose the teacher's name. Rutledge went with Lewis and her girlfriend to the dean's office and notified the dean that Lewis was outside and needed to talk to him.

   14. On or about November 6, 1985, Lewis became upset with Respondent about calling her aunt and angrily told him not to call her aunt again. Lewis told Respondent that she was going to inform the administration of his alleged misconduct.

       
       

   15. Thereafter, the matter was reported and investigated by the administrator.

       
       

   16. As a result of the alleged misconduct, the Respondent was arrested and charged with battery. Subsequent to the arrest, the State Attorney for the Third Judicial Circuit of Florida filed a No Information and the cause was dismissed.

       
       

   17. There was no evidence to prove that Respondent's conduct had reduced his effectiveness as a teacher.

       
       

   18. There was no evidence that Respondent had exploited the teacher/student relationship with the minor female student for his own personal gain, exposing her to harm and unnecessary embarrassment.

       
       

   19. There was no evidence that Respondent had: (a) accepted or offered any gratuity, gift, or favor to, or from, anyone; (b) used institutional privileges for personal gain or advantage; (c) intentionally exposed a student to unnecessary embarrassment or disparagement or; (d) failed to make reasonable effort to protect student from conditions harmful to learning or to health or to safety.

       
       

       CONCLUSIONS OF LAW

       
       

   20. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

       
       

   21. Rule 6B-1.006, Florida Administrative Code sets forth the Principles of Professional Conduct for the Education Professional in Florida which applies to any individual holding a valid Florida teacher's certificate and subjects the individual's teaching certificate to revocation or other discipline upon violation of any of these principles.

       
       

   22. The alleged misconduct of which Respondent is accused purportedly violates Rule 6B-1.006(3)(a)(e)(h) and (4)(c)(d)(e), Florida Administrative Code and is quoted below:

       
       

2. Obligation to the student requires that the individual:

   (a) Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.

   * * *

   (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

   * * *

   (h) Shall not exploit a professional relationship with a student for personal gain or advantage.

   * * *

3. Obligation to the public requires that the individual:

* * *

1. Shall not use institutional privileges for personal gain or advantage.

2. Shall accept no gratuity, gift, or favor that might influence professional judgment.

3. Shall offer no gratuity, gift, or favor to obtain special advantages.

1. Section 230.28(1), Florida Statutes empowers the Education Practices Commission (Commission) to revoke, suspend or otherwise discipline the individual's teaching certificate, provided the individual's conduct falls within the conduct prohibited by Section 230.28(1)(a-h), Florida Statutes.

   
   

2. The alleged misconduct of which Respondent is accused purportedly violates Section 230.28(1)(c)(f)(h), Florida Statutes and is quoted below:

   
   

   (c) Has been guilty of gross immorality or an act involving moral turpitude;

   * * *

   (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;

   * * *

   (h) Has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

   
   

3. Section 231.262, Florida Statutes requires a panel of the Commission to conduct a review of the hearing officer's recommendation and other pertinent information and issue a final order either dismissing the complaint or imposing one or more of the penalties provided in Section 230.262(6)(a-f), Florida Statutes.

   
   

4. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1 DCA Fla. 1977). The Petitioner has failed to meet its burden of proof to show that Respondent committed the acts alleged in the Amended Administrative Complaint thereby violating Section 230.38(1)(c)(f)(h), Florida Statutes and Rule 6B- 1.006(3)(a)(e)(h) and (4)(c)(d)(e) , Florida Administrative Code.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED that the Commission enter a final order dismissing the Amended Administrative Complaint.

Respectfully submitted and entered this 15th day of May, 1987, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 15th day of May, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3994

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

1. Rejected that portion of the finding of fact concerning Lewis requesting Respondent to sign, and Respondent signing, a balloon as immaterial and irrelevant. The balance of the finding of fact is rejected as not being supported by substantial competent evidence in the record.

2. Rejected as not supported by substantial competent evidence in the record.

3. Adopted in Finding of Fact 12.

4. The fact that Lewis skipped classes is adopted in Finding of Fact 10 but the balance of the finding is rejected as not being supported by substantial competent evidence in the record.

5. The fact that Lewis took a second test before December, 1985, is adopted in Finding of Fact 9 but the balance of the finding is rejected as not being supported by substantial competent evidence in the record.

11.-12. Rejected as not supported by substantial competent evidence in the record.

1. The fact that Lewis reported the alleged incidents is adopted in Finding of Fact 15 but the balance of the finding is rejected as not being supported by substantial competent evidence in the record.

2. The fact that Lewis told the Respondent that she had reported the alleged sexual contact to the administration is adopted in Finding of Fact 14 but

   the balance of the finding is rejected as not being supported by substantial competent evidence in the record.

3. The first sentence is rejected as immaterial and irrelevant. The second sentence is rejected as not being supported by substantial competent evidence in the record.

4. Rejected as immaterial and irrelevant.

5. Adopted in Finding of Fact 16.

6. The fact that a No Information was filed and the case dismissed is adopted in Finding of Fact 16 but that the State Attorney dismissed because the contact was consensual is rejected as hearsay that does not supplement or explain any other evidence in the record.

19-21. Rejected as not supported by substantial competent evidence in the record. In these findings, the Petitioner relies mainly on the testimony

of Lewis, testimony which I did not find credible.

Rulings on Proposed Findings of Fact Submitted by the Respondent:

1. Adopted in Finding of Fact 3.

2. Adopted in Finding of Fact 4.

3. Adopted in Finding of Fact 5.

4. Adopted in Finding of Fact 6.

5. Adopted in Finding of Fact 7.

6. Adopted in Finding of Fact 8. 7.-15. Adopted in Finding of Fact 9. 16.-19. Adopted in Finding of Fact 10.

20.-23. Adopted in Findings of Fact 11, 12, 13 and 14, respectively.

1. Rejected as not supported by substantial competent evidence in the record.

2. Adopted in Finding of Fact 15.

3. Rejected as not supported by substantial competent evidence in the record.

COPIES FURNISHED:

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Karen Barr Wilde Executive Director

Education Practice Commission Room 418, Knott Building Tallahassee, Florida 32399

Carolyn Thompson LeBoeuf, Esquire Brooks, LeBoeuf and LeBoeuf

863 East Park Avenue Tallahassee, Florida 32301

Thomas W. Brooks

Meyer, Brooks, and Cooper, P.A. 911 East Park Avenue Tallahassee, Florida 32302

Docket for Case No: 86-003994

Orders for Case No: 86-003994