vs. ) CASE NO. 88-2475
Respondent. )
A hearing was held in this case in St. Petersburg, Florida, on September 8, 1988, before Arnold H. Pollock, Hearing Officer The issue for consideration was whether Respondent's teacher's certificate, number 100407, should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
Petitioner: J. David Holder, Esquire
Respondent: Lawrence D. Black, Esquire
On April 18, 1988, Betty Castor, as Commissioner of Education for the State of Florida, signed an Administrative Complaint in this case against the Respondent, Alvin H. Dana, seeking to discipline his teaching certificate under the provisions of Subsections 231.261 and .28(1), Florida Statutes, pursuant to Rule 6B-1.006, Florida Administrative Code because of the Respondent's alleged homosexual acts with a minor male student during the school year and his providing the minor student with alcoholic beverages both at the Respondent's residence and at various liquor establishments in Pinellas County, Florida.
That same date, Mr. Dana was notified by Martin B. Schaap, Administrator of Professional Practices Services for the Department of Education, of his right to a hearing and Respondent's request for a formal hearing was received by the Education Practices Commission on May 16, 1988.
The next day the matter was forwarded to the Division of Administrative Hearings and on June 10, 1988, the undersigned, appointed Hearing Officer herein, set the case for hearing on July 22, 1988. On June 28, 1988, pursuant to Respondent's uncontested Motion for Continuance, the undersigned cancelled the July 22 hearing and reset the matter for September 8, 1988 at which time it was held.
At the hearing, Petitioner presented the testimony of Nancy Zambito, Director of School Operations for the Pinellas County Schools; Chalmers Coe, Principal of Tarpon Springs High School, (TSHS); and Hugh Kriever, Area Superintendent for the North Pinellas County Schools. Petitioner also introduced Petitioner's Exhibits 1 through 3. Respondent testified in his own behalf but presented no documentary exhibits.
A transcript of the proceeding was furnished and both counsel thereafter submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.
At all times pertinent to the allegations herein, Respondent, Alvin H. Dana, held Florida Teaching Certificate 100407 qualifying him in the areas of social studies, guidance, junior college, school psychology, and administration and supervision at the elementary, secondary, and junior college level.
During the period pertinent hereto, Respondent was employed as a guidance counselor at TSHS in the Pinellas County School District. He resigned from that position in April, 1987 after having been employed there for the 1986- 1987 school year.
During the 1986-1987 school year, Jeffrey Moore, age 16 or 17, was an 11th grade student at TSHS.
In early April, 1987, Nancy Zambito, Director of School Operations for Areas 1 and 2 of the Pinellas County Schools, and previously Director of personnel Services for the District, received a phone call from a school board member who related that he had received a call from a minister who had related to him that a student at TSHS, Jeff Moore, had a sexual encounter with the guidance counselor at that school, Alvin Dana.
Ms. Zambito met with the student, who now resides in Tennessee and who did not testify at the hearing, and his mother on April 6, 1987. During the conversation, Moore stated he had gone in to talk with the Respondent because his parents were in the process of getting a divorce and because he was having some problems with his own sexual identity, a condition not further explained. During this conversation, Respondent allegedly mentioned a bar in Dunedin which Moore knew to be a gay bar. At this point, Moore had to leave Respondent's office to go back to class, and Respondent allegedly asked him to meet him after school, which Moore did. When they met, according to Moore, Dana took him to his, Dana's, apartment, which Moore described, gave him a drink, and then initiated sexual contact with him by kissing him. Moore relates they went into the bedroom and had a sexual relationship. Afterward he claims, they cleaned up, had dinner at a restaurant, and then went to a bar where they had a beer.
At about 8:30 P.M., Respondent returned Moore to his own car to go home. That was the only sexual encounter they had, but Respondent allegedly talked to Moore about going with him to Jacksonville.
After meeting with Moore and his mother, that same day Ms. Zambito met with Respondent in the principal's office along with the Area 1 Supervisor, the Principal, and a union representative. During the meeting, which, according to Ms. Zambito, took between 45 minutes and an hour, she asked all the questions and in no way, she claims, attempted to place any influence or pressure on Respondent. She explained the complaint from Moore to Dana without telling him
who the student was. It was obvious to her, however, that Respondent knew who the student was and, in fact, named him, but denied any improprieties with Moore who, according to Dana, had accused his own pastor of being gay.
Ms. Zambito states that Respondent later admitted to her that he had taken Moore to the bar and to his apartment and had provided alcohol to him, in addition to admitting to a sexual relationship with the student. As to that aspect, she claims, Dana contended Moore was the aggressor. Mr. Coe, the Principal, and Mr. Kreiver, the Area Superintendent, who were both present at the meeting with Dana, tend to support Ms. Zambito's testimony. Both claim Dana admitted to having an "affair" or "sexual relationship" with Moore when she confronted him.
