STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, )

)

Petitioner, )

)

v. ) CASE NO. 88-4782

)

THOMAS BAILEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by it duly designated Hearing Officer, William R. Cave, held a formal hearing on January 11, 1989, in Cross City, Florida. The issue for determination is whether Respondent's teaching certificate should be revoked, suspended or otherwise disciplined based on facts and circumstances of this case.

APPEARANCES

For Petitioner: Betty J. Steffens, Esquire

Nabors, Giblin, Steffens & Nickerson, P.A.

106 South Monroe Street Post Office Box 11008 Tallahassee, Florida 32302

For Respondent: Thomas Bailey, Pro Se

Post Office Box 1483 Cross City, Florida 32628

BACKGROUND

By an Administrative Complaint dated August 17, 1988 and filed with the Division of Administrative Hearings on September 29, 1988, Petitioner seeks to revoke, suspend or otherwise discipline the teaching certificate of Respondent. As grounds therefor, it is alleged that Respondent, during the 1985-1986 school year, became romantically and sexually involved with a female student and as a result of such allegations of misconduct has violated Section 231.28(1)(c), (f) and (h), Florida Statutes, and Rule 6B-1.006(3)(a), (e) and (h) and Rule 6B- 1.006(4)(c), Florida Administrative Code.

In support of its charges, Petitioner presented the testimony of Kenneth Barnes, Mary Cynthia Wells, Cherie Norton, Trina Lynn Fletcher and Allen Hardin. Petitioner's exhibit 1 was received into evidence.

Respondent testified in his own behalf but did not present any documentary evidence.

Petitioner has submitted posthearing Proposed Findings of Fact and Conclusions of Law. Although the Respondent did not waive the filing of

proposed Findings of Fact and Conclusions of Law, he has failed to timely file any such pleadings. A ruling on each of the Petitioner's proposed findings of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times material to this proceeding, Respondent held a Florida Teaching Certificate number 541001, covering the areas of Physical Education and Driver's Education.

   
   

2. Respondent was employed by the Dixie County School District at Dixie County High School in Cross City, Florida, from the spring of 1983 through late November, 1985.

   
   

3. During the period of time Respondent was employed by the Dixie County School Board (Board), he was married to Tina Bailey, with whom he had two children. He was divorced from Tina Bailey in July, 1986.

   
   

4. Respondent was employed in the positions of athletic director, head football coach, and also had some duties teaching physical education.

   
   

5. During the fall semester of 1985, respondent spent his mornings at Anderson Elementary School and was on the high school campus at Dixie County High School from 11:15 a.m. through the remainder of the day.

   
   

6. During the Respondent's fifth hour he taught physical education, and during his sixth period he was involved in being the varsity coach for boys' football.

   
   

7. Dixie County High School, which is located in Cross City, is the only public high school in the County. The population of Cross City is 3,000.

   
   

8. The position of head football coach at Dixie County High School is a "spotlight figure," a visible position with a great deal of influence or contact with young people.

   
   

9. A valid teaching certificate is necessary to hold the position of football coach at a public high school.

   
   

10. During the late summer of 1985, Respondent attempted to use his influence as head football coach to intercede and possibly prevent an impasse in the contract negotiation between the teachers and the Board. Respondent's action resulted in members of the football team, and possibly some of their parents, putting pressure on the Superintendent of Schools to call a Board meeting.

    
    

11. The student aides assigned to the Physical Education Department for fifth period of the 1985-1986 school year were Mary Cravey and Trina Fletcher.

    
    

12. Trina was a senior during the 1985-1986 school year and head cheerleader. She had been a cheerleader since the seventh grade.

13. Due to Trina's head cheerleading responsibilities and being a teacher's aide in the same period Respondent taught physical education, she had more contact than usual with the head football coach in her senior year.

    
    

14. During the fall semester of 1985, toward the end of October, School Principal Kenneth Baumer was advised by Cynthia Wells, an English teacher, that Trina was romantically involved with Respondent.

    
    

15. Upon Baumer questioning the Respondent and Trina, both denied any improper conduct and there was insufficient evidence to show any improper conduct prior to this date. However, in effort to quiet any rumors, Baumer transferred Trina across campus under the supervisor of her aunt, Cherie Norton.

    
    

16. Sometime after Trina was placed under the supervision of her aunt, Trina became attracted to Respondent, and Respondent later became attracted to Trina, and they began to discuss their personal problems with each other. Later on, subsequent to the discussion with Baumer but before Respondent resigned his position, their relationship became more personal and progressed to the point of physical contact such as hugging and kissing on possibly one or two occasions off campus and out of Dixie County.

    
    

17. After Respondent resigned in late November, 1985, his relationship with Trina continued, but it was not until after her eighteenth birthday that the relationship progressed to the point of being physical and sexual. Also, they dated more openly after Trina's eighteenth birthday.

    
    

18. It was not until Respondent resigned that Trina's parents became fully aware of the relationship. Trina's parents were bitterly opposed to Trina dating or seeing Respondent and, as a result, on her 18th birthday, January 23, 1986, Trina moved in with her Aunt, Cherie Norton.

