STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1467

)

FRANK JOHNSON, )

)

Respondent. )

) JAMES T. BROGAN, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3575

)

FRANK JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in these consolidated cases before Patricia Hart Malono, Hearing Officer of the Division of Administrative Hearings, on March 23-24, 1995, at Miami, Florida.

APPEARANCES

For Petitioner Luis M. Garcia, Esquire Dade County Attorney's Office

School Board: School Board of Dade County

1450 Northeast Second Avenue, Suite 301

Miami, Florida 33132

For Petitioner J. David Holder, Esquire

James T. Brogan: 1408 North Piedmont Way, Suite 100

Tallahassee, Florida 32311

For Respondent: William Du Fresne, Esquire

Teresa Pooler, Esquire

Du Fresne and Bradley, P.A.

2929 Southwest Third Avenue, Suite One Miami, Florida 33129

STATEMENT OF THE ISSUE

At issue is whether the respondent committed the violations alleged in the Notice of Specific Charges filed by the Dade County School Board and in the Administrative Complaint filed by the Commissioner of Education, and, if so, the appropriate penalties.

PRELIMINARY STATEMENT

In a letter dated February 28, 1994, the Superintendent of Schools notified the respondent, Frank Johnson, that he intended to recommend to the School Board of Dade County ("School Board") that he be suspended and dismissed from employment with the Dade County public schools. On March 9, 1994, the School Board suspended the respondent and initiated action to terminate his employment. The respondent timely requested a formal hearing, and a Notice of Specific Charges was filed by the School Board on May 31, 1994. In Count I of the Notice, the School Board charged Mr. Johnson with immorality, and, in Count II, with misconduct in office. The factual allegations in the Notice relate to sexual misconduct, unauthorized purchases of sports equipment, misuse of school funds, taking students on an unauthorized field trip, and failure to follow school board policies regarding the collection of funds from students. The case was referred to the Division of Administrative Hearings for formal proceedings.

A nine-count Administrative Complaint was filed May 31, 1994, by Doug Jamerson, later succeeded by James T. Brogan, as Commissioner of Education ("Commissioner"), based on the factual allegations contained in the Notice of Specific Charges. In the Administrative Complaint, the Commissioner charged Mr. Johnson with (1) gross immorality or an act involving moral turpitude; (2) misconduct which seriously reduces his effectiveness as an employee of the school board; (3) misconduct which violates the statutes or rules of the State Board of Education; (4) failure to make a reasonable effort to protect students from conditions harmful to learning and/or to the students' mental or physical health and safety; (5) intentionally exposing students to unnecessary embarrassment or disparagement; (6) harassing or discriminating against students on the basis of race, color, religion, sex, etc., and failing to ensure that each student was protected from harassment or discrimination; (7) exploiting his relationship with students for personal gain or advantage; (8) using institutional privileges for personal gain or advantage; and (9) failing to maintain honesty in all his professional dealings. The Commissioner seeks to discipline Mr. Johnson by imposing a penalty up to and including suspension or permanent revocation of his teaching certificate. Mr. Johnson timely requested a formal hearing pursuant to section 120.57(1), Florida Statutes, disputing the allegations stated in the Administrative Complaint. The case was referred to the Division for formal proceedings, and the two cases were consolidated by Order dated July 19, 1994. By Notice of Hearing dated February 16, 1995, the case was set for final hearing on March 23-24, 1995.

In its case-in-chief, the School Board presented the testimony of thirteen witnesses: Robert F. Snyder, principal of American High School; A. C., 1/ a former student at American High School; Charles O. Martin, assistant principal of American High School; Alan John Stevens, assistant principal of American High School; A. W., a student at American High School; J. R., a student at American High School; S. B., a student at American High School; C. T., a student at American High School; W. T., father of a former student at America High School;

E. T., a former student at American High School; John C. Tall, athletic business manager and school business manager at American High School; Kevin Van Duser, a teacher and coach at American High School; and Dr. Patrick Gray, associate

superintendent of the Dade County Public Schools and an expert in professional ethics, performance appraisal, and personnel management in the field of education. The Commissioner did not call any witnesses. The School Board and the Commissioner offered joint exhibits, and Joint Exhibits 1 through 42 were received into evidence.

