+STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF TAYLOR COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1868

)

JEFF SILVERS, )

)

Respondent. )

)

RECOMMENDED ORDER

This hearing was held pursuant to notice by Stephen F. Dean, the Administrative Law Judge assigned by the Division of Administrative Hearings, on October 22 and 23, 1996, in Perry, Florida.

APPEARANCES

For Petitioner: Angela M. Ball, Esquire

Angela M. Ball, P.A.

615 North Jefferson Street Perry, Florida 32347

For Respondent: Conrad C. Bishop, Jr., Esquire

Conrad C. Bishop, P.A.

411 North Washington Street Perry, Florida 32347

STATEMENT OF THE ISSUE

Did the Respondent inappropriately touch students while employed by the Taylor County School Board?

Did the Taylor County School Board follow a program of progressive discipline in this case?

Was the Respondent grossly insubordinate by continuing to touch students after being warned to cease such conduct?

Was the Taylor County School Board justified in suspending the Respondent without pay pending the outcome of an administrative hearing?

PRELIMINARY STATEMENT

The Taylor County School Board suspended the Respondent for inappropriately touching students, and for insubordination by not following the direction of his superiors to cease touching students. The Respondent requested a administrative hearing before the Division of Administrative Hearings, and the Board suspended the Respondent without pay pending the hearing.

The matter was referred to the Division of Administrative Hearings on April 24, 1996, and the matter was set for hearing for August 20, 1996 by notice dated May 24, 1996. At the scheduled hearing, counsel advised that they would be calling approximately 20 witnesses and that a court reporter had not been engaged which would delay commencement of the hearing for at least one hour. Because the hearing could not be completed in the time allotted, it was agreed to continue the hearing until the next two available contiguous days. The matter was continued until October 22 and 23, 1996, and was heard as noticed on those dates.

At hearing, the Petitioner introduced the testimony of six students who were alleged victims, and the testimony of the Superintendent of Schools and the principal of the school at which the Respondent taught. The Respondent testified in his own behalf, and introduced the testimony of several character

witnesses, several students who were witnesses to the alleged acts, and several members of the staff of the school at which he taught.

The Petitioner introduced Exhibits 1 - 6, and 12 - 15. The Respondent introduced Exhibit 1, a composite consisting of tabs 1 through 10, and Exhibit 2. Subsequently, a transcript was prepared, and the parties filed proposed findings of fact in the form of Recommended Orders. Through no negligence of her own, Ms. Ball’s proposals were not addressed correctly, and they were not received until January 2, 1997. Consideration of the matter was delayed because of this problem, however, the findings were read and considered.

FINDINGS OF FACT

1. The Respondent, Jeff Silvers, was employed by the Taylor County School Board (the Board) as a science teacher at the Taylor County Middle School (the school). He had been an employee of the Board for several years.

2. The Board was party to a contractual agreement with the Taylor County Education Association, FTP-NEA.

3. On or about September 14, 1995, the Petitioner became aware that two female students had complained about Silvers rubbing their shoulders, touching their hair, and making an off color remark to them. The matter was brought to the attention of the Dean of Students at Taylor County Middle School, Reginald Wentworth, who reviewed the facts and counseled Silvers to refrain from touching his students.

4. On or about September 15, 1995, four additional students complained that Silvers occasionally touched them which made them feel uncomfortable. As a result of these complaints, an investigation was undertaken of Silvers’ conduct and the statements of his students were taken. Their statements were reviewed at the Board level, and Paul Dyal, Principal of Taylor County Middle School was directed to counsel Silvers and advise him to alter his teaching style and not to touch students. Dyal advised Silver in writing to be careful of his comments to students and keep them professional.1

5. Silvers received an informal verbal and an informal written reprimand which was maintained in his personnel file.

6. Thereafter, a mother of one of the girls who had originally complained about Silvers began to complain to the administration at the school and district about Silvers’ conduct with regard to the original incident.

7. As a result of pressure put on the district by this parent, the matter was reinvestigated and the formal statements of the students originally involved were taken again. In addition, other students complained of Silvers touching them.

8. Many of these students were called to testify at hearing, and their statements were introduced into evidence. None of these students described touching which was sexually explicit or overtly inappropriate because of the parts of the body which were touched.

9. The touching described was “inappropriate” given the age

   of the young female students, and Silvers was properly directed to refrain from touching the students in this manner; however, the touching was not of a nature to establish “immoral” behavior.

10. With the exception of two children, Maria V. and Michelle W., none of the children could fix the date of that Silvers touched them. It was not established that Silvers touched any of the other students after he was directed not to touch them.

11. The incident involving Maria was typical of the reports of touchings reported by the students other than Amber M. and April E. The Respondent touched Maria on the shoulder while at her desk on December 1, 1996, answering a question she had. She reported that she did not feel uncomfortable because of Silvers’ touching her and would not have considered it except of the controversy over Silvers then being reported in the paper. Because of the diary entry she made, she could place the date of the incident.

12. The other incident involved the Respondent touching Michelle on the leg while he plugged a pencil sharpener during class. Michelle was seated on a stool, with her feet on the upper rungs of the stool, and her knees and legs roughly parallel with her hips. The electrical outlet was between her knees on the upper part of the lab bench at which she was sitting. The Respondent, who was standing beside her, unplugged the sharpener into the outlet and accidentally touch her leg. Michelle thought nothing about it, was not concerned about it, and did not

    complain about it. This well documented occurrence was accidental and was not contrary to the directions which Silvers had received.

