STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6001

)

ELVIN GONZALEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Office, Daniel M. Kilbride, on October 20, 1994, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

2121 Killearney Way, Suite G Tallahassee, Florida 32308

For Respondent: Joseph Egan, Jr., Esquire

Post Office Box 2231 Orlando, Florida 32802

STATEMENT OF THE ISSUES

Whether the Respondent's teaching certificate should be disciplined in accordance with Sections 231.162(8) and 231.28(1), Florida Statutes, for alleged acts of misconduct as set forth in the Administrative Complaint, dated September 20, 1993, which alleged that Respondent has seriously reduced his effectiveness as an employee of the School Board of Orange County, Florida; violated the provisions of law or the rules of the State Board of Education; failed to make a reasonable effort to protect students from conditions harmful to learning or to their health or safety; intentionally exposed students to unnecessary embarrassment or disparagement; and exploited a professional relationship with a student for personal gain or advantage, in violation of Section 231.28, Florida Statutes, and the Florida Code of Ethics of the Education Profession, Rules 6B-

1. and 6B-1.006, Florida Administrative Code.

   PRELIMINARY STATEMENT

   
   

   On September 20, 1993, Betty Castor, then-Commissioner of Education, filed an Administrative Complaint against Respondent, on behalf of the Education Practices Commission, charging various acts of misconduct. Respondent filed an Election of Rights on October 12, 1993 which denied these allegations and elected a formal hearing. This matter was referred to the Division of Administrative Hearings for adjudication. Following discovery and continuances granted at the request of the parties, this hearing followed.

   
   

   At the hearing, the Petitioner presented the testimony of eight witnesses, Jodi Witmer, Amanda Yunik, Autumn Smith, Chrystal Smith, Herman Tucker, Connie Hunkapiller, Chrystal Brown and John B. Hawco. The Petitioner also introduced two exhibits into evidence. The Respondent testified on his own behalf.

   Respondent proffered three exhibits, however, they were not admitted into evidence and have not been relied upon as a basis of findings of fact in this hearing.

   
   

   At the conclusion of the proceedings, the parties elected to have the hearing transcribed, and to submit proposed Findings of Fact and Conclusions of Law, concomitantly requesting an extended briefing schedule which was GRANTED. The transcript was filed on November 14, 1994. Subsequently, counsel for Respondent moved for an additional extension of time in which to file proposed findings, to which Petitioner did not object. The motion was GRANTED. The parties' Proposed Findings of Fact and Conclusions of Law, in the form of Proposed Recommended Orders were timely filed on December 5, 1994 and January 6, 1995, respectively. The proposed findings of fact contained therein have been treated in this Recommended Order and are specifically ruled on as provided in Section 120.59, Florida Statutes, in the Appendix attached thereto and incorporated by reference herein.

   
   

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

   
   

   FINDINGS OF FACT

   
   

   1. Respondent is a 39-year old male who was born in Puerto Rico and moved to Florida in February 1992. Respondent is of Hispanic origin. His first language is Spanish and his second language is English. Respondent is married and has four children.

      
      

   2. Respondent holds Florida teaching certificate #695322, covering the area of art, which was valid through June 30, 1993.

      
      

   3. During the 1992-1993 school year, Respondent was employed as an art teacher at Ridgewood Park Elementary School, in the Orange County School District. Respondent began his employment at that school in August 1992.

      
      

   4. Respondent is a very demonstrative, expressive person. He regularly rewarded his students for good effort or a job well done with verbal affirmations, pats on the back or head, hugs, and, occasionally with the girls, a kiss on the forehead or cheek.

      
      

   5. In the fall semester of 1992, Respondent elicited the services of four or five children in his classes to help clean up his classroom, both before and after the school day. They were asked to pick up, clean and sweep the room.

   6. Jodi Witmer was one of the students who regularly volunteered her services to help in Respondent's classroom. Jodi Witmer is a female child who was nine years old during the relevant time period. During 1992-1993 school year, Witmer was a fourth grade student at Ridgewood Park Elementary School and was in Respondent's art class.

      
      

   7. Because Witmer helped out regularly in Respondent's classroom, performing such duties as sweeping and sorting papers, she received pats and hugs regularly from Respondent. Respondent also kissed her on the forehead and cheek, at least a couple of times for her efforts.

      
      

   8. Witmer testified that Respondent did not touch her or attempt to touch her in any way other than by giving her hugs or pats. Witmer also denied that Respondent attempted to have Witmer touch him in any inappropriate way. Specifically, she denied that Respondent tried to put his or her hand on his pants and touch his penis, as alleged in the administrative complaint.

