STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
VIRGIL L. MORGAN, as )
Superintendent of Schools of ) Broward County, )
)
Petitioner, )
)
vs. ) CASE NO. 88-6295
)
JOHN MICHAEL O'SHIELDS, )
)
Respondent. )
)
)
BETTY CASTOR, as Commissioner ) of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 89-2554
)
JOHN MICHAEL O'SHIELDS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in these consolidated cases on July 25-26, 1989, in Pompano Beach, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Charles Whitelock, Esquire Morgan 1311 South East 2nd Avenue
Fort Lauderdale, Florida 33316
For Petitioner: Craig Wilson, Esquire
Castor 1201 U.S. Highway One, Suite 315 North Palm Beach, Florida 33408
For Respondent: Sally Gertz, Esquire O'Shields 208 West Pensacola Street
Tallahassee, Florida 32301 STATEMENT OF THE ISSUES
Whether Respondent committed the offenses described in the Petition for Dismissal (Case No. 88-6295) and the Administrative Complaint (Case No. 89- 2554)?
If so, what disciplinary action should be taken against him?
Even if Respondent committed the offenses described in the Administrative Complaint should the complaint nonetheless be dismissed on the ground that Respondent no longer holds a valid teaching certificate? 1/
PRELIMINARY STATEMENT
On November 22, 1988, Virgil L. Morgan, the Superintendent of Schools for Broward County, issued a petition recommending that Respondent's employment as an annual contract instructor with the School Board of Broward County be terminated. The petition alleged that such action was warranted because, on October 26, 1988, Respondent had sexually molested a thirteen year old male student whom he had invited "to his home for the purpose of displaying his photographs of animals taken at a zoo." On December 1, 1988, the School Board suspended Respondent without pay "pending final action on these charges." Thereafter, Respondent requested a hearing on the allegations contained in the Superintendent's petition. On December 15, 1988, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer. It was docketed as Case No. 88-6295.
On April 14, 1989, Commissioner of Education Betty Castor issued a complaint seeking the imposition of "the appropriate disciplinary sanction of the Respondent's teaching certificate (Certificate Number 159246)" for the same alleged incident which led Superintendent Morgan to recommend Respondent's dismissal. Pursuant to Respondent's request, on May 8, 1989, this matter was also transmitted to the Division of Administrative Hearings for the assignment of a Hearing Officer. It was docketed as Case No. 89-2554. By order issued by the undersigned on May 22, 1989, Case Nos. 88-6295 and 89-2554 were consolidated.
Testifying at the hearing in these consolidated cases were Respondent; J.A., the male student he allegedly molested; J.A.'s mother; Thomas Vogel and David Golt, two Pembroke Pines police officers who investigated the allegations made by J.A. against Respondent; Richard Pytel, a therapist at the Sexual Assault Treatment Center in Fort Lauderdale to whom J.A. has gone for counselling following the alleged incident; Thomas P. Johnson, the Associate Superintendent of Schools for Broward County; Steven Friedman, an assistant principal at Nova Middle School, the school to which Respondent was assigned at the time of the alleged incident; Betty Brown and Kathryn Pierce, two of Respondent's colleagues at the school; M.F., a former student of Respondent's at Nova Middle School; M.F.'s mother; James Smith, Theresa Speck and Mary Rader, friends and associates of Respondent's; and Diane Blank, a qualified expert in the field of clinical psychology who testified on behalf of Respondent. In addition to the testimony of these witnesses, the parties offered into evidence a total of nine exhibits. All of these exhibits were received.
During the course of the hearing, Respondent, through his attorney, conceded that if the facts alleged by Petitioners were true, Petitioners would have cause to take disciplinary action against him. Later in the hearing, in a similar vein, Respondent's attorney stated, "We have no argument if it is proved that he in fact did the act he is alleged to have done he should be fired and he should lose his teaching certificate."
The parties were advised on the record before the close of the hearing that their post-hearing pleadings had to be filed no later than twenty days after the date of the filing of the hearing transcript with the Division of Administrative
Hearings. The transcript was filed with the Division on August 28, 1989. Petitioner Castor, Respondent and Petitioner Morgan filed their Proposed Recommended Orders on September 18, 1989, September 20, 1989, and September 22, 1989, respectively. The findings of fact proposed by the parties in their Proposed Recommended Orders have been carefully considered and are addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based on the record evidence, the Hearing Officer makes the following Findings of Fact:
Respondent graduated from college with a degree in elementary education in 1964. His first teaching position was in Dade County. He taught in Dade County from 1964 until 1970 or 1971, when he moved to New Jersey. After teaching for a year or two in New Jersey, Respondent returned to Dade County.
