STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0188

)

EDWIN D. MACMILLAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 8, 1992, in Fernandina Beach, Florida.

APPEARANCES

For Petitioner: John F. Gilroy, III, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

For Respondent: Thomas W. Brooks, Esquire

P. O. Box 1547 Tallahassee, FL 32302

STATEMENT OF THE ISSUES

The issue is whether respondent's teaching certificate should be disciplined for the reasons cited in the administrative complaint.

PRELIMINARY STATEMENT

This matter began on November 21, 1991, when petitioner, Betty Castor, as Commissioner of Education, issued an administrative complaint charging respondent, Edwin D. MacMillan, a certified teacher, with having violated Subsections 231.28(1)(c),(f), and (h), Florida Statutes (1989), and various rules. More specifically, the complaint alleged that respondent, while employed as a teacher at Hilliard Middle-Senior High School in Nassau County during school year 1990-91, engaged in inappropriate and unprofessional conduct towards seven minor females, six of whom were then students, and the other a former student who subsequently re-enrolled in school.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1991), to contest the proposed agency action. The matter was thereafter referred by petitioner to the Division of Administrative Hearings on January 13, 1992, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated January 29, 1992, a final hearing was scheduled on April 23, 1992, in Fernandina

Beach, Florida. At petitioner's request, the matter was rescheduled to June 8, 1992, at the same location.

At final hearing, petitioner presented the testimony of Robert Lawrence, James M. Schreiber, Jessica Ann Smith, Cheryl D. Donley, Shalane Bryant, Judy Connor, Barbara C. Cornwell and Ada Revell, who was accepted as an expert in secondary school administration. Respondent testified on his own behalf and presented the testimony of Shana Higginbotham, Carey Wildes, April Manning and Donna W. MacMillan. Also, he offered respondent's exhibit 1 which was received into evidence.

At the beginning of the hearing, petitioner voluntarily dismissed the charges in paragraph 4 of the complaint and amended paragraph 5(b) to reflect the name of the student as C. D., instead of S. D., and the date of the incident as school year 1986-87 instead of school year 1990-91.

The transcript of hearing was filed on July 6, 1992. Proposed findings of fact and conclusions of law were originally due on July 16, 1992. At respondent's request, this time was extended to July 27, 1992, and the same were timely filed by the parties on that date. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

1. Based upon all of the evidence, the following findings of fact are determined:

   
   

2. At all times relevant hereto, respondent, Edwin D. MacMillan, held teaching certificate number 439378 issued by petitioner, Betty Castor, as Commissioner of Education. The certificate covers the areas of mathematics, social studies, and psychology and is valid through June 30, 1993. When the events herein occurred, respondent was employed as a teacher at Hilliard Middle- Senior High School in Hilliard, Florida. The school is a part of the Nassau County School District.

   
   

3. For nine years respondent taught general and upper level mathematics, algebra, geometry and trigonometry at Hilliard Middle-Senior High School. He also assisted in the coaching of various athletic teams, including the girls' basketball team. Based upon the charge that respondent engaged in inappropriate and unprofessional conduct towards certain female students, on May 9, 1991, respondent was suspended from his teaching position by the School Board of Nassau County. He has remained suspended pending the outcome of this proceeding and another inititated by the School Board. 1/ It is noted that all of the students who are the subject of this complaint have now graduated

   
   

4. The administrative complaint first alleges that in school year 1986-87, "respondent drove C. D., a minor female student, home from a basketball game and made a suggestive comment about her 'giving him some.' On another occasion, the Respondent grabbed C. D.'s buttocks as she was exiting a room." As to these two charges, the evidence shows that during the school year in question, Cheryl Donley was a ninth grader and the manager of the girls' basketball team. Respondent served as the coach of the team. On an undisclosed date during basketball season, respondent carried a number of players and Cheryl home after practice one afternoon. Cheryl, who was sitting in the back seat, was the last student to be dropped off. Just as respondent drove up in front of Cheryl's house to let her out of the car, Cheryl says she told respondent "Well, Mac, you've dropped everyone off except me, I guess I'm the last one" and that

