STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DUVAL COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6704

)

JOHN G. STANLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- styled case on March 13, 1990, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Gail A. Stafford, Esquire

421 West Church Street, Suite 715 Jacksonville, Florida 32202

For Respondent: David A. Hertz, Esquire

1601 Atlantic Boulevard

Jacksonville, Florida 32207 STATEMENT OF THE ISSUE

Whether the Respondent's employment with the Duval County School Board should be terminated under the facts and circumstances of this case?

PRELIMINARY STATEMENT

By letter dated October 20, 1989, Larry L. Zenke, Superintendent of Schools, Duval County, Florida, advised the Respondent that the charge of immoral character or conduct as set forth in Section 4(a) of the Duval County Teacher Tenure Act had been made against him based on the facts surrounding his arrest and the subsequent charge by the Jacksonville Sheriff's Department of lewd and lascivious assault upon a minor and, that if proven such charge could result in termination of his employment with the Duval County School Board (Board). As allowed by the Duval County Teacher Tenure Act, Respondent requested a formal hearing and this proceeding ensued.

In support of its charges, the Board presented the testimony of John G. Stanley, Jr., William R. Baer Jr., Michael A. Gratiano, Jr., Mildred Alexander, Mary Frances Green, John Emory Trawick and Raymond Bailey. An earlier deposition of the Respondent was received into evidence in addition to his testimony at the hearing. The deposition of S.L.W. was received into evidence in lieu of her testimony at the hearing because she was unavailable as a witness

on the day of the hearing. Petitioner's exhibits 1 through 7 were received into evidence. The Respondent offered no testimony, other than the limited testimony given in the Petitioner's case, and offered no witnesses and no exhibits.

A transcript of this proceeding was filed with the Division of Administrative Hearings on March 20, 1990. By agreement of the parties, and approved by the Hearing Officer, the filing of the parties' Proposed Findings of Fact and Conclusions of Law was extended until May 11, 1990. Pursuant to Rule 22I-6.031, Florida Administrative Code, the parties waived the provision of Rule 28-5.402, Florida Administrative Code, requiring that an Recommended Order be submitted within 30 days of the hearing or receipt of transcript, whichever is later. The parties timely submitted their respective Proposed Finding of Fact and Conclusions of Law, and a ruling on each Proposed Finding of Fact has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

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

1. At all times material to this proceeding, Respondent held Florida Teaching Certificate No. 139016 covering the area of history and qualifying him to teach grades 7 through 12.

   
   

2. From on or about January 27, 1988, until August 29, 1989 the Respondent was employed by the Board as a teacher at Sandalwood Junior/Senior High School, teaching 8th grade gifted students ranging in age from 13 to 14 years and 11th and 12th grade advanced placement history students ranging in age from 16 to 18 years.

   
   

3. Respondent is presently employed by the Board, assigned to the Media Center in Jacksonville, Florida where he was assigned on August 29, 1989.

   
   

4. Prior to his present employment with the Board, the Respondent had been employed by the Florida Community College of Jacksonville (FCCJ) for 21-1/2 years as a teacher/administrator.

   
   

5. Before assuming his teaching duties at Sandalwood, Respondent had read the Code of Ethics of the Education Profession and understood and accepted the obligations and responsibilities placed on him by the code.

   
   

6. On June 21, 1989, S.L.W. ran away from her home in North Carolina and while standing outside of a local fast food restaurant, a short distance from her home, an individual called Adrian Freeman offered her a ride. S.L.W. was not acquainted with Freeman before he offered her a ride.

   
   

7. Freeman learned from S.L.W. that she had run away from home and offered to help her and not tell anyone.

   
   

8. S.L.W. spent the night at Freeman's house and while there she became intoxicated and "passed out." While S.L.W. was passed out, Freeman sexually assaulted her.

   
   

9. The next day, June 23, 1989, S.L.W. decided to leave Freeman's house and he drove her to the bus station. At first, S.L.W. was going to Myrtle Beach but because the bus for Jacksonville, Florida left earlier she decided to go to Jacksonville.

10. Before S.L.W. left for Jacksonville, Freeman made arrangements with the Respondent for him to meet S.L.W. in Jacksonville and find her a place to stay.

