STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUG JAMERSON, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 93-7117

)

THOMAS JAMES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on May 19, 1994, in Miami, Florida.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

411 East College Avenue Tallahassee, Florida 32301

For Respondent: William Du Fresne, Esquire

Du Fresne and Bradley, P.A.

2929 Southwest Third Avenue, Suite One Miami, Florida 33129

STATEMENT OF THE ISSUES

Whether the Respondent, a classroom teacher, committed the violations alleged in the administrative complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

On September 20, 1993, Petitioner filed an administrative complaint against Respondent, a classroom teacher, that contained certain factual allegations pertaining to statements made by Respondent to a young female student who will be referred to as D. K. In Count One, Petitioner charges that the alleged facts constitute misconduct that subjects Respondent to sanctions pursuant to Section 231.28(1)(i), Florida Statutes. In Count Two, Petitioner alleges that Respondent failed to make reasonable effort to protect the student from conditions harmful to learning or to health or safety in violation of Rule 6B- 1.006(3)(a), Florida Administrative Code. In Count Three, Petitioner alleges that Respondent intentionally exposed the student to unnecessary embarrassment or disparagement in violation of Rule 6B-1.006(3)(e), Florida Administrative Code. In Count Four, Petitioner alleges that Respondent exploited a professional relationship with a student for personal gain or advantage in violation of Rule 6B-1.006(3)(h), Florida Administrative Code.

Respondent timely requested a formal hearing and this formal proceeding before the Division of Administrative Hearings followed.

At the formal hearing, Petitioner presented the testimony of D. K., the mother of D. K., a classmate of D. K., and the assistant principal of the school where these inappropriate statements allegedly occurred. Petitioner presented three exhibits, each of which was accepted into evidence. Respondent testified on his own behalf and called as his only other witness a classmate of D. K.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent has held Florida teaching certificate 497810 issued by the Florida Department of Education, covering the area of journalism. This certificate is valid through June 30, 1998. Respondent was 36 years old at the time of the formal hearing and had been a teacher for 14 years, 13 of which were in the Dade County School District.

   
   

2. At all times pertinent hereto, Respondent was employed as a teacher at Palmetto Middle School, one of the schools in the Dade County School District.

   
   

3. D. K. is a female who was fifteen years old at the time of the formal hearing. During the 1992-93 school year, D. K. was a student in Respondent's homeroom and in his honors history class. D. K. is a good student who made primarily As or Bs.

   
   

4. At different times during January 1993, Respondent made certain comments to D. K. The conflicts in the evidence as to what was said are resolved by finding that in the presence of other students in the room Respondent made the following comments to D. K.

   
   

   1. told her that she was a nice, sweet, good-looking girl;

   2. told her that someday she will make someone a wonderful wife;

   3. told her that if he were younger he would marry her;

   4. asked her how many children she wanted;

   5. told her that he was going to law school,

      and that when he finished, that they could get married;

   6. told her that he had two children and that if they married she would be the stepmother of his two children;

   7. told her that her parents would not approve of her dating such an older man.

5. D. K. felt uncomfortable and embarrassed by Respondent's comments. D.

   K. told her mother about the comments as they occurred. D. K.'s mother believed that Respondent's comments were inappropriate, but she did not think Respondent was trying to establish an inappropriate relationship with D. K. D. K. testified that when Respondent told her that she would make someone a good wife he was talking in general terms and not insinuating that he wanted to marry her himself.

   
   

6. On February 19, 1993, Respondent was absent from his classroom. Some of the students began to look into his desk. One student, a male who had previously teased D. K. about other matters, found a picture of D. K. taped to the pullout writing tablet of Respondent's desk. D. K. was teased by some of the students in the class and she was embarrassed.

   
   

7. D. K. told her mother about the students finding her picture in Respondent's desk the day the incident occurred. The following day, D. K. and her mother reported the incident with the picture and the comments that had been made to the assistant principal of Palmetto Middle School. D. K. was immediately transferred out of Respondent's homeroom and assigned to a different history class.

