STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BRAD THOMAS, )
)
Petitioner, )
)
vs. ) CASE NO. 88-3425
) FLORIDA SCHOOL FOR THE DEAF ) AND THE BLIND, )
)
Respondent. )
)
)
BETTY CASTOR, as Commissioner ) of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 88-5675
)
BRADLEY THOMAS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on March 14 and May 17, 1989, in St. Augustine, Florida.
APPEARANCES
For Bradley Thomas:
William J. Sheppard, Esquire
215 Washington Street Jacksonville, Florida 32202
For The Florida School for the Deaf and the Blind:
Barbara J. Staros, Esquire State Board of Education Knott Building Tallahassee, Florida 32399
For Commissioner of Education Betty Castor:
Betty J. Steffens, Esquire
106 South Monroe Street Post Office Box 11008 Tallahassee, Florida 32302
STATEMENT OF THE ISSUES
In Case No. 88-3425, Mr. Bradley Thomas challenges the termination of his employment at the Florida School for the Deaf and the Blind. The issue is Case No. 88-5675 is whether Mr. Thomas committed the acts alleged by the administrative complaint, and, if so, what penalty may be appropriate.
PRELIMINARY STATEMENT
On June 8, 1988, the Florida School for the Deaf and the Blind terminated the employment of Bradley Thomas, a teacher at the school. Mr. Thomas challenged the school's action and petitioned for formal hearing. The petition was forwarded to the Division of Administrative Hearings. In response to the Hearing Officer's order of July 29, 1988, which required the parties to provide suggested dates for hearing, counsel for the school stated that, due to the anticipated filing of a related administrative complaint by the Commissioner of Education, additional time was necessary prior to the case going forward to hearing. Without objection from counsel for Mr. Thomas, on August 17, 1988, the case was placed in abeyance for 45 days.
On October 3, 1988, counsel for the school filed a response to the Order of Abeyance, stating that the Commissioner had not yet filed an administrative complaint, and suggesting that, to avoid further delay, the scheduling of the hearing in Case No. 88-3425 proceed. The hearing was scheduled for November 9- 10, 1988.
On October 31, 1988, an administrative complaint was filed by Betty Castor, as Commissioner of Education. Simultaneously, counsel for the school moved to continue the previously-scheduled hearing. The motion for continuance indicated that both cases arose from identical factual allegations and that, should Mr.
Thomas dispute the administrative complaint and request hearing, a motion to consolidate the cases would be forthcoming. Mr. Thomas requested formal hearing regarding the allegations of the complaint. The request was forwarded to the Division of Administrative Hearings which, without objection, consolidated the cases and scheduled the hearing.
The hearing was initially convened on March 14, 1989. Due to the unavailability of Marisol Eschevarria-Sola, a witness attending college in Washington, D.C., the hearing was, by agreement of the parties, scheduled to reconvene and conclude on March 31, 1989, at which time Ms. Eschevarria-Sola would be in St. Augustine and available to testify.
On March 31, 1989, Mr. Sheppard, counsel for Mr. Thomas, did not appear at the hearing site due to unforeseen circumstances. With the consent of all parties, it was determined that the testimony of Ms. Eschevarria-Sola would be taken with Mr. Sheppard participating telephonically. Technical difficulties subsequently caused the telephone connection between the hearing site and Mr.
Sheppard's location to fail prior to the taking of testimony, and the March 31 session was cancelled.
With the consent of counsel for all parties, it was thereafter agreed that the testimony of Ms. Eschevarria-Sola, who returned to Washington, D.C. and was unavailable to testify, would be taken by deposition. At the opening of the deposition, which was conducted telephonically on May 15, 1989, and again during the hearing which concluded on May 17, 1989, Mr. Sheppard indicated that, even though it was Mr. Sheppard's absence which prevented the witness' testimony from being heard on March 31, and even though he had previously assured the Hearing
Officer that there would be no objection to the preservation of the witness' testimony by deposition, his client objected to admission of the deposition. The transcript was admitted.