Mr. Johnson testified in his own behalf and presented the testimony of five witnesses: Shannon Campbell, a teacher's aide at American High School; Georgia Jones, parent and grandparent of former students at American High School; Olga Campbell, parent of a former student at American High School; and, Jacqueline Wright, parent of a former student at American High School. Mr. Johnson did not offer any exhibits.

On rebuttal, the School Board presented the testimony of Kevin Van Duser, Alan John Stevens, and Robert Staelens, a lieutenant with the Dade County School Police.

A transcript of the hearing was filed on May 3, 1995, and the School Board, the Commissioner, and Mr. Johnson timely filed proposed findings of fact and conclusions of law. A ruling on each of the parties' proposed findings of fact is contained in the appendix to this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made:

1. The respondent currently holds Florida Teaching Certificate 409549, issued by the Florida Department of Education, Bureau of Teacher Certification, covering the areas of physical education and middle grades general sciences. This certificate is valid through June 30, 1996.

   
   

2. The respondent has been employed by the School Board since 1974 and has been assigned to American High School since 1976. Until April 23, 1993, when he was placed on alternate assignment at the Dade County school system's Region I office, he taught at American High School and coached the girls' basketball team. 2/

   
   

   1. Teacher/student sexual relationship.

      
      

3. While he was a teacher at American High School, the respondent engaged in a sexual relationship with A. C., a student, which began when the student was under 16 years of age, and he fathered a child born to the student on January 13, 1987.

   
   

4. A. C. attended the 9th through 11th grades at American High School, from 1983 through 1986. She was at the school one night when the respondent approached her and asked if she would consider having a sexual relationship with him. She agreed, and they entered into a relationship which lasted approximately one and one-half years.

   
   

5. A. C. and the respondent would meet at school during school hours, toward the end of the school day, and he would drive her to his apartment, where they would engage in sexual

   intercourse.

6. In June 1986, A. C. learned she was pregnant. She believed that her pregnancy was the result of her relationship with the respondent, and she told the respondent that he was the father of her child. She also told her mother about the relationship and about her pregnancy, and her uncle notified the school authorities. An investigation was conducted by school authorities, but no action was taken against the respondent.

   
   

7. A. C. gave birth to a daughter on January 13, 1987. A paternity blood test, including a Human Leukocyte Antigen test, was performed in the context of the paternity action brought by A. C. against the respondent in November 1987. The results of this blood test demonstrated a 99.19 percent probability that the respondent is the father of A. C.'s child. 3/

   
   

8. On May 1, 1989, a Final Judgment of Paternity was entered determining that the respondent was the father of the child born to A. C. on January 13, 1987. The judgment directed the Bureau of Vital Statistics to amend the child's birth certificate to reflect that the respondent was the child's father. The court also ordered the respondent to pay child support and found that, as of October, 1989, the respondent owed $8,500 in retroactive child support.

   
   

9. On March 16, 1994, an article was published in the Miami Herald newspaper regarding the adjudication of paternity and the action taken by the School Board on March, 9, 1994, suspending the respondent.

   
   

   1. Sexual advances and improper touching of a student.

   
   

10. E. T. was a student at American High School, and a member of the American High School girls' basketball team during her sophomore and junior years, from September 1991 to June 1993. She graduated from Dade Christian in June 1994 and has attended the University of Florida since that time.

    
    

11. Between 2:00 p.m. and 3:00 p.m. on a Sunday afternoon in the fall or early winter of the 1992-1993 school year, the respondent telephoned E. T.'s home. 4/ Her father answered, and, because E. T. was not yet home from church, he took a message from the respondent reminding her about her appointment that afternoon for a back treatment. Mr. T. gave his daughter the message as soon as she arrived home, and she immediately changed clothes and left the house.

    
    

12. E. T. drove to the school and parked in the back. After the respondent arrived, they went into the gym, and the respondent went into the boys' locker room to call security to let them know he was in the building.

    They walked upstairs to the training room, where the whirlpool was located. The respondent told E. T. she needed to spend thirty minutes in the whirlpool, and she got into the whirlpool wearing boxer shorts and her basketball shirt.

