STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5658

)

MARY C. BENEKIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 18, 1988, in Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Betty Steffens

Attorney at Law

106 South Monroe Street Tallahassee, Florida 32301

For Respondent: Mary C. Benekin, Pro Se

Route 1, Box 249-E

Pineville, South Carolina 29468

The issue is whether the teaching certificate of Respondent, Mary Benekin (Benekin), should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.

The Petitioner, Department of Education, Education Practices Commission (E.P.C.), presented the testimony of Gladys Moore, Ray Cummings, Kathy Jessup, and Curtis Randolph. Petitioner's Exhibits 1-4 were admitted in evidence.

Benekin presented her own testimony and had Respondent's Exhibits 1-4 admitted in evidence.

The transcript of the proceedings was filed on March 28, 1988. Benekin's proposed order was filed on April 14, 1988. E.P.C.'s proposed order was filed on April 15, 1988. All proposed findings of fact and conclusions of law have been considered. A ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Mary Benekin holds teaching certificate No. 478252 and is certified to teach at the elementary and secondary levels in the areas of mental retardation and specific learning disabilities.

2. Benekin was employed on annual contract as an exceptional education teacher in the Duval County School District at the Matthew W. Gilbert Seventh Grade Center. She began employment there in 1984 and continued to teach in that position until approximately February 20, 1987, when she left her position and did not return.

   
   

3. The Petitioner seeks to revoke or otherwise penalize Benekin's teaching certificate for misconduct involving moral turpitude in violation of Section 231.28(1)(c), Florida Statutes; for misconduct which seriously reduces her effectiveness as an employee of the school board in violation of Section 231.28(1)(f); for misconduct which violated the provisions of law or rules of the State Board of Education in violation of Section 231.28(1)(h); and for misconduct which intentionally exposed a student to unnecessary embarrassment or disparagement in violation of Rule 6B-1.006(3)(e), Florida Administrative Code. These charges were based on 6 specific factual allegations against Benekin: use of sexually explicit language and terms in the classroom; recounting to students various sex acts she and her boyfriends performed and discussing other sex- related matters; sitting in front of students with her feet on her desk and her legs spread apart, sometimes scratching her vaginal area; making reference on numerous occasions to drugs and asking students if they knew where to buy drugs; repeatedly borrowing money from students, having students buy food for her, and asking students for some of their food; and making derogatory statements about students in the presence of other students, including statements that they smelled bad.

   
   

   Sexual Language and Discussions

   
   

4. On direct examination, Ray Cummings, a student in Benekin's 4th period science class, stated that Benekin talked about sex to Tom Tom (Thomas Jones) on one occasion and that she said she "sucked men's dicks." On cross examination, Ray said that either Benekin or Racheal Ashley made the statements. Then on redirect examination, Ray said that Benekin talked "nasty," but did not say "suck men's dicks." Instead, she said something else regarding sex acts, about not allowing a man to "put his thing in her, that she would let him feel all over her." Ray then testified that he heard Benekin make these statements to Thomas. Finally, on recross examination, Ray said Benekin made these statements to "Racheal and them."

   
   

5. By contrast, the report of the principal, Curtis Randolph, shows that Ray told the investigator there that he did not know of anything going on in Benekin's class. Also, Ray's testimony is contradicted by Thomas' statement. (See Findings of Fact 11 and 12).

   
   

6. Kathy Jessup testified on direct that she overheard Benekin say, in a conversation with someone who Kathy cannot identify, that she would "suck men's dicks." Kathy testified that her friends told her Benekin said this in other classes, too. Kathy also said that she heard Benekin talk about sex, but she can't remember what was said or to whom. On cross examination, Kathy testified that Benekin told the whole class that she "sucked men's dicks."

   
   

7. By contrast, the principal's report again shows that Kathy made no mention in that investigation of the alleged sexual discussions or the specific statement regarding "sucking men's dicks."

