STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUG JAMERSON, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2120

)

ROSCO S. KIDD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on August 26, 1994, in Jacksonville, Florida. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

2121 Killearney Way, Suite G Tallahassee, Florida 32308

For Respondent: Gary Baker, Esquire

301A Law Exchange Building

24 North Market Street Jacksonville, Florida 32202

STATEMENT OF ISSUES

At issue is whether Respondent should be disciplined in accordance with the State of Florida, Education Practices Commission Administrative Complaint in Case No. 923182-C.

PRELIMINARY STATEMENT

When served with the administrative complaint, Respondent disputed the factual basis for that complaint. Therefore, the case was referred to the Division of Administrative Hearings and a formal hearing was conducted.

Petitioner presented Joscelyn Annette Sweat, Josielynn Magalindan Espara, De Anne Ray, Angela Jones, Dr. Larry J. Paulk and Courtney Mayes as witnesses. Respondent testified and presented Dean R. Futch and Maria Chitty as witnesses. Petitioner's Exhibits 1 and 2 were admitted. Respondent's Exhibit 2 was admitted. Petitioner's Exhibit 3 and Respondent's Exhibit 1 were denied admission.

The hearing transcript was filed on September 20, 1994. Proposed recommended orders were submitted in accordance with the schedule established at hearing. Under the circumstances, the requirement for entering a recommended

order within 30 days from receipt of the transcript has been waived. See Rule 60Q-2.031, Florida Administrative Code. The fact finding set forth in the proposed recommended order of Petitioner has been considered and is addressed in the appendix attached to this recommended order. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. Respondent holds Florida's teaching certificate 546809. That certificate covers the areas of Bible, History, Sociology and Social Sciences. It is valid through June 30, 1995.

   
   

2. At all times relevant to the inquiry Respondent was employed as a teacher at Fletcher High School in the Duval County School District, Duval County, Florida.

   
   

3. During the school year 1992-93, first semester, in the first period class, Respondent taught economics to Josielynn Magalindan Espara. The course which Ms. Espara took was in her ninth grade. In one lecture, Respondent, by resort to the economic's text book that was used to instruct the class, made reference to the cost of raising a child. He referred to the fact that the cost was $180,000. Respondent then asked Ms. Espara, who was pregnant at that time, "Do you have $200,000. in the bank, Josielynn?" Respondent's remarks were not intended to embarrass or disparage Ms. Espara and did not embarrass or disparage her.

   
   

4. Ms. Espara said at the time the comment did hurt her feelings. The comment caused her to cry. Ms. Espara's feelings were influenced by her already being upset on that morning. She describes it as having been a "bad morning" with her parents on the date that Respondent made his comments. Ms. Espara indicates that she possibly took the comments by the Respondent "the wrong way". At the time of the hearing Ms. Espara indicated that the comments that had been made in the past no longer bothered her.

   
   

5. In the school year 1992-93 Respondent also taught a fifth period economics class for ninth grade students. In class discussion, a class member Courtney Mayes made a remark about killing animals. Respondent then joked "oh yeah, I like running over animals."

   
   

6. The student, Courtney Mayes, was flirtatious and disruptive in Respondent's fifth period economic class. On one occasion she was walking around the classroom and Respondent repeatedly told her to go to her seat. She refused and continued to talk to her friends in the classroom. Respondent told Ms. Mayes that if she did not sit down that he was going to spank her. By placing his arm around Ms. Mayes' waist Respondent bent her over and lightly tapped her on, as she describes it, her "rear end" through her clothing.

   
   

7. The reaction by Ms. Mayes to Respondent's act was, "I just was standing there, and you know, just stood there talking to him. I didn't think anything of it."

   
   

8. On another occasion while in the fifth period class, Ms. Mayes overheard the Respondent comment about a cola that he was drinking being "flat". Ms. Mayes insisted that these remarks were directed to her and her appearance. Ms. Mayes said, "why are you talking about me like that?" Respondent replied that he was talking about the cola. He said, "I was talking about the Coke because I just took a drink and its very flat, because it was warm." Ms. Mayes

   continued to state, "yes, you were talking about me." Notwithstanding Ms. Mayes' misperception of Respondent's meaning in using the term "flat" directed to his cola and not to her person, Ms. Mayes in describing her feelings about Respondent's remarks, testified, "I didn't think anything of it." In summary, Respondent did not intend any affront to Ms. Mayes and, although Ms. Mayes misunderstood the meaning of Respondent's remarks, she took no affront in the meaning she attributed to Respondent's comments.