13. The testimony of the two students who originally complained about Silver is discounted. In part, this is because their allegations continued to change during the investigation; however, the testimony of April at hearing was not credible. The testimony of Amber was not supportive of April regarding Silvers’ comments. Amber’s descriptions of Silvers’ conduct in the classroom was more detailed and differed from the testimony of the other students regarding Silvers’ behavior. Her descriptions of classroom touchings were of rubbing and lifting bra straps which would have been wholly inappropriate; however, she and April were the only students who offered such statements and testimony and it came late in the investigative process, casting doubts upon its credibility given the atmosphere which prevailed after the letter to the editor from April’s mother. In sum, the testimony of Ellison and Mauldin was sufficient to base the informal actions of the Board; however, their later testimony lacks the credibility to sustain the Board’s suspension and termination of Silver.

14. The letter-writing campaign by April’s mother resulted in an atmosphere in which the young women in Silvers’ classes were overly suspicious of his every move. In addition, the administration re-investigated the matter and obtained the statements of additional girls that Silver had touched them. In

    response to leading questions, their statements indicated these were recent touchings; however, under oath and on cross examination they were unable to fix accurately the dates of the incidents of touching.

15. On February 7, 1996, the Respondent was advised he would be suspended with pay pending an administrative hearing before the Board scheduled for February 13, 1996.

16. The letter of suspension which is considered the original charging document, advised that he was charged with gross insubordination and immorality as the result of touching students in a inappropriate manner and continuing to do so after being directed not to touch students.

17. Subsequent to Silvers’ requesting a hearing before the Division of Administrative Hearings, the Petitioner suspended the Respondent without pay on February 22, 1996.

    CONCLUSIONS OF LAW

    
    

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

19. The Petitioner has the burden of proof to show that the Respondent committed the acts which were the basis for his suspension.

20. The contract between the Petitioner and the Taylor Education Association does not address the matter of employee rights to a formal hearing. It provides only that the employee shall have the right to respond to allegations informally and to

    be advised of any disciplinary actions prior to any action. It must be concluded that the Board could suspend the Respondent without pay pending resolution of the charges against him if the Board determined that the Respondent could not safely be employed within the system. However, there if it were determined that the Respondent had not committed the acts alleged, then he would be entitled to be made whole.

21. Regarding the charges that the Respondent inappropriately touched April and Amber, the facts reveal that the Board’s staff counseled the Respondent and instructed him in writing to cease touching students. The Respondent asserts this was not a written reprimand, and the Petitioner characterizes this as an “informal meeting” and written and verbal notice to stop touching children. The written instructions directed the Respondent to alter his behavior and were maintained in the Respondent’s personnel file. The evidence supports the conclusion that this was an informal written and oral reprimand. To the extent that progressive discipline is required by the Taylor Education Association contract, this constituted progressive discipline.

22. Two substantive issues remain: whether the Respondent was guilty of immorality and whether the Respondent was guilty of insubordination. Regarding the incidents reported, the initial incident reported in September which gave rise to the reprimand cannot be considered as a basis for further discipline in the absence of additional facts of which the Petitioner and its staff

    were originally unaware. The record shows that the statements of the alleged victims were taken, the administration had all the information about the incident which was found at hearing to be credible at the time it gave the Respondent his written reprimand. There was no legal or factual basis to enhance the penalty imposed upon the Respondent for the acts reported in September 1995.

23. There was limited evidence that following his reprimand that the Respondent touched any of students. Only two incidents were fixed in time as clearly being after the reprimand, the one with Michelle and the other with Maria. In the case of Michelle, the touching was accidental, and the touching of Maria was of an innocent and un-provocative nature which did not offend the child. The touchings in both incidents were not of an “immoral nature.” The touching of Michelle was accidental and would not have been precluded by the warning given to him by Dyal, and the touching of Maria was not intentionally part of Silvers’ teaching method. Although not accidental, it was unintended and incidental to coming to Maria’s desk to answer her question. While such a touching may have been within the intent of the Board, it was not communicated with sufficient clarity to justify terminating Silver for touching Maria on the shoulder while answering a question for her at her desk in such a manner that Maria was not uncomfortable with his having touched her. The remainder of the incidents of touching reported by the students were not only not clearly fixed in time (Alicia Ann V., Venus

    G.), or were of the type described by Maria (Rhonda Kay W.).

    
    

24. Evidence was received that the Respondent has a reputation as an excellent science teacher. Except for the allegations involved in this complaint, the Respondent also enjoys an excellent reputation for his conduct with children. There was no evidence outside the allegations which the Board had investigated which indicated a danger to students from retaining the Respondent in his teaching position.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

That the Board enter an order dismissing the charges against the Respondent, and reinstate the Respondent to his former position with back pay

DONE and ENTERED this 12th day of February, 1997, in Tallahassee, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1997.

ENDNOTE

1/ Memorandum of September 18, 1996 from Dyal to Silvers re: Conference on parent concern.

As I communicated with you this morning, I did meet with Oscar Howard with the statements taken on the accusations that were made about you. Both Mr. Howard and I agreed that to guarantee that there are no further incidents[;] we want you to change your touching approach when helping your students. This will remove any perception on what is happening. I also asked that we remember the age group of students that we are working with at TCMS. We must be very professional in our conversations with our students and make sure that we are very clear in what we want to communicate to them. By doing this there can be no misconception about what is meant in the conversation.

As you know, these things can cause hard feelings between parents, students and the teacher. We want to avoid any negative perceptions of how we treat our students. I am sure you agree with Mr. Howard and myself that this situation should not come up again.

COPIES FURNISHED:

Angela M. Ball, Esquire 615 North Jefferson Street Perry, Florida 32347

Conrad C. Bishop, Jr., Esquire

411 North Washington Street Perry, Florida 32347

Elouise Gardiner, Superintendent Taylor County School Board

Post Office Box 1603 Perry, Florida 32347

Frank T. Brogan, Commissioner Department of Education

The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-001868

Orders for Case No: 96-001868