He taught for another year or two in Dade County before relocating to California. Respondent did not work as a classroom teacher while in California. Among the jobs he held, however, was that of an education assistant at the San Francisco Zoo, a position which involved contact with children.
Respondent moved back to Florida in 1987. Upon his return to the state, he applied for a temporary Florida teaching certificate in the area of elementary education. The Department of Education subsequently issued Respondent Temporary Certificate No. 159246. This certificate was valid from July 31, 1987, through June 30, 1988. Respondent has not held a valid Florida teaching certificate since the expiration of Temporary Certificate No. 159246.
During the 1987-88 school year, Respondent was employed by the School Board of Broward County as a classroom teacher on annual contract status. He spent the entire school year at Nova Middle School.
J.A. is a student at Nova Middle School. His date of birth is August 4, 1975. For the first nine weeks of the 1987-88 school year, J.A. was in Respondent's fifth period guidance class. He received a grade of "D" from Respondent.
Respondent did not have J.A. as a student in any of his classes for the remainder of the 1987-88 school year. They did have some contact, however. On occasion, Respondent would bring into school reading material about reptiles and give it to a student in one of J.A.'s classes. Frequently, J.A., who, like Respondent and the other student, was interested in reptiles, joined their conversation on the subject.
During at least one of these conversations, Respondent made reference to the many snakes he kept at home. His collection included approximately 300 snakes which he kept in his garage and other parts of his home. In addition to these snakes, Respondent also had sixteen cages of rats and mice and several turtles. J.A. asked if he could visit Respondent at home and see these animals. Respondent was not receptive to the idea of entertaining J.A. after school. Consequently, J.A. did not view Respondent's collection of animals during the 1987-88 school year.
There were other instances during the 1987-88 school year where J.A.'s and Respondent's paths crossed at school. For instance, towards the latter part of the school year, when a substitute teacher with whom he did not get along
taught his class, J.A. stayed in Respondent's room to avoid a confrontation with the substitute.
J.A. and Respondent did not have any contact during the summer following the close of the 1987-88 school year. They next saw one another at registration for the following school year at Nova Middle School. Respondent had been offered another annual contract by the Broward County School Board and he was to teach the sixth grade at Nova Middle School. J.A. was to be a seventh grade student at the school.
J.A. was accompanied at registration by his mother. He and his mother conversed with Respondent about, among other things, Respondent's collection of animals.
Following registration, J.A. once again expressed to Respondent his desire to see Respondent's animal collection. This time Respondent capitulated. He told J.A. to have his mother call Respondent so that arrangements for such a visit could be made. Such arrangements were made and a few weeks after August 29, 1989, which was the first day of classes of the 1988-89 school year, J.A. and his mother visited Respondent at his home.
During the visit, Respondent mentioned that he needed assistance to care for his animals. J.A. thereupon suggested that he be allowed to assist Respondent. J.A.'s mother indicated that she had no problem with J.A. coming to Respondent's home and helping Respondent. Respondent accepted the offer of assistance and told J.A. and his mother that he would compensate J.A. for the work he performed. Before J.A. and his mother left, Respondent gave J.A. a baby snake as a gift to keep.
Following this visit, J.A. went to Respondent's home one or two times a week after school to assist Respondent in accordance with their agreement. For his efforts, J.A. received from Respondent either a snake or $3.50 for each hour he worked.
J.A. did not come on any particular day or days of the week. He came when he was needed and when it was convenient for both he and Respondent, provided he had his mother's permission to be there on that particular day. On these workdays, Respondent drove J.A. from school to his home. Upon their arrival, they generally worked for one or two hours and then ate dinner and watched television before Respondent drove J.A. to J.A.'s home.
Respondent did not attempt to hide the fact that J.A. was coming to his home after school to help him with his collection of animals. Among the people Respondent told were Steven Friedman, one of the assistant principals at Nova Middle School, Betty Brown, a fellow sixth grade teacher at the school, and Mary Rayder, Respondent's girlfriend.
J.A. is not the only young person Respondent has hired to help him care for his animals. Other young persons who have worked for Respondent include a boy Respondent met at a pet shop and the boy's girlfriend; J.S., the teenage son of one of Respondent's friends; and M.F., who at the time was a thirteen year old former student of Respondent's. M.F. came to Respondent's house only once. His parents did not allow him to return because they were concerned for his safety after learning that he had fallen in the lake behind Respondent's home while he and Respondent were "playing around in a boat" and that he had taken a shower in Respondent's home following this incident.