Because the factual allegations in the consolidated cases are identical, the Florida School for the Deaf and the Blind (Respondent in Case No. 88-3425) and the Commissioner of Education (Petitioner in Case No. 88-5675) joined in presenting the testimony of Holly Middlebrooks, Nadine Lents, Karen Warfel, Debra Boles, Kenneth D. Randall, Robert Dawson, and Samuel R. Visconti, the deposition testimony of Marisol Eschevarria-Sola, and eight exhibits (identified as "State #"), which were admitted. Mr. Thomas (Petitioner in Case No. 88-3425 and Respondent in Case No. 88-5675) testified on his own behalf, presented the testimony of Raymond Butler, Samuel R. Visconti, and Robert R. Gates, and had six exhibits (identified as "Thomas #") admitted.
At all times during the hearing process, an impartial certified interpreter for the hearing-impaired provided interpretation of testimony and related administrative proceedings. Ms. Middlebrooks and Ms. Lents are hearing-impaired and communicated through the interpreter. Ms. Warfel and Mr. Thomas are
hearing-impaired and communicated by speaking or through the interpreter. The deposition testimony of Ms. Eschevarria-Sola was taken through an interpreter who was present with the witness in Washington D.C.
Filing of the transcript, including deposition testimony, was completed on July 10, 1989. By agreement of the parties, proposed recommended orders were due twenty days from the filing of the transcript. Proposed recommended orders were timely filed by Petitioner Betty Castor and Respondent Florida School for the Deaf and the Blind. A memorandum in support of the proposed recommended order was filed by the Florida School for the Deaf and the Blind. Neither a proposed recommended order nor a response to the memorandum was filed on behalf of Mr. Thomas. The proposed recommended orders and the proposed findings of fact are ruled upon, either directly or indirectly, in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.
FINDINGS OF FACT
Bradley Thomas holds Florida Teaching Certificate #486268, valid through June 30, 1993. Mr. Thomas is certified to teach secondary levels, vocational education and printing, and was initially employed by the Florida School for the Deaf and the Blind (FSDB) in 1980. Mr. Thomas taught phototypesetting in the FSDB Vocational Department. Mr. Thomas was described by his immediate supervisor as highly-motivated and conscientious. He has received satisfactory and above-satisfactory performance evaluations.
Mr. Thomas is 57 years old and has been deaf since the age of 12. He communicates through signing and speech.
According to section 242.331(4), Florida Statutes, the Board of Trustees of the Florida School for the Deaf and the Blind is authorized to appoint and remove teachers "as in its judgement may be best". By Rule 6D- 4.002(2)(b), Florida Administrative Code, the Board of Trustees has delegated responsibilities related to employment and termination of academic personnel to the President of FSDB. By letter from FSDB President Robert Dawson, dated February 15, 1986, such authority has been delegated to Samuel R. Visconti, Director of Personnel for the FSDB. The Board of Trustees has entered into a collective bargaining agreement with the Florida School for the Deaf and the
Blind Teachers United, an affiliate of the Florida Teaching Profession-NEA and the National Education Association. Article 13, section E, of the 1986-89 agreement between the Board of Trustees and the FSDB Teachers United, FTP-NEA, in relevant part, provides that Mr. Thomas may not be discharged from employment by the Board of Trustees except for "just cause", which is defined to mean job- related incompetence or misconduct. The professional competence of Mr. Thomas as a teacher is not at issue in this proceeding.
During the second semester of the 1986-87 school year, Holly Middlebrooks was enrolled with five other students in Mr. Thomas' class. At the time of the hearing, Ms. Middlebrooks was 19 years old and a senior at FSDB.
On more than one occasion, Mr. Thomas "rubbed" Ms. Middlebrooks' back and shoulders during class, in a massaging manner, which made her uncomfortable and confused. The contact occurred while Ms. Middlebrooks was seated at and using a computer terminal and while she entered and left the classroom. Although she attempted to convey her discomfort with Mr. Thomas' touching by repositioning herself in her chair as she worked at the computer, she did not instruct Mr. Thomas to stop. Ms. Middlebrooks saw Mr. Thomas touch other students in a similar manner.
Although other students indicated to Ms. Middlebrooks that Mr. Thomas discussed sexual topics in class, she did not hear and could not recall specific incidents of sexually-oriented language on Mr. Thomas' part.
Nadine Lents was enrolled with four or five other students in Mr. Thomas' class during the second semester of the 1986-87 term and for the full 1987-88 school year. At the time of the hearing, Ms. Lents was 18 years old.