As a result of this conversation, Ms. Zambito advised Respondent she would report the information to the Superintendent at which point, Respondent indicated he would resign. In fact, Respondent did resign the next day before Ms. Zambito could contact the superintendent. However, she prepared a memorandum of the conference, and mailed the original to the Respondent at his address of record. Ms. Zambito is not sure he received it, but it was not returned. Respondent denies having received it.
On September 11, 1987, Mr. Dana pled nolo contendere in the County Court of Pinellas County to one charge of child abuse by furnishing Moore with alcoholic beverages. He was ordered to pay a fine of $250.00 and, inter alia, directed to not engage in teaching or in any other profession where minors will be without disclosure of the conviction to proper authorities.
Respondent was a teacher in Sarasota County for ten years and served as a college registrar for seventeen years before his one year in the Pinellas County schools. In all his twenty-eight years in education, he has never been accused of improprieties with students and denies being either bisexual or homosexual.
Dana admits to pleading nolo contendere to providing alcohol to a minor and understands that he was found guilty. However, as to the incident in question, he relates a somewhat different story than that reported by Ms. Zambito. He contends that one school day Moore came to him as guidance counselor and related he was having a sexual identity problem, describing himself as a "flaming faggot." Moore said he was considering running away and told Respondent stories of sexual relations he had had with someone in Port Richey at a MacDonald's restaurant. He also mentioned a place in Dunedin where he would go for sex with men. As a result of his conversation with the boy, Respondent feels he convinced him not to run away. After school that day, however, Moore was waiting for him in the parking lot and stated that he needed to talk with him more. Respondent agreed and they went to a restaurant and to a bar where they had two beers for which Respondent paid.
On cross examination, Mr. Dana admitted that he took Moore to two bars, The Pro Shop and The Flamingo, both of which were gay bars, and at both of which he bought Moore a beer. According to Dana, the bars were chosen by Moore and Dana did not know they were gay oriented. While admitting to going to the bars and the restaurant with Moore, he denies going to his apartment or to Moore's house. On rebuttal, Ms. Zambito claims he admitted having been in Moore's house in response to her questions. Mr. Kriever recalls this as well.
Respondent asserts there was no more to the relationship than his taking the boy for two drinks and while he admits he made a mistake in going
with Moore and admits to paying for his beer, he unequivocally states he refused any attempts at sex initiated by Moore and claims none took place.
Dana's story of the meeting with Ms. Zambito is somewhat different than hers. He recalls it as lasting ten minutes at the most as opposed to the forty-five minutes to an hour as she stated. He relates she suggested to him that he resign in lieu of being not reappointed the following year. He admitted to her that he went to the bar with Moore and admitted to a "relationship" with him but denies the relationship was sexual in nature, that he told her it was, or that he, at any time, ever had a sexual relation with any student.
Dana admits that going to the bar with Moore was stupid but claims he went there out of curiosity. Moore is a very persuasive young man who claimed he wanted to be a journalist. When Moore called himself a flaming faggot, curiosity prompted Dana to go to the bar with him. This is a weak rationalization which does Respondent's position no good.
Dana contends he had one or two previous visits with Moore, one of which involved Moore's mother. He believes Moore exaggerates and fantasizes.
He describes Moore as a bright, articulate, convincing and conniving individual, and relates he was taken in by Moore's statement of need.
Respondent claims Ms. Zambito never asked him if he had had sexual relations with Moore. She asked if he knew the student or could identify any student who would have made such allegations against him. Her questions were general in nature and he does not believe he would have admitted to any acts of sexual misconduct with Moore since he claims he committed none.
According to Mr. Kriever, when confronted with the allegations against him, Respondent initially appeared shocked and denied the relationship. Later, he said it was forced upon him and finally, he admitted to a sexual relationship with Moore. The principal, Mr. Coe, related, however, that Dana did not deny the allegations but admitted to a "relationship" with Moore without Ms. Zambito even identifying him by name. These responses come to easily and are far too indefinite to be controlling.
If the allegations against Dana are accurate, he would be ineffective in any position in the school district. Educators hold positions of trust and Respondent's actions, if established, constitute a forfeiture of this trust. In the opinion of the principal, Mr. Coe, as a guidance counselor, Dana holds a position of trust which this misconduct clearly violates. The same would be true regarding Respondent's status as a teacher. The trust that administrators and parents must place in anyone in education has been violated by Respondent's misconduct and Respondent could not serve within the system.
