STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4041

)

SAMUEL MARK STEADMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 16, 1989, a formal administrative hearing was conducted in this case at the Pinellas County Courthouse in Clearwater, Florida, before J. Lawrence Johnston, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Debra L. Romanello, Esq.

Brian M. Ross, Esq.

Moffitt, Hart & Herron, P.A. Post Office Box 327-5

Tampa, Florida 33602-3273

For Respondent: Robert F. McKee, Esq.

Kelly & McKee, P.A. Post Office Box 75638

Tampa, Florida 33675-0638 STATEMENT OF THE ISSUES

The issue in this case is whether the Education Practices Commission should take disciplinary action against the Respondent's teaching certificate for the reasons set forth in this Amended Administrative Complaint which was filed by stipulation of the parties on March 16, 1989.

In the Amended Administrative Complaint, the Petitioner alleges that the Respondent, while a teacher at Largo High School in the Pinellas County, Florida, School District, made a suggestive comment to a female student about the manner of her dress; that the Respondent inappropriately touched the leg of a female student at Largo High School; that the Respondent made a suggestive comment to a female student concerning her posture; and that the Respondent kissed and fondled a female student at Largo High School in December, 1987 and in March, 1988.

The Respondent disputed some, but not all, of the allegations of the Administrative Complaint and requested a formal administrative hearing.

FINDINGS OF FACT

1. The Respondent holds Florida Teacher's Certificate No. 607875 with a validity period from July 1, 1986 through June 30, 1991.

   
   

2. The Respondent was employed by the Pinellas County School Board at Largo High School from the beginning of the 1987- 88 school year through March 23, 1988.

   
   

3. In September, 1987, the Respondent commented that Erin Hawkins, a female student at Largo High School, should wear shorter skirts and touched her on the leg. The Respondent admitted to making a comment about the length of Miss Hawkins' skirt and to pinching her on her leg.

   
   

4. As a result of this incident, the Respondent was counselled at length by Judith Westfall, principal at Largo High School, and Patricia Palmateer, Assistant Principal at Largo High School, regarding the need to refrain from making inappropriate comments to students. Ms. Westfall and Ms. Palmateer cautioned the Respondent to keep discussions with students on a professional level; to maintain professionalism whenever the Respondent touched a student; and to refrain from being alone with a student in the classroom. Conference summaries and the Respondent's written statement concerning the incident were placed in Respondent's personnel file. Although no additional disciplinary action was taken at that time, the Respondent's pinching a student on her leg, even for the alleged purpose of having the student move away from Respondent's desk, was not an appropriate method of working with female or male students.1/

   
   

5. In February, 1988, as Tara Ward, a female student at Largo High School, was leaning over a table, the Respondent stated "nice view, Miss Ward." At a subsequent conference between the Respondent, Ms. Westfall, and Ms. Palmateer, the Respondent admitted mailing the comment for the alleged purpose of correcting Miss Ward's posture.2/

   
   

6. The Respondent's comment was inappropriate even accepting his asserted motive. As a result, Ms. Westfall and Ms. Palmateer again cautioned the Respondent about the need to maintain professionalism in comments made to students and about the need to avoid being in a classroom alone with a student.

   
   

7. In March, 1988, Cindy Shinall was a senior at Largo High School In the program for Educable Mentally Handicapped (EMH) students. The EMH program is for students whose I.Q.'s range between 50 and 72. In Miss Shinall's case, her grade level in March, 1988, would have been somewhere between third and fifth grade abilities. Miss Shinall was motivated to improve, eager to assist teachers, well-mannered, and considerate of others. The school had no disciplinary problems with Miss Shinall. Miss Shinall was an honest person who would frequently speak up when she was aware that other students were breaking school rules.

   
   

8. On March 9, 1988, Miss Shinall was a student assistant for Carolyn Underwood during sixth period. As a student assistant, Miss Shinall would run errands for Ms. Underwood, including going to the school office. During the course of running errands for Ms. Underwood, Miss Shinall was permitted to ask other teachers if they had errands for her to do. In fact, Ms. Underwood encouraged Miss Shinall to take the initiative in seeking work from other teachers.

