vs. ) CASE NO. 89-6748
Respondent. )
A formal administrative hearing was held in the above- styled case on March 8, 1990, in Largo, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
For Petitioner: Bruce P. Taylor, Esquire
For Respondent: Lawrence D. Black, Esquire
152 Eighth Avenue, S. W. Largo Florida 34640
The issue in this case is whether the Petitioner, the School Board of Pinellas County, should dismiss or suspend the Respondent, Larry Lynn, on charges of gross insubordination and misconduct in office.
By letter dated November 20, 1989, Scott N. Rose, the Pinellas County Superintendent of Schools, notified the Respondent, Larry Lynn, that he was being suspended with pay
pending consideration by the Petitioner, the School Board of Pinellas County, of the Superintendent's recommendation that Lynn be dismissed. The letter stated: "My recommendation is based on the fact that you have inappropriately touched female students, have made sexually suggestive remarks to female students, and have left campus on many occasions with a female student. Further, you were not truthful with your administrators when questioned about leaving campus with the female student during the 1988-89 school year. Your conduct constitutes gross insubordination, misconduct in office and just cause for your dismissal, pursuant to Section 231.36(6)(a), Florida Statutes." In accordance with the Superintendent's recommendation, the Petitioner, the School Board, suspended the Respondent without pay and initiated dismissal proceedings.
At the hearing, the Petitioner presented the testimony of the various female students whom the Respondent allegedly inappropriately touched and to whom he allegedly made inappropriate remarks, as well as the testimony of several administrators of the Pinellas County School System and some other students. The Respondent testified in his own behalf and presented a stipulation between the parties in lieu of the testimony of some 49 additional students.
Both parties submitted proposed recommended orders. Explicit rulings on the parties' proposed findings of fact may be found in the attached Appendix to Recommended Order, Case NO. 89- 6748.
Larry Lynn (hereinafter 1,Lynn") holds a Teaching Certificate, 563002, issued by the State of Florida.
The School Board of Pinellas County, Florida, has employed Lynn as a teacher, since the 1986/1987 school year, and although Lynn is currently suspended without pay, he is employed by a Professional Service Contract.
For the first semester of the 1986/1987 school year, Lynn was assigned to Largo High School.
For the second semester of 1986/87 school year, Lynn was transferred to St. Petersburg High School.
While Lynn was at St. Petersburg High School, one of his female students requested a transfer from Lynn's class due to her perception that Lynn was injecting sexual innuendo into his classroom presentations.
Although Lynn denied using such terms, he was counseled by administrators on two occasions to avoid using language that could be construed as containing sexual references. Lynn also received a rating of "I," for "Improvement Expected (growth necessary)" in the judgment category on his annual evaluation for that school year, with a notation that Lynn was "conscious of the need to eliminate off-hand remarks within the lesson."
For the 1987/1988 school year and for all further times relevant to the issues presented in this cause, Lynn was assigned to Pinellas Park High School.
On September 25, 1987, Richard Allen, an Assistant Principal at Pinellas Park High School, held an initial conference with Lynn to reference the incident at St. Petersburg High the year before and to remind Lynn of the need to avoid using language that was susceptible of being construed as having sexual content.
During the 1988/1989 school year, Lynn was seen leaving campus with a female student named Sherry Biafore during lunch time without authorization.
It is against school policy to accompany students off campus, or to allow students to leave campus, during school hours without authorization.
It also was brought to the attention of the school administration that Lynn allowed Sherry Biafore to be present in his classroom when she was not assigned to that class.
At a conference with Marilyn Heminger, the Principal of Pinellas Park High School, to discuss the information the administration had received concerning Biafore, Lynn told her that he had been "counseling" Biafore and that he only left campus with her one or two times. He also admitted to having written two hall passes for Biafore during the fifth period. In fact, Lynn and Biafore had left campus without permission on approximately ten occasions, not just the one or two occasions to which they had admitted. Also, Lynn allowed Biafore to be in his classroom when she was assigned to another class on numerous occasions and at different times during the day. When she was there, in the presence of the students assigned to his class, Lynn would allow her to sit on his lap, to hug and kiss him, and to call him "daddy." He would call her "sweetie cakes," or other terms of endearment, and would give her cigarettes.