All the evidence, except Respondent's testimony is in the form of hearsay testimony. Moore did not testify. Other than Respondent, no one who testified was privy to the conversations and relationships between the two or saw them together away from the school grounds.
In the instant case, the only evidence that Respondent engaged in sexual activity with Moore comes from the hearsay comments made to Ms. Zambito by Moore who was not present at the hearing. Ms. Zambito's testimony as to Respondent's alleged admissions to a sexual relationship is, to a great degree, con- firmed by that of Coe and Kriever. On the other hand, Respondent unequivocally denies having had a sexual relationship with Moore. This is direct evidence from a party in interest.
Considering the evidence as a whole, therefore, it is found that Respondent did provide alcoholic beverages to Moore, a minor, and he showed extremely poor judgement in engaging in an unchaperoned social relationship with a student outside of the school environment and outside of school hours, but the evidence is insufficient to find that he engaged in homosexual activity with him.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.
Subsection 231.28(1)(c), Florida Statutes, gives the Education Practices Commission the authority to suspend, revoke or otherwise discipline an individual holding a Florida Teacher's Certificate who is guilty of gross immorality or an act involving moral turpitude.
Moral turpitude is defined by Rule 6B-4.009, F.A.C., promulgated by the Department of Education under the authority granted by the legislature, as:
...a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
The Commission is also granted the authority, under Subsection 231.28(1)(e), Florida Statutes, to suspend, revoke or otherwise discipline an individual who has been convicted of a misdemeanor, felony or other criminal charge other than a minor traffic violation.
In a case such as this, where an agency seeks to discipline the professional license of an individual the ultimate effect of such action is serious and long standing. It is for this reason that the Supreme Court of Florida has imposed a standard for the burden of proof in these cases which is higher than the "preponderance of the evidence" test applied in other cases. Here the burden of proof requires the agency to establish the Respondent's guilt of the offenses alleged by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
There is no doubt that Respondent was convicted of a misdemeanor in County Court which related to the offense of providing alcohol to a minor.
While only a misdemeanor, under the circumstances here, where a teacher, an individual in a position of high trust in the community, blatantly violates that trust and willingly participates with a minor in an acknowledged illegal act, the misconduct is inexcusable. It further constitutes conduct which seriously reduces his effectiveness as an employee of the school board. Subsection 261.28(1)(f), Florida Statutes.
As to the allegation of engaging in homosexual acts with the student, the burden of proof has not been met. Respondent was not allowed to face his accuser either at the preliminary inquiry into the allegations by Ms. Zambito,
or at the formal hearing involved here. The evidence against him was purely hearsay, with Ms. Zambito recounting her recollection of Moore's allegations. There was no written statement by Moore offered to support it. Though presumably he could have been subpoenaed to testify or his testimony preserved by deposition, no such action was taken. Further, Ms. Zambito's recollection of Respondent's admissions, even as corroborated by the recollection of Mr. Coe and Mr. Kriever, is not clearly dispositive but is subject to interpretation.
Hearsay evidence, standing alone, is insufficient to support a finding in an administrative hearing. It is, however, admissible to explain or corroborate other admissible evidence of record. Admissions against interest may be admissible exceptions to the rule against hearsay evidence. Therefore, in alight of Respondent's unequivocal denial of any homosexual relationship, under oath at the hearing, it cannot fairly be said that his guilt of that offense has been established by clear and convincing evidence.
The question then remains as to what action is appropriate under the circumstances here. Were Respondent a young, inexperienced teacher, not far removed in generation from his student, the lapse displayed by Respondent here by going to a bar with a minor student and providing him with alcohol might be considered less serious. However, there is nothing in the record presented here which in any way mitigates, exculpates, or excuses Respondent's misbehavior. Respondent is a middle aged man who clearly breached the trust placed upon him by the community and the school system when it assigned him not as a teacher, but as a guidance counselor. This position is one to which troubled children in search of advice and succor come, not to be preyed upon but to be helped.
Respondent is guilty not only of a misdemeanor but also of the most flagrant lack of judgement. He is an experienced counselor and he should have known better than to engage in an illegal off campus activity with a student. Such misconduct, though a misdemeanor, is egregious in nature and calls for serious corrective action.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that Respondent's Florida Teaching Certificate be revoked for a period of three years.
RECOMMENDED this 10th day of November, 1988, at Tallahassee, Florida.
ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2475
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case.
11. & 12. Rejected
13. Accepted and incorporated herein For the Respondent
is interwoven with his argument. Since they cannot
be identified with specificity, they are not addressed individually.
J. David Holder, Esquire
Lawrence D. Black, Esquire
Sydney H. McKenzie, Esquire General Counsel