9. On March 9, 1988, Ms. Underwood sent Cindy Shinall on an errand in the vicinity of the school office. Miss Shinall encountered the Respondent in the hallway coming from the office outside the double doors leading into the "pod" where the Respondent's classroom was located. She followed the Respondent into the pod and asked him if there was anything she could do for him. The Respondent replied "yes" and escorted Miss Shinall into his classroom. The Respondent did not have class during sixth period, and so he and Miss Shinall were alone in the classroom. Respondent asked Miss Shinall to "give me a hug," and she did. Respondent then kissed Miss Shinall. In his own words, he then "lost control" and began to kiss her and "felt her up." He kissed her on her neck, touched her buttocks, put his hand under her shirt and her bra on her left breast, and sucked her left breast. In an effort to escape from the Respondent, Miss Shinall told him she had errands to complete for Ms. Underwood. At this point, the Respondent grabbed Cindy Shinall's hair behind her head and pulled her head back, asking her to promise to return.

   
   

10. Miss Shinall went directly from the Respondent's classroom to a girl's restroom, where she was found, crying, by a Ada Bell, a fellow student. She told Miss Bell that the Respondent had touched her. At the time she spoke with Miss Bell, Miss Shinall was crying very hard, almost to the point that Miss Bell was unable to understand what she was saying. Miss Bell understood clearly, however, that the Respondent had done something to Miss Shinall that she did not want him to do.

    
    

11. Immediately thereafter, while still in the girls' restroom, and while still visibly upset and crying, Miss Shinall related the incident to her friend Aimee Hall. Miss Hall then took Miss Shinall to their teacher, Carolyn Underwood. At that time, Miss Shinall was still upset and pulling her hair and twitching from side to side. She was upset to the point of being almost incoherent. She told Ms. Underwood that the Respondent had kissed her, touched her breasts, and pulled her hair back. She then recounted the events again to Ms. Underwood and to another teacher, Ms. Silva.

    
    

12. Ms. Underwood immediately took Miss Shinall to the administrative offices and contacted Ms. Westfall and Ms. Palmateer. Ms. Palmateer was in the school cafeteria when notified by Ms. Underwood. She went directly to her office where she spoke with Miss Shinall. Miss Shinall told Ms. Palmateer that the Respondent had kissed her, felt her breast underneath her clothes, and touched her buttocks. Miss Shinall told Ms. Westfall that Respondent had kissed her, touched her breast underneath her bra, touched her buttocks, and pulled her hair, asking her to promise to come back. She related the incident to Ms. Westfall within one hour of the incident. At the time she related the events to Ms. Westfall, Miss Shinall was still visibly upset and embarrassed to talk about the incident.

    
    

13. As a result of the incident of March 9, 1988, the Respondent tendered his resignation to the Pinellas County School Board, and the resignation was accepted. The Respondent later tried unsuccessfully to rescind the resignation.

    
    

14. As a result of the incident of March 9, 1988, Cindy Shinall was the subject of rumor, gossip, and disparaging remarks among the students at Largo High School. She suffered embarrassment and disparagement.

    
    

15. The Respondent's conduct on three separate occasions--to wit: in September, 1987, when he made an inappropriate comment about a female student's dress and pinched her leg; in February, 1988, when he made an inappropriate comment about a female student's posture; and in March, 1988, when he kissed and

    fondled a female student--seriously reduces the Respondent's effectiveness as an employee of the school district. The Respondent is unable to deal with his students in a professional manner, and the school district's ability to trust the Respondent with female students has been substantially diminished. Female students in the Respondent's classes and under his control would be "at risk."

    
    

16. The Respondent's conduct on those three separate occasions also constitutes a failure to make reasonable efforts to protect students from conditions that were harmful to their learning, health, or safety. Indeed, the Respondent actively created situations which jeopardized the learning, health, and safety of his students.

    
    

17. The Respondent's conduct on those three separate occasions also constitutes conduct which intentionally exposed the Respondent's students to unnecessary embarrassment or disparagement.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Petitioner's allegations must be proven by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)

    
    

19. Section 231.28(1), Florida Statutes (1987), authorizes the Education Practices Commission to suspend or revoke the teaching certificate of an individual or to impose any other penalty provided by law if it is shown, inter alia, that the individual has violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

    
    

20. Rule 6B-1.006(2), Florida Administrative Code, provides that violation of the principles of Professional Conduct for the Education Profession of Florida will subject an individual's teacher's certificate to revocation, suspension, or other penalties as provided by law. Rule 6B-1.006(3)(a), Florida Administrative Code, provides that an educator "[s]hall make reasonable effort to protect the student from conditions harmful to learning or to health or safety." Rule 6B-1.006(3)(e), Florida Administrative Code, provides that an educator "[s]hall not intentionally expose a student to unnecessary embarrassment or disparagement."

