STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF BROWARD COUNTY, ) and WILLIAM J. LEARY, )

Superintendent of Schools )

)

Petitioner, )

)

vs. ) CASE NO. 86-4727

)

WILLIAM BERNARD BAILEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing dated January 6, 1987, and furnished to the parties herein, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Fort Lauderdale, Florida, on April 7 and 8, 1987. The issue for consideration herein was whether Respondent should be dismissed from employment with the Broward County School System based on the alleged misconduct outlined in the Petition for Dismissal filed herein on or about November 3, 1986.

APPEARANCES

Petitioner: Charles T. Whitelock, Esquire

Whitelock and Moldof

1311 Southeast Second Avenue Fort Lauderdale, Florida 33316

Respondent: Leslie Holland, Esquire

Staff Counsel, FEA/United

208 West Pensacola Street Tallahassee, Florida 32301

BACKGROUND

By letter dated November 3, 1986, Petitioner, William J. Leary, Superintendent of Schools for Broward County, notified Respondent that he was suspended with pay from his duties at Markham Elementary School, effective the following day, because of allegations of misconduct contained in a Petition for Dismissal to be filed before the School Board of Broward County on November 6, 1906. At the meeting held on November 6, 1906, the Board voted to take final action on the Petition at its December 4, 1986 meeting unless Respondent requested a formal hearing, which Respondent did. Therefore, on November 26, 1986, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer and on January 6, 1987, the undersigned set the case for hearing.

At the hearing, Petitioner presented the testimony of William Bell, former principal at Markham Elementary; Alphonso Pinkston, a teacher there; Dorothy

Wooten, current principal there; Linda Gaines, Sedaniel Allen's mother; Sedaniel Allen, Andre Murray, Reginald Nixon, and James McCloud, present or former students at Markham Elementary; Joseph Viens, investigator for the Broward County School, System, and Dr. Thomas Johnson, Assistant Superintendent of Schools for Human Resources, and introduced Petitioner's Exhibits 1 through 6.

Petitioner also requested to introduce the deposition taken previously of Respondent Bailey. Ruling on the admissibility of that deposition was reserved. However, based on the provision of Rule 1.330(a)(1), Fla. Rules of Civil Procedure, the Deposition is admitted as Petitioner's Exhibit 7.

Respondent testified in his own behalf and presented the testimony of Sandra Ruise, Lassie Harden, and Denise Wright, all substitute teachers or aides at Markham Elementary; Allean Jones, Earl Edwards' grandmother; Timothy Lawson, lifetime friend of Respondent; Joe White, longtime friend and cousin of Respondent; Adrian Bailey and Faye Bailey, Respondent's brother and sister respectively; Claude Morris, Respondent's cousin; and Mrs. Wooten. He also introduced Respondent's Exhibits A and B which includes the testimony by deposition of Trenton Glover, a former student of Respondent.

Subsequent to the hearing, the parties submitted proposed Findings of Fact which have been ruled on in the appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent hereto, Respondent, William B. Bailey, was a certified teacher in Florida employed by the Broward County School System (BCSS). He has been a teacher for 22 years and has taught at Markham Elementary School, (Markham) for 18 or 19 years.

   
   

2. Respondent has generally had a good rapport with young boys. He has an adopted 26 year old son who was recently promoted to Captain in the U.S. Air Force.

   
   

3. Allean Jones has known Respondent and his parents for many years. Several years ago she became the guardian of her grandson, Earl Edwards, who, for a long time, had disciplinary and behavior problems at home and at school due, at least in part, to his difficult home life with his natural mother who bore him at age 14. For some time, several years ago, Earl Edwards was a student at Markham of Respondent who developed a good relationship with him. While the student-teacher relationship existed, on numerous occasions, Earl went to Respondent's home where he swam, ate, played, and spent nights, always with Mrs. Jones's permission. She feels Respondent, who bought Earl clothes and paid his dental bills, is a good influence on him and she has offered to let Earl stay with him on a permanent basis. At no time did she object to Respondent's relationship with her grandson, and felt it to be beneficial rather than detrimental to his best interests. Unfortunately, Earl has left school since he graduated from Markham and she does not know where he is now.

