STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1180

)

LLOYD WRIGHT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on September 7, 1988 in Fort Pierce, Florida. The following appearances were entered:

APPEARANCES

FOR PETITIONER: Betty J. Steffens, Esquire

Post Office Box 11008 Tallahassee, Florida 32302

FOP RESPONDENT: Lorene C. Powell, Esquire

208 West Pensacola Street Tallahassee, Florida 32301

BACKGROUND

This matter began when Petitioner charged Respondent by administrative complaint with using sexually explicit language in a classroom setting; with making inappropriate sexual comments to students; and improperly touching female students. Respondent requested a formal administrative hearing and this proceeding ensued.

At the final hearing, petitioner presented the testimony of five witnesses and four evidentiary exhibits. Respondent presented the testimony of three witnesses, including himself, and one evidentiary exhibit. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

Based upon all of the evidence, including the candor and demeanor of the witnesses who testified, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent in this proceeding is Lloyd Wright. At all times pertinent to these proceedings, he was a social studies teacher employed by the St. Lucie County School District on a professional contract status and assigned to Westwood High School. He holds Florida Teaching Certificate No. 395537. On

   February 17, 1987, Respondent was suspended from his duties as a teacher for the school district. After an administrative hearing on issues relative to his employment, final order dismissing Respondent from his employment was issued by the school district on September 8, 1987.

   
   

2. James Andrews is the principal of Westwood High School. Andrews has known Respondent as a friend, and as a member of the teaching staff at the school, for many years. On February 4, 1987, Andrews was at home with his ill son. His secretary telephoned him regarding allegations being voiced against Respondent by a female student. That student's allegations, and statements of other students alleged to be witnesses, were reduced to writing at Andrews' instruction and reviewed by him upon his return to the office on February 5, 1987. That evening he met with the complaining student, Tenecia Poitier, and her father. He assured them that the matter would be taken up with his superiors. On the morning of February 11, 1987, Andrews brought the allegations to the attention of the school district's Director of Secondary Education during a visit by the director to the Westwood Campus. That afternoon, the director telephoned Andrews and requested that additional statements be obtained from the students. Pursuant to those instructions, Andrews met with the students who had given the previous statements and instructed them to provide the additional statements to him. He forwarded these statements to the district school board office.

   
   

   Andrews has been the principal at Westwood High School for seven and a half years. He holds a master's degree in guidance and counseling and has completed course work in the areas of administration and supervision in excess of 30 academic credit hours. He has served in the educational system for approximately 35 years. Service in the positions of classroom teacher, guidance counselor, assistant principal and principal are included in the scope of his experience. Andrews regularly instructed the staff at the school to refrain from using slang in the classroom, becoming familiar with students or putting their hands on students unless necessary to prevent injury to a student or others. This admonishment by the principal was applicable to all students without regard to race or sex. He does not think it appropriate for a teacher to use the word "fuck" or the phrase "I am going to fuck your brains out" in the classroom. Andrews also finds the use of the phrases "Girl, I want that thing" and "Girl, I'm going to take you to the bushes" inappropriate for a male teacher to use in conversation with a female student. He would not want a male teacher who touched female students intentionally on the buttocks or thighs, or used such words or phrases in the classroom, on his teaching staff.

   
   

   1. Tenecia Poitier graduated from Westwood High School in 1988. In the 1986-87 school year, she was a student in Respondent's World History class. On one occasion, Respondent pushed Poitier against the wall of the classroom with other students present and told her "One of these days, I'm going to fuck your brains out." Once, when she was going to the school cafeteria, Respondent told her "Girl, I want that thing." Respondent touched Poitier on the leg and buttocks on other occasions and made suggestive statements to her. In response, Poitier rejected Respondent's advances by cursing him and, on one occasion, striking him. Another incident occurred when Respondent seated himself in front of Poitier's desk and propped his feet on her desk in a crossed fashion. The result of Respondent adopting this seating posture meant that Poitier had to look between Respondent's legs when she looked up from her desk work. Poitier got out of her desk, struck Respondent with her notebook, cursed him and told him to get his legs off her desk. Poitier did not observe Respondent engage in this seating conduct with other students.

   2. JoAnna McGee was a ninth grade student when she had Respondent as her teacher for World History. Respondent saw McGee walking down the street one day. He sounded his automobile horn at her. Later, when he saw her in the classroom, he told her that if he saw her walking on the street again he would take her "in the bushes." Respondent hugged McGee and other female students on occasion.

      
      

   3. Tony Lee was a student in Respondent's World History class, along with Poitier. Lee was aware of Respondent's joking and bantering with students. Female students would congregate around Respondent's desk when these sessions occurred. On one of these occasions, female students laughingly said they needed some candy to suck, and Lee heard Respondent reply "I've got something to suck on right here." Lee also heard Respondent make the statement "fuck your brains out" during an exchange with students. Lee overheard Respondent using the phrase "pull your clothes down" in a conversation with Poitier.