    
    

13. When E. T. got out of the whirlpool, the respondent offered to help her dry off; she told him that would not be necessary. The respondent then told

    E. T. she needed a back massage. Although she initially refused, she eventually acquiesced and lay on the table. The respondent persuaded her to remove her shorts so he could massage her lower back. The respondent massaged E. T.'s thighs and buttocks in addition to her lower back. When he told her to turn over, she hesitated but then did as he said. He proceeded to massage her legs and thighs, then moved to her inner thighs. When he touched her genitalia, she jumped up, grabbed her things, and ran out of the training room into the girls' locker room. The lights were not on in the locker room, and she ran into lockers and chairs until she finally found her way outside. During this

    episode, she felt helpless and afraid, embarrassed and violated. She drove home and immediately took a shower. 5/

    
    

14. E. T. did not tell anyone about this incident for some time. When her parents learned of the incident some months later, in March or early April 1993,

    1. T. and her parents went to school and told one of the school administrators, Mike Dupree, about the incident. Mr. Dupree passed the information on to Robert

    2. Snyder, American High School's principal, who requested that the School Board police initiate an investigation. As a result of the complaint, the respondent was placed on alternate assignment at the Region I office.

    
    

    1. Financial irresponsibility.

       
       

15. The coaches at American High School, including the respondent, were reminded at the beginning of each school year of the requirement that pre- approved purchase orders be obtained for all orders for athletic equipment for the school teams. Vendors doing business with American High School were advised of the purchase order requirement and were advised that American High School would not be liable for any purchases made without a purchase order number and that the individual coach would be responsible for payment.

    
    

16. On or about December 8, 1989, respondent ordered twenty-four pairs of athletic shoes from Midway Sporting Goods at a cost of $1,257. The invoice bears the name of the 'American High School Girls Basketball Varsity and J.V.,' but it does not contain a purchase order number. The respondent knew at the time he placed the order that a purchase order number was required in order for the bill to be paid out of the internal account of American High School girls' basketball team. 6/ The respondent also knew at the time he placed the order that he had no alternate source of payment for the shoes. 7/ The respondent received the shoes, and they were used by the American High School girls' basketball team. The respondent did not, however, pay for the purchase even though he knew he was required to do so under school policy. The bill for this order was not paid until November, 1992, when Mr. Snyder authorized payment from the internal account of the American High School girls' basketball team at the urging of the School Board's attorney and in response to a letter dated February 2, 1991, from Midway Sporting Goods' attorneys threatening to sue the school and the School Board unless the invoice was paid. Mr. Johnson has not repaid the school the $1,257.

    
    

17. American High School also received copies of two other invoices, one from Miami Lakes Sports Shop for $839.40, dated December 4, 1991, and one from Matty's Sports for $392.83, dated November 28, 1992, both showing that sports equipment, primarily shoes, was 'Sold to' American High School, to be shipped to the respondent. Neither invoice contains an approved purchase order number. Respondent placed these orders knowing that a purchase order number was required in order for the bill to be paid out of the internal account of American High School girls' basketball team. The respondent also knew at the time he placed the order that he had no alternate source of payment for the shoes. He received the equipment he ordered, and it was used by the American High School girls' basketball team, but the respondent has not paid the amounts owed for the purchases. The vendors have asked American High School for assistance in collecting the monies owed. The respondent asked that American High School pay for the purchases, but Mr. Snyder refused.

    
    

18. On May 4, 1992, American High School received a letter from a representative of Florida International University requesting assistance in collecting $450 from the respondent. The letter charged that the respondent

    wrote a personal check in this amount to pay the fee for students from American High School to participate in a basketball camp during the summer of 1991, that the check was returned for insufficient funds, and that attempts to collect the

    $450 had not been successful.

    
    

19. On July 22, 1993, the respondent wrote a check for $495 payable to SOYSA (South Orlando Youth Sports Association), and, on July 23, 1993, he wrote another check payable to SOYSA for $100. The checks were written on the 'American Basketball Booster Club' account, and the address stated on the face of the checks is the same address as that of American High School. The respondent knew at the time he wrote the checks that there were not sufficient funds in the account to cover them. In September, 1993, Robert Snyder, American High School's principal, was asked by the Association for assistance in collecting the funds.

