STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HIGHLANDS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1555

)

ROBERT JARVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Avon Park, Florida, on February 3 and 4 and March 10 and 11, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: James F. McCollum

James F. McCollum, P.A.

129 South Commerce Avenue Sebring, Florida 33870

For Respondent: Ronald G. Meyer

Meyer and Brooks, P.A. Post Office Box 1547

Tallahassee, Florida 32302

Attorney William B. Fletcher 906 South East Lakeview Drive Sebring, Forida 33870

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of misconduct in office.

PRELIMINARY STATEMENT

By letter dated March 3, 1993, Petitioner informed Respondent that he was suspended with pay, effective March 11, from his position as a teacher at Avon Park Middle School due to misconduct in office, pursuant to Section 231.36, Florida Statutes.

Respondent requested a formal hearing by letter dated March 5, 1993.

On July 12, 1993, Petitioner filed an Amended Petition. The Amended Petition alleges that Respondent violated Rules 6B- 1.006(3)(a), (e), (f), (g), and (h), (4)(d), and (5)(d). The Amended Petition alleges that Respondent caused embarrassment to several students through his actions.

With respect to Student 1, the Amended Petition alleges that Respondent placed his hands on her buttocks in January 1993 and put his arms around her.

With respect to Student 2, the Amended Petition alleges that Respondent hugged and kissed her in December 1991; kissed her, exposed his penis to her in December 1991, and asked her to touch it; told her that she would have sex with him before the end of the year; allowed her to write him suggestive notes without taking disciplinary action; prepared three cassettes of love songs for her; tried to put his hand down her pants in June 1992; again exposed his penis and asked her to touch it; twice placed his hand underneath her blouse and fondled her breast; told her to meet him on the last day of school during the 1991- 92 school year so he could show his love for her; exposed his penis to her in June 1992; suggested to her that they perform sexual intercourse and oral sex and tried to remove her pants in June 1992; commented about her body; and placed his arm around her and felt her breast.

With respect to Student 3, the Amended Petition alleges that Respondent put his hands on her, flirted with her, inappropriately touched her, and called her a "bimbo."

With respect to students in general, the Amended Petition alleges that Respondent flirted with female students, lost their respect and thus his effectiveness as a teacher, and made students so uncomfortable that they refused to participate in class.

With respect to Teacher 1, the Amended Petition alleges that Respondent flirted with her or allowed his behavior to be interpreted by students as flirting, so as to lose his effectiveness as a teacher.

With respect to Teacher 2, the Amended Petition alleges that Respondent flirted with her.

With respect to Teacher 3, the Amended Petition alleges that Respondent flirted with her or allowed his behavior to be interpreted by students as flirting, so as to lose his effectiveness as a teacher.

At the final hearing, Petitioner called 20 witnesses and offered into evidence 13 exhibits. Respondent called 21 witnesses and offered into evidence

22 exhibits. All exhibits were admitted except Petitioner Exhibits 2, 5, 11 and Respondent Exhibit 22. One exhibit was admitted as Hearing Officer Exhibit1.

The transcript was filed April 20, 1994. Each party filed a proposed recommended order, and rulings on the proposed findings are in the appendix.

FINDINGS OF FACT

1. Respondent has been employed as a physical education teacher at Avon Park Middle School in Highlands County since 1978. He holds a teaching certificate and at all material times was on continuing contract with Petitioner.

2. Normally, middle school consists of sixth through eighth grades. However, during a portion of the relevant time period, Avon Park Middle School included fifth through eighth grades.

   
   

3. Student 2 is C. B., who is now 17 years old and in 10th grade. C. B. entered fifth grade at Avon Park Middle School in the fall of 1988. At this time, C. B. first encountered Respondent and soon developed a crush on him. Late the following school year, C. B. wrote two notes to classmates that indicate the strength and persistence of her infatuation with Respondent.

   
   

4. The first note is dated April 9, 1990. The note states that she has been "day dreaming" about "me and C. J. [Coach Jarvis]."