   
   

9. On another occasion when Ms. Mayes was in Respondent's fifth period class in the school year 1992-93 he remarked to her, "your legs are ugly." Ms. Mayes considered that Respondent was joking with her and his remarks did not embarrass her.

   
   

10. On another occasion while Ms. Mayes was in Respondent's fifth period class in the school year 1992-93, he commented that her attire was too revealing. Ms. Mayes did not consider her dress to be so. In this conversation Respondent told Ms. Mayes to put a sweater over her dress.

    
    

11. During the 1992-93 school year in the fifth period economics class, male and female students were discussing the subject of abortion among themselves. Respondent gave a pro-life abortion pamphlet to Ms. Mayes and another female student, Karin Lyles. Respondent told the students to read over the pamphlet and see how they felt then. The discussion about abortion was not presented to the entire class. Ms. Mayes did not read her pamphlet that Respondent gave her. Ms. Mayes did not consider Respondent's comments about abortion to be inappropriate.

    
    

12. At times relevant to the inquiry Respondent did not assign seating to students in a discriminatory manner by placing students whom he favored near him and placing students that he disagreed with on the other side of the room.

    
    

13. As a result of complaints made about Respondent's conduct with students, he was arrested, but it was not shown that Respondent was charged with any criminal law violation following the arrest.

    
    

14. Dr. Larry J. Paulk was the principal at Fletcher High School during times relevant to the inquiry. He continues in that post. Dr. Paulk was accepted as an expert entitled to state an opinion concerning an educator's loss of effectiveness as a teacher based upon certain alleged inappropriate conduct.

    
    

15. Dr. Paulk's opinion that Respondent lost his effectiveness by his conduct directed to the students, as described in the facts found in previous paragraphs, is not accepted.

    
    

16. Dr. Paulk established that Respondent violated school board policy by discussing abortion and allowing his students to discuss abortion.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

18. Petitioner bears the burden of proof in this proceeding. That proof must be clear and convincing. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

19. The factual allegations in the administrative complaint that are set forth in Paragraphs 3, 4 and the first paragraph 9 were not proven, in that evidence was not presented related to that alleged misconduct.

    
    

20. The proof related to the allegations set forth in Paragraphs 5 and 6 to the administrative complaint was not sufficient to sustain the burden of proof when taking into account all evidence.

    
    

21. Petitioner has proven facts alleged in Paragraphs 7 and 8 to the administrative complaint, in the manner found in the fact finding set forth in the recommended order. That proof was clear and convincing.

    
    

22. When considering all the evidence that was presented, Petitioner did not establish violations of law based upon the facts alleged in the second Paragraph 9, Paragraph 10 and Paragraph 11 to the administrative complaint.

    
    

23. The allegations in Paragraph 12 to the administrative complaint pertaining to Respondent's placement on temporary duty status are not relevant to the disposition of this case.

    
    

24. Count I to the administrative complaint alleges that the Respondent has violated Section 231.28(1)(c), Florida Statutes, in that he has been guilty of gross immorality or and act involving moral turpitude.

    
    

25. Gross immorality is not defined; however, Rule 6B-4.009(2), Florida Administrative Code, defines immorality 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 educational professional in public disgrace or disrespect

    and impair the individual's service in the community.

    
    

26. Rule 6B-4.009(6), Florida Administrative Code, defines moral turpitude

    as:

    
    

    . . . a crime that is evidenced by an act of baseness, vileness or depravity in the private

    and social duties which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing the act itself and not its prohibition by statutes fixes the moral turpitude.

    
    

27. Moreover, in Tullidge v. Hollingsworth, 108 Fla. 607. 146 So. 660,

    (1933), moral turpitude was defined:

    
    

    Moral turpitude involves the idea of inherent baseness or depravity in the private and social relations or duties owed by man to man or to society . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgement when wrong was not contemplated.

    Petitioner has failed to prove that Respondent violated Section 231.28(1)(c), Florida Statutes.

    
    

28. Count 2 to the administrative complaint alleges that Respondent violated Section 231.28(1)(e), Florida Statutes, in that Respondent has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation. Petitioner has failed to prove that Respondent violated Section 231.28(1)(e), Florida Statutes.

    
    

29. Count 3 to the administrative complaint alleges that Respondent has violated Section 231.28(1)(f), Florida Statutes, in that, Respondent upon investigation, has been guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. Petitioner has failed to prove that Respondent violated Section 231.28(1)(f), Florida Statutes.

    
    

30. Count 4 to the administrative complaint alleges that Respondent has violated Section 231.28(1)(i), Florida Statutes, in that Respondent 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. It has been proven by clear and convincing evidence that Respondent violated local school board policy by disseminating materials on abortion to Ms. Mayes and Ms. Lyles and advising the students to read the pamphlet.