    
    

20. In July, 1993, when the respondent and members of the American High School girls' basketball team were in Orlando, Florida, at a basketball tournament, the respondent telephoned a fellow teacher and asked if he would send $500 to help pay expenses. The respondent promised to pay the money back. The teacher, Kevin Van Duser, sent an American Express MoneyGram. The respondent received the money, either in Orlando or, on his return, in Miami. He has not repaid Mr. Van Duser.

    
    

    1. The import of the respondent's conduct.

    
    

21. The respondent's behavior in engaging in a sexual relationship with a fifteen-year-old student and in making sexual advances to another student is, of itself, sufficiently outrageous to constitute gross immorality and misconduct in office and to impair irretrievably his effectiveness as an employee of the Dade County school system. The respondent breached the special relationship of trust existing between a teacher and a coach and his students; he fostered conditions likely to be harmful to the mental and physical health and safety of A.C. and E.T.; he caused E. T. extreme embarrassment and distress; and he exploited his position as teacher and a coach for his own personal advantage.

    
    

22. The respondent's financial irresponsibility constitutes misconduct in office because it is in contravention of a teacher's obligation to the profession to be honest in all professional dealings. The repeated acts of financial irresponsibility committed by the respondent reveal a course of conduct so serious that it impairs the respondent's effectiveness in the school system and as an employee of the school board.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. 120.57(1), Fla. Stat.

    
    

24. When a school board seeks to terminate a teacher who is employed under a continuing contract, the allegations in the notice of specific charges must be proven by a preponderance of the evidence. Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990). When the Commissioner seeks to permanently revoke a teacher's license, the allegations of the administrative complaint must be proven by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

25. Clear and convincing evidence, as defined by the court in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), requires that the evidence must

    be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony 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 a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Clear and convincing evidence is a greater standard of proof than the preponderance of the evidence standard. Smith v. Department of Health & Rehabilitative Services, 522 So. 2d 956, 958 (Fla. 1st DCA 1988).

    
    

26. Section 231.36(4)(c), Florida Statutes (1993), defines the circumstances in which a school board can terminate a member of the district's instructional staff:

    
    

    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.

    
    

27. In its Notice of Specific Charges, the School Board has charged the respondent in Count I with immorality and in Count II with misconduct in office. Rule 6B-4.009, Florida Administrative Code, defines these terms as follows:

    
    

    1. Immorality' is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

       * * *

    2. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession as adopted in Rule

       6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

       
       

28. The School Board's charge of misconduct in office is

    predicated on violations of rules 6B-1.001(2) and (3); rule 6B- 1.006(3)(a), (e), and (h), and rule 6B-1.006(5)(a) and (h), Florida Administrative Code: 8/

    
    

29. Rule 6B-1.001, Code of Ethics of the Education Profession in Florida, provides in pertinent part:

    
    

    1. The educator's primary professional concern will always be for the student and

       for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.

    2. Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members

       of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

       
       

30. Rule 6B-1.006, Principles of Professional Conduct for the Education Profession in Florida, provides in pertinent part:

    
    

    1. 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 relationship with a student for personal gain or advantage.

    * * *

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

       1. Shall maintain honesty in all professional dealings.

    * * *

    (h) Shall not submit fraudulent information on any document in connection with professional activities.

    
    

31. Section 231.28(1), Florida Statutes (1993), gives the Education Practices Commission the power to suspend or revoke the teaching certificate of any person, either for a set period of time or permanently, and the statute sets out the bases for such action. The Commissioner has alleged that the respondent has violated the following three subsections of section 231.28(1):

    
    

    (c) has been guilty of gross immorality or an act involving moral turpitude;

    * * *

    (f) has been found guilty of personal conduct which seriously reduces his effec- tiveness as an employee of the school board;

    * * *

    (i) has otherwise violated the provisions

    of law or rules of the State Board of Education, the penalty for which is revocation of the teaching certificate.

    
    

32. The Education Practices Commission recognizes that 'gross immorality,' the term used in section 231.28(1)(c), requires conduct more serious than that encompassed within the definition of 'immorality' found in rule 6B-4.009(2). A teacher is guilty of gross immorality when he or she commits 'an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards.' Education Practices Commission v. Knox, 3 F.A.L.R. 1373-A (DOE 1981).