   respondent made a remark to this effect: "You're going to have to give me some for this one." Although Cheryl says she was taken aback she said nothing and got out of the car. While on an overnight trip to the state basketball tournament later on that school year, Cheryl told an adult chaperone a different version of the remarks allegedly made by respondent. On that occasion, she embellished the story by alleging that respondent told her he was not going to take her home, and that he would take her off on a county road and show her a good time. Respondent denied that either version of statements was made. At hearing, Cheryl conceded that respondent often joked around with students and agreed that he may have said something without intending it to be taken in the manner that it was. In light of this, and given the above material inconsistencies in her recollection of the conversation, it is found that respondent may have said words to the effect "you owe me for this one" but Cheryl misconstrued his remarks. It is further found that respondent did not intend his remarks to be taken as sexually suggestive or to imply any inappropriate connotation. Finally, there was no testimony concerning the allegation that respondent "grabbed C. D's buttocks as she was exiting a room" and thus that charge must likewise fail.

   
   

5. The second allegation in the complaint concerns events some three years later, or in school year 1989-1990, when respondent is alleged to have "made inappropriate and suggestive comments to J. S., a minor female student, including making comments about her appearance such as 'I like the way your butt looks' and offering to go with her to a dark corner of a room." As to these charges, the evidence shows that Jessica Smith was a student in respondent's algebra II classroom during the school year in question. She was then a senior and around eighteen years of age. On an undisclosed date during that school year, the boys' and girls' basketball teams were playing games at Folkston, Georgia. After the girls' game ended, respondent took a short break in a commons area near a concession stand. Jessica had just been to the concession stand and walked by him while returning to her seat. The two engaged in a brief conversation about the attractiveness of the new school facility. Jessica related that at the end of their short conversation respondent told her "he knew where all the dark corners were" and could point them out. Respondent denied that those exact words were spoken and recalled that he may have said in a joking manner "don't let me catch you in any dark corners". In any event, Jessica gave a nervous giggle and then left. At hearing, she indicated that she construed the remarks as being sexually suggestive. However, it is found that respondent's version of the conversation is more credible. Further, it is found that respondent did not intend the remarks to be sexually suggestive or to otherwise imply any inappropriate connotation. Finally, there was no evidence that respondent made comments about Jessica's appearance including the remark "I like the way your butt looks."

   
   

6. The final allegation concerns events that took place the following year, or in school year 1990-1991. The complaint alleges that respondent "engaged in sexual intercourse" with a minor female who had withdrawn from school. The sexual misconduct allegedly occurred in a coach's office. The evidence shows that during the school year in question, Shalane Bryant was a senior at Hilliard Middle-Senior High School. Around January 25, 1991, she withdrew from school and did not reenroll until February 15, 1991. Although Shalane had never been in one of respondent's classrooms, she knew who he was because her best friend was a student in one of his classrooms. Her younger brother, Chad, was a member of the boy's basketball team. Shalane was described by other students as having a reputation for not telling the truth.

7. On an undisclosed date in January 1991, but after Shalane had withdrawn from school, the varsity and junior high boys' and girls' basketball teams visited Jacksonville to play Southern Baptist. After the girls' game ended, the team members and coach (respondent) boarded a school bus around 8:10 p.m. and drove to the Dunn Avenue exit on Interstate 95 where the bus exited to a nearby fast food restaurant. After the team finished eating, the members reboarded the bus and eventually returned to the school gymnasium around 10:00 p.m.

   Respondent unlocked the door to the gymnasium, spoke briefly with the parents of an injured player, and then placed balls and equipment inside the gymnasium. He also physically checked each door to make sure that it was locked and left the gymnasium within 5 to 10 minutes after entering the same. While inside, he spoke briefly with Shalane, who had momentarily entered the gymnasium from the parking lot while waiting for Chad to return from Jacksonville. As it turned out, Chad was not scheduled to return until after the boys' game was completed. Respondent departed the gymnasium around 10:10 p.m. and was home before 10:30

   p.m. This was corroborated by another witness. Although Shalane contended that she and respondent had sexual intercourse in the coach's office around 8:30 p.m. that evening, this assertion is rejected as not being credible.

   
   

8. According to the school principal, who was accepted as an expert in secondary school administration, if the charges of having sexual intercourse with a former student and making "sexual invitations" to two other students as alleged in the administrative complaint were true, respondent would have "a real problem" continuing to teach in Nassau County since she believed that both students and parents would "have a problem dealing with that with him still being a teacher at Hilliard High School." She also pointed out that respondent and other teachers are given instructions during each school year to refrain from making sexually suggestive remarks to students. Since the underlying assumptions for the expert's opinion were not proven to be true, it is found that respondent's effectiveness as an employee was not impaired.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1991).