   
   

8. Several sworn statements from students who were not present to testify were submitted "only for the purpose of corroboration." Regrettably, these statements do not corroborate much of the direct evidence. The statement of

   Kenyatta Brown says essentially that Benekin talked about sex to Tom Tom and Ray everyday and that Racheal told her that Benekin said she "sucked men's dicks." This is contrary to Ray's testimony and Thomas' statement and to the story she told to the principal's investigator. (See Finding of Fact 14).

   
   

9. Racheal Ashley's statement says Benekin told "us" about specific sex acts and that she "suck's men's things." However when this is compared to other students' testimony and statements, it begins to become apparent that Racheal is probably the source of these alleged statements. Racheal's statement is directly contrary to the story she told the principal's investigator. (See Finding of Fact 13).

   
   

10. Antinette Phillips' statement states that Benekin told the class all about her sex life and goes into great detail. No other students' recall of the events agree with Antinette's and no other student related the details stated by Antinette. Antinette's statement also differs from what she told the principal's investigator. (See Finding of Fact 15)

    
    

11. Thomas Jones' statement indicates that Ray and Racheal told him that Benekin said she sucked her boyfriend's dick and that she let him fondle her. Thomas specifically stated that other students told him about Benekin's alleged discussions about sexual acts between her and her boyfriend. Finally Thomas stated that Benekin said what she does at home, she leaves at home. Thomas never heard any sex talk from Benekin.

    
    

12. Clearly Thomas' statement is directly contrary to Ray's testimony and Racheal's statement and the report of the principal's investigator.

    
    

13. The principal made a report of the information related by students in the course of his investigation. This information is contrary to the later statements of most of these students. For example, Racheal attributed the descriptions of sexual acts and the statement about sucking men's dicks to a Mrs. Sowell, another teacher. Racheal never said anything about Benekin in relation to these sexual discussions.

    
    

14. Kenyatta Brown told the investigator that Benekin said in class that she and her boyfriend sucked each others privates and that Benekin asked Thomas and Antinette about their sex lives. This is directly contrary to her written statement. (See Finding of Fact 8)

    
    

15. Antinette Phillips told the principal's investigator that Benekin told her, Thomas, Ray and Antinette about various details of her sex acts with her boyfriend. Again, these details are not consistent with the details given in her statement.

    
    

16. It appears from all of these conflicting statements that a rumor circulated that Benekin made these statements; however, the testimony of Ray and of Kathy is specifically found to lack credibility and no weight is given to the student's statements because they contradict, not corroborate, the allegations. Accordingly, insufficient evidence exists to support a finding that these sexual discussions and use of sexual terms occurred.

    
    

    Inappropriate Sitting and Scratching

    
    

17. The direct testimony of Ray Cummings again is that Benekin sat with her feet on her desk and that on one occasion she scratched her fresh appendectomy scar.

18. The direct testimony of Kathy Jessup was that Benekin put her feet up on her desk while wearing pants. Kathy never saw Benekin scratch herself.

    
    

19. Various of the sworn statements alleged that Benekin put her feet on her desk with her legs open and her underwear showing and scratched her vaginal area. These statements were admitted only to corroborate other admissible evidence. Here, there was no direct evidence to be corroborated by these statements. The only evidence entitled to any weight or consideration is that Benekin put her feet on her desk and on another occasion, while standing, scratched in the area of her fresh appendectomy scar. Neither of these acts can be construed to be misconduct as alleged in the Administrative Complaint.

    
    

    Reference to Drugs

    
    

20. The only direct testimony was that of Ray and Kathy. Ray never mentioned drugs in relationship to Benekin and Kathy specifically testified that she never heard of or saw Benekin discuss, mention or use drugs. Kathy did testify that other of her "friends" told her that Benekin told them that she used drugs.

    
    

21. The only mention of drugs and drug use by Benekin came from the sworn statements which were admissible only to corroborate direct evidence. There being no direct evidence regarding any statements Benekin made to students regarding drugs, no finding can be made in regard to this alleged misconduct.