During the 1988/1989 and 1989/1990 school years, a student named Erica Howell, (DOB 5/25/72), was an office assistant and had to obtain attendance records from teachers who delayed turning them in. Lynn was frequently late in turning in his attendance records, and Howell often had to retrieve this, as well as other information, from Lynn.
On one occasion during the fall of the 1989/1990 school year, when Howell had to get attendance records from Lynn, Lynn made comments that could reasonably be perceived as containing sexual innuendo and which were so perceived by Howell, such as "that's not all you can come and get."
Also during the 1989/1990 school year, when Howell entered Lynn's classroom to get attendance records, Lynn placed his hands on Howell, in her buttocks area, put his arm around her waist, and around her arm, and touched her on the breast.
These actions by Lynn, together with others the previous two years (see Findings 18 through 20, below), disturbed Howell so much that she asked not to be forced to get records from him anymore. When Heminger, the Pinellas Park Principal, heard about the incident, and heard that Erica Howell's parents had called the school to complain, she decided to refer the entire matter to Stephen Crosby, the Pinellas School System's Director of Personnel Services.
Crosby began his investigation by interviewing Howell. Howell not only reported the incident during the fall of the 1989/1990 school year, but she also reported incidents which had happened during the 1987/1988 and 1988/1989 school years. 1/
During the 1987/1988 school year, Lynn gave Erica Howell and a foreign exchange student a ride to Howell's home, but instead of going directly home, Lynn took a circuitous route of great length, which concerned Erica Howell and caused the exchange student to cry.
During the 1988/1989 school year, when Howell, acting as an office assistant, went to Lynn's classroom to ask for attendance reports, Lynn, in the presence of the students in the class, made remarks that could be reasonably construed as containing sexual innuendo, and which were so perceived by Erica Howell. For example, when Howell asked if she could have the attendance report Lynn would say: "That's not all you can have."
On another occasion during the 1988/1989 school year, Lynn overheard Howell and a friend talking about "making connections" with boys during an upcoming weekend. Lynn commented: "I'll be your connection any time."
Howell then gave Crosby the name of a friend named Laura Mackie, (DOB 4/6/72), also a former student of Lynn, and reported what Mackie had told her. Crosby next interviewed Mackie. 2/
During the 1987/1988 school year, Lynn put his arm around Mackie, including around her waist, and on one occasion patted her on the buttocks with his hand.
Laura Mackie was disturbed by this patting of her buttock by Lynn, and told her friend, Melissa Logue, as well as her track coach.
Crosby also received information that both Lynn and Biafore had been dishonest in their statements about what had occurred during the preceding year. Crosby's new information was that Lynn and Biafore had left campus without permission on approximately ten occasions, not just the one or two occasions to which they had admitted. Also, he received information that Lynn allowed Biafore to be in his classroom when she was assigned to another class on numerous occasions and at different times during the day. When she was there, in the presence of the students assigned to his class, Lynn would allow her to sit on his lap, to hug and kiss him, and to call him "daddy." He would call her "sweetie cakes," or other terms of endearment, and would give her cigarettes. (See Finding 12, above.)
Crosby next confronted Lynn with the allegations of Howell (see Findings 14, 15, 19 and 20, above) and Mackie (see Finding 22, above) and with the allegation that he in fact had left campus with Biafore on numerous occasions. Lynn denied the allegations and said he could prove that he did not leave the campus with Biafore more than once or twice.
Crosby next interviewed the female students who were in Lynn's classes during the fall of the 1989/1990 school year. 3/
During the 1989/1990 school year, a female student named Jennifer Stroyan, (DOB 7/8/75), was adjusting her hair with one hand, while holding books with her other hand, when Lynn put his arm around her, under the arm with which she had been adjusting her hair. Lynn's hand touched her breast, and Stroyan removed Lynn's hand from her breast by a downward motion of her arm. This action by Lynn caused Stroyan to be uncomfortable around Lynn and to lose respect for him as a teacher.