M.F. was not fully clothed when he fell into the water. He was wearing a boy's bathing suit that Respondent had loaned him. Although M.F. undressed and took a shower in Respondent's home, Respondent made no sexual advances towards him.
There were other occasions during the 1988-89 school year that J.A. and Respondent had contact outside of school. One evening Respondent took J.A. to a lecture at the University of Miami. On another occasion Respondent brought J.A., J.A.'s cousin and J.A.'s friend to his home on a Saturday to allow J.A. to show the cousin and friend Respondent's animals. Betty Brown, one of Respondent's colleagues at Nova Middle School, and her nine year old son were also present during this Saturday visit. One weekend morning a couple of weeks following this Saturday visit, J.A., along with two friends, paid an uninvited visit to Respondent's home. Respondent let them in and quickly showed them his collection of animals. They then left on their bicycles.
Although Respondent did not have J.A. as a student during the 1988-89 school year, they did see one another on occasion during the course of the school day early in the school year. Once or twice a week, J.A. went to Respondent's classroom to talk with Respondent about snakes. J.A. also approached Respondent at school on a regular basis to inquire as to when Respondent wanted him to come to Respondent's house to work.
J.A. made such an inquiry of Respondent on the morning of Wednesday, October 26, 1988. He told Respondent that he wanted to come over that afternoon after school to work and to look at some photographs of zoo animals that had been the subject of a prior discussion between them. Respondent initially indicated that that afternoon would not be a good time for J.A. to be at his home because he was having some home repair work done and because, in any event, he was not feeling well.
Since that previous Saturday, Respondent had been periodically experiencing stomach cramps and diarrhea. On Monday or Tuesday of that week he had made an appointment to see his doctor the following Friday concerning his condition. 2/
By the end of the school day on Wednesday, October 26, 1988, however, Respondent was feeling somewhat better. Furthermore, he had discovered that the person doing the repair work at his home had apparently finished for the day. Therefore, he had a change of mind regarding J.A.'s coming over to his house that afternoon. He so advised J.A. and the two left school together in Respondent's car. They proceeded directly to Respondent's home and arrived at their destination between 4:15 and 4:30 p.m. Upon their arrival, Respondent had
J.A. telephone his mother to make sure that she knew that J.A. was at Respondent's home.
After J.A.'s mother was contacted, J.A. and Respondent worked in Respondent's garage cleaning cages. At one point, Respondent had to excuse himself because he was again feeling nauseous. He went to the bathroom in his bedroom and remained there for five or ten minutes. When he opened the door of the bathroom to leave, he observed J.A. standing in Respondent's bedroom just outside the bathroom.
At another point when they were in the garage together, Respondent noticed J.A. wrap a three and one-half to four foot snake in a newspaper and then place it in a plastic-lined garbage can. Respondent thereupon asked J.A., who appeared to be embarrassed that Respondent had discovered what he had done,
"Do you realize what you just did?" Respondent then retrieved the snake from the garbage can and further inquired of J.A. if he had perhaps accidentally discarded a valuable king snake that had been missing from Respondent's collection for several weeks. J.A. responded in the negative. He told Respondent that the cage in which the king snake had been kept "was empty when he opened it."
Later that afternoon, while cleaning the cages of some baby ball python snakes that Respondent owned, J.A. said something to the effect that all he would "have to do is throw one of these [baby ball pythons] away and come back and get it later." In response to this comment, Respondent told J.A., "You don't have to do that, [J.A.], you can have one."
J.A. and Respondent finished working in the garage at approximately 6:30 p.m. They then ate dinner. After dinner, J.A. asked Respondent if he could look at the photographs that Respondent had taken when he was employed as an education assistant at the San Francisco Zoo. Respondent went to his bedroom closet to get the albums that contained these photographs. J.A. followed Respondent into his bedroom. After the albums were located, Respondent and J.A. left the bedroom and went to the living room where they looked at the photographs. By the time they finished examining the photographs, it was time for J.A. to leave. Before J.A. went home, however, Respondent gave him the baby ball python snake he had been promised by Respondent earlier in the day.
Respondent dropped J.A. off at his home sometime between 7:30 and 9:00
p.m. that evening. J.A.'s mother greeted them as Respondent's car pulled into the driveway. For the next fifteen to twenty minutes she and Respondent engaged in a conversation. J.A. went into his house to deposit his snake and to retrieve some containers that belonged to Respondent, but he was present during most of the conversation between his mother and Respondent.