33. With regard to the charge that the respondent violated rules for which revocation of a teaching certificate is a permissible penalty, the Commissioner has alleged violations of rule 6B-1.006(3)(a), (e), (g), and (h), rule 6B- 1.006(4)(c), and rule 6B.1.006(5)(a). These charges duplicate those of the School Board except for the alleged violation of rule 6B-1.006(3)(g), which defines a teacher's obligation to students and provides that

    
    

    [a teacher] [s]hall 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 or fail to make a reasonable effort to assure that each student is protected from harassment and discrimination;

    
    

    and rule 6B-1.006(4)(c), which defines a teacher's obligation to the public and provides that

    
    

    [a teacher] [s]hall not use institutional privileges for personal gain or advantage.

    
    

    1. Teacher/student sexual relationship.

       
       

34. The evidence is clear and convincing that the respondent engaged in a sexual relationship with a fifteen-year-old student which resulted in the student's becoming pregnant with his child and that the court's determination that respondent is the father of the child born to a sixteen-year-old student was published in a newspaper which enjoys wide circulation in the community.

    The respondent's conduct in initiating and engaging in a sexual relationship with a student is egregious and in flagrant disregard of public morals, and this conduct is sufficiently notorious that the respondent has brought both himself and 'the education profession into public disgrace . . . [and] disrespect and impair[ed] . . . [his] service in the community.' Rule 6B- 4.009(2). He is, therefore, guilty not only of immorality as that term is defined in rule 6B- 4.009(2), but also of gross immorality as that term is defined by the Education Practices Commission. On this ground alone, the respondent's employment may be terminated pursuant to section 231.36(4)(c), and action may be taken against his teaching certificate pursuant to section 231.28(1)(c).

    
    

35. The respondent's conduct in initiating and engaging in a sexual relationship with a student also constitutes misconduct in office as that term is defined in rule 6B-4.009(3). The respondent violated the Principles of Professional Conduct for the Education Profession because, far from protecting the student's physical and mental health and safety as required by rule 6B- 1.006(3)(a), his actions created conditions harmful to her health and safety. He also used his position as a teacher and his presence at the school to facilitate a sexual relationship with the student for personal advantage, in contravention of rule 6B-1.006(3)(h). The respondent's violations are sufficiently serious that his effectiveness as an employee of the school system is impaired. Consequently, his employment may be terminated pursuant to section 231.36(4)(c).

    
    

36. The respondent's conduct in initiating and engaging in a sexual relationship with a student also constitutes personal conduct which, in and of itself, 'seriously reduces the respondent's effectiveness as an employee of the school system.' 231.28(1)(f). And, as noted above, respondent's conduct

    contravenes rules 6B-1.006(3)(a) and (h) and constitutes violations which 'subject the individual to revocation or suspension of the individual's teacher's certificate.' Rule 6B-1.006(2). Therefore, respondent's teaching certificate is subject to revocation pursuant to sections 231.28(1)(f) and (i).

    
    

    1. Sexual advances and improper touching of a student.

       
       

37. The evidence is clear and convincing that the respondent made sexual advances to a student in his capacity as a teacher and a coach, under the pretense of providing treatment for a back injury, and improperly touched her during the course of providing such 'treatment.' With regard to the charges brought by the School Board, these actions constitute misconduct in office as defined by rule 6B-4.009(3) and, therefore, provide a basis for termination of the respondent's employment pursuant to section 231.36(4)(c). The respondent's behavior threatened the mental and physical health and safety of the student in contravention of rule 6B-1.006(3)(a) by causing her fear and distress, subjected her to embarrassment in contravention of rule 6.1006(3)(e), and exploited his relationship with the student as her basketball coach for his own personal advantage in contravention of rule 6B-1.006(3)(h).

    
    

38. The misconduct identified above with regard to the sexual advances and improper touching of a student also provide a basis for revocation of the respondent's teaching certificate pursuant to section 231.28(1)(I) because the rule violations subject a teacher to revocation of his or her teaching certificate. Rule 6B-1.006(2).