      
      

   9. Autumn Smith is a female child who was nine years old during the relevant time period. During the 1992-1993 school year, Smith was a fourth grade student at Ridgewood Park Elementary School and was in Respondent's art class.

      
      

   10. Respondent hummed the song, "Autumn of My Dreams" when Smith walked by on two or three occasions. This made her feel uncomfortable or "weird."

       
       

   11. Respondent did not grab Smith by the buttocks.

       
       

   12. Chrystal Brown is a female child who was nine years old during the relevant time period. During the 1992-1993 school year, Brown was a fourth grade student as Ridgewood Park Elementary School and was in Respondent's art class.

       
       

   13. On one or two occasions, Brown and a friend asked if they could help Respondent clean up his classroom after school. Respondent gave permission for them to help clean up after school.

       
       

   14. On one occasion, while Brown and a friend were working in the back of the class and Respondent was at his desk, Respondent saw the girls dancing. He asked them what they were doing. They responded that they were "dancing nasty." Respondent told them to stop and they did.

       
       

   15. Brown later stated to school authorities that Respondent had asked them to "dance nasty" for him. This statement was not accurate.

       
       

   16. In December, 1992, rumors began circulating by some students that Respondent had kissed or "raped" some girl in his class. These rumors eventually came to the attention of other teachers in the school and they were reported to the school administration.

       
       

   17. In December 1992, the principal of Ridgewood Park Elementary School, Donna Smith, reported the alleged incidents of improper conduct against Respondent, as are described in the Administrative Complaint, to law enforcement, HRS and the School District.

       
       

   18. Respondent was arrested and relieved of duty with pay, and an investigation was undertaken by the School System, HRS and law enforcement.

   19. An information was not filed against Respondent concerning these charges. However, extensive pre-trial publicity was generated in the local news media about this case.

       
       

   20. On March 10, 1993, Respondent and the School System entered a settlement and release agreement. On April 22, 1993, Respondent resigned.

       
       

   21. Subsequent to the events set forth above and following his resignation, Respondent let his teaching certificate expire and moved with his family back to Puerto Rico.

       
       

       CONCLUSIONS OF LAW

       
       

   22. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Sections 120.57(1) and 231.262(5), Florida Statutes.

       
       

   23. This proceeding involves disciplinary action against Respondent's teaching certificate. Therefore the burden of proof to establish the facts upon which the Petitioner seeks to discipline Respondent's teaching certificate is on the Petitioner. Balino v. Dept. of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). The charges must be proved by the Petitioner through the introduction of clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). See, Addington v. Texas, 441 U.S. 426(1979).

       
       

   24. Section 231.28(1), Florida Statues, authorizes the Education Practices Commission to suspend or revoke or otherwise penalize a teaching certificate of any person provided it can be shown that the holder of the certificate:

       
       

       (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;

       . . .

       1. Has otherwise violated the provisions of laws or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

          
          

   25. In the Administrative Complaint filed against Respondent, it has been alleged that he has committed the acts prohibited by the provisions of Section 231.28(1)(f) and (h), now (i), Florida Statutes, and Rules 6B-1.006(3)(a), (e) and (h), Florida Administrative Code.

       
       

   26. Rule 6B-1.006, Florida Administrative Code provides, in pertinent part:

       
       

       1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.

       2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual teacher's certi-

          ficate, or the other penalties as provided by law.

       3. Obligation to the student requires that the individual:

       (a) Shall make a 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 relation- ship with a student for personal gain or advantage.

       
       

   27. The testimony given by the witnesses during the administrative hearing was so equivocal, it cannot be relied upon to support any of the allegations. Jodi Witmer who had the most contact with Respondent due to helping in his classroom, testified that Respondent only gave her verbal affirmations, hugs and a "couple" of kisses. Witmer testified that Respondent hugged her and patted her on several occasions, but that Respondent only kissed her a "couple" of times. She also testified that Respondent only kissed her on the cheek and forehead. She denied that Respondent kissed her on the lips. Witmer denied that Respondent ever put her hand on his penis, as alleged in the administrative complaint and as another student, Autumn Smith testified that Witmer had told her. Witmer further testified that Smith liked "making stories up," thereby discrediting A.S.'s testimony.