   
   

5. The second note, which is dated May 29, 1990, mentions a dream that C.

   1. describes as "so real." C. B. wrote that she was going to recount the dream to Respondent and the female physical education coach, Ms. Dixon, although there is no evidence that she ever did. In the note, C. B. wishes that Respondent would get a divorce and marry and "have sex with me." C. B. also stated in the note that she wishes that Respondent "would give me a kiss before school is out." C. B. signed the note as "[C. B.] or [C.] Jarvis."

      
      

6. At the end of sixth grade, C. B. signed the yearbooks of at least two classmates, "C. Jarvis." The signatures reflected her desire to marry Respondent.

   
   

7. The crush continued while C. B. was in seventh grade. In an undated note probably written in sixth or seventh grade, C.B. writes:

   
   

   . . . Have you ever seen Coach J['s] house[?] If you hadn't seen it, the house must not be very far. You know for me to get Coach J. I'm going to have to go to his house and punch his wife [out?] & then she'll die & I'll have Cochy pooh to my self. . . .

   
   

8. During seventh grade, C. B. developed crushes on two other adults. The first was Deputy Keith Starling, who is a 25 year old coworker and friend of C.B.'s father. Although Deputy Starling never did anything to encourage C. B., she wrote, "I [love] Keith Starling" in a classmate's yearbook at the end of seventh grade.

   
   

9. A more serious incident took place the summer following seventh grade.

   1. B. babysat five days a week from about 8:30 am to 2:30 pm for the children of Mike and Bonnie Brown. Mr. Brown, who is in his 30s or 40s, began to find letters from C. B. in his underwear drawer. Although he had never spoken to her except to say hello, the letters addressed highly personal matters, such as that he had a nice body, his wife did not dress him well, and C.B. would like to dress him like he should be dressed.

   
   

10. The letters started the first week after C. B. began babysitting for the Browns. Mr. Brown showed the first or second one to his wife, but they dismissed the letters as unimportant. They did not discuss them with C. B. or her father. After two months, the Browns quit asking C. B. to babysit after she pulled the hair of one of their young children.

11. C. B. was assigned to Respondent's physical education class in eighth grade, which was the 1991-92 school year. This was the first time that Respondent was C. B.'s teacher.

    
    

12. Respondent had been indirectly aware that C. B. had developed a crush on him in fifth grade, but he paid it no attention. Respondent and Ms. Dixon had had direct contact with C. B. in sixth grade when C. B. paid them regular visits while they had hall duty.

    
    

13. C. B. told them that she was having serious problems with her stepmother, who she felt favored C. B.'s younger stepsister. C. B.'s biological mother had died when C.B. was only one year old. C. B.'s older sister had become pregnant outside of marriage and at a young age. Respondent had some special insights into teenage pregnancies as a family member had gone through the same problem.

    
    

14. There is no evidence that Respondent had any significant contact with

    C.B. during the following school year, which was when C. B. developed crushes on Deputy Starling and Mr. Brown.

    
    

15. Early in the 1991-92 school year, as C. B. was now in eighth grade and taking Respondent for physical education, she began to be more obvious in making Respondent the object of her attentions. She became more vocal. She approached Respondent in the hall and said that she really liked the way he looked. She went out of her way during physical education class to say hello to Respondent.

    
    

16. By Thanksgiving, C. B.'s infatuation had worsened. She told Respondent that she had a goal for her birthday--a kiss from Respondent. Respondent tried to laugh off the inappropriate comments. Like Mr. and Mrs. Brown, Respondent did not take the infatuation seriously, so, like them, he did not discuss it with anyone.

    
    

17. Sometime before Christmas break, Respondent received a note from C. B. that said she really liked him and her goal was a kiss. Respondent threw the note away. About a week or so later, Respondent received another note saying that she cared about him. Again, Respondent discarded the note and assumed that he would have no trouble if he stayed away from her.