On occasion, Mr. Thomas would massage Ms. Lents' neck and shoulders while she worked at the computer terminal. At times she feared that he would touch her breasts but he did not. She did not instruct him to stop. On at least one occasion, Mr. Thomas rubbed her leg while she sat at the terminal and she instructed him to stop, to which he replied that there was no cause for her concern.
Mr. Thomas "often" hugged Ms. Lents, sometimes pressing himself against her breasts or in a manner which she found to be "too hard", and she would push Mr. Thomas away. Ms. Lents sometimes would lightly hug Mr. Thomas as a means of greeting, but was careful to maintain distance.
Mr. Thomas discussed sexual matters with Ms. Lents. He asked her if she "liked oral sex", talked about the size of her breasts, and discussed other sexual matters in vulgar terms. The sexual discussions sometimes made Ms. Lents uncomfortable and embarrassed.
During both the 1986-87 and 1987-88 school terms, Karen Warfel was enrolled with "about six" other students in Mr. Thomas' class. At the time of her testimony at the administrative hearing, Ms. Warfel was 20 years old and had graduated from the FSDB.
More than once, Mr. Thomas rubbed her back under blouses which she described as "loose". Once, Ms. Warfel instructed Mr. Thomas to stop, and he complied with her request, but Mr. Thomas subsequently resumed touching Ms. Warfel in a similar manner and she did not stop him. Mr. Thomas also occasionally rubbed Ms. Warfel on her leg, "above the knee", in an attempt "to
calm me down when I get frustrated on the computer". The physical contact with Mr. Thomas made her feel uncomfortable.
Ms. Warfel would, on occasion, request a piece of candy from a supply which Mr. Thomas kept in his desk drawer. Mr. Thomas would ask Ms. Warfel to kiss his cheek prior to giving her candy, and Ms. Warfel would comply with his request.
Sometimes Mr. Thomas would tickle Ms. Warfel near her rib cage or below her belt and to the sides of her abdomen, in an area Ms. Warfel described as near her ovary.
Mr. Thomas discussed sexual matters in the classroom in Ms. Warfel's presence, including discussing his sexual relationship with his wife. Ms. Warfel was embarrassed by Mr. Thomas' conduct.
Marisol Eschevarria-Sola was enrolled in Mr. Thomas' class during the first semester of the 1986-87 school year and the first semester of the 1987-88 school year. There were approximately five students in the class. At the time of her deposition, Ms. Eschevarria-Sola was 20 years old.
Mr. Thomas, at least once, touched or stroked Ms. Eschevarria-Sola's leg, around her knee and thigh, and also touched her back. The physical contact, which occurred while she was seated at the computer console, made her uncomfortable. She expressed her discomfort when such touches occurred. Mr. Thomas explained that he was attempting to warm his hands. She saw Mr. Thomas touch other students in her class in like manner.
At least once, Mr. Thomas requested that Ms. Eschevarria-Sola kiss him in exchange for a pencil she wanted to borrow. Although she was uncomfortable with the situation, she complied with his request. On another occasion, Mr. Thomas requested that he be permitted to kiss her and she complied.
Ms. Eschevarria-Sola recalled Mr. Thomas discussing sexual matters in class, including his relationship with his wife, but could not specifically recall the details of the discussion. Mr. Thomas also joked about the bodies of the students in his class. Ms. Eschevarria-Sola was embarrassed by the jokes or language.
Students at the FSDB are required to attend a course entitled "Talking About Touching", which provides instruction related to self-protection from potential physical abuse. Students are taught to classify physical contact as "good", "bad" or "confusing". "Good" touches would include such positive contact as a pat on the back. "Bad" touches would include touches which are physically uncomfortable and negatively perceived by the recipient, such as slapping or inappropriate sexually-oriented contact. "Confusing" touches are those which may be positively intended but which are perceived by the recipient to be inappropriate or which make the recipient uncomfortable. Students are taught that "confusing" and "bad" touches should be reported to responsible authorities at the school. The record is unclear as to whether the students alleging that Mr. Thomas' touches were "confusing" had taken the course prior to being in Mr. Thomas' classroom.