    
    

21. The Petitioner has presented clear and convincing evidence that in September, 1987, the Respondent commented to Erin Hawkins, a female student, that she should wear shorter skirts and pinched Miss Hawkins' leg. Respondent thereby violated Rules 6B-1.006(3) (a) and (e) , Florida Administrative Code, in that he failed to make a reasonable effort to protect the student from a condition harmful to her learning, health, or safety and intentionally exposed the student to embarrassment or disparagement.

    
    

22. The Petitioner has presented clear and convincing evidence that in February, 1988, the Respondent made a suggestive remark to Tara Ward, a female student, regarding her posture. Respondent thereby violated Rules 6B1.006(3)(a) and (e), Florida Administrative Code, in that he failed to make a reasonable effort to protect the student from a condition harmful to her learning, health, or safety and intentionally exposed the student to embarrassment or disparagement.

    
    

23. Rule 6B-1.006(3)(h), Florida Administrative Code, provides that an educator "[s]hall not exploit a professional relationship with a student for

    personal gain or advantage." The evidence was insufficient to prove that the Respondent violated this rule.

    
    

24. The Petitioner has presented clear and convincing evidence that on March 9, 1988, while alone in his classroom with Cindy Shinall, a female student. Respondent touched Miss Shinall in completely inappropriate ways, including kissing her on her neck, touching and sucking her breast underneath her bra, touching her buttocks, and pulling her hair.

    
    

25. Section 231.28(1) (c) , Florida Statutes (1987), provides that the Education Practices Commission may suspend, revoke, or otherwise discipline and individuals teaching certificate if the individual is guilty of "gross immorality or an act involving moral turpitude."

    
    

    Gross immorality is not defined by the statute or rules, but 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.

    
    

    Rule 6B-4.009(2), Florida Administrative Code.

    
    

    Similarly, an act of moral turpitude is not defined but a crime of moral turpitude is defined 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 of statute fixes the moral turpitude.

    
    

    Rule 6B-4.009(6), Florida Administrative Code.

    
    

    In determining whether the Respondent was guilty of "gross immorality" or "an act involving moral turpitude," it should be noted that educators are held to more rigorous moral standards than other professionals because of their role in educating children. Adams v. State Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981). In Tomerlin v. Dade County School Board, 318 So.2d

    159 (Fla. 1st DCA 1975), the court stated:

    
    

    A school teacher holds a position of great trust. We entrust the custody of our children to the teacher. We look to the teacher to educate and to prepare our [sic) children for their adult lives. To fulfill this trust, the teacher must be of good moral character, to require less would jeopardize the future lives of our children.

    Id. at 160.

    
    

    The evidence is clear and convincing that the Respondent has been guilty of gross immorality and acts of moral turpitude through his actions with Cindy Shinall on March 9, 1988. These acts are morally reprehensible and evidence a flagrant disregard for the standards of public conscience and good morals.

    These acts are undoubtedly sufficient to bring the Respondent, as well as the teaching profession into public disgrace or disrespect.

    
    

26. Section 231.28(1)(f), Florida Statutes (1987), provides the authority for the Education Practices Commission to suspend or revoke or otherwise discipline the teaching certificate of an individual if the individual is guilty of conduct which seriously reduces his effectiveness as an employee of the school board. The Petitioner has presented clear and convincing evidence that the Respondent's history of conduct with female students, as well as the separate incident with Cindy Shinall, seriously reduced his effectiveness as an employee of the school board. The Respondent's conduct substantially diminished the school district's trust in the Respondent's ability to conduct himself in a professional manner with female students under his supervision and control. Because of the Respondent's conduct, female students under the Respondent's supervision and control would be "at risk."

    
    

27. As previously stated, Section 231.28(1) (h) Florida Statutes (1987), provides the authority for the Education Practices Commission to suspend, revoke, or otherwise discipline the teaching certificate of an individual if the individual has violated a rule 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, the penalty for which is the revocation of the teaching certificate, include:

    
    

    1. Rule 6B-1.006(3)(a), Florida Administrative Code-- the individual "[s]hall make reasonable effort to protect the student from conditions harmful to learning or to health or safety."

       The evidence is clear and convincing that the Respondent failed to protect Cindy Shinall from conditions harmful to her learning, health, or safety; in fact, by his actions on March 9, 1989, the Respondent intentionally exposed Cindy Shinall to harmful conditions.

