STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2474

)

IRA B. WRIGHT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on August 31, 1988, in Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Lane Burnett, Attorney at Law

331 East Union Street, Suite 2 Jacksonville, Florida 32202

For Respondent: David A. Hertz, Attorney at Law

1601 Atlantic Boulevard

Jacksonville, Florida 32207 ISSUE

The issue is whether the teaching certificate issued to Respondent, Ira B. Wright, should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.

BACKGROUND AND PROCEDURAL MATTERS

At the formal hearing, the Petitioner, Department of Education, Education Practices commission, presented the testimony of Lillian Simone Allen, Lillian Josey, Owen Norman, James N. Hurst, and Raymond Bailey. Petitioner's Exhibit 1 was admitted in evidence. Respondent presented the testimony of Raymond Bailey, Zelma Wade, Lillie Ray Levy, Marian W. Johnson, Donna Bell, and Ira B. Wright.

Joint Exhibits 1-3 were admitted in evidence.

The transcript of the proceedings was deemed filed on September 9, 1988.

The parties timely filed their proposed findings of fact and conclusions of law on September 26 and 27, 1988. All proposed findings of fact and conclusions of law have been considered. A specific 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. Wright holds teaching certificate number 109682, covering the areas of elementary education and junior college. This certificate was issued on October 4, 1978, and is valid until 1989.

   
   

2. Wright is employed by the Duval County School Board and is currently assigned to the Media center in Jacksonville, Florida.

   
   

3. Wright has been a teacher with the Duval County School Board since 1962 and was a teacher at Mamie Agnes Jones Elementary School for 17 years, until this incident resulted in reassignment to the Media center.

   
   

4. Wright attempted to motivate students by offering them money and other rewards for achieving good grades. He visited in other classrooms and took interest in students that were not in his class.

   
   

5. One student he singled out, who was not in his class, was Lillian Simone Allen. He says he singled her out because "he saw potential in her."

   
   

6. Wright talked to Ms. Allen's teacher on several occasions about her grades and he talked to Ms. Allen directly. As an incentive, he entered into a "bet" with Ms. Allen whereby she would receive money from him if she made the A/B Honor Role.

   
   

7. On February 2, 1987, Ms. Allen walked to school as usual and went to the cafeteria with her friends. Shortly thereafter, Wright entered the cafeteria and said hello to the group. Ms. Allen did not say hello and Wright asked her why she did not respond. Ms. Allen finally said hello. Wright then asked her some questions about her grades and whether she needed any help.

   
   

8. Ms. Allen went outside to wait for the buses to arrive with other friends on board. When they arrived, the group went to the playground. After playing for a few minutes, Ms. Allen and some friends headed for the library. On the way, Wright saw her and called her over. He asked her to come to his room to discuss her grades.

   
   

9. Wright unlocked his classroom and both entered. He closed the door behind them. Ms. Allen remained standing by the door until Wright called her over to some cabinets along one wall. The area of the room where the cabinets were located was out of the view of the door and the only window in the room.

   
   

10. Ms. Allen ended up sitting on the low cabinet. Wright was sitting next to her. A male student in Wright's class entered the room to place his books on his desk. Wright moved away from Ms. Allen when this student was in the room. After the student left, Wright began putting papers in the high cabinet next to where Ms. Allen was sitting.

    
    

11. Up until that moment, Wright had been asking Ms. Allen about her grades and whether she needed help with her studies. After the student left, Wright moved over next to Ms. Allen and began rubbing her shoulder. Then he ran his hand down and rubbed her hip and thigh. Wright then stepped in front of Ms. Allen and asked her bra size. Using both hands, Wright touched and rubbed Ms. Allen's breasts.

    
    

12. Wright heard the door handle turn and stepped away from Ms. Allen. A female student who was a friend of Ms. Allen's entered the room to drop off her

    books. As soon as this student, Lakia, left the room, Ms. Allen jumped up and left the room.