Some students at the FSDB may have reached majority. Students may remain enrolled at the FSDB beyond the age of students enrolled in other high schools. A teacher is held to the same standards of classroom behavior regardless of the students ages.
Mr. Thomas had been present during an FSDB staff meeting during which reference to appropriate and inappropriate classroom conduct was made by supervisory personnel, and consequences of improper conduct were discussed.
Officials at the FSDB became aware of allegations related to the classroom conduct of Mr. Thomas, when, on May 24, 1988, the allegations were reported to Mr. Robert Dawson, President of the FSDB, by a female student, Marisol Eschevarria-Sola. Ms. Eschevarria-Sola had, on the previous evening, participated in a dormitory gathering with other female students during which Mr. Thomas' conduct was discussed. (Some students are enrolled at the FSDB on a residential basis and live in dorms at the school.)
At the direction of the FSDB President Robert Dawson, the allegations were immediately investigated by Ms. Debra Boles, Assistant Principal for Academic Instruction. Ms. Boles initially interviewed five hearing-impaired female students, including Ms. Eschevarria-Sola and Ms. Warfel, who provided information substantially similar to their testimony at the administrative hearing. The initial interviews were solely between the individual students and Ms. Boles, who is skilled at signed communication. The student interviews indicated that some students were "confused" by Mr. Thomas' conduct.
Ms. Boles immediately reported her findings to Mr. Dawson, who directed that Mr. Thomas be placed on administrative leave with pay pending further inquiry into the allegations. On May 24, 1988, Ms. Boles verbally informed Mr. Thomas and his immediate supervisor that Mr. Thomas was being placed on administrative leave with pay pending further investigation. Ms. Boles explained that there were allegations of inappropriate physical contact made by unidentified female students of Mr. Thomas. Ms. Boles informed Mr. Thomas that such inappropriate contact included touching female students "on the back, on the shirt or on the thighs. "
By letter dated May 24, 1988, Mr. Dawson confirmed that Mr. Thomas was placed on administrative leave with pay, effective May 25 through June 8, 1988, while under investigation for "inappropriate Staff/Student Relationships" constituting violation of referenced sections of the Florida Administrative Code related to the Code of Ethics of the Education Profession in Florida.
At Mr. Dawson's direction, Ms. Boles, on or about May 27, 1988, interviewed 29 students, all of whom are hearing-impaired, who had been students of Mr. Thomas at some time during their enrollment at the FSDB. The interviews were conducted individually. The interviews between Ms. Boles and the individuals were conducted through a registered interpreter. Of the 29 interviewed, 22 of the students expressed no concern related to Mr. Thomas' classroom conduct. Among the students interviewed were Ms. Middlebrooks and Ms. Lents, who provided information substantially similar to their testimony at the administrative hearing.
Ms. Boles provided the information gained through the student interviews to Mr. Dawson. The matter was referred to the FSDB Personnel Director for further action.
Pursuant to the aforementioned letter of delegation, Samuel R. Visconti, Director of Personnel for the FSDB, is responsible for employee disciplinary actions, including employment termination procedures.
At the time Mr. Visconti was informed of the allegations, Mr. Thomas had been placed on administrative leave and the school was investigating the matter. Mr. Visconti was aware of the recommendations made by Dr. Randall, Mr. Dawson and Ms. Boles.
Ms. Boles recommended that Mr. Thomas' employment at the FSDB be terminated for violation of professional standards.
Dr. Randall recommended that Mr. Thomas' employment at the FSDB be terminated due to inappropriate conduct in the classroom. Dr. Randall has substantial experience with the deaf and observed that the physical contact which occurred in Mr. Thomas' classroom was not of the type which one hearing- impaired person would use to gain the attention of another.
Mr. Dawson recommended that Mr. Thomas' employment at the FSDB be terminated. Mr. Dawson, who has extensive experience with the deaf, believed that the physical contact, sexual discussions, and attempted equalization of the teacher-student relationship had rendered Mr. Thomas ineffective as a teacher.
According to Mr. Visconti, the termination procedure at FSDB requires notification to the employee of the intended action which is predicated on the allegations of either incompetence or misconduct. Prior to termination, the employee may or may not be placed on administrative leave during the school's inquiry into the allegations. Following the school's investigation, the employee is contacted and offered the opportunity for a predetermination hearing at which the employee may provide information relevant to the proposed disciplinary action. Within five days following the hearing, the employee is notified in writing, and perhaps verbally, of the school's decision.