Among the matters that J.A.'s mother and Respondent discussed was the possibility of Respondent, one of Respondent's friends and J.A. going on a snake hunting expedition. Respondent doubted that they would be able to go on such an expedition and he so advised J.A.'s mother, although he did not explain to her why he believed they would be unable to go. Notwithstanding Respondent's advisement, in an abundance of caution, J.A.'s mother handed Respondent a signed statement she had prepared authorizing Respondent to seek medical care and treatment for her son in the event they did go on the expedition and there was a medical emergency.
The snake hunting expedition was not the only subject of J.A.'s mother's and Respondent's discussion that evening. They also talked about J.A. Respondent reported that J.A. was doing a good job assisting him in caring for his animal collection. His report on J.A., however, was not entirely positive. Respondent also told J.A.'s mother about how J.A., during his Saturday visit to Respondent's home a few weeks earlier, had boarded Respondent's paddleboat without Respondent's permission, paddled across the lake behind Respondent's home and then jumped head-first in the water. Respondent further mentioned to J.A.'s mother that the previous week J.A. had gotten into a heated argument at school with a substitute teacher, which resulted in J.A. being "pulled" from the substitute's class and brought to the teacher's lounge to stay with Respondent. After having been told this by Respondent, J.A.'s mother made mention of a similar incident which occurred the year before and led to J.A.'s suspension. She expressed the view that on this prior occasion J.A. had been treated unfairly by the school administration.
At no time during their conversation that evening did Respondent tell J.A.'s mother what had happened earlier that evening in his garage. Although these events had led him to suspect that J.A. had stolen the missing kingsnake and perhaps other snakes, he was not absolutely certain that this was the case and, in view of his uncertainty, he decided not to make an issue of the matter and subject J.A. to parental punishment for an offense he may not have committed.
After J.A.'s mother and Respondent finished their conversation, Respondent drove off and J.A. and his mother went into their home. Upon entering the home, J.A. told his mother that Respondent had "tried to suck, lick my penis." 3/
J.A.'s mother reported to the police what her son had told her. Both she and her son were interviewed at the Pembroke Pines police station at around 10:00 p.m. that evening. The following is what J.A. related to the police during the interview concerning his interaction with Respondent that day, as accurately reflected by the interviewing officer's police report:
As [Respondent] spoke to J.A. during school hours, [Respondent] asked [J.A.] if he would like to come over after school and help clean cages. [J.A.] advised that he would not be able to today (10-26-88) due to the fact that his mother was expecting him home after school. [Respondent] advised [J.A.] that he would be able to telephone his mother from his [Respondent's] house upon their arrival. [J.A.] agreed to go to [Respondent's) residence and telephone his mother for permission.
At the end of the school day [Respondent] and [J.A.] met at [Respondent's] classroom [Respondent] and [J.A.] walked from the classroom (approx 1600) to [Respondent's] vehicle in the parking lot. [Respondent] along with [J.A.] traveled in [Respondent's] vehicle to [Respondent's] residence arriving at approx 1630. [Respondent] and [J.A.] immediately moved to the garage area of the residence, where the snakes are caged, to begin cleaning.
Periodically during the cage cleaning [J.A.] would stop to call his mother. [J.A.] was unable to reach his mother until approx 1700 hours when he advised her of his location. [J.A.] then returned to the garage and continued to clean cages with [Respondent]. At approx 1800 hours [Respondent] and [J.A.] agreed to discontinue the cleaning and obtain something to eat. [Respondent] and [J.A.] moved to the kitchen where they began to eat.
While [Respondent) and [J.A.] ate they discussed [Respondent's] former job at the San Diego Zoo. [Respondent) advised that he had numerous pictures from the zoo and would like to show them to
[J.A.] [J.A.] advised that he would like to see the pictures. As [Respondent)
and [J.A.] finished eating, (approx 1900 hours) Respondent led [J.A.] to his bedroom where the pictures were kept. [Respondent) and [J.A.] sat on [Respondent's] bed, hanging their feet over the edge, and began looking at the photo albums. While [J.A.] was seated on the edge of the bed, [Respondent] repositioned himself on the floor directly in front of [J.A.]. [Respondent] then reached forward and grabbed [J.A.'s] pants zipper and pulled
it down. 4/ [J.A.] was surprised when he felt the pulling on his zipper due to
the fact that [Respondent] had positioned himself behind the photo album [J.A.] was examining. [J.A.] dropped the photo album 5/ and attempted to push [Respondent] away. [Respondent] overpowered [J.A.] and reached inside [J.A's] pants taking hold of [J.A.'s] penis. 6/ [Respondent] leaned over and began to lick and suck on [J.A.'s] penis. [J.A.] struggled free and advised [Respondent] that he was not that kind of person. [J.A.] then advised [Respondent] that he wanted to go home. [Respondent] agreed to take [J.A.] home; however, insisted that [J.A.] take one of his pet snakes as a gift. [J.A.] accepted the snake; however believes that [Respondent] gave him the snake as a bribe so he would not relate what had taken place to anyone. [Respondent] along with [J.A.] traveled to [J.A.'s] residence at approx 2000 hours.