      
      

   4. Lisa Frazier was also a classmate of Poitier during the World History class taught by Respondent. She observed Poitier curse Respondent and strike him with her notebook. Frazier also testified that Poitier had a reputation for disruptive behavior and that Respondent used slang language with students.

      
      

   5. Respondent admitted using slang expressions, including the phrases "take you to the bushes" and "take you to the woods," in classroom settings with female students. Respondent admitted to a practice of hugging male and female students. Respondent also testified that he never told Poitier that he wanted to "F--- her brains out." When confronted with his sworn testimony from a previous proceeding that he did not recall making the statement, Respondent explained that his previous answer was made upon advice of his counsel at that time. Respondent's denial in this proceeding that he never made such a statement to Poitier, along with his testimony that hugging of students was an unintentional result of previous coaching experience, is not credited in view of his demeanor while testifying. Further, his testimony that his use of the phrases "take you to the bushes" or "take you to the woods" resulted from a film observed in the class and were meaningless slang terms devoid of sexual innuendo, is not credible. Also, the testimony of students Lee and McGee corroborates Poitier's version of Respondent's behavior and further discredits Respondent's testimony, including his explanation that Poitier's complaint against him resulted from Respondent writing up Poitier for academic and disciplinary reasons. Other students were also written up as often as Poitier.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   7. In the administrative complaint, Petitioner has charged that Respondent's conduct violated paragraphs (c), (f) and (h), of Subsection 231.28(1) Florida statutes, and Rule 6B- 1.06(3)(a), (e) and (h), Florida Administrative Code.

      
      

   8. Respondent's teaching certificate is subject to revocation, hence the violations alleged must be proven by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)

      
      

   9. The complaint alleges that Respondent has committed misconduct in office because he has "been guilty of gross immorality or an act involving moral

      turpitude" in violation of Subsection 231.28(1)(c) , Florida Statutes. Since Petitioner's Rule 6B-4.009(6), Florida Administrative Code, defines the term "an act involving moral turpitude" to require commission of a crime, analysis is limited to whether the evidence presented supports a finding that the statute has been violated by Respondent's commission of "gross immorality".

      
      

   10. Petitioner's definition of the term "immorality" in Subsection 231.28(1)(c) , Florida Statutes, is set forth in Rule 6B-4.009(2), Florida Administrative Code, as follows:

       
       

       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 education profession into public disgrace or disrespect and impair the individual's service in the community.

       
       

   11. Petitioner determined in Education Practices Commission v. Knox, 3 FALR 1373-A (DOE, June 29, 1981), that the term "gross" in conjunction with "immorality" means "immorality which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards."

       
       

   12. Respondent's conduct in making suggestive sexual comments to female students, and touching those students on the buttocks and legs, clearly was "inconsistent with the standards of public conscience and good morals." Such conduct also constituted a serious and flagrant disregard for such standards. The evidence clearly and convincingly establishes Respondent's guilt of "gross immorality" in violation of Subsection 231.28(1)(c) Florida Statutes.

       
       

   13. The testimony of the school principal, a person of substantial experience as an educational administrator and a classroom teacher, establishes a sufficient record upon which to conclude that Respondent's personal conduct in the classroom, as adduced at hearing from other witnesses, seriously reduced his effectiveness as an employee of the school board and constituted a violation of Subsection 231.28(1)(f), Florida Statutes.

       
       

   14. The evidence is also clear and convincing that Respondent's conduct violated provisions of law or rules of the State Board of Education, thereby constituting a violation of Subsection 231.28(1)(h), Florida Statutes. In that regard, Rule 6B-1.006, Florida Administrative Code, sets forth the principles of professional Conduct for the Education profession in Florida. The rule

       provides that violation of any of the principles set forth therein shall subject the individual to revocation or suspension of the individual's teaching certificate or other penalties provided by law. One of those principles is contained in Rule 6B-1.006(3)(a), Florida Administrative Code, and provides that an educator shall make a reasonable effort to protect students from conditions harmful to learning, health or safety. Clearly, the action of Respondent in subjecting students to sexual suggestion and inappropriate language constitutes the fostering of, as opposed to protection from, a condition harmful to learning, health or safety.

       
       

   15. The evidence clearly and convincingly establishes that Respondent violated Rule 6B-1.006(3)(e), Florida Administrative Code, another principle of educator conduct, which provides an educator shall not intentionally expose

       students to unnecessary embarrassment or disparagement. Respondent's direction of sexually suggestive and explicit language to certain students in the classroom, as well as touching of certain students, constituted exposure of those students to unnecessary embarrassment or disparagement. Tenecia Poitier's discomfort at Respondent's attentions and her resultant action of cursing and striking Respondent in the classroom vividly illustrates this rule violation by Respondent.