    
    

13. Ms. Allen was shocked and frightened by this incident. At the time she was twelve years old. She was mature enough that she was wearing a bra, but no teacher had ever touched her in this manner. She is now scared of males and male teachers.

    
    

14. When she left the room, Ms. Allen went out to the playground and talked to her friend, Lakia. She then went and told her teacher, Ms. Miles, who in turn took Ms. Allen to the principal's office.

    
    

15. An investigation was conducted initially by the principal, Mr. Hurst. Wright denied touching Ms. Allen. A further investigation was conducted by Police Officer Norman of the School Board's Security Office. Wright told Norman that he could have accidently brushed against the left side of Ms. Allen's body. Now Wright denies making this statement.

    
    

16. On or about March 4, 1987, Wright was arrested and charged with three counts of lewd and lascivious assault upon a minor child in violation of Section 800.04, Florida Statutes. Two additional victims were mentioned in the information, but no testimony regarding those children was presented in this proceeding. The information filed on March 13, 1987, charged Wright with lewd, lascivious or indecent acts upon minor children.

    
    

17. Wright entered into a Deferred Prosecution Agreement whereby he was placed on 24 months probation with the special conditions that he perform 80 hours of community service, that he have no contact directly or indirectly with the victims, that he not be employed as a teacher at Mamie Agnes Jones Elementary, and that he attend Arlington Psychological Center for evaluation and successful counseling.

    
    

18. In exchange for the Deferred Prosecution Agreement, the State Attorney's Office nol prossed the Information.

    
    

19. According the Mr. Hurst, the principal, there was publicity about these events at the time and teachers, parents and students were aware of the arrest. Since that time the matter has died down and people no longer ask about it.

    
    

20. According to Raymond Bailey, Director of Certified Personnel at the Duval County School Board, if the allegations are shown to be true, the acts are ones of gross immorality or moral turpitude in violation of Section 231.28(1)(c), Florida Statutes; and the acts are personal conduct which seriously reduces Wright's effectiveness as an employee of the School Board; the acts violate Rules 6B-1.006(3)(e)(f), and (h), in that they exposed a student to unnecessary harassment or disparagement, they intentionally violated or denied a student her legal rights, and they exploited his professional relationship with a student for personal gain or advantage.

    
    

21. In making these findings regarding the actual events of this incident, it recognized that Wright denies that he touched Ms. Allen in an inappropriate manner. It is also recognized that Ms. Allen's testimony contains some inconsistencies, such as the date of the event. Viewing the testimony as a whole, however, it is found that Ms. Allens testimony the more credible and that Wright's testimony is self-serving and inconsistent with statements made to the principal and the Police Officer during the investigations.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Sections 120.57(1) and 231.262(5), Florida Statutes.

    
    

23. Section 231.28(1), Florida Statutes, authorizes the Department of Education, Education Practices Commission, to revoke or otherwise penalize a teaching certificate provided it can be shown that the holder of the certificate:

    
    

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

    * * *

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

    * * *

    (h) Has otherwise violated the

    provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

    
    

    The rules of the State Board of Education provide for revocation of the teaching certificate when the Principles of Professional Conduct set forth in Rule 6B-

    1. are violated. Here Wright was charged with violating Rule 6B-1.006(3)(a), (e),(f), and (h), as follows:

       
       

       1. Shall make reasonable effort to

    protect the student from conditions harmful to learning or to health or safety.

    * * *

    1. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

    2. Shall not intentionally violate or deny a student's legal rights.

    * * *

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

    
    

24. It is clear that the Department of Education, Education Practices commission, has the burden of proving the above-cited allegations by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 293 (Fla. 1987). It is concluded that it carried its burden of proof in this regard. The testimony of Ms. Allen, which was credited, supports a conclusion that the clear and convincing evidence establishes the acts and violations alleged in the Administrative Complaint.