   
   

10. Because respondent's teaching certificate is at risk, petitioner bears the burden of proving the allegations in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. The complaint charges that respondent violated Subsections 231.28(1)(c), (f), and (h), Florida Statutes (1991). Those provisions authorize the Education Practices Commission to take disciplinary action against a teacher if the teacher:

    
    

    (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.

    In addition, respondent is charged with violating Rules 6B-1.006(3)(a), (e), and (h), and (4)(c), Florida Administrative Code. Those rules prescribe the code of professional ethics for educators and require that the teacher:

    
    

    (3)(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. (4)(c) Shall not use institutional privileges

    for personal gain or advantage.

    
    

12. The administrative complaint is based upon charges that respondent made inappropriate remarks to two female students and engaged in sexual intercourse with a former student on school property. The latter charge has been specifically rejected as not being credible and should be dismissed. As to the first two charges, the undersigned has found that the comments attributable to respondent were not accurate and were misconstrued by the two students. The issue, then, is whether seemingly neutral statements by a teacher in the presence of a student, not intended to convey an inappropriate meaning, and which are misunderstood and misconstrued by the student, constitute a violation of state law. Clearly, such statements would not constitute gross immorality or an act involving moral turpitude within the meaning of subsections 231.28(1)(c) and (f). At the same time, misconstrued statements alone (of the nature reported in this controversy) would not amount to "personal conduct which seriously reduces that person's effectiveness as an employee of the school board." This is especially true given the testimony of petitioner's expert whose opinion was predicated on the assumption, albeit incorrect, that the charges concerning sexual intercourse and making "sexual invitations" to the students were true. Finally, it is clear that in making the comments to Cheryl and Jessica, respondent did not exploit a professional relationship with them or use institutional privileges for personal gain or advantage, and he did not intentionally expose those students to unnecessary embarrassment or disparagement. Further, the students were not subjected to conditions "harmful to learning or to health or safety" within the meaning of the rule. Therefore, all charges should be dismissed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a final order

dismissing all charges against respondent.

DONE and ENTERED this 3rd day of August, 1992, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 3rd day of August, 1992.

ENDNOTE

1/ At hearing, counsel represented that, with one exception these same charges were formulated in a complaint issued by the School Board. The parties represented that after an evidentiary hearing was held in the School Board case, the hearing officer recommended dismissal of all charges. However, the Board rejected the recommended order and entered a final order terminating respondent's employment. That order is now on appeal.

APPENDIX

Petitioner:

1. Partially accepted in finding of fact 2. 2-8. Partially accepted in finding of fact 4.

1. Rejected as being contrary to the evidence.

2. Partially accepted in finding of fact 7. 11-12. Partially accepted in finding of fact 4.

1. Rejected as being contrary to the evidence.

2. Partially accepted in finding of fact 3. 15-19. Partially accepted in finding of fact 6.

1. Rejected as being contrary to the evidence.

2. Partially accepted in finding of fact 6.

22-27. Rejected as being contrary to the evidence. 28-30. Rejected as being unnecessary.

31. Partially accepted in finding of fact 6.

32-35. Rejected as being contrary to the evidence. Respondent:

1. Partially accepted in finding of fact 2. 2-3. Covered in footnote 1.

1. Partially accepted in finding of fact 5.

2. Partially accepted in finding of fact 2. 6-12. Partially accepted in finding of fact 3. 13-19. Partially accepted in finding of fact 4. 20-21. Partially accepted in finding of fact 5. 22-34. Partially accepted in finding of fact 6. 35-36. Partially accepted in finding of fact 5. 37-38. Rejected as being unnecessary.

Note - Where a proposed finding as been rejected, the remainder has been rejected as being unnecessary, cumulative, subordinate, not supported by the evidence, irrelevant, or a conclusion of law.

COPIES FURNISHED:

Karen Barr Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

John F. Gilroy, III, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

Thomas W. Brooks, Esquire

P. O. Box 1547 Tallahassee, FL 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-000188

Orders for Case No: 92-000188