    
    

11. Upon arriving in Jacksonville, S.L.W. was met at the bus station by Respondent. The Respondent told S.L.W. that he was a high school teacher.

    S.L.W. told Respondent that she was in the tenth grade and a runaway. Respondent then told S.L.W. that she would be staying at the home of Lee Daniels.

    
    

12. Respondent then bought S.L.W. some food. When S.L.W. finished eating he carried her to the home of Lee Daniels but they were told to come back later.

    
    

13. Respondent and S.L.W. later returned to the home of Daniels around 10:00 a.m. Respondent showed S.L.W. to her room and told her to take a shower. After taking she shower she put on her clothes and got under the cover. At this point, Respondent returned to the room with an alcoholic beverage for S.L.W.

    
    

14. Respondent then told S.L.W. to remove her clothes item by item and once she was undressed began to massage her body. Later Respondent attempted sexual intercourse with S.L.W. and, although Respondent did not have an ejaculation he did penetrate S.L.W.'s vagina with his penis.

    
    

15. Respondent then left Daniels' home and was seen by S.L.W. on only two other occasions. There was no physical contact between them on these occasions.

    
    

16. S.L.W. remained at Daniels' home for approximately three weeks. Eventually, S.L.W. was picked up by a State Trooper at a bar and through the Jacksonville Sheriff's Department was returned to her mother.

    
    

17. S.L.W. identified Respondent for the sheriff's department as the person who sexually assaulted her by pointing him out in a high school year book. Based on this identification, Respondent was arrested and charged with lewd and lascivious assault upon a minor.

    
    

18. Respondent's conduct involving S.L.W. was immoral, reflects on his character, not only as an individual but more specifically as a teacher, and is in violation of the Duval County Teacher's Tenure Act and the Code of Ethics of the teaching profession.

    
    

19. Although the publicity of Respondent's involvement with S.L.W. created by several newspaper articles and television stories and by word of mouth of the students, teacher and parents of Sandalwood seriously impaired his effectiveness as a teacher at Sandalwood, there was insufficient evidence to show that Respondent's effectiveness as a teacher had been seriously impaired in the Duval County School System as a whole.

    
    

    CONCLUSIONS OF LAW

    
    

20. 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, and Chapter 21197, Laws of Florida, 1941, as subsequently amended, and commonly referred to as the Duval County Teachers Tenure Act (Tenure Act).

21. The Respondent is charged with violating Section 4(a) of the Tenure Act which provides as follow:

    
    

    Section 4. Cause for the discharge or demotion of a teacher shall be:

    1. Immoral character or conduct, insubordination, or physical or mental incapability to perform the duties of the employment.

       
       

       The term "immoral character or conduct" has not been defined by the Tenure Act nor has that term been defined by Board rule. However, the term "immorality" hams been defined by Rule 6B-4.009(2), Florida Administrative Code, as a one of the basis for the charges upon which dismissal against instructional personnel of a school district may be pursued pursuant to Section 231.36, Florida Statutes, and provides as follows:

       
       

       (2) 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 the education profession into public

       disgrace or disrespect and impair the individual's service in the community.

       
       

       Even though the provisions of Section 231.36, Florida Statutes, have been superseded by the Tenure Act as to teachers within the Duval County School District, the above definition may be used as guidance in the Board's determination of whether Respondent's conduct reaches the level of being immoral and thereby in violation of Section 4(a) of the Tenure Act. Any reasonable person would conclude that Respondent's conduct in regard to S.L.W. was immoral conduct and in violation of Section 4(a) of the Tenure Act, notwithstanding that the immoral act was done away from school with a minor that was not one of Respondent's students or even a student within the Duval County School District.

       
       

22. The Respondent has not been properly charged by the Board in regards to his immoral conduct being of such a serious nature as to impair his service to the community or effectiveness in the school system and, therefore cannot be found guilty of any charges in that regard. Wray v. Department of Professional Regulation, Board of Medical Examiners, 435 So.2d 312 (1st DCA Fla. 1983). Even assuming arquendo that Respondent was properly charged in that regard, there was insufficient evidence to support such charges.