    
    

    Borrowing Money and Taking Food

    
    

22. Ray Cummings testified that when students brought candy or food to class, they had to share it with everyone, including Benekin. He gave candy to her. Benekin would collect money from students to get snacks from the food machine in the teachers' lounge. When a student did not have money, the others would chip in. On one occasion, Benekin gave 15 pennies to Kathy for 3 nickels to be used in the food machine.

    
    

23. Kathy testified that Benekin borrowed 15 cents from her and did not pay it back. Benekin also borrowed from other students. Kathy did not recall Benekin using the borrowed money for snacks for the whole class. On cross examination, Kathy could not remember receiving 15 pennies from Benekin, but agreed that it probably happened. Kathy also could not remember a student from whom Benekin borrowed money, but thought it may have happened with Thomas and Antinette. Kathy also recalled Benekin getting snack cookies from the teachers lounge for the students. Finally, on redirect examination, Kathy could remember only two times that Benekin borrowed money: the 15 cents from her and some money from Thomas.

    
    

24. The sworn statement of Racheal corroborates that Benekin took candy from the students and asked them to buy her lunch. The sworn statement of Antinette corroborates that Benekin borrowed a quarter from Thomas. Thomas' sworn statement indicates that Benekin borrowed money from him and other students and that she never repaid him. Thomas also states that one day he had a Snickers bar and he refused to give any to Benekin. Later she saw him take a quarter from her desk and wrote a referral (disciplinary slip) for taking it. When he gave her a piece of candy, she let him throw away the referral.

25. Based on this direct evidence and corroborative evidence, it is found that Benekin did borrow money from Kathy and Thomas and that she did take candy or food from students.

    
    

    Derogatory Statements

    
    

26. Ray testified on direct that one time it stunk in the classroom and Benekin said that probably one of the girls was on her period. On cross examination, Ray acknowledged that Benekin explained to the class that if a student has a body odor, they are to come to her and she will let them go wash their body and apply a deodorant and that they are all human.

    
    

27. Kathy remembered Benekin saying on one occasion something about someone smelling in the classroom. Benekin simply said something about an odor in the classroom. Kathy never heard Benekin put students down in class. If she had something to say to them, she would call them over to her desk and tell them. Kathy never heard her say it out loud in class.

    
    

28. The only corroborative evidence in this regard is the principal's report which states that Kenyatta told the investigator that "Benekin made her feel bad in class by telling her that she (Kenyatta) smelled like she had been having sex." Kenyatta's sworn statement makes no mention of this and there is no showing that if statement was even made, whether it occurred in the hearing of other students. Thomas also told the investigator that one time he told Benekin that it smelled bad in the classroom and Benekin replied, "It must be one of my girls on their period."

    
    

29. The allegation in the Administrative Complaint is that Benekin made derogatory statements about students in the presence of other students, including statements that they smelled bad. The evidence does not support this allegation. At worst, Benekin on one occasion made a general statement that a bad odor in the classroom must be the result of one of the girls being on her period. This is not a derogatory statement about a particular student and did not expose a student to unnecessary embarrassment or disparagement. A finding cannot be made based on the hearsay statement of the principal which reported the hearsay statement of Kenyatta since neither hearsay statement corroborates admissible evidence.

    
    

    Benekin's Use of Drugs

    
    

30. While there is insufficient evidence to support a finding that Benekin asked students where to buy drugs, Benekin's own testimony is that she discussed drugs with students as part of a class project on drugs.

    
    

31. In cross examination, Benekin acknowledged that she entered a hospital for treatment of chemical dependency on cocaine. She entered this hospital on approximately February 20, 1987, when she became aware of the principal's investigation. During the conference with the principal on that day, Benekin asked Mr. Randolph for help and asked for the necessary papers to request a medical leave of absence. Randolph understood that Benekin was referring to medical assistance for a drug problem.