    
    

18. Just prior to Christmas break, C. B. began stopping in to see Respondent. He began to become aggravated and started to evade her. However, he figured that the crush would cease during Christmas break.

    
    

19. At Christmas, Respondent received a Christmas card from C. B. The card featured three bunnies--one marked "[C. B.]," one marked Respondent, and one marked "[R.]," who is

    Respondent'sson.

    
    

20. The situation took a turn for the worse when school resumed in January. After a few days of relative inattention from C. B., Respondent received two notes within four days of each other.

21. The first note is dated January 6, 1992. C. B. gave the note to Respondent on that day or perhaps the following day. The note reads:

    
    

    Hey or hi, oh let's get to the point. Over the Christmas break I thought about you a lot. Even had dreams. I have thought about everything that could go wrong, but I want to go all the way with you. You may think this is just a crush but it's more than a crush. I really LOVE you. And I don't use that phrase unless I mean it. I know I could get preg. or something but that is why they invented condoms. Just tell me when and where and

    I'll be there in my birthday suit. Well, that's enough for now & bells gonna ring so Chow Baby for now!

    LOVE YA ALWAYS, [C.]

    [B.]

    Jarvis

    I wish!

    
    

22. On the same day, C. B. wrote a note to a classmate. The note states in part:

    
    

    Today I'm going to tell Coach "J" that I want to go all the way, Now I'll probley won't but I just want to see want he saids. It's going to be embarracing!!!!!! Now should I say it. Well write Back!

    
    

23. On January 10, C. B. wrote Respondent another note, which she delivered the same or following day. The note states:

    
    

    O.K. Look, I'm sorry your name got mention this morning. I just wish I could crawl underneith a whole. Season told her mom about me having a crush on you. So my mom questioned me this morning about it, and I told her that I still kinda. If she asks me again tonight I'm going to tell her no! I'm also going to [tell] everyone at school the same thing. But, I still love you, and I wouldn't want to do anything that would hurt you. . . . It's just everything is coming all at once and I'm beginning to feel I can't handle it. It's just everything is happenin so fast and at once. At this point right no I wish I was dead! I mean all of my emotion

    is going crazy right now. But, today at A/ [?] your class better watch out! Well enough of boring you with my problems better go!!!!

    
    

    *Love ya Always & Never won't stop!

    
    

    [C.]

    [B.]

    Jarvis Oh, you want to hear a joke--

    In 1998, your moma tried to skate, She hit the pole, her titties roled, in 1998.

    
    

    *NOTE: The word "Love" has been substituted in this ACCESS document for the heart symbol which is typed on original document on file in the Clerk's Office.

    
    

24. There is a third note dated January 13, 1992. It is of the same nature as the two preceding notes. However, C. B. never delivered the note to Respondent.

    
    

25. After getting the second note, Respondent discussed them with Ms. Dixon and asked her advice. From her conversations with C.B., Ms. Dixon was aware that C. B. was upset that her father did not trust her after her sister had gotten pregnant. Ms. Dixon and Respondent agreed that he needed to take the notes to the guidance counsellor.

    
    

26. Respondent immediately took the notes to the guidance counsellor at Avon Park Middle School, Patricia Jackson. Ms. Jackson read the notes and arranged for a meeting among her, Respondent, and C. B.'s father.

    
    

27. At the meeting, C. B.'s father was cooperative, explaining that C. B. had started to develop an interest in boys. Respondent said that he had asked C.

    B. to stop this behavior, and he needed the father's help in this regard. The father expressed his appreciation that the matter was brought to his attention, but asked why he had not been told about it sooner. Respondent explained that he had not previously taken the infatuation seriously. The meeting closed with an assurance from the father that he would take C. B. to a friend at church for counselling. He left with the two notes.

    
    

28. At this time, Respondent and Ms. Dixon transferred C.B. to Ms. Dixon's physical education class. C. B. was quite upset at this action, and she became more upset when she learned that Respondent had told her father about the notes. Her father had disciplined her by restricting her social activities.