   
   

8. On or about June 2, 1993, Respondent was issued a letter of reprimand by the principal of Palmetto Middle School because of his conduct with D. K.

   
   

9. Respondent testified, credibly, that D. K. had been teased by certain of the male students and that her self-esteem had suffered. He testified that he made these comments to D. K. only because he was trying to make D. K. feel good about herself and to have greater self-esteem.

   
   

10. D. K. gave Respondent the picture of herself that was found taped to the sliding writing tablet. Respondent taped the picture to the writing tablet because he felt that the sliding writing tablet would be a good place to put the photograph and he taped it so it would not fall off. He was not trying to embarrass D. K. by placing the picture on the writing tablet.

    
    

11. Respondent never propositioned D. K., he never asked her out on a date, and he never attempted to make inappropriate contact with her. Respondent was not trying to flirt with D. K. or make inappropriate sexual advances towards her.

    
    

12. Respondent's comments were inappropriate. These comments did not impair Respondent's effectiveness as a teacher.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

14. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding.

15. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    That standard has been described as follows:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the

    firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

16. Rule 6B-4.009, Florida Administrative Code, provides the following definitions that are pertinent to this proceeding:

    
    

    (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, FAC, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-l.006, FAC, which is so serious as to impair the individual's effectiveness in the school system.

    
    

17. Rule 6B-1.006, Florida Administrative Code, contains the Principles of Professional Conduct for the Education Profession in Florida and provides, in pertinent part, as follows:

    
    

    1. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate or the other penalties as provided by law.

    2. Obligation to the student requires that the individual:

       1. Shall make 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.

    * * *

    (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.

18. Petitioner has the authority to impose sanctions against Respondent's certification pursuant to Section 231.28, Florida Statutes, which provides, in pertinent part, as follows:

    
    

    (1) The Education Practices Commission shall have the authority to suspend the teaching certificate of any person . . . for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to

    teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law, provided that it can be shown that such person:

    (i) 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.

    
    

19. Petitioner failed to prove by clear and convincing evidence that Respondent was guilty of misconduct within the meaning of Rule 6B-4.009(3), Florida Administrative Code, and as alleged in Count I because the evidence failed to establish that the misconduct was so serious as to impair Respondent's effectiveness as a teacher. Respondent demonstrated poor judgment in making these inappropriate comments to D. K. The school principal appropriately reprimanded Respondent for those comments.

    
    

20. Petitioner failed to establish by clear and convincing evidence that Respondent failed to make reasonable efforts to protect D. K. from conditions harmful to learning or to health or safety as alleged in Count Two of the Administrative Complaint.

    
    

21. Petitioner failed to establish by clear and convincing evidence that Respondent intentionally exposed D. K. to unnecessary embarrassment or disparagement as alleged in Count Three of the Administrative Complaint.

    
    

22. Petitioner failed to establish by clear and convincing evidence that Respondent exploited his professional relationship for personal gain or advantage as alleged in Count Four of the Administrative Complaint. While there was innuendo that Respondent was attempting to exploit his professional relationship with D. K. so that he could gain a personal relationship with her, that innuendo falls far short of the clear and convincing evidence standard required to sustain the allegations of Count Four of the Administrative Complaint. The greater weight of the evidence established that Respondent was merely attempting to boost the self-esteem of D. K., but that he used poor judgment in attempting to do so.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of

fact contained herein and which dismisses the administrative complaint filed against Respondent.

DONE AND ENTERED this 19th day of August, 1994, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 19th day of August, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7717

The following rulings are made on the proposed findings of fact submitted by Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 6, 7, 8, 9, 10, 13, 14, and 16 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 3 and 4 were admitted by Respondent in response to Petitioner's request for admissions, but are rejected as findings of fact as being irrelevant to the issues.