At around 1:00 a.m. on October 27, 1988, J.A. was examined by a physician at the Sexual Assault Treatment Center in Fort Lauderdale. The medical examination revealed no abnormalities. There were no cuts, bruises, or marks on J.A.'s genitals nor any other evidence suggesting that he had been sexually molested as he had falsely claimed to his mother and the police.
Respondent reported to work on October 27, 1988, although he was not feeling particularly well. During the morning, his condition worsened and he requested permission to go home for the day. He did not call his doctor, inasmuch as he already had an appointment scheduled for the following day. Before he left, he gave a statement to a Pembroke Pines police officer who had
come to the school to interview Respondent as part of his investigation of the allegations that J.A. had made against Respondent. The police officer was accompanied by a School Board of Broward County investigator. Upon being told of the accusation that J.A. had made, Respondent truthfully denied that anything of that nature had taken place the day before. He stated that he could think of nothing out of the ordinary that occurred that evening. When asked what might motivate J.A. to falsely accuse him of wrongdoing, Respondent was unable to offer any answer. He indicated that he thought that they had a friendly relationship.
That same day, Respondent was suspended with pay from his position at Nova Middle School based upon the allegations of sexual misconduct made against him by J.A. He thereafter was suspended without pay by action of the School Board of Broward County based on these same allegations. Respondent has never before been accused of any similar act of misconduct. Furthermore, he has a good reputation for truth and veracity amongst his friends and associates.
On June 30, 1989, Respondent's annual contract with the School Board of Broward County expired.
CONCLUSIONS OF LAW
Case No. 88-6295
An instructor on annual contract, as was Respondent, may be suspended or dismissed during the term of the contract only for "just cause." Section 231.36(6)(a), Fla. Stat. "Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude." Section 231.36(1)(a), Fla. Stat.
The existence of "just cause" must be established by a preponderance of the competent, substantial evidence adduced at hearing. See Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986), cause dismissed, 492 So.2d 1330 (Fla. 1986). If this burden of proof is not met, the instructor must "be immediately reinstated, and his back salary shall be paid." Section 231.36(6)(a), Fla. Stat.
Respondent is charged in the instant case with having sexually molested J.A. on the evening of October 26, 1988. It is undisputed that if Respondent engaged in such conduct, there would be "just cause" for his dismissal. The question remaining for resolution is whether the preponderance of the evidence establishes that Respondent committed these acts.
The answer to this question hinges upon the Hearing Officer's assessment of the credibility of J.A.'s account of what happened in Respondent's home on the evening in question. In view of J.A.'s apparent lack of candor and forthrightness while on the witness stand, his failure to provide important details regarding the alleged incident upon cross-examination, the inherent improbability of his story and the significant inconsistencies in his testimony and the statements he made to his mother and the police regarding the events that allegedly took place in Respondent's bedroom on the evening of October 26, 1988, the Hearing Officer has found J.A.'s uncorroborated account of these events to be unworthy of belief and has accepted the exculpatory assertions made by Respondent, which appear to the Hearing Officer to be considerably more credible than the allegations of sexual misconduct made against him by. J.A. What, if anything, motivated J.A. to falsely accuse Respondent of sexual
misconduct is unclear. Perhaps J.A. was annoyed at Respondent for having earlier told J.A.'s mother about the paddleboat incident and the confrontation
J.A. had had with the substitute teacher. Perhaps it had something to do with Respondent questioning him about the missing snake earlier that day. In any event, whatever J.A.'s motivation may have been, the Hearing Officer is persuaded that his accusation is untrue.
Inasmuch as the charge of sexual misconduct made by Petitioner Morgan against Respondent is not supported by the preponderance of the competent, substantial evidence adduced at hearing, the charge cannot be sustained. Accordingly, the charge should be dismissed and, in accordance with Section 231.36(6)(a), Florida Statutes, Respondent should be placed in the same position he would have been in had he not been suspended without pay based on this charge.