Mr. Visconti contacted Mr. Thomas either late in the afternoon of June
6 or early in the morning of June 7, 1988, to arrange a predetermination hearing. The communication between Mr. Visconti and Mr. Thomas was through telephone and TDD, a device that permits the transmission of apparently written communication through telephone lines. Mr. Visconti is not hearing-impaired. The record does not indicate whether Mr. Visconti understands signed communication. By agreement between Mr. Visconti and Mr. Thomas, the conference was scheduled for the afternoon of June 7, 1988.
During the TDD communication, Mr. Visconti explained to Mr. Thomas that the school had completed the investigation of the allegations of improper classroom conduct, and restated the allegations. Mr. Visconti explained that Mr. Thomas was being offered the opportunity to meet with Mr. Visconti and present "his side of the story...." Mr. Thomas was informed that he could provide information orally or in writing, and was further informed that he could "bring anyone with him that he felt would help him in supporting anything that he wanted to present...." Mr. Thomas and Mr. Visconti agreed that Dr. Randall would serve at the meeting as interpreter.
Mr. Visconti received from Ms. Boles, a package of materials, dated June 7, 1988. The package included Ms. Boles' notes taken during or subsequent to her interviews with the students.
Present at the June 7 meeting were Mr. Visconti, Mr. Thomas, Dr. Randall, and Mr. Thomas' wife. Prior to the meeting, Mr. Visconti informed Mr. Thomas that the sexually-related allegations would be specifically addressed and inquired as to whether Mrs. Thomas would be embarrassed. Mr. Thomas indicated that the meeting could proceed. At that time, Mr. Visconti restated the
incidents of inappropriate conduct upon which the school intended to base the disciplinary action and explained the authority under which the FSDB was acting. Mr. Thomas attempted to address the allegations at that time, but offered no witnesses. At the conclusion of the meeting, Mr. Visconti informed Mr. Thomas that a decision would be issued within several days.
On the morning of June 8, 1988, Mr. Thomas contacted Mr. Visconti and requested an additional meeting to offer further explanation. The meeting, held that afternoon, was attended by Mr. Thomas, Mr. Visconti, and Dr. Randall. Mr. Thomas offered a typewritten statement, suggesting a rationale for the accusations made against him, which apparently reiterated information he had provided at the prior conference.
Upon the conclusion of the June 8, 1988 meeting, Mr. Visconti terminated Mr. Thomas' employment, effective immediately. Mr. Thomas was officially dismissed by letter of June 10, 1988 from Mr. Visconti. The June 10 letter states that he was dismissed from employment for "doing the following to female students: rubbing backs, tickling backs under student's blouses, rubbing student's thighs, asking sexually related questions of students, discussing sexually related topics regarding your personal life, and asking for kisses in exchange for items such as pencils or pieces of candy." The letter informed Mr. Thomas of his right to appeal the determination through the administrative process and his union grievance procedure.
Mr. Visconti determined that, based upon the information and recommendations presented to him by Dr. Randall, Mr. Dawson, Ms. Boles and Mr. Thomas, that just cause existed for the termination of Mr. Thomas' employment at the FSDB. Mr. Visconti determined that Mr. Thomas had violated the Code of Ethics as set forth in administrative rules and that the improper classroom conduct had rendered Mr. Thomas ineffective as a teacher and had placed students at risk.
At the administrative hearing, Mr. Thomas sought to explain the physical contact as serving to gain the attention of, or to calm, hearing- impaired students. Mr. Thomas claims that he touched Ms. Middlebrooks' back as a means of addressing the frustration she supposedly felt at the difficult computer work required in the class and stated that he did not know she found it objectionable. Mr. Thomas testified that Ms. Lents instigated the hugging incidents, and that he told her to stop, but she continued. Mr. Thomas claimed that he once touched Ms. Warfel's back under her blouse on a day when Ms. Warfel wore a prohibited bare midriff blouse to class and that his hand accidently touched her bare skin while he was reminding her that such blouses were prohibited. Mr. Thomas denied that he requested a kiss from Ms. Warfel, but suggested that Ms. Warfel kissed him because he was her "favorite teacher". Mr. Thomas denied tickling Ms. Warfel. Mr. Thomas explained that he possibly touched Ms. Eschevarria-Sola's leg as a means of gaining her attention while she sat at the computer console, but claimed he never touched the inside of her thigh. Mr. Thomas denied that Ms. Eschevarria-Sola kissed him or that he kissed her. As to sexually-oriented conversations, Mr. Thomas denied having made such remarks. Mr. Thomas' testimony was less credible than that of the students who testified at the hearing.