During the 1989/1990 school year, a student named Shonyelle Sampson, (DOB 1/19/75), answered a question in class incorrectly, and Lynn told her to use her "fucking head." The effect on Sampson was that she stopped volunteering to answer questions in Lynn's classroom.
During the 1989/1990 school year, Lynn was talking with a female student named Keli Jo Girard, (DOB 8/4/73). Noticing that she was wearing a boy's jacket, Lynn asked her if she had a boy friend. When she replied that she did, Lynn asked her if she was still a virgin. When she replied that she was, Lynn stated that it was good to "wait," and then said that he (Lynn) waited until he was 12 years old.
During the 1989/1990 school year, Lynn rubbed the neck and shoulders of a female student named Tracy Peterson, (DOB 1/22/75), and, at one point, put his arm around her so far that his hand touched her breast.
Lynn's conduct was so disturbing to Peterson that she told her mother, who advised her to avoid Lynn in the future.
Lynn frequently used the initials "S.O.B." and "G.D.M.F." in class. He says that he used "S.O.B." as attention- getting way of referring to "state of being" and that "G.D.M.F." actually was part of "G.D.M.F.T.D.," which was supposed to stand for "golly dern, mighty fine, that's dandy." But several of his students were not aware that they were supposed to stand for anything other than the vulgar expressions commonly understood by those initials.
Crosby next interviewed female students who had been in Lynn's classes at Pinellas Park High School during previous years. 4/
During either 1987/1988 school year or the 1988/1989 school year, Lynn frequently spoke to a female student named Leslie Kemp, (DOB 5/22/71), while she was in the company of her friend, Keyma Mitchell, and used sexually suggestive terms in the conversations, including asking Kemp to go to a motel with him, and once asking Kemp if she would like her body licked.
On another occasion, Lynn patted Leslie Kemp on the buttocks, which action Leslie Kemp reported to Leroy Kelly, a Pinellas Park Police Officer assigned to Pinellas Park High School.
On several occasions during the 1988/1989 school year, Lynn placed his arm around the waist of a female student named Helen Seefeld, (DOB 8/11/73). Lynn's actions made Seefeld feel uncomfortable. She did not perceive similar attentions being paid to male students.
During the 1988/1989 school year, Lynn rubbed the neck and shoulders of a female student named Melissa Martinez, (DOB 3/16/73), while showing movies to his class or when she asked questions in class. This disturbed Martinez to the point where she stopped asking for assistance in class.
Melissa Martinez also heard Lynn remark in class that the woman with whom he was living was satisfying all his needs, which comment was said in such a way as to be reasonably susceptible of being construed as containing sexual innuendo.
During the 1988/1989 school year, Erica Thomas (DOB 2/13/73), heard Lynn use the word "fuck" out loud in class. Lynn also rubbed her back and shoulders, which disturbed Thomas to the extent that she asked Lynn to stop.
Several times during the 1988/1989 school year, Lynn placed his arm around Keli Jo Girard closely enough that on at least two occasions his hand brushed her breast.
On several occasions during the 1988/1989 school year, Lynn placed his arm around the waist of a student named Angela Garrett, (DOB 3/22/72). When he persisted in asking her to be his assistant, it made her nervous, and she tried to avoid Lynn.
Also during the 1988/1989 school year, Lynn would walk about his classroom and stop to rub the neck and shoulders of a student named Amber Wilkinson, (DOB 2/10/71), who disliked it and would tell Lynn angrily under her breath to keep his hands off her.
During the 1988/1989 school year, Lynn patted a student named Alison Davis, (DOB 7/12/72), on the buttocks on at least three occasions.
It then occurred to Crosby that, although they had evidence of allegations of Lynn's improper use of sexual innuendo when he was at St. Petersburg High, they had no similar information during his tenure at Largo High School. Crosby located a Largo High yearbook and picked out a few female students from the grades Lynn taught who appeared to Crosby from
their yearbook pictures to be attractive. 5/
While at Largo High School during the first semester of the 1986/1987 school year, Lynn touched his fingers to the chin of a female student named Lynn Smith, (DOB 9/26/71), and told her that she had a pretty face.