    
    

    1. Financial irresponsibility.

    
    

39. There is clear and convincing evidence that the respondent placed orders for athletic equipment without obtaining approved purchase orders from the school and that he knew when he placed the orders that there were no funds available from any other source to pay for the purchases. There is also clear and convincing evidence that respondent wrote a check on his personal account for basketball camp for members of the American High School girls' basketball team and wrote two checks on the American High School Basketball Booster Club account which were returned for insufficient funds. The evidence is clear and convincing that the bills were never paid and the checks were never made good and that the vendors from which the respondent purchased the equipment and the organizations which accepted the checks from the respondent all looked to American High School for assistance in collecting the money they are owed. This conduct constitutes misconduct in office as those terms are defined in rule 6B- 4.009(3), so that the respondent is subject to termination of his employment pursuant to section 231.36(4)(c). The respondent did not 'maintain honesty in all professional dealings' as required by rule 6B-1.006(5)(a), and the several instances in which respondent violated this rule constitute behavior which is so serious that it impairs his effectiveness as a teacher and coach in the Dade County school system.

    
    

40. The respondent's financial irresponsibility also provides a basis for discipline against the respondent's teaching certificate. The respondent's behavior 'seriously reduces his effectiveness as an employee of the school board,' 231.28(1)(f), and, as noted above, violates rule 6B-1.006(5)(a), the penalty for which includes revocation of a teaching certificate.

    
    

41. Because of the special trust we as a society place in our teachers, they are 'traditionally held to a high moral standard in the community.' Adams

v. Professional Practices Council, 406 So. 2d 1170, 1172 (Fla. 1st DCA 1981).

Behavior which may be tolerated in others may be considered immoral when committed by a teacher. And, behavior which may be considered immoral in others may be considered grossly immoral and in flagrant disregard of prevailing moral standards when committed by a teacher. The respondent has breached the special trust placed in him and has committed acts which, by any measure, are morally reprehensible. The respondent offered no evidence of mitigating or extenuating circumstances with respect any of the facts found in this case. Because of the seriousness of the respondent's misconduct, termination of his employment with the School Board and permanent revocation of his teaching certificate is warranted.

RECOMMENDATIONS

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, in Case No. 94-1467, the School Board of Dade County

enter a Final Order concluding that Frank Johnson is guilty of immorality and misconduct in office and terminating his employment with the School Board of Dade County, sustaining his suspension of March 9, 1994, and denying back pay for the period of suspension.

RECOMMENDED that, in Case No. 94-3575, the Education Practices Commission enter a Final Order concluding that Frank Johnson is guilty of gross immorality, personal conduct which seriously reduces his effectiveness as an employee of the school board, and violation of rules of the State Board of Education which carry a penalty of revocation and revoking permanently his teaching certificate.

DONE AND ENTERED this 9th day of August 1995, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 9th day of August 1995.

ENDNOTES

1/ The students and parent involved in the allegations of sexual misconduct are referred to in this Recommended Order by their initials. Their full names can be found in the transcript of the proceedings.

2/ The respondent was assigned to the Region I office from April 1993 until his suspension in March 1994. He did, however, teach adult education night classes at American High School during this period.

3/ Respondent denies that he had any sexual relationship whatsoever with A. C., even though he acknowledges that the blood test shows that he is the father of

her child. He offers no evidence tending to show that he did not father the child, and his explanation that she may have accused him of fathering her child because she was jealous of the time he spent with the girls on the basketball team is not credible.

4/ Neither E. T. nor her father could identify the date or the month in which the incident took place. This does not, however, diminish the credibility of their testimony, given the precision of their recollection and the lucidity of their description of the events.

5/ Respondent denies that the entire incident with E. T., including the telephone call to her home, ever happened. His explanations of E. T.'s possible reasons for making false allegations against him are vague, rambling, and incoherent. Based upon careful observation of the demeanor of both E. T. and the respondent as witnesses and upon careful consideration of their testimony, the respondent's testimony is found to be unworthy of belief, and E. T.'s testimony is found to be the more credible.

6/ Internal accounts are maintained at American High School for each athletic team and are funded with monies raised through school-approved activities such as donut sales and car washes.