   
   

4. Mr. William Bell, who was principal at Markham at the time, heard about Respondent's relationship with Earl from two staff members and, without any investigation of the situation and without checking with Earl or his grandmother, concluded that since Respondent was an unmarried male, his off- campus contacts with a young male student were inappropriate and he asked Respondent to cease contact with his student off-campus or before or after school and on weekends. Had Respondent been married, Mr. Bell's reaction might well have been different. Mr. Bell believes that the Teacher Code of Ethics

   conflicts with off-campus contacts in such a manner as would interfere with teacher effectiveness, and parental approval would make no difference. This request to cease contact with Earl Edwards, in 1980 or 1981, somehow became a part of Respondent's record in the BCSS. No copy of any written request was produced by Petitioner, however, nor was any record reflecting it. Both Bell and Dr. Thomas Johnson, Associate Superintendent for Human Resources in the system, recall the incident, though. When requested to cease off-campus contacts with Earl, Respondent complied.

   
   

5. In the Spring of 1986, the new principal, Ms. Dorothy Wooten, was approached by a teacher, Ms. Denise Wright, and the school counselor, who requested that she tell Respondent to leave some of her students alone and stop socializing with them when they should be in Ms. Wright's class. The students in question were Sedaniel Allen and Willie McCloud, who, apparently, would leave her class without permission and, she believed, go to visit with Respondent in his planning area. She believed this is where they went because, though she did not check on them to see where they were going, they told her that's where they were going when they asked her for permission to leave. She periodically gave it and therefore assumed that they would visit Respondent when they left without permission.

   
   

6. Ms. Wooten did not investigate the situation herself, but, as a result of Ms. Wright's request, called Respondent in and spoke with him about the situation in the presence of the students in question and both complainants. Respondent seemed as though he would comply and she took no formal action. It appears, however, that the situation continued and a short while late, she talked with Respondent again about the same students and again he seemed to agree. It was after the second meeting that she wrote a memo summarizing the situation.

   
   

7. After this second conference, she spoke with Ms. Linda Gaines, Sedaniel's mother, who indicated that Sedaniel had spent the night at Respondent's home without her permission or knowledge, and neither Sedaniel nor Respondent had called her to let her know he was there. When Sedaniel went to Respondent's home a second time without her permission, Sedaniel's step-father went to Respondent's home and got him. Further discussion of these incidents is found in paragraph 15 et seq. infra. After Ms. Wooten received this information from Sedaniel's mother, she wrote Respondent a letter on May 1, 1986 recounting the substance of the interview with Ms. Gaines and advised him she was referring the matter to the Internal Affairs Division, (IA), of BCSS. A week later, she wrote another letter to Respondent requesting that he restrict his contact with Sedaniel and Willie to the scheduled class time and "strongly advised" him to have no other contact with them.

   
   

8. In a subsequent meeting held with Ms. Wooten, the students' parents, and Mr. Joseph Viens, an investigator with IA, at the investigator's suggestion, at least some of the parents indicated they did not want the Respondent to have any off-campus or extra-class contact with their children. At this point, Respondent indicated he would talk with his attorney before discussing the matter any further. Respondent took that position only after the investigator accusatorily pointed his finger at him and called him a faggot. Respondent strongly denies being a homosexual and there is no evidence to suggest otherwise. By the same token, Respondent's recounting of the investigator's public accusation was not contested either and is found to have occurred.

   
   

9. Having done all she felt was required by reporting the matter to IA and by advising Respondent in writing to refrain from further off-campus contact,

   Ms. Wooten felt she was out of the matter until one day in October, 1986 when she noticed Sedaniel and Willie loitering after school and not going home. When she looked into it, she found Willie sitting in Respondent's classroom with Respondent and another person. She called both Respondent and Willie to her office where she recalled her instructions to Respondent to avoid extra-class period contacts with these boys and again stated her requests. In response, Respondent stated Willie had been injured and he was going to take him home.