At the administrative hearing, Mr. Thomas offered no rationale to suggest the reason behind the student's allegations. The typewritten statement provided to Mr. Visconti on June 8 by Mr. Thomas suggests that the allegations were the work of Senior class students, supposedly disappointed with his decision not to invite them to his home for a social event, as he had apparently
done on an occasional and irregular basis in previous years. However, those students testifying generally had favorable opinions of Mr. Thomas, other than as to his specific conduct to which they objected. There is no evidence to support the inference that the allegations were untruthful and that they were intended as retribution for the omitted social activity.
Evidence was introduced indicating that hearing-impaired persons are more likely to touch each other than are non-hearing-impaired persons. Such touches are to gain another's attention or to express emotion. The evidence does not support the suggestion that Mr. Thomas' classroom conduct was designed to gain the attention of the students or express emotion.
Ms. Boles testified that some of Mr. Thomas' classroom behavior indicated the potential for sexual abuse by Mr. Thomas, however, the testimony to this point was not persuasive. Ms. Boles' opinion was, at least in part, based upon her discussions with an independent psychologist who serves as a consultant to the school on matters related to sexual abuse prevention. According to Ms. Boles, the consultant stated that a "psychosexual evaluation" of Mr. Thomas was necessary to determine the potential for sexual abuse. The school did not follow the consultant's recommendation. Although Mr. Thomas' behavior was inappropriate, the evidence does not suggest that Mr. Thomas sexually abused students and the testimony related to Mr. Thomas' potential for sexual abuse is not credible.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Case No. 88-3425
The issue presented for consideration in Case No. 88-3425 is whether just cause exists for the termination of Mr. Thomas from employment by the Florida School for the Deaf and the Blind. In order to prevail, the FSDB must, by a preponderance of the evidence, establish the facts supporting the dismissal. South Florida Water Management District v. Caluwe, 459 So.2d 390 (Fla. 4th DCA 1984). In this case, the burden has been met. The Board of Trustees of the Florida School for the Deaf and the Blind "is invested with full power and authority to appoint... teachers... and remove the same as in its judgement may be best..." Section 242.331(4), Florida Statutes. By rule, the Board of Trustees has delegated responsibilities related to employment and termination of academic personnel to the President of FSDB. Rule 6D- 4.002(2)(b), Florida Administrative Code. By letter from FSDB President Robert Dawson, dated February 15, 1986, such authority has been delegated to Samuel R. Visconti, Director of Personnel for the FSDB.
The Board of Trustees has entered into a collective bargaining agreement with the Florida School for the Deaf and the Blind Teachers United, an affiliate of the Florida Teaching Profession-NEA and the National Education Association. Article 13, section E, of the 1986-89 agreement between the Board of Trustees and the FSDB Teachers United, FTP-NEA, in relevant part, provides:
No teacher with more than three years continuous fulltime service with the School shall be discharged or non- renewed by the Board... except for just
cause, as well as violations of the Code of Ethics of the Education Profession
or Standards of Competent Professional Performance adopted by the State Board of Education of Florida. As used in this agreement, "just cause" shall mean job related incompetence or misconduct.
Mr. Thomas, having been employed more that three years in continuous full-time service with the FSDB, may not be discharged from employment except for "just cause", which is 18 defined as job related incompetence or misconduct. Mr. Thomas' expectation of continued employment is a property right of which he may not be deprived without the due process guaranteed by the 14th Amendment to the U.S. Constitution. Board of Regents v. Roth, 408 U.S. 564 (1972).
The essential requirements of due process are notice and an opportunity to respond. The predetermination hearing need not definitively resolve the propriety of the discharge, but essentially need be a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the dismissal. Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).