Case No. 89-2554
The Education Practices Commission has the statutory authority to suspend or revoke an instructor's teaching certificate if it is shown that the instructor "[h]as been guilty of gross immorality" "which seriously reduces that person's effectiveness as an employee of the school board." Section 231.28(1)(c) and (f), Fla. Stat. The proof establishing such guilt must be clear and convincing. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
In the instant case, Petitioner Castor has alleged in her Administrative Complaint that Respondent engaged in such "gross immorality" when he sexually molested J.A. on the evening of October 26, 1988. The parties agree that the sexual molestation of a child constitutes an act of "gross immorality" for which an instructor holding a valid teaching certificate may be disciplined pursuant to Section 231.28, Florida Statutes. The allegation that Respondent committed such an act, however, as discussed above, is not supported by even the preponderance of the competent, substantial evidence adduced at hearing, much less clear and convincing evidence. In the absence of such proof, the Administrative Complaint should be dismissed. Furthermore, the record establishes that Respondent's teaching certificate expired on June 30, 1988, and that he does not now, nor did he on October 26, 1988, hold a teaching certificate. Such being the case, even if the charge of "gross immorality" had been proven by clear and convincing evidence, the Education Practices Commission would still not be able to take the disciplinary action sought by Petitioner Castor in the Administrative Complaint.
Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that (1) the School Board enter a final order dismissing Petitioner Morgan's charge of sexual misconduct against Respondent and providing Respondent with appropriate relief pursuant to Section 231.36(6)(a), Florida Statutes, and (2) the Education Practices Commission enter a final order dismissing the Administrative Complaint filed by Petitioner Castor against Respondent.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of October, 1989.
STUART M. LERNER
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 3rd day of October, 1989.
ENDNOTES
1/ This issue was raised by Respondent in his Prehearing statement.
2/ As it turned out, because of the tumult caused by the allegations made against him by J.A., Respondent never kept his appointment.
3/ At hearing, however, J.A. testified that Respondent had not just "tried to suck, lick his penis," but had actually done so.
4/ J.A. was wearing jeans which had a zipper fly with a button on the top. Underneath his jeans, he had on jockey shorts. J.A. was also wearing a shirt that was untucked.
5/ At hearing, however, during the course of his testimony, J.A. stated that he held the photo album in one hand as he pushed Respondent away with his other hand. (T 129, 171).
6/ At hearing, J.A. gave conflicting testimony regarding when Respondent first reached into his pants and grabbed his penis. He initially testified, contrary to what he had told the police, that the reaching in and grabbing occurred before he had ever pushed Respondent. (T127) J.A. subsequently testified, however, that it was after he had pushed Respondent that Respondent reached into his pants and grabbed his penis. (T172)
7/ Respondent has two proposed findings of fact that are numbered 37.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-6295 AND 89-2554
The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by the parties: Petitioner Morgan's Proposed Findings of Fact
Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
Accepted and incorporated in substance, except for the last sentence which has been rejected because it is not supported by competent, substantial
evidence. While M.F.'s mother was embarrassed by the button worn by Respondent, she observed Respondent wearing the button only after she and her husband had already decided not to permit their son to return to Respondent's home and therefore her reaction to the button was not, nor could it have been, a factor in their decision. (T351)
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance, except to the extent that it indicates that the visit occurred on October 6, 1988, not October 26, 1988, and to the extent it suggests that the viewing of the photographs was Respondent's, not J.A.'s, idea. In these two respects, this proposed finding has been rejected because it is not supported by persuasive competent, substantial evidence.
Rejected because it is not supported by persuasive competent substantial evidence.
First sentence: Rejected as a finding of fact because it is more in the nature of a summarization of testimony coupled with argument regarding the weight that should be accorded such testimony. The argument advanced in this proposed finding was considered in evaluating the summarized testimony, but was not found to be sufficiently persuasive to cause the Hearing Officer to discredit such testimony; Second sentence: Rejected as immaterial. Respondent was not a student of Respondent's during the time frame referenced in this proposed finding. He was in Respondent's class during the first nine weeks of the 1987-88 school year and he received a low grade from Respondent.
Rejected as a finding of fact because it is more in the nature of a summarization of testimony coupled with argument regarding the weight to be accorded such testimony. The argument advanced in this proposed finding was considered in evaluating the summarized testimony, but was not found to be sufficiently persuasive to cause the Hearing Officer to discredit such testimony.
Accepted and incorporated in substance to the extent that it relates what Respondent told the police. Otherwise, it has been rejected as a finding of fact because it is more in the nature of a summarization of testimony coupled with argument regarding the weight to be accorded such testimony. The argument advanced in this proposed finding was considered in evaluating the summarized testimony, but was not found to be sufficiently persuasive to cause the Hearing Officer to discredit such testimony.