    
    

19. After moving out of her parents' home, Trina received very little financial support from her parents. The relationship between Trina and her parents was very poor during the spring of 1986.

    
    

20. Trina did not go to the senior prom, although she did go for pictures, nor did she go on the senior trip. Trina decided against going to these events because she was dating Respondent. There was no evidence that Respondent encouraged Trina not to attend these events.

    
    

21. Trina was a straight "A" student which did not change as a result of her relationship with Respondent. Trina had a standing academic scholarship to attend Lake City Junior College. Trina did not attend college, although she was encouraged by Respondent to attend college, and, in fact, offered financial assistance through his uncle.

    
    

22. In a small community such as Cross City, rumors, whether true or untrue, affect an individual's reputation and could damage the effectiveness of teachers in a classroom. However, there was insufficient evidence to show that Respondent's effectiveness as a classroom teacher was adversely affected by any rumors before or after he had resigned.

    
    

23. Respondent was aware after the discussion with Baumer that getting involved with a female student, particularly while employed by the Board, was inappropriate.

24. There was insufficient evidence that Trina suffered any damaging consequences as a result of her relationship with Respondent, particularly prior to his resignation.

    
    

25. Trina was a "loner"; her friends were limited and she did not mix well with her peers. This was true before and after she became involved with Respondent, and there is insufficient evidence to show that Trina was treated any differently by her peers or the public at large in Dixie County after she became involved with Respondent, particularly before his resignation.

    
    

26. Although, as a rule, high school students may be sensitive to what is said about them by their classmates, there was insufficient evidence to show that any derogatory remarks were made to or about Trina, directly or "behind her back," concerning her relationship with Respondent that resulted in Trina being embarrassed or hurt, being isolated from, or treated differently by her peers or suffering any damaging consequences.

    
    

27. There was insufficient evidence to show that Respondent's relationship adversely affected or seriously reduced his effectiveness as a teacher and an employee of the Board, notwithstanding the testimony of Principal Baumer and Superintendent Hardin in this regard, particularly their concern about the political implication of any Board member's thinking or theories in recommending Respondent for re-employment as a teacher in Dixie County, Florida.

    
    

28. It is clear that there was a strong mutual affection between Respondent and Trina, in spite of the age difference, that lasted for a period approximately 1 1/2 years, long after Respondent had resigned and Trina had graduated.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

30. Section 231.28(1), Florida Statutes, empowers the Education Practice Commission (Commisson) to revoke, suspend or otherwise discipline the teaching certificate of any teacher in the state of Florida found guilty of any one of the enumerated acts in Section 231.28(1)(a)-(u), Florida Statutes.

    
    

31. The alleged misconduct purportedly violates Section 231.28(1)(c), (f) and (h), Florida Statutes, which provides as follows:

    
    

    (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.

    Additionally, the alleged misconduct purportedly violates the principles set forth in Rule 6B-1.006(3)(a), (e) and (h) and Rule 6B-1.006(4)(c), Florida Administrative Code, which provides as follows:

    
    

    1. Obligation to the student requires that the individual:

       1. 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.

          * * *

    2. Obligation to the public requires that the individual:

    * * *

    (c) Shall not use institutional privileges for personal gain or advantage.

    
    

    Rule 6B-1.006(2) provides for the revocation or supervision of a teaching certificate or other penalties provided by law upon a showing of the violation of the above principles.

    
    

32. In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

    v. Department of Health and Rehabilitative Services, 418 So.2d 349 (1 DCA Fla. 1977).

    
    

33. Clearly, had the misconduct occurred after the Respondent resigned, there would have been no violation. Therefore, it is the misconduct that occurred between late October and late November of 1985, its effect on Respondent in the community and as a teacher, and its effect on Trina Fletcher that subjects the Respondent to possible discipline under the statutes and rules.

    
    

34. The Petitioner has met its burden to show that Respondent's conduct with Trina Fletcher during late October and November, 1985 was a violation of Section 291.28(1)(c), Florida Statutes, in that such conduct falls within the definition of "immorality" as that term is defined in Rule 6B-4.009(2), Florida Administrative Code. However, Petitioner has failed to meet its burden to show that such conduct violates Section 231.28(1)(f) and (h), Florida Statutes, or Rule 6B-1.006(3)(a), (e) and (h) and Rule 6B-1.006(4)(c), Florida Administrative Code. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, evidence of record and the candor and demeanor of the witnesses, it is

RECOMMENDED that the Education Practice Commission enter a Final Order finding Respondent in violation of Section 231.28(1)(c), Florida Statutes, for conduct constituting "gross immorality" and suspending Respondent's teaching

certificate for a period of (1) year, subject to reinstatement in accordance with Section 231.28(4)(6), Florida Statutes. It is further Recommended that Petitioner's Final Order dismiss all other charges relating to a violation of Section 231.28(1)(f) and (h), Florida Statutes, and Rule 6D-1.006(3)(e) and (h) and Rule 6B-1.006(4)(c), Florida Administrative Code.