    
    

25. Wright's actions in illegally and inappropriately touching Ms. Allen on the shoulder, hip, thigh and breasts, are acts of gross immorality and moral turpitude. These actions are personal conduct on the part of Wright which

    seriously reduce his effectiveness as a teacher in Duval County. Hence Wright is guilty of violating Sections 231.28(1)(c) and (f).

    
    

26. Additionally, Wright has violated the principles of professional conduct as alleged. These violations are acts for which revocation is an appropriate penalty. Therefore, these violations also constitute violations of Section 231.28(1)(h).

    
    

27. Wright's actions and violations are so egregious as to mandate permanent revocation of his teaching certificate.

RECOMMENDATION

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

Commission, enter a Final Order finding Ira B. Wright guilty of the violations charged and permanently revoking his teaching certificate number 109682.

DONE and ENTERED this 26th day of October, 1988, in Tallahassee, Florida.

DIANE K. KIESLING

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 26th day of October, 1988.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-2474

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, Education

Practices Commission

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-4(1-4); 5(4&5) ; 6(6); 7- 9(7); 10&11(8) ; 12(9&10) ; 13(11); 14(10); 15-17(11); 18- 20(12-14); 22(15); 23&24(16) ; 25-28(17-20); and 29-33(20).

2. Proposed findings of fact 21 and 34 are unnecessary or Irrelevant.

Specific Rulings on proposed Findings of Fact Submitted by Respondent, Ira B. Wright

1. Each of the following proposed findings of fact are adopted In substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1&2(1); 3(2); 14(4); 20(21); and 26(3).

   
   

2. Proposed findings of fact 4-9, 18, and 29 are subordinate to the facts actually found in this Recommended Order.

   
   

3. Proposed findings of fact 10-12, 27 and 28 are rejected as being unsupported by the competent, substantial evidence.

   
   

4. Proposed findings of fact 13, 15-17, 19, and 21-25 are Irrelevant.

COPIES FURNISHED:

Lane Burnett

331 East Union Street Suite 2

Jacksonville, Florida 32202

David A Hertz

1601 Atlantic Boulevard

Jacksonville, Florida 32207

Karen B. Wilde, Executive Director Education Practices Commission

125 Knott Building Tallahassee, Florida 32399

Hon. Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

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

AGENCY FINAL ORDER

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

BETTY CASTOR, as

Commissioner of Education,

Petitioner,

EPC CASE NO. 88-076-RT

vs. DOAH CASE NO. 88-2474

IRA B. WRIGHT,

Respondent.

/

FINAL ORDER

Respondent, IRA B. WRIGHT, holds Florida teaching certificate no. 10982. 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. Recommenced Order has been forwarded to the Commission pursuant to Section 120.57(1), F.S.; it is attached to and made a part or this Order.

A panel of the Education Practices Commission met on December 1, 1988, Tampa, Florida to take final agency action. The Petitioner was represented Lane Burnett, Esquire. The Respondent was represented by David A. Hertz, Esquire.

The panel reviewed the entire record in the case.

The panel adopts the Findings of Fact and Conclusions of Law of the Recommended Order and declines to accept Respondent's Exceptions to the Recommended Order. The Commission considers these exceptions as mitigation. Because of Respondent's twenty-five years or unblemished service as a teacher, the Commission rejects the recommended penalty of permanent revocation.

Respondent's teaching certificate is hereby revoked for three (3) years. 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 12th day of December, 1988.

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

BC vs. Ira B. Wright was mailed to David A. Hertz, Esquire, 1601 Atlantic Blvd. Jacksonville, FL.

32207 this 15th day of December, 1988 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

Herb A. Sang, Superintendent Duval County Schools

1701 Prudential Drive

Jacksonville, Florida 32207

Dr. James Ragans, Asst. Supt. Personnel

Duval County Schools

Lane Burnett, Esquire

331 Union Street Jacksonville, Florida 32207

Diane K. Kiesling, Hearing Officer Division of Admin. Hearings

one Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32399

Docket for Case No: 88-002474

Orders for Case No: 88-002474