   
   

10. Willie confirmed he had been injured one day around this time in an afternoon ball game and the following day, aggravated the injury at recess. When he reported this to his teacher, Mr. Collins, this individual did not consider it serious and refused to let Willie do anything about it. It got worse during the day and swelled up and after school, Willie went to Respondent's room where he saw Mrs. Ruise, Respondent's team teacher. Respondent was at a meeting away from the area. Mrs. Ruise saw that Willie's ankle was injured, but did nothing for him and when staff departure time came, left the school locking the classroom door and leaving Willie out in the hall.

    
    

11. When Respondent came back to his classroom somewhat later, he found Willie curled up on the hall floor outside the room crying. Willie's ankle looked bad but Respondent nonetheless questioned him in a forceful tone to find out what had happened. Willie said he needed a ride home. After some serious questioning and initial refusals, Respondent ultimately relented and agreed to take Willie home even though he knew he was not supposed to have contact with him. He saw Willie at school the next day and attempted to talk with him about his ankle in the cafeteria, but was unable to do so. After school, during a conversation with Mrs. Ruise, he again saw Willie who once more asked for a ride home. When, upon questioning, Willie told him he had gotten a ride to school that morning because of his ankle, Respondent gave him a tongue lashing and told him to get someone else to take him home. As Willie told him there was no one else around to do it, Respondent reluctantly agreed and did take him home, but that was the last contact he had with Willie. It must be noted here that Respondent, on both occasions, agreed to give Willie a ride without checking around the school to see if someone else was available to do so.

    
    

12. There was some question whether Willie was actually injured at this time and needed a ride. Ms. Wooten heard from other staff members that Willie did not seem to be nor did he complain of being hurt. By far the better evidence, however, clearly indicates that Willie was hurt on this occasion and needed transport and it is so found. Respondent used poor judgment in not looking for someone else to take Willie in light of the injunction he was under and in not reporting the contact after the fact. There is also some issue that Willie may have hidden in the car at Respondent's direction when Respondent drove him home. This is not established. Even according to Willie, it was his idea to hide to keep from being seen because of the fact that Respondent had been instructed not to be with him away from class. There is no evidence that Respondent attempted to conceal any of his actions with regard to Willie.

    
    

13. As a result of all the above, on October 7, 1986, Ms. Wooten again sent Respondent a memo to advise him that all future incidents of unauthorized contact would be reported to IA. She was informed by IA that Respondent had had off-campus contacts with other students in addition to Sedaniel and Willie. These included Reggie Nixon, Andre Murray, and Trenton Glover among others. It was reported to her that Respondent would instruct them to meet him at a shopping center from which he would take them to his home where they would do chores for him there and at his nightclub. She felt this reported behavior, which she did not disbelieve, was inappropriate because (1) it was an abuse of

    his position as a teacher, and (2) a nightclub is no place for children. Ms. Wooten believes Respondent's effectiveness as a teacher has been adversely affected because she has heard the students are questioning his ability to control his students and are making moral judgments about his behavior in regard to Willie and Sedaniel. She has heard no specific comment by any student, however. During the period she has worked with Respondent, she does not feel there have been any conflicts which would create animosity on either his or her part. In fact, she has recommended him for several special projects which would be to his benefit.

    
    

14. Ms. Wooten is convinced that Respondent has an ability to relate to troubled children who tend to seek him out. In fact, former students often come back to school to see him. This is both good and bad. Initially, she favorably commented on this in an evaluation of Respondent but after some of these students began making trouble, and after, at a course she took, she learned that this conduct may indicate inappropriate luring of children for improper purposes, she began to look at it differently and tried to put a stop to it.

    
    

15. With regard to Sedaniel Allen, Ms. Gaines' dissatisfaction with Respondent arose out of an incident in April, 1986, when Sedaniel had spent the night at Respondent's home without either Respondent or Sedaniel calling to let her know he was going to do that. Prior to the weekend in question, Respondent, acquiescing in Sedaniel's request to be allowed to come over with some other boys, wrote her a note requesting permission for Sedaniel to come to his house to work for him for pay. She agreed to this and signed the permission slip but never returned it to the Respondent. Had Sedaniel returned home on Saturday night, she would not have been upset. In fact, however, Sedaniel did not come home until Sunday evening when Respondent dropped him off.