On a separate occasion, the Respondent asked Smith to stay behind after class to pick up a paper. Lynn was sitting on the corner of his desk. As Smith came close to him, the Respondent quickly brought his legs together, stating that he almost got her that time.
These two incidents made Smith very uncomfortable about Lynn as a teacher. Smith did not report either incident at the time because of her age and because she was nervous, but she is now glad the incidents are known.
While at Largo High School, Lynn rubbed his hand on the cheek of another of his female students, Kim McGevna, (DOB 2/11/72), saying he did not believe that she was not wearing makeup.
Kim McGevna told her mother, Jean McGevna, and her boy friend about Lynn touching her, and the comment that he made, and informed them that she did not like it.
Jean McGevna told Lynn, over the telephone, that he had no business touching her daughter and that in the future he should keep his hands off her, and to speak to her only in the classroom and only about school work. Kim's boy friend expressed similar thoughts to Lynn when he and one or more of his friends approached Lynn after a basketball game in the school gymnasium.
It is harmful to the learning process for a teacher to subject students to inappropriate touching or sexual comments.
Such behavior by a teacher causes a student to lose respect for a teacher, thereby diminishing the teacher's effectiveness.
Parents do not appreciate such behavior by a teacher towards their children, and therefore such behavior decreases parent support for the school.
Honesty on the part of a teacher when discussing professional matters with administrators is important to the efficient operation of school. Dishonesty by a teacher is a breach of trust that diminishes the teacher's effectiveness.
Neither Crosby nor any other school administrator confronted Lynn with the results of Crosby's further investigation (resulting in Findings 18 and 27 through 50), or the additional information regarding how often Biafore was in Lynn's classroom instead of where she was supposed to be (last two sentences of Finding 24) until the information was used as a basis for Lynn's suspension and the School Superintendent's recommendation that the School Board dismiss him.
The Respondent has been a teacher for over fifteen years, the majority of the time teaching English. Except for the evaluation at St. Petersburg High that "improvement [in `judgment' was] expected," Lynn received all "excellent" and "good" evaluations during his teaching career. He never before has been terminated from a teaching job and never has been transferred in lieu of firing.
Lynn is a friendly, outgoing, "arm-around" type of teacher, to both boys and girls, without the majority of them perceiving any sexual overtones by his general open nature. It is common for Lynn to place his hands on the neck, shoulder and waist of both boys and girls, and he does this openly, in front of others.
CONCLUSIONS OF LAW
Section 231.36(6)(a), Florida Statutes (1989), provides that a school board may suspend or dismiss a member of the instructional staff not under continuing contract during the term of an annual contract based on just cause as provided in paragraph (1)(a) of the statute, which states that just cause includes, but is not limited to, misconduct in office or gross insubordination, among other things not in issue in this case.
F.A.C. Rule 6B-4.009 defines misconduct in office and gross insubordination as follows:
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.
Gross insubordination . . . is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
F.A.C. Rule 6B-1.006 provides in pertinent part:
Obligation to the student requires that the individual:
(a) Shall make reasonable effort to
protect the student from conditions harmful to learning or to health or safety.
* * *
(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
* * *
(h) Shall not exploit a professional relationship with a student for personal gain or advantage.
* * *
Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
F.A.C. Rule 6B-1.001 provides in pertinent part:
The educator values the worth and
dignity of every person, the pursuit of truth [and] devotion to excellence.
The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
As reflected in the Findings of Fact, the Respondent was guilty of gross insubordination as defined in F.A.C. Rule 6B-4.009. Having been warned to avoid making statements that could be misinterpreted as having sexual innuendo, he continued not only to make statements that he should have known reasonably could have been interpreted as having sexual innuendo, he also made statements to students that he intended to be taken as having sexual content.
As reflected in the Findings of Fact, the Respondent also was guilty of misconduct in office, as defined by F.A.C. Rule 6B-4.009.
In addition to his inappropriate comments, the Respondent intentionally put his hands on female students in places that, and in manners in which, he should not have--on their faces, on their buttocks and so as to touch their breasts.