    
    

29. About one to two weeks later, someone brought C. B. to Ms. Jackson because C. B. had been crying in the hall. C. B. explained that she was upset because her father had placed restrictions on her and she was embarrassed by the notes. After about 15-20 minutes, C. B. quit crying, seemed comfortable, and returned to class. At no time did she mention any other reason for her agitation.

30. Respondent avoided C. B. for the remainder of the 1991- 92 school year. All contact between them stopped at that time until the last day of the school year.

    
    

31. Shortly after the students were released at midday, Respondent was checking the gym for equipment, forgotten books, and lost clothing. He heard someone call, "Coach, Coachie pooh." It was C. B., who was at the other end of the gym.

    
    

32. Respondent asked C. B. what she was doing there. Instead of answering, she climbed the stairs and entered the Future Farmers of America (FFA) room that is over the gym.

    
    

33. Respondent followed her into the room. C. B. was misty eyed and said that she wanted to say goodbye and did not want to leave middle school. Respondent said that she needed to leave. He heard someone in the storage room adjoining the FFA room. C.B. said that a girlfriend and her boyfriend were in the storage room.

    
    

34. At this moment, the public address system summoned Respondent to the office. A football equipment salesperson had come to the school to speak with Respondent, who was also a football coach, about repairing old helmets and ordering new ones to replace those that could not be repaired.

    
    

35. Respondent and the salesperson visited the equipment room and inventoried the football helmets. They examined about 50 helmets in 25-30 minutes. After determining that an unexpectedly high number of helmets needed to be replaced, Respondent and the salesperson visited an assistant principal and told him of the need to purchase $1000 worth of new helmets. The assistant principal conferred with the principal, who decided to defer making a decision.

    
    

36. At this point, the salesperson left and Respondent returned to the gym. He then found C. B. and her two friends at Respondent's desk in the locker room area. Respondent walked up to C. B. and demanded, "What the devil are you doing here?" She replied that she had to say goodbye one more time. Respondent told her to get out. He told C. B.'s two friends to get out too. The three students left the school area at that time.

    
    

37. C. B. testified to a different version of events. She described sexual encounters with Respondent just before Christmas break in 1991 and on the last day of school in 1992. For the reasons set forth below, C. B.'s testimony has been discredited.

    
    

38. C. B. testified that Respondent flirted with her intensely in December 1991. She testified that on one occasion he declared that he would kiss her before Christmas. She testified that Respondent gave her a pass to leave math class and go to the library. Instead, C. B. and Respondent met in his office and kissed, according to C. B. When his hand wandered toward her buttocks and breast, she testified that she left, and he said that he would show her how much he cared for her.

    
    

39. Initially, C. B.'s testimony on direct stopped at this point in the description of the alleged December incident. Later in direct, she added that Respondent had exposed his penis, masturbated in front of her, and ejaculated.

40. C. B. testified that Respondent gave her two or three audio cassettes of love songs by which to remember him, after he had turned in the notes in January 1992.

    
    

41. C. B. testified that her relationship with Respondent resumed toward the end of the 1991-92 school year. She testified that she met Respondent in his office before school each morning during the last couple of weeks of school and that each meeting he would try to kiss her. She testified that Respondent promised that he would show her how much he loved her on the last day of school.

    
    

42. C. B. testified on direct examination that she and a girlfriend went to the FFA room on the last day of school when school ended. She did not mention the boy.

    
    

43. C. B. testified that Respondent met her in the FFA room, held her hand, and said that he loved her. She testified that, in a 45-60 minute period, Respondent exposed his penis, masturbated, and ejaculated three times--once in the FFA room, once a few minutes later on the gym floor, and once a few minutes after that in his office in the locker room. She testified that he masturbated in the FFA room after she told him her two friends were in the adjoining storage room.