       
       

   28. In her testimony, Jodi Witmer in effect denied having witnessed, experienced or observed the conduct described in the administrative complaint, paragraph 3, subsections (a), (c) (d) (with respect to Respondents kissing Witmer on the lips), and (e), all of which alleged conduct constitutes the primary basis for all of the counts in the Administrative Complaint. In addition, Witmer admitted that she voluntarily visited his classroom both before and after school in order to help him perform various chores, along with other students. The testimony of other student witnesses confirmed that Witmer often and voluntarily helped Respondent.

       
       

   29. Tucker's testimony as to Witmer was only to the effect that Witmer told him Respondent had kissed her and that Witmer was upset that other children were teasing her. The testimony of Ms. Hunkapillar simply alleged that Witmer had been called to the principal's office to address rumors regarding Respondent, and that Witmer was upset. Both Tucker and Ms. Hunkapillar testified that they never observed Respondent engaged in any inappropriate conduct with any student.

       
       

   30. Amanda Yunik's testimony is hearsay, and the substance of the testimony does not support the complaint's allegations. Witmer told Yunik that Respondent "tried to" kiss her and that Witmer often helped Respondent with chores in his classroom. Yunik denied ever hearing or telling anyone of Respondent's doing anything with his private parts with Witmer. Yunik never observed Respondent kissing or hugging any students. Nothing in Yunik's testimony supports any of the allegations against Respondent set forth in the administrative complaint.

       
       

   31. Autumn Smith testified that Respondent patted her on the behind twice and hummed "Autumn of My Dreams" in her presence. Smith testified that Witmer told her Respondent would give Witmer a hug or kiss after school. Smith never saw this, and never saw Respondent kiss or hug another student. While Smith stated that Witmer told her of an incident where Respondent tried to have Witmer

       touch his private parts, Witmer denied stating this. Smith also stated that Yunik had told her the same story, but Yunik testified to no such incident. Smith's testimony was further discredited when she admitted that she had told a police investigator that Respondent had squeezed her behind, when in fact he had not.

       
       

   32. Crystal Smith's testimony is unreliable, as she had no clear memory of the events she testified about. However, it is clear that Respondent never tried to kiss or hug Crystal Smith, and Crystal Smith never saw Respondent kiss or hug another student.

       
       

   33. Clearly, as seen through the testimony of the students during the hearing, the allegations in this case against Respondent are nothing more than rumors generated by a handful of fourth graders that got out-of-hand. There is no evidence that shows that Respondent touched Witmer or any student in any inappropriate way. There was no testimony that Respondent kissed any student on the mouth or in any other way other than an off-hand way to show encouragement and support for doing a good job. The evidence did not support even the inference that Respondent's gestures toward any of his students were sexual in nature or had sexual innuendo.

       
       

   34. Even if the allegations by Witmer of hugs and kisses on the face are found to be true and may be considered by some to be improper, such conduct has not been shown to reduce the effectiveness of Respondent as a teacher. Similarly, the patting of students on the behind as they leave a classroom, the teasing of a student by singing songs in her presence, and asking a couple of students who did "dance nasty" to stop can hardly be argued to rise to the level of even warranting a complaint. Such conduct, while perhaps slightly improper or overly familiar, certainly is not serious enough to rise to the level of a statutory violation. Similarly, it is not serious enough to undermine Respondent's effectiveness. See: Castor v. Morris, 15 FALR 2995 (EPC 1993); See also: MacMillan v. Nassau County School Board, 16 FALR 9 (EPC 1993) and McClung v. Criminal Justice Standards and Training Commission, 458 So.2d 887, 888 (Fla. 5th DCA 1984).

       
       

   35. As to the allegation of personal conduct which seriously reduces Respondent's effectiveness as an employee of the school board pursuant to Section 231.28(1)(f), Fla. Stat. (1993), the evidence does not support that Respondent committed the acts alleged in the complaint. Because the evidence does not support the alleged conduct, no proof of ineffectiveness has been shown, and this count must be dismissed.

       
       

   36. Petitioner seems to argue that, even if the allegations of misconduct are not proven against Respondent, the fact that Respondent was arrested and investigated (by the School District, law enforcement and HRS) and such investigations received extensive media publicity, these events are sufficient grounds to hold that Respondent has lost his effectiveness as a teacher in the School District for which he can be disciplined. That is not the law. In the absence of proof of the principal allegations, the inference that Respondent has lost his effectiveness as a teacher because his conduct made it possible for the false allegations to be asserted cannot be a basis for discipline under Section 231.28(1)(f), Florida Statutes. Because such evidence is both irrelevant and highly prejudicial to the Respondent, it has not been considered as a basis for determining Respondent's guilt or innocence on the underlying charges in this case. See, generally, West v. Board of County Commissioners, Monroe County, 373 So.2d 83 (Fla. 3rd DCA 1979).