6/
Although few of these incidents were known to the school administration at or around the time they occurred, when the Respondent was confronted with his inappropriate relationship and behavior with Sherry Biafore, he was dishonest in his responses. Likewise, his responses on being confronted with the charges in this case, up to and including his testimony at final hearing, were in part dishonest.
The Respondent's conduct constituted violations of the Code of Ethics and Principles of Professional Conduct which were serious enough to impair his effectiveness in the Pinellas County School System.
F.A.C. Rule 6B-4.008 provides:
When an action or other matter appears to exist which may possibly result in the future dismissal of an employee, the
immediate supervisor of the individual should take appropriate action to advise the
employee of the matter and the potential consequences if not corrected.
Every possible helpful effort should be made by the immediate supervisor to aid the employee to correct the matter which could cause his or her dismissal if not corrected.
Except in extremely serious circumstances, the employee should be given sufficient time, following notification, for improvement.
In this case, it cannot be said that the School Board of Pinellas County followed the letter of the requirements of F.A.C. Rule 6B-4.008. There was no evidence that any supervisor ever advised the Respondent, in so many words, that the conduct at issue in this case, if not corrected, would be grounds for dismissal. 7/ But the Respondent was counseled to avoid using language that could be construed as sexual innuendo, and F.A.C. Rules 6B-4.009, 6B-1.001, and 6B-1.006 put the Respondent on ample notice of what is required of a teacher in the State of Florida and that dismissal could be the consequence of his behavior. The Respondent also should have been able to figure out that, if he was not to use language that could be construed to have sexual content, he also should not have been touching and holding female students in such a way that he frequently touched the students' breasts. Finally, the Respondent should not have had to be told that his dishonest responses to the school administration, on being confronted with some of the allegations against him, were unacceptable and could be grounds for dismissal for destroying his credibility with administration.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the School Board of Pinellas County, enter a final order dismissing the Respondent, Larry Lynn, as a teacher at Pinellas Park High School.
DONE and ENTERED this 10th day of April, 1990, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1990.
1/ Howell testified to the facts in Findings 18 through 20. 2/ Mackie testified to the facts in Findings 22 and 23.
3/ Findings 27 through 32 are based on the testimony of the female students referenced in them.
4/ Findings 34 through 43 are based on the testimony of the female students referenced in them.
5/ Findings 45 through 50 are based on the testimony of Smith, McGevna, McGevna's mother.
6/ This could be misconduct in office, but not gross insubordination, as those terms are defined in F.A.C. Rule 6B- 4.009. The Respondent had not been previously warned about this conduct.
7/ The School Board, through the argument of its attorney and through the testimony of its personnel director, took the position that this is precisely why the "conference" on June 6, 1989, regarding the Shelley Biafore incidents did not constitute prior discipline for those incidents. On the other hand, the School Superintendent took the position in his testimony that, although the precise words were not used, the Respondent's prior conferences, both at Pinellas Park and at St. Petersburg High School, were reprimands that put the Respondent on notice that dismissal could be the consequence of failure to correct the behavior.
APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6748
To comply with Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact:
1. Accepted and incorporated insofar as the proposal was completed.
2.-4. Accepted and incorporated to the extent not subordinate or unnecessary.
5. First sentence, accepted and incorporated. Second sentence, rejected as contrary to facts found and subordinate to facts contrary to those found.
6.-7. Accepted and incorporated to the extent not subordinate or unnecessary.
10.-11. Rejected as subordinate to facts contrary to those found. 12.-14. Accepted but subordinate to facts found.
15. Rejected in part as contrary to facts found. Lynn was advised and counseled as to some, but not all, of the complaints, as reflected in the Findings of Fact.
Bruce P. Taylor, Esquire 1960 East Druid Road Clearwater, Florida 34618
Lawrence D. Black, Esquire
152 Eighth Avenue, S. W. Largo, Florida 34640
Scott N. Rose, Ed. D. Superintendent
Pinellas County School System Post Office Box 4688 Clearwater, Florida 34618-4688