    2. Rule 6B-1.006(3)(e), Florida Administrative Code-- the individual "[s]hall not intentionally expose a student to unnecessary embarrassment to disparagement." The evidence is clear and convincing that by his actions on March 9, 1988, the Respondent intentionally exposed Cindy Shinall to unnecessary embarrassment and disparagement.

d. Rule 6B-1.006(3)(h), Florida Administrative Code-- the individual "[s]hall not exploit a professional relationship with a student for personal gain or advantage." The evidence is clear and convincing that by his actions on March 9, 1988,

the Respondent exploited a professional relationship with Cindy Shinall for the Respondent's own personal gain or advantage.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent's Florida teaching certificate be revoked.

DONE and ENTERED this 16th day of June, 1989 in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 16th day of June, 1989.

ENDNOTES

1/ The Respondent's explanation for his comments and conduct with Miss Hawkins is rejected as not being persuasive in light of all the evidence. However, no competent, substantial evidence was presented from which the Respondent's true motives for his comments and conduct can be inferred.

2/ Again, although the Respondent's explanation is rejected as not persuasive, his true motive for the comment cannot be inferred from the evidence of record. See footnote 1, above.

APPENDIX TO RECOMMENDED ORDER CASE NO. 88-4041

To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the parties' proposed findings of fact:

1. Petitioner's proposed Findings of Fact 1-2. Accepted and incorporated.

   1. Subordinate and unnecessary.

   2. Accepted; subordinate to facts found.

   3. Accepted. Largely incorporated; in part subordinate to facts found.

   6-7. Accepted. First sentence, subordinate to facts found; second sentence, incorporated.

   8. Accepted and incorporated to the extent not subordinate to facts found.

   9-12. Accepted and incorporated.

   13. Accepted but subordinate and unnecessary. 14-15. Accepted and incorporated.

   16. Accepted but subordinate to facts found. 17-21. Accepted and incorporated.

2. Respondent's Proposed Findings of Fact

1-2. Accepted and incorporated.

1. Accepted and incorporated to the extent necessary and not subordinate.

2. The Respondent's explanation for his comments and conduct with Miss Hawkins are rejected as not persuasive. The action taken (or not taken) as a result of his explanation is irrelevant and unnecessary.

1. Accepted. Subordinate to facts found.

2. See 4., above.

8-10. The Respondent's explanation of what happened is rejected as contrary to facts found and contrary to the greater weight of the evidence. 11-15. Accepted. Subordinate to facts found. (Miss Shinall was so

upset about what the Respondent did to her, she was nearly incoherent. It is not unreasonable to think that she may not have told, to each person she talked to, each detail of what the Respondent did, or that each of those people would later remember exactly what was said.) (What she said to Aimee Hall was just that the Respondent had never before behaved in the same fashion towards her, which undoubtedly is true.)

1. Regarding the alleged December, 1987, incident, the proposed ultimate findings are accepted and, by the absence of any findings on the alleged incident, incorporated. There was no competent substantial evidence to support a finding on the alleged December, 1987, incident. As to the March 9, l989, incident, see 8-15., above. Miss Shinall's confusion regarding the unlocking and locking of the door was minor. It did not detract from the basic truth of what she said happened and did not "bootstrap" the Respondent's rejected version of what happened. Miss Shinall was upset by the Respondent's uncontrolled and aggressive sexual advances, his intimidating size and strength and stature as a teacher, and his utter destruction of her naive trust that a teacher would not conduct himself in such a manner towards her. She did not get as upset as she was just because the Respondent allegedly threatened to report her for diverting from her errand and being "off task."

2. In part, accepted and subordinate to facts found. (The Respondent made telling admissions to Mr. Mahoney.) In part (the Respondent's explanation that Mr. Mahoney was not listening carefully or was confused or misunderstood) , rejected as contrary to facts found.

COPIES FURNISHED:

Debra L. Romanello, Esquire Brian M. Ross, Esquire Moffitt, Hart & Herron, P.A. Post Office Box 3273

Tampa, Florida 33602-3273

Robert F. McKee, Esquire Kelley & McKee, P.A. Post Office Box 75638

Tampa, Florida 33675-0638

Karen Barr Wilde Executive Director

418 Knott Building Tallahassee, Florida 32399

Martin B. Schapp, Administrator Professional Practices Services

319 West Madison Street, Room 3 Tallahassee, Florida 32399

Docket for Case No: 88-004041

Orders for Case No: 88-004041