    
    

32. The medical program which Benekin entered is a two-year program with a 30-day inpatient component. Benekin completed the 30-day component and remains involved in the after care component.

    Effect of the Investigation

    
    

33. As a result of the rumors and accusations made by students against Benekin, as revealed in the principal's investigation, Randolph expressed the opinion that Benekin was no longer effective as a teacher, that her effectiveness in the school had diminished and that her presence was a detriment to the faculty and the student body. No opinion was expressed regarding loss of effectiveness if the allegations were not true.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

    Section 231.28(1), Florida Statutes, provides:

    
    

    The Education Practices Commission shall have authority to suspend the teaching certificate of any person . . . for a period of time not to exceed 3

    years . . . ; to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4) ; to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law, provided it can be shown that such person:

    * * *

    (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 revocation of the teaching certificate.

    
    

35. Rule 6B-1.006, Florida Administrative Code, a rule of the State Board of Education, sets forth the Principles of Professional Conduct for the Education Profession in Florida. Violation of the principles subjects the individual's certificate to revocation, suspension, or penalties provided by law. Specifically, Rule 6B-1.006(3)(e), provides:

    
    

    (3) Obligation to the student requires that the individual:

    * * *

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

    
    

    These are the violations with which the E.P.C. changes Benekin.

    
    

36. These proceedings are undeniably penal in nature and require that the agency prove the allegations by clear and convincing evidence. Raving applied this standard and having resolved credibility issues regarding conflicts in testimony, it has been found that the Petitioner failed to carry its burden in regard to its allegations that Benekin used sexually explicit language; that Benekin recounted sex acts and discussed sex related matters in the classroom; that Benekin sat inappropriately and scratched her vaginal area; that Benekin asked students if they knew where to get drugs; and that Benekin made derogatory statements about students in the presence of other students, including statements that they smelled bad. It is therefore concluded that these charges should be dismissed.

    
    

37. Petitioner now argues that Benekin1s disclosure of her chemical dependency in some way bolsters the allegations against her and supports a finding that she was impaired. However, no where in the Administrative Complaint does Petitioner allege that Benekin was dependent on drugs or impaired in her job performance. Certainly such matters cannot now be raised or used to form the basis of this penal proceeding.

    
    

38. It has been found, and is therefore concluded, that Benekin did borrow money from students and did ask students for food. The evidence in this regard was clear and convincing. However, this infraction hardly rises to the level of gross immorality or moral turpitude or personal conduct which seriously reduces Benekin's effectiveness. Accordingly, it is concluded that the charges of violating Section 231.28(1)(c)(f), and (h), Florida Statutes, should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Department of Education, Education Practices Commission,

enter a Final Order dismissing the Administrative Complaint filed against Mary

C. Benekin.

DONE and ENTERED this 16th day of May, 1988, in Tallahassee Florida.

DIANE K. KIESLING

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 16th

day of May, 1988.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-5658

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Education

1. Proposed finding of fact 1 is adopted in substance as modified in Findings of Fact 1 and 2.

   
   

2. Proposed finding of fact 2 is adopted in substance as modified in Finding of Fact 2.

   
   

3. Proposed finding of fact 7 is adopted in substance as modified in Finding of Fact 33.

   
   

4. Proposed findings of fact 3 and 4 are unnecessary.

   
   

5. Proposed finding of fact 6 is irrelevant.

   
   

6. Proposed findings of fact 5 and 8-21 are subordinate to the facts actually found in this Recommended Order. While each contains one or more statements which are true, the contents of each, taken as a whole, do not agree with the facts found herein. Additionally, there is an element of argument contained bin these paragraphs which are not adopted herein.

   
   

7. Proposed findings of fact 22 and 23 are argument and are therefore rejected as findings of fact.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Mary C. Benekin

The proposed findings of fact filed by Respondent are intermixed with conclusions of law and argument. Further, extensive additional facts, not made a part of the record, are presented. Accordingly, Respondent's proposed findings of fact are subordinate to the facts actually found in this Recommended Order, except to the extent that they are unsupported by the competent substantial evidence or that they are argument.