3. The proposed findings of fact in paragraph 5 are adopted in part by the Recommended Order, but are rejected to the extent they are contrary to the findings made.

4. The proposed findings of fact in paragraphs 11 and 12 are rejected as being subordinate to the findings made.

5. The proposed findings of fact in paragraph 15 are rejected as being unnecessary to the conclusions reached.

The following rulings are made on the proposed findings of fact submitted by Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 8, and 9 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 6 are rejected as being subordinate to the findings made.

3. The proposed findings of fact in paragraph 7 are adopted by the Recommended Order or are subordinate to the findings made.

COPIES FURNISHED:

Robert J. Boyd, Esquire

411 East College Avenue Tallahassee, Florida 32301

William Du Fresne, Esquire 2929 Southwest 3rd Avenue Miami, Florida 33129

Karen Barr Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

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 ten 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.

================================================================= AGENCY FINAL ORDER

=================================================================

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

DOUG JAMERSON, as

Commissioner of Education, Petitioner,

vs. EPC CASE NO. 93-195-RT

DOAH CASE NO. 93-7117

THOMAS JAMES, EPC INDEX NO. 94-173-FOF

Respondent.

/

FINAL ORDER

Respondent, THOMAS JAMES, holds Florida educator's certificate no. 497810.

Petitioner filed an Administrative Complaint seeking suspension, revocation, permanent revocation or other disciplinary action against the certificate.

Respondent requested a formal hearing and such was held before a hearing officer of the Division of Administrative Hearings. A Recommended Order issued by the Division Hearing Officer on August 19, 1994 was forwarded to the Commission pursuant to Section 120.57(1), F.S. (copy attached to and made a part or this Order.)

A panel of the Education Practices Commission (EPC) met on September 22, 1994, in Tampa, Florida, to take final agency action. Petitioner was represented by Robert Boyd, Attorney at Law. Respondent was represented by William DuFresne, Attorney at Law. The panel reviewed the entire record in this case.

Petitioner filed exceptions to the Recommended Order. At the hearing, Petitioner's attorney withdrew those exceptions and announced the parties had agreed upon an appropriate penalty. Respondent's attorney affirmed that agreement.

FINDINGS OF FACT

The Commission adopts as its Findings of Fact paragraphs 1- 12 of the hearing officer's Findings of Fact to the extent they are not modified by Rulings on exceptions.

CONCLUSIONS OF LAW

The Commission adopts paragraphs 13 through 18, the second sentence in paragraph 19, and paragraphs 20 through 22 in the hearing officer's Conclusions of Law as its Conclusions of Law.

The Commission has jurisdiction of the parties and subject matter of this cause pursuant to Section 120.57 and Chapter 231, F.S.

Based upon the foregoing findings and conclusions and upon the agreement of the parties, it is ORDERED AND ADJUDGED that Respondent be issued a letter of reprimand.

DONE AND ORDERED, this 2nd day of October,1994.

COPIES FURNISHED TO:

Loretta Vacanti, Presiding Officer Kathleen Richards, Acting Program Director

Professional Practices Services Professional Practices Services

Rivers Buford, Jr. I HEREBY CERTIFY that a copy of the Attorney General's Office foregoing Order in the matter of

Jamerson vs. Thomas James, was Florida Admin. Law Reports mailed to William DuFresne, Esquire

2929 SW Third Ave., Suite One, Ida Whipple, Exec. Dir. Florida 33129, this 7th day of Professional Standards October, 1994, by U.S. Mail.

Dade County Schools 1444 Biscayne Blvd.

Suite 215

Miami, Florida 33132

KAREN B. WILDE, Clerk

Dr. Patrick Gray Assistant Supt.

Office of Professional Standards

Dade County Schools

Robert J. Boyd Attorney at Law

2121 Killarney Way Suite G Tallahassee, Florida 32308

Docket for Case No: 93-007117

Orders for Case No: 93-007117