Accepted and incorporated in substance to the extent it indicates what Respondent and J.A.'s mother discussed in the driveway of the mother's home on the evening of October 26, 1988. Otherwise, it has been rejected as a finding of fact because it is more in the nature of a summarization of testimony coupled with argument regarding the weight to be accorded such testimony. The argument advanced in this proposed finding was considered in evaluating the summarized testimony, but was not found to be sufficiently persuasive to cause the Hearing Officer to discredit such testimony.
Accepted and incorporated in substance, except for the last sentence, which has been rejected because it is not supported by persuasive competent, substantial evidence.
Accepted and incorporated in substance to the extent it reflects that Respondent reported to work on October 27, 1988; that he sought to leave school early that day because he was not feeling well; that he did not call his doctor that day to tell of his having to leave school because of illness; that he was interrogated by the police before he left; that he told the police that he had started to vomit earlier that morning before he had left for work; that he had not told J.A.'s mother the night before that he was ill; that he did not keep his doctor's appointment; and that he did not take any time off from work because of this illness. To the extent that this proposed finding suggests that
Respondent attempted to leave school upon learning of J.A.'s absence that day and that Respondent "never told anyone about his protracted illness," it has been rejected because it is not supported by persuasive competent, substantial evidence. Furthermore, the last sentence of this proposed finding has been rejected because it is more in the nature of argument than a finding of fact. This argument was considered in evaluating Respondent's testimony regarding his illness, but was not found to be sufficiently persuasive to cause the Hearing Officer to discredit such testimony.
Rejected because it is not supported by persuasive competent, substantial evidence to the extent it asserts that Respondent told the police that J.A. "did not follow him into the bathroom, or into the bedroom" on the evening of the alleged incident. An examination of the transcription of the statement Respondent gave police reveals that the matter of J.A. following Respondent to the bathroom was not raised by either Respondent or his interrogators. Such an examination further reveals that Respondent did indicate that J.A. "might have followed" him when he retrieved the photograph albums from his bedroom closet. The remaining portion of this proposed finding has been rejected as a finding of fact because it is more in the nature of a summarization of testimony coupled with argument regarding the weight to be accorded such testimony. The argument advanced in this proposed finding was considered in evaluating the summarized testimony, but was not found to be sufficiently persuasive to cause the Hearing Officer to discredit such testimony.
Rejected as a finding of fact because it is more in the nature of a summarization of testimony coupled with argument regarding inferences to be drawn from such testimony. Furthermore, any discrepancy between Respondent's and M.F.'s testimony regarding how M.F. got into the water is not of such significance to have a bearing on the outcome of the instant case. Likewise, the fact that Respondent kept a boy's bathing suit on hand in his home does not make J.A.'s story, in which there is no reference made to the bathing suit, any more plausible.
Rejected as a finding of fact because it is more in the nature a summarization of testimony coupled with argument regarding the weight to be accorded such testimony. The argument advanced in this proposed finding was considered in evaluating the summarized testimony, but it was not found to be sufficiently persuasive to cause the Hearing Officer to discredit such testimony.
Accepted and incorporated in substance.
Accepted and incorporated in substance to the extent it states that the "medical examination reported no physical signs of abuse." To the extent that it asserts that no these results were "to be expected" in light of "the reported factual version," it has been rejected as a finding of fact because it is more in the nature of argument regarding the weight to be accorded the evidence of the results of the medical examination of J.A. Furthermore, this argument is unpersuasive.
Petitioner Castor's Proposed Findings of Fact
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Rejected because it is not supported by persuasive competent, substantial evidence to the extent that it states that J.A. was in the sixth grade at the time of the alleged incident. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is not supported by persuasive competent, substantial evidence. J.A.'s testimony on this point is in conflict with what he had told police after the alleged incident. Accordingly, the Hearing Officer has credited Respondent's testimony that it was J.A. who informed his mother that he was at Respondent's home.
Accepted and incorporated in substance.
Rejected because it is not supported by persuasive competent, substantial evidence.
Rejected because it is not supported by persuasive competent, substantial evidence.
Rejected because it is not supported by persuasive competent, substantial evidence.
Accepted and incorporated in substance.
Accepted and incorporated in substance to the extent it indicates that
J.A. told his mother shortly after he had been dropped off that he had been sexually molested by Respondent. To the extent it suggests that this report was accurate, it has been rejected because it is not supported by persuasive, competent substantial evidence.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it adds only unnecessary detail.