7/ Respondent's explanation of the circumstances surrounding this purchase and of his intention of paying the bill from booster club funds raised by having team members park cars at Joe Robbie stadium is not credible. His testimony is vague and inconsistent. He admitted that the team did not begin working at the stadium until 1993; the purchase was made in 1989. In addition, he denied that the American High School girls' basketball team even had a booster club after 1985 or 1986. (Booster clubs are organized and run by the parents of members of school athletic teams to raise money to purchase uniforms and equipment for the teams and to pay for special events. Since these clubs are independent and not affiliated with the school, they maintain their own bank accounts. No approval from the school is required for purchases made by the booster clubs.)

8/ In paragraphs 9 through 12 and in paragraph 16 of the School Board's proposed Conclusions of Law, it postulates violation of several of its local rules as independent grounds for imposing a penalty on the respondent. Even though these rules were officially recognized at hearing pursuant to the School Board's unopposed motion, violations of such rules cannot form the basis for imposing discipline against the respondent pursuant to the authority granted by section 231.36(4)(c). Actions not comporting with local rules do not come within the definition of 'misconduct in office;' such a charge relates only to the rules specifically identified in rule 6B-4.009(3), Florida Administrative Code.

APPENDIX

The following are my specific rulings on the Proposed Findings of Fact submitted by petitioner School Board of Dade County:

Paragraphs 1 and 2: Accepted in substance in paragraph 2. Paragraph 3: Rejected as improper argument.

Paragraph 4: Accepted in substance in paragraph 4.

Paragraph 5: Rejected as not supported by the evidence. At most, the evidence showed that A. C. was a student in the respondent's science class for a

short period of time but not during the period in which they were sexually intimate.

Paragraph 6: The proposed finding in the first sentence is accepted in substance in paragraph 4. The proposed finding in the second sentence is rejected as not supported by the evidence. Although A. C. recollected that she was fourteen years of age when the respondent first approached her, the duration of the relationship correlated with the date of her daughter's birth and with A. C.'s current age indicates she was more likely fifteen years of age when the relationship began.

Paragraphs 7 and 8: Accepted in substance in paragraphs 4 and 5.

Paragraph 9: The proposed finding in the first sentence is accepted in substance in paragraph 6. It is also accepted in paragraph 6 that A. C. told the respondent that she was pregnant, and her decision to carry the child to term is implicit in the finding in paragraph 7 that the child was born. The proposed finding that the respondent told A. C. to get an abortion is rejected as uncorroborated hearsay.

Paragraphs 10 through 14: Accepted in substance in paragraphs 7 and 8. Paragraph 15: That Robert F. Snyder was the principal of American High

School and that the respondent was the coach of the girls' basketball team at the times relevant to this proceeding is recognized throughout the findings of fact. That the respondent had some administrative duties involving student discipline, while not contradicted by the evidence, is not included in the findings because it is not relevant to the issues presented.

Paragraph 16: Accepted in substance in paragraphs 16 and 17, except that there is no evidence that the purchases were improper and such a categorization is rejected. The testimony established, rather, that the only impropriety was that the purchases had not been paid for.

Paragraphs 17 through 19: Accepted in substance in paragraphs 15, 17, and 18, except that the proposed finding in paragraph 17 that the outstanding bills included $450 the respondent owed to F.I.U. for a summer basketball camp is rejected because based on uncorroborated hearsay. The evidence shows only that a letter was received by Robert Snyder claiming that the respondent wrote a check to F.I.U. in the amount of $450 and that the check was returned for insufficient funds.

Paragraph 20: Rejected as irrelevant because outside the period of time covered in the Notice of Specific Charges.

Paragraphs 21 and 22: Accepted in substance in paragraphs 15 through 17, except that the proposed finding that Snyder talked with the respondent on several occasions is unnecessary and that the proposed finding that the respondent indicated to Snyder that he would pay the outstanding bills is rejected because based uncorroborated hearsay.

Paragraph 23: Accepted in substance in paragraph 14.

Paragraph 24: The proposed finding in the first portion of the sentence is not included because it is not supported by the evidence; the proposed finding in the second portion of the sentence is not included because it is unnecessary.

Paragraph 25: Accepted in substance in paragraph 10, except that there is no evidence that E. T. is eighteen years of age.

Paragraph 26: Not included as a finding of fact because unnecessary. Paragraphs 27 through 34: Accepted in substance in paragraphs 11 through

13.