       
       

   16. Respondent violated Rule 6B-1.006(3)(h), Florida Administrative Code. As alleged in the administrative complaint, clear and convincing evidence establishes that Respondent exploited a professional relationship with a student, Poitier, for personal gain or advantage, namely, that student's sexual favors. Respondent's failure to obtain that gain or advantage does not obviate his exploitation of the relationship for that purpose.

   
   

   RECOMMENDATION

   Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking Respondent's teaching

   certificate.

   
   

   DONE AND ENTERED this 28th day of November, 1988, in Tallahassee, Leon County, Florida.

   
   

   DON W. DAVIS

   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 28th day of November, 1988.

   
   

   APPENDIX

   
   

   The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

   Petitioner's proposed Findings 1.-2. Addressed.

3. Unnecessary to result reached.

4.-12. Addressed.

13. Unnecessary to result. 14.-15. Adopted in substance.

16. Unnecessary to result reached. 17.-21. Addressed.

22.-24. Unnecessary to result reached.

1. Addressed in part, remainder unnecessary to result.

2. Unnecessary to result reached.

27.-28. Addressed.

29.-30. Adopted in substance.

31. Unnecessary to result reached. 32.-33. Addressed.

34.-35. Unnecessary to result reached.

1. Addressed.

2. Rejected as a conclusion of law.

Respondent's Proposed Findings 1.-2. Addressed.

3.-6. Unnecessary to result reached.

7.-8. Cumulative, subordinate and unnecessary to result. 9.-13. Unnecessary to result reached.

14. Addressed.

15.-17. Unnecessary to result reached.

1. Rejected as cumulative.

2. Rejected, contrary to weight of the evidence.

3. Rejected as a conclusion of law.

4. Rejected, not supported by weight of the evidence.

5. Unnecessary to result reached.

6. Addressed in substance.

24.-25. Unnecessary to result reached. 26.-27. Addressed in substance.

28. Unnecessary to result. 29.-30. Addressed.

COPIES FURNISHED:

Betty J. Steffens, Esquire Post Office Box 11008 Tallahassee, Florida 32302

Lorene C. Powell, Esquire

208 West Pensacola St. Tallahassee, Florida 32301

Sydney H. McKenzie, Esquire. General Counsel

Department of Education The Capitol, PL-08

Tallahassee, Florida 32399-0400

Hon. Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

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

AGENCY FINAL ORDER

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

BETTY CASTOR, as

Commissioner of Education,

Petitioner,

EPC CASE NO. 88-013-RT

vs. DOAH CASE NO. 88-1180

LLOYD WRIGHT,

Respondent.

/

FINAL ORDER

Respondent, LLOYD WRIGHT, holds Florida teaching certificate no. 395537. Petitioner filed an Administrative Complaint seeking suspension, revocation, permanent 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 January 2, 1989, in Tampa, Florida, to take final agency action. The Petitioner was represented by Betty Steffens, Esquire. The Respondent was represented by Lorene Powell, Esquire. The panel reviewed the entire record in the case.

The panel adopts the Findings of Fact and Conclusions of Law and Recommendation of the Recommended order. Insofar as the term of revocation is not specific within the Recommended Order, the panel ORDERS that Respondent's certificate be revoked for two (2) years; upon recertification and reentry into teaching, Respondent shall be placed on probation for a period of two years during which time Respondent shall ensure that quarterly reports from his supervisor and copies of his teaching evaluations are sent to the Education Practice. Commission for its review. This Order takes 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 11th day of February, 1989.

CAROLYN WILSON, Presiding Officer I HEREBY CERTIFY that a copy of the foregoing Order in the matter of

BC vs. Lloyd Wright was mailed to Lorene Powell, Esquire, 208 West Pensacola St., Tallahassee, Florida 32301 this 17th day of February, 1989, by U.S. Mail.

KAREN B. WILDE, CLERK

COPIES FURNISHED:

Martin Schaap, Administrator Professional Practices Service

Susan Tully Proctor, Esquire Attorney General's Office

Sydney McKenzie, III General Counsel

Florida Admin. Law Reports

Dr. George R. Hill, Supt. St. Lucie County Schools 2909 Delaware Avenue

Ft. Pierce, Florida 34947

Julius Lee, Jr. Director of Personnel

St. Lucie County Schools 2909 Delaware Avenue

Ft. Pierce, Florida 34947

Betty J. Steffens, Esquire

106 South Monroe Street Tallahassee, Florida 32301

Don W. Davis, Hearing Officer Division of Admin. Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399

Docket for Case No: 88-001180

Orders for Case No: 88-001180