    
    

44. There are many problems with C. B.'s testimony. In her deposition given on September 22, 1993, C. B. testified that the first time she saw anyone's penis was during the alleged June encounter. She stated in her deposition that Respondent's penis remained in his pants during the December encounter. Likewise, she never mentioned in other statements the penis, masturbating, or ejaculating that she testified took place in December 1991.

    
    

45. There are also variations concerning C. B.'s description of the alleged June encounter with Respondent. On cross-examination, C. B. admitted for the first time that a boy had accompanied her girlfriend to the storage room adjoining the FFA room. She had testified previously on direct and in deposition that only her girlfriend had accompanied her to the FFA room.

    
    

46. C. B. explicitly mentioned only one of the three incidents of masturbation and ejaculation when she gave her statement to the school in March 1993. She clearly omitted from her statement the June office encounter, which was also omitted from her deposition testimony.

    
    

47. C. B. also testified in her deposition that, immediately afterwards, she told her waiting girlfriend that Respondent had masturbated and ejaculated in front of her. The girlfriend testified that C. B. said only that she had kissed Respondent and implied either that more sexual activity had happened or that she had wished that more had happened.

    
    

48. Besides these discrepancies, C. B.'s story lacks credibility due to its improbability. The last day of school is chaotic, and it is highly unlikely that Respondent would masturbate in the FFA room, after being told that two students were in the adjoining room; then on the gym floor, with unlocked doors all around him; and lastly, in his office just a few minutes later, as C. B. testified. Likewise, C. B. testified that the December encounter took place during the school day in front of a window between the office and locker room.

    
    

49. C. B. is a spirited, sensitive young person. It is not uncharacteristic of middle school students that they engage in sexual fantasizing, and C. B. is no exception in this regard. C.B.'s sexual fantasizing

    has extended to two adult males besides Respondent--Deputy Starling and Mr. Brown. In the case of Deputy Starling, C. B. acknowledged the attraction at least once in a classmate's yearbook, as she did repeatedly as to Respondent. In the case of Mr. Brown, C. B. sent numerous notes, as she did to Respondent.

    
    

50. C. B.'s reputation of truthfulness is poor among her peers and even her friends. There is no doubt that she deviated from the truth numerous times during her testimony. In addition to the matters set forth above, she testified that she never told anyone that she liked Deputy Starling and that she never left notes for Mr. Brown in his underwear drawer.

    
    

51. At various times, C. B. said different things to her friends concerning her alleged relationship with Respondent. To a current girlfriend of hers, C. B. said that she "sucked [Respondent's] dick." She admitted to the same person that she had made up at least some things concerning her and Respondent. To another girlfriend, C. B. said that she and Respondent performed oral sex and intercourse, but later said to her that she never had sex with Respondent.

    
    

52. For the above-cited reasons, none of the above-cited testimony of C.

    1. against Respondent can be credited.

       
       

53. Student 3 is C. Ba., who is now 14 years old. She moved to Highlands County around February 1, 1993, while she was in sixth grade. She was assigned to Respondent's physical education class.

    
    

54. One day during class, evidently not long after C. Ba. had entered Avon Park Middle School, Respondent named a team of crab soccer players as Ba.'s Bimbos. C. Ba. may not have known, but it was Respondent's custom to give the teams silly alliterative names, such as M.'s Maniacs.

    
    

55. C. Ba. objected strongly to the name, claiming that she believed that it meant that she was a prostitute.

    
    

56. According to local usage, a "bimbo" is an "airhead." According to the dictionary, a "bimbo" is a "thick-headed" person of either sex. Respondent intended the remark in this fashion, and most persons in Avon Park, including sixth grade students, would not have taken the remark to mean that Respondent was calling C. Ba. (or, strictly speaking, her team) prostitutes. Although in retrospect the name selected for the team was ill- considered, Respondent did not thereby reasonably cause C. Ba. any embarrassment or discomfort. As testified by the Superintendent, the school principal adequately handled this minor problem at the time.