    
    

16. Ms. Gaines and her husband were angry over this and told Sedaniel they didn't want him to go back to Respondent's house ever again. They did not pass this information on to the Respondent, however. Nonetheless, two weeks later, on a Saturday morning, Sedaniel disappeared again. When she checked around, she found that Respondent had picked him up again at the "Gate" of the housing project in which they lived. That evening, Mr. Gaines went to Respondent's house in Deerfield Beach where he found Sedaniel watching television. On this occasion, Respondent had not sent home a permission slip, but subsequent inquiry showed it was Sedaniel who initiated the visit and who had told Respondent that he had permission to be there. He had also told Respondent he had permission to spend the night on the first visit. On these visits the boys would swim, watch television, wrestle (with, on occasion, Respondent) and generally have a good time.

    
    

17. Sedaniel indicates that he met with Respondent in his classroom after class on several occasions to discuss what would be done when he was at the Respondent's house. Some other teacher was always there when this happened. On most other occasions, Sedaniel would go to Respondent's classroom with Willie McCloud and wait while Willie would ask Respondent for a ride home. Ms. Sandra Ruise, who knew Sedaniel as one of her own students, and who was Respondent's team teacher, was frequently in the area of the room. She never saw Sedaniel in Respondent's room outside of class hours nor did she ever see any student come to have lunch in Respondent's classroom while she was there and she ate in the room with the Respondent almost every day. She knows Sedaniel's reputation for telling the truth, gleaned from discussions with other teachers and his mother, and it is not good. He has even lied about her, filing a false report about her which he subsequently recanted. Consequently, while it is clear Sedaniel did go to Respondent's home on two occasions, once without permission and once with

    permission for only a day visit, he was not a frequent visitor to Respondent's room outside of class hours and Respondent's relationship with him at school was not improper.

    
    

18. As to the unauthorized visits by Sedaniel to Respondent's home, it is also clear that Sedaniel initiated the visits, begged to stay over night, and lied about having permission to be there. None of this excuses Respondent's failure to verify and have presented to him some concrete evidence of parental authorization for the visit and the length thereof, however.

    
    

19. Sedaniel and some other boys, Willie McCloud, Andre Murray, and Trenton Glover, were with Respondent one time when he was on an errand and stopped by Club Bailey for a moment to drop something off. On that occasion, they picked up beer cans from a vacant lot and cleaned ashtrays outside the building. It well may be that the club was open at the time, a Sunday morning, (Respondent was inconsistent in his stories as to whether the club was open), but aside from Sedaniel's uncorroborated allegation that he cleaned the ashtrays inside the club, all the other testimony, including that of the other boys, indicates, and it is so found, that they did not go inside.

    
    

20. Respondent alleges that one of the male visitors to Respondent's home on one of the occasions when the boys were there swimming made a remark to the effect that Reggie Nixon was "fine meat" or words to that effect and that Respondent immediately told this individual to keep quiet. Neither comment was heard by Reggie, though Willie and Andre allegedly did. Even if the comments were made, however, the evidence is clear that there were no approaches made to any of the boys, they were not touched or bothered in any way, and in fact, were not spoken to at all by any of the men in question, all of whom deny such comments being made. There is also no support for the allegation that one of the men asked if the boys had ever had sex with a man. What is certain, however, is that Sedaniel has a reputation for being untruthful and his report, as well as his characterization of Respondent's visitors as "faggots", is lacking in credibility.

    
    

21. Each of the visitors identified by Sedaniel and the other boys testified at the hearing. The boys' descriptions of one or more of the men as "faggots" were based on their opinions of their hair styles, laughs, and voice patterns. This evidence is not enough to support a finding that there was anything untoward about Respondent's guests, especially in light of the youth and lack of sophistication of these boys and the unequivocal denials of Respondent and the other men.

    
    

22. The investigation into Respondent's conduct, conducted by the school system's internal affairs division at the request of Ms. Wooten, resulted in a report incorporating much of the above information which was referred to Dr. Thomas P. Johnson, Associate Superintendent for Human Resources. Dr. Johnson referred it to a committee for evaluation which resulted in a recommendation to bring charges against the Respondent. The action here was based upon the allegations that respondent had taken students to his home without parental permission; that some of the students involved had indicated Respondent's friends were "faggots"; that there was an allegation by one of the children that they had been worked in Respondent's night club; and that Respondent had disregarded a direction from his principal to cease this activity. This all was aggravated by allegations that Respondent had been the subject of a report of similar activity several years previously which, while not resulting in disciplinary action against him, had resulted in a "Cease and Desist Order" being issued. This prior order was not offered into evidence.

23. School officials considered that Respondent's failure to abide by the orders given him by his principal showed a lack of judgment and integrity and his invitation of the students to his home violated the ethical requirements of the Teacher's Code of Ethics. It must be noted that off-campus contacts are not, per se, improper if done with parental consent.

    
    

24. With regard to the issue of parental consent, Respondent always sent a note home requesting permission. Sedaniel lied about having permission to spend the night on the first visit and about having permission on the second visit.

    If Respondent is at fault, it is in failing to insure by a phone call or by seeing the permission slip itself, that what he was told by Sedaniel was true.

    
    

25. As to Respondent's alleged disregard of Ms. Wooten's direction to stay away from Sedaniel and Willie, the evidence is clear that Respondent attempted to do just that; that the two occasions on which he gave Willie a ride home, (the only contacts he had with Willie after the direction from the Principal), were as a direct result of Willie's initiation and Respondent's unwillingness to allow an injured boy to fend for himself. Respondent showed poor judgment here but the evidence does not support a finding of misconduct.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

27. In the Petition for Dismissal filed herein, which forms the foundation for this action, Petitioner outlined in four Counts the alleged violations by the Respondent which, allegedly support dismissal from employment with the BCSS. Included in these are:

    
    

    1. Immorality: conduct inconsistent with the standards of public conscience and good

       morals, Section 231.36(4)(c), Florida Statutes and Code Chapter 65-4.09(2).

    2. Misconduct: violations of the Code of Ethics of the Education Profession Florida, Section 231.36(4)(c), Florida Statutes and Code Chapters 6B-4.09(3), 6B-1.01,

       6B-1.03(a)(e)(f) & (h), 6B-1.06(4)(c)&(e) and

       6B-1.06(5)(a).

    3. and (4) Gross Insubordination / Willful Neglect of Duties: the constant or continual refusal to obey a direct order from his principal, Section 231.36(4)(c), Florida Statutes and Code Chapter 6B-4.09(4).

       
       

28. Under the provisions of Section 230.23(6), Florida Statutes, the school board is required to provide for the proper attention to health, safety and other matters relating to the welfare of children, and under the provisions of Section 230.33(7)(e), Florida Statutes, the superintendent is given the authority to suspend members of the instructional staff and recommend dismissal (for cause).

29. Under the provisions of Section 231.36(4)(c), Florida Statutes:

    
    

    . . . any member of the instructional staff,

    . . . who is under continuing contract may be suspended or dismissed at any time during the school year [upon proof of charges] based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.

    
    

30. Here, the Petitioner has alleged those described above, primarily immorality, misconduct in office, and gross insubordination / willful neglect of duty (2 Counts).

    
    

31. With regard to Count I (Immorality), Petitioner contends that Respondent initiated a practice to encourage his present and former male students to meet with him both on and off campus in a non-instructional setting; would pick them up and take them to his home where they might remain overnight; and would, on one or more occasions, engage in physical contact with the male students with, often, one or more adult male friends present. On one occasion, one of the adult male guests is reported to have expressed a desire to physically touch or "fondle" a student and inquired if the student had ever had sex with a man. Petitioner further contends that Respondent continued these contacts despite objections by the students' parents and despite direction of the principal to cease.

    
    

32. As framed in the Petition, the allegations present an inference that Respondent is a homosexual who used his position as a teacher to prey on male students. Nothing of the sort was established by the evidence, however.

    
    

33. What was shown was a truly dedicated teacher whose off-campus, non- instructional contacts with his students were almost always with the consent of the parents involved. He was known to be a caring individual who had an ability to relate to wayward youth who, as a rule, benefited from their relationship with him. Admittedly, Respondent took some students to his home for overnight stays during which there often was physical contact but of a wholesome kind (wrestling), and during which these boys, all from ghetto neighborhoods, were afforded an opportunity to earn some money by working in his yard.

    
    

34. Only one parent, Willie McCloud's mother, voiced objection to Respondent having contact with her son and this was only after being provided with information from the IA Investigator whose tactics and remarks seem to have been excessive and inflammatory. When Respondent was directed by his principal to cease off campus contacts he did and the only real evidence of them continuing relates to the rides given to Willie on two occasions, both of which were initiated by the boy. Admittedly, Respondent used poor judgment in giving the rides but poor judgment does not necessarily constitute immorality and certainly not under the circumstances involved here.

    
    

35. As to the question of Respondent's friends, with the one possible incident of Reggie being described as "fine meat", a comment not heard by Reggie and only allegedly by two other boys, (it should be noted that all of the male friends present denied under oath making the statement), there is no concrete evidence of any untoward contact, verbal or physical, between Respondent's

    friends and these youths. It is unconscionable to brand anyone a "faggot" or homosexual based on the uncorroborated comments of two young and obviously immature individuals whose credibility is questionable and whose experience is not demonstrated.

    
    

36. Here Respondent is charged with "immorality" which is not defined in the statute. The definition of this and the other grounds for dismissal cited by Petitioner are found in Chapter 6B-4, F.A.C., where at Rule 6B-4.09(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 educational profession into public disgrace or disrespect and impair the individual's service in the community.

    
    

37. By no stretch of the imagination can Respondent's conduct, as shown by the evidence presented here, be considered immorality. That term is not synonymous with poor judgment which is the most which can be attributed to Respondent.

    
    

38. In Count II, Petitioner charges the Respondent with misconduct utilizing the same factual allegations as used to support the charge of immorality in Count I. Misconduct is defined in Rule 6B-4.09(3) as:

    
    

    . . . a violation of the Code of Ethics of the Education Profession. . . and the Principles of Professional Conduct for the Education Profession . . ., which is so serious as to impair the individual's effectiveness in the school system.

    
    

39. The thrust of the code deals with a teacher's relationships with the public or with the school administration as it affects the public. Courts have generally construed the term "misconduct," as requiring that the employee's conduct adversely affect his relationship with the public. Smith v. School Board of Leon County, 405 So.2d 183 (Fla. DCA 1981).

    
    

40. Here, the Respondent's behavior had no bearing on his exercise of his duties to the public which, except for Mrs. Gaines and Mrs. McCloud (who did not testify, who was not deposed, and whose opinion is purely hearsay), had no objection to or knowledge of Respondent's activity.

    
    

41. In Counts III and IV, Respondent is charged with Gross Insubordination and Willful Neglect of Duties. In Count III, Respondent is alleged to have continued to engage in non-instructional contacts with Sedaniel Allen and Willie McCloud after being instructed by his principal to cease such contact. The evidence of record shows that subsequent to Ms. Wooten's instructions, Respondent saw Willie only twice and on both occasions, when he gave Willie a ride home due to Willie's injury, the contact was solicited by Willie and not by Respondent. As to Sedaniel, he was "along for the ride" and was at Respondent's classroom only to accompany Willie when he asked Respondent for a ride home.

42. Gross insubordination or willful neglect of duties is defined at Rule 6B-4.09(4) as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

    
    

43. Respondent's actions do not meet the definition of "gross insubordination" since the contacts happened only twice on succeeding days and were initiated not by Respondent but by the boy who was injured. Therefore, they could not be deemed "constant or continuing." At most, the Respondent's acts could be described as misguided or judgmentally unsound. Even, however, if the contacts rendered Respondent insubordinate, the insubordination was not synonymous with "gross insubordination" so as to support a dismissal or suspension. See Smith, supra.

    
    

44. With regard to Count IV which relates to the Respondent's alleged attempt to get the boys in question to refuse to participate in the investigation against him, the evidence to support this charge is simply non- existent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Respondent be reinstated to a teaching position with the BCSS and that that he be awarded full back pay and benefits.

RECOMMENDED this 15th day of July, 1987, at Tallahassee, Florida.

ARNOLD H. POLLOCK

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 July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4727

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

By the Petitioner

1. Accepted and incorporated herein.

2. Rejected as contrary to the weight of the evidence. The witness's testimony related to Earl Edwards and was offset by Edwards' grandmother.

3. Accepted and incorporated herein.

4. Rejected as a recitation of testimony, not a FOF.

5. Accepted and incorporated herein.

6. Rejected as it refers to any male in female garb which does not appear in the record as represented.

7. Accepted.

8. Accepted and incorporated herein. 9-11. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted and incorporated herein. 14-15. Accepted and incorporated herein. 16-19. Accepted and incorporated herein.

20. Misleading. Respondent did take students to his home and paid them to perform chores in the yard. He did go to his lounge with some students on one occasion, but did not take them inside.

21-22. Accepted as the witness' opinion.

1. Misleading. Sedaniel Allen, a reported liar, told Respondent not to pick him up at home. This was due more to Sedaniel's manipulation than to Respondent's actions.

2. Rejected as contrary to the evidence.

3. Rejected as contrary to the evidence.

4. Accepted and incorporated herein.

5. Respondent sent home a permission slip. The child reported he could stay. Respondent did not know he could not. Proposed FOF is incomplete and misleading.

6. Accepted but phrased in a misleading way.

7. Accepted as to the 1st and 2nd sentences.

8. Accepted and incorporated herein. 31&32. Accepted and incorporated herein.

1. This PFOF is misleading. The students went to the club once where Sedaniel cleaned some ashtrays outside while Respondent was doing something inside. The bar was closed to the public at the time and no alcohol was being served. The Respondent1s associates were at his home not at the club and there is substantial doubt as to the alleged comments. That the students were left at home unsupervised is contradicted by the Respondent who says his mother would come over and sit. In any case, this element is not in issue as to the charges.

2. Accepted as to the facts, not the inferences.

3. This PFOF does not make sense.

4. Rejected.

5. Accepted.

6. Accepted.

7. Rejected in that the transcript says he went to Respondent's home on 5 to 10 occasions but did not spend the night each time.

8. Accepted as to what the witness testified to. Use of word feminine is improper. The cousins were male but were described as feminine in demeanor.

9. Accepted.

42&43. Accepted.

1. Accepted (See 33, supra).

2. Accepted.

3. Accepted.

4. Misleading in that this student is the one who

   initiated all contact after the principal's directive.

5. Accepted as the witness's opinions--the issue of comments was not established.

6. Accepted but irrelevant.

7. Rejected as an improper conclusion drawn from the evidence.

8. This PFOF is incompetent in that it is impossible to determine who is being described.

9. Rejected as contrary to the weight of the evidence admitted at hearing.

10. Accepted and incorporated herein. 54&55. Accepted.

56&57. Accepted.

By the Respondent

110-115. Accepted.

116. Immaterial.

117-119. Accepted and incorporated herein.

1. Accepted.

2. Accepted.

3. Accepted and incorporated herein.

4. Accepted.

124-125. Accepted.

COPIES FURNISHED:

William J. Leary, Superintendent School Board of Broward County 1320 S.W. 4th Street

Fort Lauderdale, Florida 33312

Charles T. Whitelock, Esquire Whitelock and Moldof

1311 Southeast Second Avenue Fort Lauderdale, Florida 33316

Leslie Holland, Esquire Staff Counsel, FEA/United

208 West Pensacola Street Tallahassee, Florida 32301

Docket for Case No: 86-004727

Orders for Case No: 86-004727