It was suggested that, in terminating Mr. Thomas' employment, the FSDB failed to properly notify Mr. Thomas of the allegations prior to the predetermination meeting and of his rights related to the predetermination procedure. The evidence indicates that the FSDB predetermination procedure, as applied to Mr. Thomas, meets the requirements of Cleveland v. Loudermill. The evidence indicates that Mr. Thomas was clearly and sufficiently informed of the allegations by both Ms. Boles and Mr. Visconti. As of May 24, 1988, the day Mr. Thomas was placed on administrative leave with pay, he was informed of the specific nature of the allegations. Mr. Thomas was provided on June 7 and again on June 8, 1988, with the opportunity to provide information related to the allegations and his proposed dismissal.
It was further suggested that delay in proceeding to administrative hearing operated to deprive Mr. Thomas' due process rights. The time period which elapsed between Mr. Thomas' dismissal and the formal administrative hearing was related to the filing, subsequent to Mr. Thomas' dismissal, of the administrative complaint by the Commissioner of Education, and the desirability of hearing the cases in a consolidated proceeding. At no time, according to the case files, did counsel for Mr. Thomas raise any objection related to the timeliness of the proceeding.
The evidence clearly establishes just cause, in the form of job- related misconduct, for terminating Mr. Thomas' employment at the FSDB. The evidence clearly establishes that Mr. Thomas had inappropriate physical contact and sexually oriented conversations with female students in his classroom. Mr. Thomas' classroom conduct clearly violates professional standards and has rendered him ineffective as a teacher.
Case No. 88-5675
The issue presented in Case No. 88-5675 is whether Mr. Thomas' actions support imposition of a disciplinary penalty, potentially including revocation or suspension of his teaching certification. The burden of proof is on Petitioner Betty Castor, as Commissioner of Education to establish, by clear and convincing evidence, that the allegations of the administrative complaint are
correct. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Other than as to paragraph six of the administrative complaint, the burden has been met.
Testimony establishes that Mr. Thomas' classroom conduct was inappropriate and unprofessional. Although it was suggested that hearing- impaired persons utilize touch as a means of gaining another's attention or expressing emotion, the physical contact between Mr. Thomas and female students exceeded what is appropriate. Further, Mr. Thomas' vulgar and sexually-oriented language in the classroom was embarrassing and offensive.
The Education Practices Commission has the authority to suspend or revoke a teaching certificate, or otherwise penalize the person holding a teaching certificate. Section 231.28(1), Florida Statutes.
In relevant part, section 231.28(1), Florida Statutes, provides that such penalties may be imposed where it can be shown that the teacher:
(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.
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 or the education profession into public disgrace or disrespect and impair the individual's service in the community. Rule 6B-4.009(2), Florida Administrative Code. Gross immorality has been interpreted to mean misconduct which is "serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." Education Practices Commission v. Knox, 3 FALR 1373 (1981).
Mr. Thomas' sexually-oriented language in the classroom violates standards of public conscience, is in flagrant disregard of proper moral standards, and constitutes gross immorality in violation of section 231.28(1)(c), Florida Statutes.
The testimony of witnesses from the school clearly and convincingly establishes that the Mr. Thomas' inappropriate touching and sexually-oriented language have reduced his effectiveness as an employee. His conduct therefore constitutes a violation of section 231.28(1)(f), Florida Statutes.
Rule 6B-1.006, Florida Administrative Code, is entitled "The Principles of Professional conduct for the Education Profession in Florida." In relevant part, the rule states:
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.
(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
(h) Shall not exploit a professional relationship with a student for personal gain or advantage.
Obligation to the public requires that the individual:
(c) Shall not use institutional privileges for personal gain or advantage.
Mr. Thomas' actions encouraged, rather than discouraged, conditions harmful to learning and therefore violated Rule 6B-1.006(3)(a), Florida Administrative Code. Mr. Thomas embarrassed some of his students by the sexual content and vulgarity of the discussion in his classroom and therefore violated Rule 6B-1.006(3)(e), Florida Administrative Code. In requiring that kisses be given or received in exchange for candy or pencils, Mr. Thomas exploited institutional privileges and his relationship with students for personal gain or advantage in violation of Rule 6B-1.006(3)(h) and (4)(c), Florida Administrative Code. The foregoing constitute violations of the rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate. Section 231.28(1)(h), Florida Statutes.