    
    

57. When asked to give a statement to the school on March 2, 1993, C. Ba. wrote that Respondent flirted with her. She specified that Respondent tickled her, placed his hands where her back and buttocks join, and called her "bimbos" [sic]. The note also adds: "There's a rumor, not really a rumor, but a girl by the name of [C. B.]. [C. B.] told [another girl] during an FFA meeting that [Respondent] and [C.B.] had screwed each other."

    
    

58. In testifying, C. Ba. said that she could tell that Respondent was flirting with her due to the shine in his eyes-- the same look that she has seen boys get when they have tried to pick up other girls. There is no credible evidence that Respondent tickled C. Ba. or looked at her suggestively. If any contact really took place in the area of C. Ba.'s lower back, it was strictly incidental.

59. Student 1 is S. H., who is 15 years old. She was in seventh grade during the spring of 1993.

    
    

60. S. H. testified that Respondent touched her at the top of the buttocks while passing her in a crowded hall. Based on S.H.'s description of the circumstances, Respondent, who has no recollection of such an event, testified that he would have been trying to get through a crowd of students during a short break between classes in order to see someone in the office. There is no credible evidence of an intentional or otherwise inappropriate touching.

    
    

61. The circumstances surrounding the reporting of S. H.'s story are pertinent. She did not report the matter, which was clearly casual contact. When the other allegations against Respondent emerged, she mentioned the "incident" to her boyfriend, who reported the "incident" to school officials.

    
    

62. The spring and summer of 1993 was a fertile time for rumors and innuendos concerning Respondent among the minority of persons in the school and outside communities easily susceptible to suggestion or perhaps predisposed to dislike Respondent for some reason unrelated to the present case.

    
    

63. For instance, rumors linked Respondent to at least two physical education teachers. There is no substance to these rumors, or even to allegations that Respondent inappropriately touched these teachers, such as by draping a leg over their legs in the presence of students (or at any other time).

    
    

64. Other rumors were that Respondent entered the girl's locker room while girls were present and dressing. There is no substance to these rumors.

    
    

65. Rumors of Respondent's flirting with numerous other students began to circulate. In the end, evidently, the only students to step forward with sufficiently substantial charges to warrant inclusion in the subject case were

    1. B., C. Ba., and S.H.

    
    

66. As a result of the allegations of the three students, Petitioner suspended Respondent with pay in March 1993. Petitioner suspended Respondent without pay when, in the summer of 1993, the State Attorney filed criminal charges against Respondent based on the allegations of C. B.

    
    

67. The record does not reveal much about the decision to arrest Respondent and the ensuing investigation, except that C.B.'s father never bothered to give the State Attorney the notes that his daughter had written Respondent. In any event, the criminal case was eventually dropped, presumably for lack of evidence.

    
    

68. Petitioner's newly elected Superintendent had been a classroom teacher for 20 years. He testified that Respondent had a reputation as a flirt, although the Superintendent described this reputation as part of Respondent's personality and not anything specific. The Superintendent elaborated that the reputation was based on Respondent smiling, getting close to people, and combing his hair at halftime during football games that he officiated.

    
    

69. More importantly, the Superintendent testified that Respondent has lost his effectiveness as a teacher, and his opinion on this matter would not change even if C. B. withdrew her charges.

70. The Superintendent's opinion appears to be based in part on the perception that Respondent did not do what he could to stop the rumors. But if Respondent had dignified the rumors with a public denial, he would only have added fuel to the fire.

    
    

71. The Superintendent's reasoning is also based in part on community opinion. However, media coverage of the charges has been reserved, factual, and balanced. Most of commentary against Respondent has come from a person or persons who chose to remain anonymous. By contrast, an impressive array of persons chose to appear at the hearing and publicly support Respondent and his reputation.

    
    

72. A retired teacher, who had taught physical education with Respondent during her last 10 years of teaching, testified that she never saw Respondent touch students in the breast, buttocks, or genitals and never saw Respondent in the girls' locker room while it was occupied.