RESPECTFULLY SUBMITTED AND ENTERED this 14th day of March, 1989 in Tallahassee, Florida.

WILLIAM R. CAVE

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 14th day of March, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4782

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 in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.-13. Adopted in Findings of Fact 1-12, respectfully.

1. The first sentence is immaterial. The second sentence is adopted in

   Finding of Fact 14.

2. The first sentence is immaterial. The second sentence is adopted in Finding of Fact 15.

16.-17. Adopted Findings of Fact 15 and 16, respectively.

18.-23. Adopted in Findings of Fact 16, 16, 17, 18, 19 and 17, respectively.

24.-26. Adopted in Findings of Fact 20, 20 and 22, respectively.

1. Adopted in Findings of Fact 14, 15 and 16.

2. Adopted in Findings of Fact 15 and 16.

3. Adopted in Findings of Fact 14 and 16.

4. Rejected as being argument rather than a finding of fact.

5. Rejected as being argument rather than a finding of fact.

6. Rejected as not supported by substantial competent evidence in the record.

7. Rejected as not supported by substantial competent evidence in the record.

8. Adopted in Finding of Fact 26.

9. Rejected as not supported by substantial competent evidence in the record.

10. Adopted in Finding of Fact 16.

11. Adopted in Finding of Fact 22.

12. Rejected as not supported by substantial competent evidence in the record.

COPIES FURNISHED:

Betty J. Steffens, Esquire

Nabors, Giblin, Steffens & Nickerson, P.A.

106 South Monroe Street Post Office Box 11008 Tallahassee, Florida 32302

Thomas Bailey, Pro Se Post Office Box 1482 Cross City, Florida 32628

Martin B. Schapp, Administrator Professional Practices Services

319 West Madison Street, Room 3 Tallahassee, Florida 32399

Karen B. Wilde, Executive Director Education Practices Commission

418 Knott Building Tallahassee, Florida 32399

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

AGENCY FINAL ORDER

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

Before the Education Practices Commission of the State of Florida

BETTY CASTOR, as

Commissioner of Education,

Petitioner,

vs.

THOMAS BAILEY,

Respondent. EPC CASE NO. 88-155-RT DOAH CASE NO. 88-4782

/

FINAL ORDER

Respondent, THOMAS BAILEY, holds Florida educator's certificate no. 541001.

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 a hearing officer of the Division of Administrative Hearings. A Recommended Order was

forwarded to the Commission pursuant to Section 120.57(1), F.S., which is attached to and made a part of this Order.

A teacher's panel of the Education Practices Commission met on August 24, 1989 in Tampa, Florida to take final agency action. Petitioner was represented by Betty J. Steffens, Esquire. Respondent was present and appeared in his own behalf. The panel reviewed the entire record in the case.

The panel adopts the hearing officer's Findings of Fact, as set forth in his Recommended Order. The panel rejects the hearing officer's conclusion of law set forth in paragraph 6 that respondent can only be held accountable for conduct occurring prior to his resignation from his teaching post. Resignation from position does not absolve the holder of a teaching certificate from the duties, responsibilities and moral integrity which are part and parcel of a teaching professional. Respondent entered into a personal physical relationship with a student at his school which developed into a sexual relationship after his resignation from that teaching position. Respondent, having been in a position of respect and authority in relation to a female student, cannot terminate the trust that relationship demands through resignation. Although the Commission does not find that a student-teacher relationship never terminates sufficiently to permit a relationship between adults, the facts of the instant case affirmative support an ongoing student teacher relationship which made Respondent's conduct totally unacceptable from the initiation of the relationship through its continuation after his resignation. See transcript of hearing pages 39, 51 and 58.

Based upon the foregoing, the Commission rejects the hearing officer's recommendation of penalty. Accordingly, it is ORDERED AND ADJUDGED that Respondent's teaching certificate is REVOKED for five years. Upon Respondent's recertification and reemployment in a position requiring a teacher's certificate, he shall be placed on probation for five years during which time he shall cause his immediate supervisor to file quarterly performance reports with the Education Practices Commission. 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 22nd day of September, 1989.

COPIES FURNISHED TO:

Martin Schaap, Administrator Professional Practices JUDITH RATZLAFF, Presiding Officer Services

Julia Forrester, Esquire I HEREBY CERTIFY that a copy of the Attorney General's Office foregoing Order in the matter of

BC vs. Thomas Bailey was mailed to Sydney McKenzie, III Thomas Bailey, General Delivery General Counsel Kekaha, Hawaii 96752, this 26th

day of September 1989 by U.S. Mail.

Florida Admin. Law Reports

H. Allen Harden, Superintendent Dixie County Schools

P. O. Box G Cross City, Florida 32628 KAREN B. WILDE, Clerk

William R. Cave Hearing Officer The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Docket for Case No: 88-004782

Orders for Case No: 88-004782