    
    

23. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation

v. J.W.C. Company, Inc., 396 So.2d 778 (2 DCA Fla. 1981). Petitioner has met is burden of proof that Respondent is guilty of immoral character and conduct under Section 4(a) of the Tenure "Act but has failed to meet its burden of proof as to whether Respondent's effectiveness in the Duval County School system has been seriously impaired.

RECOMMENDATION

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

RECOMMENDED that the Board enter a Final Order finding Respondent guilty of having violated Section 4(a) of the Duval County Teacher Tenure Act and terminating his employment with the Board.

DONE AND ENTERED this 12th day of July, 1990, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6704

Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner

1-4. Adopted in Findings of fact 1, 3, 2 and 4, respectively.

5-7. Rejected as not being material or relevant to this case or not being supported by any substantial competent evidence in the record.

8. Adopted in Finding of Fact 5.

9-10. Adopted in Finding of Fact 2.

12-55. Adopted generally in Findings of Fact 6 through 19, otherwise rejected as not being material or relevant, or being redundant or subordinate, or not supported by any substantial competent evidence in the record.

Specific Rulings on Proposed Findings of Fact Submitted by the Respondent

1.-2. Adopted in Finding of Facts 2 and 3.

3.-4. Adopted generally in Finding of Fact 17, otherwise rejected as not being material or relevant.

1. Rejected as not being material or relevant.

2. Covered in Preliminary Statement.

7.-10. Adopted generally in Findings of Fact 6-17, otherwise rejected as not being material or relevant, or redundant or subordinate, or not supported by any substantial competent evidence in the record.

11.-15. Adopted in Findings of Fact 19, otherwise rejected or not being material or relevant, or being redundant or subordinate, or not being supported by any substantial competent evidence in the record.

16. Rejected as not being supported by any substantial competent evidence in the record. See Findings of Fact 10 through 18.

COPIES FURNISHED:

Dr. Larry Zenke, Superintendent Duval County School Board

1701 Prudential Drive

Jacksonville, Florida 32207

Gail A. Stafford, Esquire

421 West Church Street, Suite 715 Jacksonville, Florida 32202

David A. Hertz, Esquire 1601 Atlantic Boulevard

Jacksonville, Florida 32207

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

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AGENCY FINAL ORDER

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BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

IN RE: Administrative Complaint seeking disciplinary action against the Teacher's

Certificate of JOHN G. STANLEY. DOAH CASE NO. 89-6704

/ CASE NO. 90-041-RT

FINAL ORDER

An Administrative Complaint seeking disciplinary action against the teacher's certificate of Respondent, JOHN G. STANLEY, was filed by Betty Castor, as Commissioner of Education on February 25, 1991. Respondent, holder of Florida teacher's certificate number 139016, was served with a copy of the Administrative Complaint.

Respondent has filed an answer to the Administrative Complaint stating that he did not wish to contest the charges, that he waived any further rights to due process or a public hearing, that he surrendered his certificate for permanent revocation, and that ail his actions were free and voluntary.

The Administrative Complaint and the answer are incorporated as part of this Order.

In consideration of the foregoing, the Education Practices Commission, as empowered by F.S. 231.262(1980), hereby PERMANENTLY REVOKES teachers certificate number 139016 held by JOHN G. STANLEY. Reapplication will not be considered.

DONE AND ORDERED, this 13 day of March, 1991.

COPIES FURNISHED TO:

Jerry Moore, Program Director Professional Practices Services JUDITH RATZLAFF, Chairman

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

Betty Castor vs. John G. Stanley Sydney McKenzie, III was mailed to David Hertz. Esquire, General Counsel 1601 Atlantic Blvd., Jacksonville,

Florida 32207, this 19th day of Florida Admin. Law Reports March 1991, by U. S. Mail

Dr. Larry Zenke, Superintendent

Duval Count1y Schools 1701 Prudential Drive GEORGE A. BOWEN, Clerk Jacksonville, Florida 32207

Dr. James Ragans, Asst. Supt. Personnel

Duval County Schools

Robert Boyd, Esquire Lane Burnett, Esquire

Department of Education 331 Union Street

325 W. Gaines Street, Room 352 Jacksonville, Florida 32202 Tallahassee', Florida 32399

Docket for Case No: 89-006704

Orders for Case No: 89-006704