    
    

73. A math and science teacher, who taught 12 years at Avon Park Middle School, testified that Respondent could teach effectively in Highland County if the charges were unproved.

    
    

74. The Field Director of the Heart of Florida Girl Scout Council, who had two daughters in classes taught by Respondent and a son awaiting Respondent's return, testified that his reputation contains nothing derogatory and he never said or did anything improper.

    
    

75. A secretary at Avon Park Middle School and wife of a local circuit judge, who had a daughter in classes taught by Respondent for four years and who has younger children not yet of middle school age, testified that she and her husband would have no problem with Respondent teaching their younger children and that Avon Park Middle School employees would have no problem with Respondent's returning.

    
    

76. A substitute teacher and school volunteer, who has a daughter at Avon Park Middle School, testified that she would be comfortable with Respondent teaching her daughter and other children.

    
    

77. A local attorney, who is active in local organized baseball, testified that Respondent is an honest person, good teacher, good coach, and someone involved with children and that the local community believed that Respondent was innocent until proven guilty.

    
    

78. The Director of a local Christian preschool, who has daughters in seventh and ninth grades, testified that Respondent had a good reputation, parents wanted him back, and he could return to Avon Park Middle School and be effective.

    
    

79. An employee of the Department of Corrections facility in Avon Park, who has had two daughter who recently finished middle school, testified that Respondent's reputation is good and that the people of the community have not prejudged his guilt, but instead want him back at Avon Park Middle School where he could return as an effective teacher.

    
    

80. The coach and athletic director at Sebring High School for the past 25 years testified that Respondent could return as an effective teacher if cleared of the charges.

81. Respondent also enjoys substantial support among students.

    
    

82. On the other hand, Petitioner offered insubstantial evidence that Respondent could not return as an effective employee in the Highlands County school system or even at Avon Park Middle School, if the underlying charges were not proved. The greater weight of the evidence is that Respondent can return to teach physical education at Avon Park Middle School, or anywhere else in the Highland County school system, and enjoy the support of students, parents, teachers, administrators, and the public.

    
    

    CONCLUSIONS OF LAW

    
    

83. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

84. Section 231.36(4)(c) provides:

    
    

    Any member . . . of the instructional staff

    ... who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay; but, if the charges are not sustained, he shall be immediately reinstated, and his back salary shall be paid. . . .

    
    

85. Rule 6B-4.009(3) defines misconduct in office as a violation of the Code of Ethics, as adopted in Rule 6B-1.001, and the Principles of Professional Conduct, as adopted in Rule 6B- 1.006, "which is so serious as to impair the individual's effectiveness in the school system."

    
    

86. The Amended Petition cites the following sections of Rule 6B-1.006:

    
    

    1. Obligation to the student requires that the individual:

       (a) Shall make a reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.

       * * *

       1. Shall not intentionally suppress or distort subject matter relevant to a student's academic program.

       2. Shall not intentionally violate or deny a student's legal rights.

       3. Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status,

          handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.

       4. Shall not exploit a relationship with a student for personal gain or advantage.

       * * *

    2. Obligation to the public requires that the individual:

       * * *

       (d) Shall accept no gratuity, gift, or favor that might influence professional judgment.

       * * *

    3. Obligation to the profession of education requires that the individual:

       * * *

       (d) Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating,

       abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.

       
       

87. Petitioner has the burden of proving the material allegations by a preponderance of the evidence. Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).

    
    

88. Petitioner has failed to prove any of the material allegations against Respondent.

    
    

89. Petitioner argues that it may still terminate Respondent even if he is not proved guilty of the underlying charges. In other words, Petitioner argues that a teacher may lose his effectiveness as an employee based exclusively on unsubstantiated rumors. It is unnecessary to address this argument. Petitioner failed to prove that Respondent had lost his effectiveness as a teacher even if not proved guilty of the underlying charges. The evidence is clearly to the contrary.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Highland County School Board enter a final order reinstating Respondent and awarding him full back pay for the time that he was suspended without pay.