   37. As to the administrative code violations, the evidence does not support that Respondent failed in any way to protect students from conditions harmful to learning, health or safety. The alleged incidents were isolated, occurring in November and December of 1992. Also, there was no testimony to the effect that the alleged incidents interfered with any student's education, physical or mental health, or physical safety. Castor v. Morris, 15 FALR 2995 (EPC 1993).

       
       

   38. The evidence also does not support that Respondent intentionally exposed any student to unnecessary embarrassment or disparagement. No student testified that she had been embarrassed or disparaged by Respondent. Jodi Witmer and Autumn Smith testified to certain feelings of discomfort or feeling "weird" due to an action of Respondent, but no student actually stated that she felt embarrassed or disparaged. Castor v. Miller, 14 FALR 3142 (EPC 1992).

       
       

   39. Even if the students had testified to feeling embarrassed or disparaged, which they did not, no evidence was provided to show that Respondent intended to cause such feelings. Without proof of intent, such a violation cannot be found to occur under Rule 6B-1.006(3)(e). Castor v. George, 14 FALR 3128 (1992).

       
       

   40. The evidence also forms no support for the contention that Respondent exploited a relationship with a student for personal gain or advantage. The evidence shows in fact that Respondent had no relationship with any of the students, other than that of a teacher asking students to perform clean-up chores in his classroom.

       
       

   41. Because there is no proof of conduct that could be construed as sexual in nature and because the physical hugs and pats can only be seen as affirmations of the students, Respondent can hardly be seen to have been exploiting any relationship with a student. Indeed, no evidence exists to support that Respondent broached the teacher-student line of appropriate conduct. Castor v. Morris, 15 FALR 2995 (EPC 1993).

       
       

   42. The worst that can be said about Respondent is that he is an overly expressive and affectionate person. The only allegations that have consistently been alleged are that he hugged and kissed a student on the cheek and forehead, but even the student does not remember the number of times. The worst allegation, set forth in the final allegation of the Administrative Complaint, has been completely denied by Witmer and has absolutely no evidentiary basis. The other allegations are so minor as to be insignificant, as they are minor incidents which had no effect on the teacher-student relationship and had no ill effect on any student.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued finding that Respondent, Elvin

Gonzalez, did not violate the provisions of Sections 231.28(1)(f) or (i),

Florida Statutes, or Rules 6B-1.006(3)(a), (e) or (h), Florida Administrative Code. It is further

RECOMMENDED that a Final Order be issued DISMISSING all charges against Respondent for the above violations.

DONE AND ENTERED this 13th day of January, 1995, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1995.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's proposed findings of fact.

Accepted in substance: paragraphs 1, 2, 3 (but is irrelevant), 4

(irrelevant), 5 (irrelevant), 6 (irrelevant), 7, 8, 9, 10, 11, 12, 13, 17, 19

(but subsumed), 20, 21 (in part), 22 (in part), 26 (irrelevant).

Rejected as against the greater weight of credible evidence: paragraphs 14, 15, 16, 18, 21 (in part), 22 (in part), 23, 24, 25, 27.

Respondent's proposed findings of fact.

Accepted in substance: paragraphs 1, 2, 3, 4, 5, 7, 8, 9 (in part), 11, 12,

21, 22, 24, 29, 45, 46, 51, 52 (irrelevant) 54 (irrelevant), 57, 59 (irrelevant).

Rejected as irrelevant, immaterial, subsumed, or a comment on the testimony of a witness: paragraphs 6, 9 (in part), 10, 12, 13, 14, 15, 16, 17, 18,

19, 20, 23, 25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42,

43, 44, 48, 49, 50, 53, 55, 56, 58, 59 (in part).

Rejected as against greater weight of credible evidence: paragraph 47.

COPIES FURNISHED:

Robert J. Boyd, Esquire 2121 Killearney Way Suite G

Tallahassee, Florida 32308

Joseph Egan, Jr., Esquire

P. O. Box 2231

Orlando, Florida 32802

Karen Barr Wilde Executive Director

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Kathleen M. Richards, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Barbara J. Staros General Counsel The Capitol, PL-08

Tallahassee, Florida 32399-0400

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: 93-006001

Orders for Case No: 93-006001