Paragraph six of the administrative complaint filed by Ms. Castor, as Commissioner of Education, alleged improper conduct towards a student, Carrie Carter. The evidence did not support the allegation.
Based on the foregoing, it is hereby RECOMMENDED that the Board of Trustees for the Florida school for the Deaf and the Blind enter a Final Order finding that just cause exists for terminating the employment of Bradley Thomas.
It is further RECOMMENDED that the Education Practices commission enter a Final Order permanently revoking teaching certificate, #486268, held by Bradley Thomas.
DONE and RECOMMENDED this 19th day of September, 1989, in Tallahassee, Florida.
WILLIAM F. QUATTLEBAUM
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1989.
APPENDIX
CASE NOS. 88-3425 and 88-5675
Proposed findings of fact were filed by the Florida School for the Deaf and the Blind, Respondent, Case No. 88-3425 and Betty Castor, as Commissioner of Education, Petitioner, Case No. 88-5675. The following constitute rulings on proposed findings of facts submitted by the parties. The proposed findings of fact are adopted as modified in the Recommended Order except as follows:
Florida School for the Deaf and the Blind, Respondent, Case No. 88-3425
4. Reference to contact with the Department of Health and Rehabilitative Services rejected, immaterial.
6. Reference to the Department of Health and Rehabilitative services rejected, immaterial. Reference to conversations with "Dr. DiAmatto" rejected as non-corroborated hearsay.
15. Rejected, irrelevant. Last sentence rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom.
20. Reference to witness' testimony related to sexual content of discussion is rejected, not supported by the evidence. The testimony indicates that the witness was told by others that the discussion related to sex.
26. Rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom.
Rejected, not supported by the weight of the evidence. The testimony cited does support the proposed finding.
Reference to the Department of Health and Rehabilitative Services rejected, immaterial.
Betty Castor, as commissioner of Education, Petitioner, Case No. 88-5675
7. Reference to contact with the Department of Health and Rehabilitative Services rejected, immaterial.
9. Reference to the Department of Health and Rehabilitative Services rejected as immaterial. Reference to conversations with "Dr. DiAmatto" rejected as non-corroborated hearsay.
15. Reference to witness' testimony related to sexual content of discussion is rejected, not supported by the evidence. The testimony indicates that the witness was told by others that the discussion related to sex.
Rejected, not supported by the weight of the evidence. The testimony cited does not clearly indicate that the statement was made in the classroom.
Rejected, unnecessary.
29. Characterization of testimony as evasive and inconsistent is rejected, unnecessary.
COPIES FURNISHED:
William J. Sheppard, Esq.
215 Washington Street Jacksonville, FL 32202
Barbara J. Staros, Esq. State Board of Education Knott Building Tallahassee, FL 32399
Betty J. Steffens, Esq.
106 South Monroe Street Post Office Box 11008 Tallahassee, FL 32302
Karen B. Wilde, Executive Director Education Practices Commission
125 Knott Building Tallahassee, FL 32399
Martin B. Schapp, Administrator Professional Practices Services
319 West Madison Street, Room 3 Tallahassee, FL 32399
Robert Dawson, President Florida School for the
Deaf and the Blind
207 San Marco Avenue St. Augustine, FL 32084
| Issue Date | Proceedings |
|---|---|
| Sep. 19, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 08, 1989 | Agency Final Order | |
| Sep. 19, 1989 | Recommended Order | Teacher's inappropriate behavior and discussions with female students is cause for termination and license revocation |
TOM GALLAGHER, AS COMMISSIONER OF EDUCATION vs MARY GREEN, 88-003425 (1988)
PROFESSIONAL PRACTICES COUNCIL vs. JOHN EUGENE ARMSTRONG, 88-003425 (1988)
CHARLIE CRIST, AS COMMISSIONER OF EDUCATION vs ELIZABETH H. WEISMAN, 88-003425 (1988)
DEPARTMENT OF EDUCATION, EDUCATION PRACTICES COMMISSION vs. JOHN EVANS, 88-003425 (1988)
JOHN WINN, AS COMMISSIONER OF EDUCATION vs MARC BURT WILSON, 88-003425 (1988)