ENTERED on May 4, 1994, in Tallahassee, Florida.

ROBERT E. MEALE

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 on May 4, 1994.

APPENDIX

Rulings on Petitioner's Proposed Findings

1-2 (second sentence): adopted or adopted in substance.

2 (third sentence)-5: rejected as unsupported by the appropriate weight of the evidence.

6-8: adopted or adopted in substance.

9: rejected as unsupported by the appropriate weight of the evidence. 10: rejected as irrelevant.

11-13: rejected as unsupported by the appropriate weight of the evidence. 14-15: adopted or adopted in substance except that she only gave him two

of the notes.

16 (first sentence): adopted or adopted in substance.

16 (second sentence): rejected as unsupported by the appropriate weight of the evidence.

17: rejected as recitation of evidence. 18-20: adopted or adopted in substance.

21 and 23: rejected as subordinate. 22: adopted or adopted in substance. 24: rejected as subordinate.

25: rejected as unsupported by the appropriate weight of the evidence.

26-32: rejected as unsupported by the appropriate weight of the evidence.

33 (first and second sentences): adopted or adopted in substance.

33 (third sentence): rejected as unsupported by the appropriate weight of the evidence.

34: adopted or adopted in substance except for proposed contradiction in Respondent's testimony.

35 (first sentence): rejected as unsupported by the appropriate weight of the evidence except that Respondent came to the FFA room.

1. (second sentence)-36 (first sentence): adopted or adopted in substance.

2. (second sentence): rejected as unsupported by the appropriate weight of the evidence.

37-45: rejected as unsupported by the appropriate weight of the evidence. 46: rejected as irrelevant.

47: rejected as unsupported by the appropriate weight of the evidence and subordinate.

48-51: rejected as unsupported by the appropriate weight of the evidence. 52: rejected as irrelevant.

53-73: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, subordinate, and irrelevant at least as to anything but a few isolated, unfounded rumors.

74: adopted or adopted in substance except for the attitude of the friends who know her well, which is rejected as unsupported by the appropriate weight of the evidence, subordinate, and irrelevant.

75: rejected as unsupported by the appropriate weight of the evidence except that Respondent did refer to C. B.'s teammates as "[B.]'s Bimbos."

76-95: rejected as unsupported by the appropriate weight of the evidence. 96-148: rejected as unsupported by the appropriate weight of the evidence,

recitation of evidence, repetitious, subordinate, and irrelevant.

150-58: rejected as irrelevant and subordinate.

159-71 and 173-90: rejected as irrelevant, recitation of evidence, subordinate, repetitious, and unsupported by the appropriate weight of the evidence with respect to the prevailing reputation of Respondent in the relevant communities.

172: adopted or adopted in substance as there was nothing he could say or do without intensifying the rumors.

191-311: rejected as recitation of evidence, unsupported by the appropriate weight of the evidence, legal argument, and irrelevant as Petitioner proved neither the underlying conduct nor the impaired reputation.

Rulings on Respondent's Proposed Findings

1-3: adopted or adopted in substance. 4: rejected as subordinate.

5-17: adopted or adopted in substance.

18 (first three lines): rejected as unsupported by the appropriate weight of the evidence.

18 (remainder)-53 (second sentence): adopted or adopted in substance.

53 (third sentence)-54: rejected as unnecessary. 55: adopted or adopted in substance.

COPIES FURNISHED:

James F. McCollum

James F. McCollum, P.A.

129 S. Commerce Ave.

Sebring, FL 33870

Ronald G. Meyer

Meyer and Brooks, P.A.

P.O. Box 1547 Tallahassee, FL 32302

Dr. Richard Farmer Superintendent

Highlands County School District

426 School St. Sebring, FL 33870-4048

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this 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 contact the agency that will issue the final order in this case concerning agency 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: 93-001555

Orders for Case No: 93-001555