    
    

31. Count 5 to the administrative complaint alleges that Respondent has violated Section 231.28(2), Florida Statutes, in that there has been a plea of guilty in court or a decision of guilty in court which forms a prima facie proof of grounds of revocation of the teaching certificate. Petitioner has failed to prove that Respondent violated Section 231.28(2), Florida Statutes.

    
    

32. Count 6 to the administrative complaint alleges that Respondent has violated Rule 6B-1.006(3)(a), Florida Administrative Code, in that Respondent failed to make a reasonable effort to protect students from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. Petitioner has failed to prove that Respondent violated Rule 6B-1.006(3)(a), Florida Administrative Code.

    
    

33. Count 7 to the administrative complaint alleges that Respondent has violated Rule 6B-1.006(3)(e), Florida Administrative Code, in that Respondent intentionally exposed students to unnecessary embarrassment or disparagement. Petitioner has failed to prove that Respondent violated Rule 6B-1.006(3)(e), Florida Administrative Code.

    
    

34. Count 8 to the administrative complaint alleges that Respondent has violated Rule 6B-1.006(3)(g), Florida Administrative Code, in that Respondent harassed or discriminated against students on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, martial status, handicapping condition, sexual orientation, or social and family background and failed to make a reasonable effort to ensure that each student was protected from harassment or discrimination. Petitioner has failed to prove that Respondent violated Rule 6B-1.006(3)(g), Florida Administrative Code.

    
    

35. Count 9 to the administrative complaint alleges that Respondent has violated Rule 6B-1.006(3)(h), Florida Administrative Code, in that Respondent exploited his relationship with students for personal gain or advantage. Petitioner has failed to prove that Respondent violated Rule 6B-1.006(3)(h), Florida Administrative Code.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it is, RECOMMENDED:

That the Final Order be entered which finds Respondent in violation of Count 4 and absolves Respondent of any violation of Counts 1, 2, 3, 5, 7, 8 and 9, and suspends Respondent's teaching certificate for a period of 30 days.

DONE and ENTERED this 18th day of October, 1994, in Tallahassee, Florida.

CHARLES C. ADAMS

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 18th day of October, 1994.

APPENDIX

The following discussion is given concerning the proposed findings of fact: Petitioner's Facts:

Paragraphs 1 and 2 are subordinate to facts found.

Paragraphs 3 through 25 are rejected. While it is acknowledged that Respondent was familiar with De Anne Ray and Joscelyn Annette Sweat, who were his students, when considering all the evidence it is not accepted that Respondent committed the acts attributable to him within the proposed findings of facts set forth in these paragraphs.

Paragraph 26 is subordinate to facts found as is the first sentence to Paragraph 27. Concerning the second sentence to Paragraph 27, while it is acknowledged that Respondent's remarks directed to Ms. Espara were made in the context of Ms. Espara's feelings about her pregnancy, Ms. Espara's perception concerning those remarks are not seen as being a criticism by Respondent that Ms. Espara was a failure and a quitter.

Paragraph 28 is subordinate to facts found with the exception that the proposed finding that the remarks from Respondent to Ms. Espara embarrassed Ms. Espara is rejected.

Concerning Paragraph 29, the administrative complaint at Paragraph 9 refers to alleged misconduct by the Respondent through inappropriate and offensive comments in the classroom in the presence of students to include disparaging statements about teenage parents and abortions. While it is accepted that Respondent told the class not to speak of pregnancy in his class, the context of those remarks did not correspond with the alleged prohibited conduct described in Paragraph 9. Rather, his remarks about pregnancy comported with school board policy which prohibited the discussion of pregnancy in the classroom setting.

Paragraph 30 is contrary to facts found.

Paragraphs 31 and 32 are subordinate to facts found. Paragraph 33 is contrary to facts found.

Paragraphs 34 through 36 are subordinate to facts found.

Paragraph 37 is not relevant to the resolution of the dispute when examined in the context of the alleged violations of law set forth in the administrative complaint.

Paragraph 38 is not supported by the record in that Petitioner's Exhibit No. 3 was denied admission.

Paragraph 39 is contrary to facts found.

COPIES FURNISHED:

Gary Baker, Esquire

301A Law Exchange Building

24 North Market Street Jacksonville, FL 32202

Robert J. Boyd, Esquire Suite G

2121 Killearney Way

Tallahassee, FL 32308

Karen Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

Jerry Moore, Program Director Professional Practices Commission

352 Florida Education Center

325 West Gaines Street Tallahassee, FL 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: 94-002120

Orders for Case No: 94-002120