Paragraph 35: That the respondent frequently telephoned E. T.'s home is not

included as a finding because unnecessary; the remainder of this proposed finding is rejected as uncorroborated hearsay.

Paragraphs 36 through 38: Accepted in substance in paragraphs 13 and 14.

Paragraphs 39 through 42: Not included as findings even though supported by the evidence because these proposed findings are irrelevant in determining whether the respondent is subject to discipline by the School Board. The School

Board's own evidence shows that the trip to Orlando was an unofficial trip to an Amateur Athletic Union basketball tournament in which members of the American High School girls' basketball team participated. There is no evidence that the team participated as the American High School team, and the evidence shows that the players did not wear school uniforms when playing. The trip took place during July, and few of the girls going on the trip were even attending summer school. At the time of the trip, the respondent was not teaching or coaching at American High School or in the Dade County school system. Because the trip was not a school-sponsored field trip, the rules of the school board are inapplicable.

Paragraph 43: The proposed finding in the first sentence is not included because it is unnecessary. The proposed finding in the second sentence is not included because it is not supported by the weight of the evidence. Only one student of the four testifying at the hearing on this issue stated unequivocally that the respondent told her absences from summer school would be excused.

After careful observation of the demeanor of the witnesses while they were testifying on this point and after careful consideration of the testimony, the testimony of the respondent that he did not tell any student that the absences from summer school would be excused is found to be the more credible.

Paragraphs 44 and 45: Not included as findings for the reasons stated in the ruling on paragraphs 39 through 42, above.

Paragraphs 46 and 47: Not included as findings because irrelevant. Even though the proposed findings are supported by the evidence, the subject matter was not included in the Notice of Specific Charges and cannot form the basis for disciplinary action against the respondent.

Paragraphs 48 and 49: Accepted in substance in paragraph 20.

Paragraph 50: Accepted in substance in paragraph 20, except that the proposed finding that the $500 was from an account belonging to the track booster club is rejected as not supported by the evidence.

Paragraphs 51 through 53: Accepted in substance in paragraphs 21 and 22. Paragraph 54: Rejected as a conclusion of law.

The following are my specific rulings on the Proposed Findings of Fact submitted by petitioner James T. Brogan, as the Commissioner of Education:

Paragraph 1: See the rulings on the Proposed Findings of Fact of the School Board of Dade County.

Paragraph 2: Accepted in substance in paragraph 1. Paragraph 3: Accepted in substance in paragraphs 21 and 22. Paragraph 4: Rejected as a conclusion of law.

Paragraphs 5 and 6: Accepted in substance in paragraphs 21 and 22. Paragraph 7: Rejected as a conclusion of law.

The following are my specific rulings on the Proposed Findings of Fact submitted by the respondent:

Paragraph 1: Not included because a statement of the charges against the respondent rather than a fact at issue.

Paragraph 2: No ruling is necessary because this paragraph contains nothing more than a summary of testimony.

Paragraphs 3 through 10: Not included as findings because the statements contained in these paragraphs are mere summaries, albeit accurate summaries, of the testimony of the witnesses testifying on behalf of the respondent. The testimony reflects the opinion of the witnesses that, even if all the allegations against the respondent were proven true, the respondent's effectiveness as a teacher would not be impaired. Any finding of fact which

could be derived from these opinions is implicitly rejected by the findings in paragraph 21 and 22.

Paragraphs 11 and 12: Implicitly rejected by the findings in paragraphs 21 and 22.

COPIES FURNISHED:

Luis M. Garcia, Esquire Attorney's Office

Dade County School Board 1450 Northeast Second Avenue Suite 301

Miami, Florida 33132

Octavio J. Visiedo, Superintendent Dade County School Board

1450 Northeast Second Avenue Miami, Florida 33132

William Du Fresne, Esquire Teresa Pooler, Esquire

Du Fresne and Bradley, P.A. 2929 Southwest Third Avenue Suite One

Miami, Florida 33129

J. David Holder, Esquire 1408 North Piedmont Way Suite 100

Tallahassee, Florida 32311

Honorable James T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Karen Barr Wilde Executive Director

Education Practices Commission

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

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: 94-001467

Orders for Case No: 94-001467