Rejected because it adds only unnecessary detail.
Rejected because it adds only unnecessary detail.
Accepted and incorporated in substance.
Rejected because it adds only unnecessary detail.
Rejected as a finding of fact because it is more in the nature of an observation regarding Respondent's testimony. Furthermore, it is inaccurate to state that Respondent's testimony does not conflict "with J.A.'s testimony as to the sexual misconduct of said Respondent at his residence on October 26, 1988." While on the witness stand, Respondent made clear that it was his testimony that the activities in which he engaged with J.A. at his home on the day in question did not include any sexual misconduct on his part.
Rejected as a finding of fact because it is more in the nature of argument regarding the probative value of testimony. The Hearing Officer, however, agrees that the probative value of Dr. Blank's expert testimony is questionable. Such testimony therefore has not been relied upon by the Hearing Officer in resolving the issues presented by these consolidated cases.
Rejected as a finding of fact, but incorporated in the "Preliminary Statement" portion of this Recommended Order.
Respondent's Proposed Findings of Fact
Accepted and incorporated in substance, except for the last sentence, which has been rejected because it is not supported by competent, substantial evidence and, in any event, adds only unnecessary detail.
Accepted and incorporated in substance.
First sentence: Rejected as immaterial; Second sentence: Accepted and incorporated in substance. This is an administrative proceeding governed by Section 120.58(1)(a), Florida Statutes, which provides in pertinent part that "[i]rrelevant, immaterial, or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida." Applying this evidentiary standard, the Hearing Officer has determined that consideration should be given to the evidence adduced by Respondent that he never before had been accused of engaging in inappropriate sexual conduct, notwithstanding that
such evidence of his prior record might not "be admissible in a trial in the courts of Florida."
Accepted and incorporated in substance.
Accepted and incorporated in substance, except for the third sentence, which has been rejected as immaterial.
Accepted and incorporated in substance.
Accepted and incorporated in substance, except for the first sentence which has been rejected as immaterial.
Rejected as immaterial.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Rejected because it adds only unnecessary detail.
Rejected because it adds only unnecessary detail.
Accepted and incorporated in substance, except for the last sentence, which has been rejected because it adds only unnecessary detail.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Accepted and incorporated in substance.
Rejected because it adds only unnecessary detail.
First sentence: Rejected because it adds only unnecessary detail; Second sentence: Accepted and incorporated in substance.
Accepted and incorporated in substance.
First sentence: Rejected because it is not supported by persuasive competent, substantial evidence. Betty Brown's testimony regarding J.A.'s reputation for truthfulness is based upon information that is insufficient to persuade the Hearing Officer that he should rely upon her testimony. Second sentence: Rejected because of the questionable scientific reliability of the technique employed by the expert witness upon whose opinion this proposed finding is based.
7/ Rejected as immaterial.
Accepted and incorporated in substances.
Rejected because it is of insufficient probative value in the opinion of the Hearing Officer to have a bearing on the outcome of these cases.
COPIES FURNISHED:
Charles Whitelock, Esquire 1311 South East 2nd Avenue Fort Lauderdale, Florida 33316
Edward J. Marko, Esquire Suite 322, Bayview Building 1040 Bayview Drive
Post Office Box 4369
Fort Lauderdale, Florida 33338
Sally Gertz, Esquire
208 West Pensacola Street Tallahassee, Florida 32301
Karen Wilde, Executive Director Education Practices Commission
125 Knott Building Tallahassee, Florida 32399
Craig Wilson, Esquire 1201 U.S. Highway One Suite 315
North Palm Beach, Florida 33408-3581
| Issue Date | Proceedings |
|---|---|
| Oct. 03, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 03, 1989 | Recommended Order | Evidence insufficient to establish that teacher sexually molested student as charged; recommendation made that charges against teacher be dismissed |
CLIFFORD JAMES EVERT vs BETTY CASTOR, AS COMMISSIONER OF EDUCATION, 88-006295 (1988)
LAWRENCE A. LONGENECKER vs. EDUCATION PRACTICES COMMISSION, 88-006295 (1988)
FRANK T. BROGAN, AS COMMISSIONER OF EDUCATION vs KAREN K. GAINES, 88-006295 (1988)
ANA SANTANA vs JOHN L. WINN, AS COMMISSIONER OF EDUCATION, 88-006295 (1988)
DOUG JAMERSON, COMMISSIONER OF EDUCATION vs DAVID L. SMITH, 88-006295 (1988)
