Pursuant to notice a formal administrative hearing was held in this case on January 30, 1997, in Largo, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.
For Petitioner: Keith B. Martin
For Respondent: Robert F. McKee, Esquire
Kelly and McKee, P.A.
Whether Respondent violated Pinellas County School Board policies related to sexual harassment, inappropriate sexual conduct with students, and inappropriate relationships with students, and if so, whether the violations constitute just cause for her dismissal as a teacher.
By letter dated September 18, 1997, Dr. J. Howard Hinesley, Superintendent of Pinellas County Schools, notified Respondent, Dorothy Simon, that she was being suspended with pay, effective September 16, 1996, until October 8, 1996, the date of the next school board meeting. According to the letter, at that meeting the superintendent would recommend that the Pinellas County School Board sustain the suspension and dismiss Respondent from employment as a teacher.
Specifically, the superintendent alleged that (1) on at least one occasion in July 1996, Respondent engaged in sexual intercourse with a forty-year old male student in her electronics class; (2) between July 19-21, 1996, this student accompanied Respondent and her daughter to Atlanta and stayed in the same hotel room; and (3) in July and August 1996, Respondent paid this student to stay at her home while she was away on vacation. The superintendent alleged that these actions violated School Board Policy 6Gx52-5.31 (1)(a) and (o), and constitute just cause for dismissal pursuant to Section 231.36(6)(a), Florida Statutes.
By letter dated September 30, 1996, the matter was referred to the Division of Administrative Hearings which noticed and conducted the formal hearing. On November 15, 1996, Petitioner filed a Motion to Amend Charge. The motion was granted and Petitioner amended its charges to further assert that
Respondent's alleged actions violated of School Board Policy 6GX52-5.29, relating to sexual harassment.
At hearing, Petitioner presented the testimony of four witnesses, and had six exhibits admitted into evidence. Respondent testified on her own behalf and presented the testimony of nine witnesses. Respondent offered and had two exhibits admitted into evidence.
A transcript of the hearing was filed on February 10, 1997. The time set for submitting proposed findings of fact and conclusions of law was ten days from the filing of the transcript. Prior to that date, Respondent filed an Unopposed Motion for Extension of Time to File Proposed Findings of Fact and Conclusions of Law. The motion was granted and both Petitioner and Respondent filed proposed recommended orders.
Respondent, Dorothy Simon (Respondent), has been employed as a teacher by the Pinellas County School Board (School Board) since 1980. Her entire teaching career in the Pinellas County School District has been spent at the Pinellas Technical Education Center (PTEC). Pursuant to her employment, Respondent was issued a professional services contract.
During the 1995-96 school year, