STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF EDUCATION, EDUCATION PRACTICES ) COMMISSION, BETTY CASTOR, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 87-0092

) FILE NO. 86503-C

EDWARD M. HALEY, )

)

Respondent. )

)

RECOMMENDED ORDER

In accordance with notice, this cause was heard before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings on November 12, 1987, in Gainesville, Florida, commencing at 10:00 a.m. This recommended order is being entered following receipt and review of the proposed recommended order offered by Petitioner, whose factual findings have been adopted.

APPEARANCES

For Petitioner: Dean R. LeBoeuf, Esquire

BROOKS & LeBOEUF, P.A.

863 East Park Avenue Tallahassee, Florida 32301

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, Principles of Professional Conduct for the Education Profession in Florida.

BACKGROUND

This cause was commenced by the filing of an administrative complaint by Ralph D. Turlington, as Commissioner of Education, against the Respondent, Edward Haley, on December 15, 1986. An amended administrative complaint was executed by Betty Castor, as Commissioner of Education, on March 16, 1987. The amended administrative complaint alleges that, during the school years between 1974 through 1986, the Respondent was guilty of conduct involving gross immorality, acts involving moral turpitude, and conduct which seriously reduced his effectiveness as an employee at the Mebane Middle School in the Alachua County School District. The amended administrative complaint alleges that, during this period of time, the Respondent engaged in unnecessary physical

contact with minor female students, that he attempted to kiss several minor female students and engaged in improper touching of said minor students.

As a result of the aforementioned 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) and (f), Florida Statutes, and Rule 6B-1.06(3)(a), (e) and (h) and (4)(c) and (e), Florida Administrative Code.

On April 16, 1987, the parties executed a settlement agreement which required presentation to and approval by the Education Practices Commission. On May 14, 1987, the Education Practices Commission rejected the parties' stipulation and settlement agreement as an inadequate resolution of the matter and the matter was transferred back to the Division of Administrative Hearings.

On September 1, 1987, a second amended notice of hearing, for November 12 and 13, 1987, at 10:00 a.m., at the Alachua County Courthouse, 201 East University Avenue, Gainesville, Florida, was sent to the parties. Counsel for the Petitioner was present at said hearing and indicated that he did, in fact, receive the aforementioned second amended notice of hearing, dated September 1, 1987. The Respondent, Edward M. Haley, was not in attendance at the aforementioned hearing, however, the aforementioned second amended notice of hearing was sent to the Respondent at his address on 1710 Southwest 75th Terrace, Gainesville, Florida 32607, and there was no indication that the Respondent did not, in fact, receive the aforementioned notice.

After waiting until 10:17 a.m. on November 12, 1987, and still having no word from the Respondent, Edward M. Haley, Dean R. LeBoeuf, counsel for the Petitioner, was allowed to proceed with his case in chief.

The Petitioner presented the testimony of nine witnesses and offered one exhibit which was admitted into evidence. The proceeding was concluded at 11:04

1. and the Respondent was still not in attendance and had not been heard from. The transcript of the hearing was completed and filed on December 21, 1987.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent holds Florida teaching certificate number 138914 covering the areas of music education, administration and Supervision, and junior college. See Petitioner's exhibit number 1. (T-8)

      
      

   2. At all times material hereto, the Respondent was employed as a band teacher at Mebane Middle School in the Alachua County School District.

      
      

   3. Dr. Wendy Wiles has been employed as a counselor at Mebane Middle School since 1983 and is qualified as an expert in education counseling. (T-11)

      
      

   4. On February 26, 1985, Dr. Wiles spoke with Melissa Feinberg, a sixth grade student at Mebane Middle School, regarding Melissa's concerns over the Respondent's, Edward Haley, improper physical conduct. Melissa reported that the Respondent had picked her up and pressed his chest against her chest and refused to let her down when she requested to be released. Melissa Feinberg also reported that the Respondent had patted her on her rear end in an informal kind of way. (T-12)

      
      

   5. Based on Dr. Wiles' experience, she formed the opinion that the alleged conduct had occurred and that the conduct was improper for a teacher. (T-12-13)

   6. On or about February 27, 1986, Dr. Wiles went to Terry Stechmiller, the principal at Mebane Middle School, and told him what Melissa Feinberg had reported about the Respondent, Edward Haley. (T-36-37)

      
      

   7. Mr. Stechmiller has been employed as the principal at Mebane Middle School for approximately five years and, in that position, he had employed Edward Haley as the Mebane Middle School band director and fifth grade general music instructor for approximately four years. (T-35-36)

      
      

   8. As an employee at Mebane Middle School under Mr. Stechmiller's administration, the Respondent received unsatisfactory evaluations and the band program suffered from a lack of growth or improvement. (T-36)

      
      

   9. As a result of Dr. Wiles' report on or about February 27, 1985, Mr. Stechmiller spoke with Melissa Feinberg and Corinna Frentzen, another student with a similar complaint, and then held a meeting with their parents. (T-36)

      
      

   10. After Melissa Feinberg reported her incident with the Respondent to Dr. Wiles, more and more reports were made which, in turn, adversely affected the enrollment in the Mebane Middle School band program and further seriously reduced the Respondent's, Edward Haley, effectiveness as a teacher. The students lost confidence in him, and parents with younger children came to the school and refused to place their children in the band program. (T-38-39)

       
       

   11. Toward the end of April, 1985, other incidents of misconduct by the Respondent, Edward Haley, were reported. Mr. Stechmiller spoke with two other Mebane Middle School students, Norma Highsmith and Lisa Hines, who also made reports regarding the Respondent's improper touching of other minor female Mebane Middle School students. (T-37)

       
       

   12. Dr. Leonard D. Jackson, the assistant superintendent for personnel services for the Alachua County School Board, conducted an investigation which substantiated the allegations that the Respondent, Edward Haley, had engaged in improper physical contact with his students at Mebane Middle School and confirmed that this conduct had a negative effect on the Respondent's effectiveness as a teacher. (T-40-43)

       
       

   13. Melissa Feinberg, a thirteen year old eighth grader, was an eleven year old student in the sixth grade at Mebane Middle School when she took band from the Respondent, Edward Haley.

       
       

   14. The Respondent, while facing Melissa Feinberg, placed his arms around her and picked her up off the floor against her will and also patted her on her rear end on two separate occasions while Melissa Feinberg was in the Respondent's class. These incidents occurred during class periods and had a negative effect on the student's relationship with the teacher and resulted in her discontinuance of band at Mebane Middle School. (T-15-18)

       
       

   15. Norma Highsmith, a fifteen year old Santa Fe High School student, was in the Respondent's band class when she was a fifth grader at Mebane Middle School. (T-22-23)

       
       

   16. Norma Highsmith was intentionally tardy for her classes with the Respondent because, when she went into his classroom on time, he would hug her and place his face up against her ears and kiss her neck. (T-23)

   17. Norma Highsmith stopped taking band because she was afraid of the Respondent and did not like band because the Respondent was the instructor. (T- 25)

       
       

   18. Roslyn Shinholster, a fifteen year old Santa Fe High School student, and Lisa Hines, a sixteen year old, both took band with the Respondent, Edward Haley, when they were students at Mebane Middle School. (T-26, 27, 29, 30)

       
       

   19. One day when Roslyn Shinholster and Lisa Hines were attempting to leave the Respondent's band class, the Respondent placed his arm across the doorway blocking their exit. The Respondent then began to play with Roslyn Shinholster's hair and then leaned over in an attempt to kiss her neck. After being unsuccessful in his attempt to kiss Roslyn Shinholster, the Respondent went over and attempted to kiss Lisa Hines. (T-27, 28, 30)

       
       

   20. While Corinna Frentzen was taking band from the Respondent in her sixth grade, she had problems with him. He would put his hand on her hand or hold it while in class, making Ms. Frentzen feel uncomfortable. (T-19-21)

       
       

   21. Allegations had been made concerning improper conduct with three other students, Kathy Vincent, Loraine Harder and Ginny Staudt. Testimony was not presented about those matters.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   23. Section 231.28(1), Florida Statutes, provides that the Education Practices Commission shall have the authority to suspend, revoke, or otherwise discipline the teaching certificate of any person who is shown to be 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 revocation of the teaching certificate.

       
       

   24. Petitioner has sustained her evidentiary burden.

       
       

   25. Respondent violated Section 231.28(1)(c), Florida Statutes, in that Respondent committed acts of gross immorality and moral turpitude.

       
       

   26. Respondent violated Section 231.28(1)(f), Florida Statutes, in that Respondent is guilty of acts which seriously reduced his effectiveness as a teacher.

       
       

   27. Rule 6B-1.06(2), Florida Administrative Code, now Rule 6B-1.006(2), Florida Administrative Code, provides that a violation of the Principles of Professional Conduct for the Education Profession in Florida shall subject the individual to suspension or revocation of the teaching certificate or other penalties provided by law.

       
       

   28. Rule 6B-1.06(3)(a), Florida Administrative Code, now Rule 6B- 1.006(3)(a), Florida Administrative Code, provides that an educator shall make a reasonable effort to protect the student from conditions harmful to learning, health or safety.

   29. Respondent violated Rule 6B-1.06(3)(a), Florida Administrative Code, now Rule 6B-1.006(3)(a), Florida Administrative Code, in that his conduct exposed his students to conditions which can be reasonably interpreted to be harmful to their learning and/or health and safety.

       
       

   30. It is alleged that Respondent violated Rule 6B- 1.06(3)(e), Florida Administrative Code, now Rule 6B-1.006(3)(e), Florida Administrative Code, by intentionally exposing a student to unnecessary embarrassment or disparagement. His conduct with the students violated this rule.

       
       

   31. Rule 6B-1.06(3)(h), Florida Administrative Code, now Rule 6B- 1.0a6(3)(h), Florida Administrative Code, provides that an educator shall not exploit a professional relationship with a student for personal gain or advantage.

       
       

   32. Respondent violated Rule 6B-1.06(3)(h), Florida Administrative Code, now Rule 6B-1.006(3)(h), Florida Administrative Code, in that he exploited his teacher/student relationship with his minor female students or his own personal gain or advantage.

       
       

   33. Rule 6B-1.06(4)(c), Florida Administrative Code, now Rule 6B- 1.006(4)(c), Florida Administrative Code, provides that an educator shall not use institutional privileges for personal gain or advantage.

       
       

   34. Respondent violated Rule 6B-1.06(4)(c), Florida Administrative Code, now Rule 6B-1.006(4)(c), Florida Administrative Code, in that he used his position as an educator at Mebane Middle School to engage in improper conduct with minor female students in his assigned classroom.

       
       

   35. It is alleged that Respondent violated Rule 6B- 1.06(4)(e), Florida Administrative Code, now Rule 6B-1.006(4)(e), Florida Administrative Code, by offer of a gratuity, gift or favor to obtain special advantages. This was not proven.

       
       

   36. Teachers are held to rigorous moral standards due to their vital role in educating children. They are entrusted with the custody of our children to prepare them for adult life. Therefore, a teacher must be of good moral character. Tomerlin vs. Dade County School Board, 318 So.2d 159 (Fla. 1st DCA 1975); Adams vs. Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981).

       
       

   37. A teacher breaches his obligation to the public and to the student when he exploits his professional relationship with a student for his own personal gain. The Respondent's improper physical contact with his students was a breach of his obligation to the public and to his students. By engaging in such improper contact, the Respondent eroded his students' confidence in him, placing his students in fear and eroding the faith and trust of his students, their parents and the administration.

       
       

   38. As a result of the Respondent's improper and immoral conduct, its adverse effects on his students and the loss of effectiveness resulting from this behavior, revocation of the Respondent's Florida teaching certificate is warranted.

It is, therefore,

RECOMMENDED:

That, by entry of a final order upholding the factual findings and conclusions of law, the Respondent's, Edward Haley, Florida teaching certificate number 138914, covering the areas of music education, administration and supervision and junior college be revoked for a period of three (3) years to be followed by a period of probation of three (3) years during which period of time the Respondent shall undergo psychological counseling and submit regular quarterly reports regarding his ability to resume teaching.

DONE and ENTERED this 1st day of February, 1988, in Tallahassee, Florida.

CHARLES C. ADAMS

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 1st day of February, 1988.

COPIES FURNISHED:

Dean R. LeBoeuf, Esquire BROOKS & LeBOEUF, P.A.

863 East Park Avenue Tallahassee, Florida 32301

Edward M. Haley

1710 Southwest 75th Terrace Gainesville, Florida 32607

Karen B. Wilde Executive Director

Education Practices Commission

418 Knott Building Tallahassee, Florida 32399

Martin B. Schapp, Administrator Professional Practices Services

319 West Madison Street, Room 3 Tallahassee, Florida 32399

Docket for Case No: 87-000092

Orders for Case No: 87-000092