COPIES FURNISHED:

Betty Steffens Attorney at Law

106 South Monroe Street Tallahassee, Florida 32301

Ms. Mary C. Benekin Route l, Box 249-E

Pineville, South Carolina 29468

Martin Schaap, Administrator Professional Practices Services

319 W. Madison St., Room 3 Tallahassee, Florida 32399

Karen Barr Wilde, Executive Director Room 418, Knott Building Tallahassee, Florida 32399

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

BETTY CASTOR, as

Commissioner of Education,

Petitioner,

vs. EPC CASE NO. 87-125-RT

DOAH CASE NO. 87-5658

MARY E. BENEKIN,

Respondent.

/

FINAL ORDER

Respondent, MARY E. BENEKIN, holds Florida teaching certificate no. 478252. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the certificate.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Commission pursuant to section 120.57(1), F.S.; it is attached to and made a part of this Order.

A panel of the Education Practices Commission met on June 10, 1988, in St.

Petersburg Beach, Florida, to take final agency action. The Petitioner was represented by Betty Steffens, Esquire. The Respondent was neither present nor represented. The panel has reviewed the entire record in the case.

The panel adopts the Findings of Fact of the Recommended Order with the exception of paragraphs 26, 29, and 33, which were amended to accord with paragraphs 5, 7, and 9 of Petitioner's exceptions to the findings of fact which were adopted by the panel. The panel specifically finds that the statement made by Respondent to the effect that the odor in her classroom could be attributed to a student having her period was derogatory in nature and also finds that paragraph 9 of Petitioner's exceptions to the findings of fact should be

substituted for paragraph 33 of the hearing officer's findings of fact. Petitioner's remaining exceptions to the hearing officer's findings of fact were considered but were not adopted by the panel.

The panel adopts the conclusions of law with the exception of those regarding whether Respondent's behavior violated Rule 6B-1.006(3)(e), F.A.C., and Section 231.28(1)(h), F.S., and whether it constituted personal conduct seriously reducing Respondent's effectiveness in violation of Section 231.28(1)(f), F.S., which were specifically rejected in favor of paragraphs 6, 7, and 8 of Petitioner's exceptions to the conclusions of law. The panel specifically concludes that by her remark concerning the odor in her classroom, Respondent exposed her students to unnecessary embarrassment or disparagement in violation of Rule 6B-1.006(3)(e), F.A.C., and Section 231.28(1)(f), F.S., and that her behavior constituted personal conduct which seriously reduced her effectiveness in violation of Section 231.28(1)(f), F.S.

Based upon the foregoing, the panel specifically rejects the recommendation of dismissal and, for the reasons stated above, revokes Respondent's certificate for one year, retroactive to February 1987. This Order stakes effect upon filing.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within 30 days of the date of filing.

DONE AND ORDERED, this 18th day of June, 1988.

LORETTA VACANTI, Presiding Officer

I HEREBY CERTIFY that a copy of the foregoing Order in the matter of

BC vs. Mary E. Benekin was mailed to Mary E. Benekin, Route 1, Box 249-E, Pineville, SC 29468 this 27th day of June, 1988,

by U. S. Mail.

KAREN B. WILDE. Clerk

COPIES FURNISHED:

Martin Schapp Administrator Professional Practices Commission

Susan Tully Proctor, esquire Attorney General's Office

Sydney McKenzie, III General Counsel

Florida Admin. Law Reports

Herb A. Sang, Superintendent Duval County Schools

1701 Prudential Drive

Jacksonville, Florida 32207

Dr. James Ragans, Asst. Supt. Personnel, Duval County Schools

Diane K. Kiesling, Hearing Officer Division of Administrative Hearings

Betty Steffens, Esquire

Docket for Case No: 87-005658

Orders for Case No: 87-005658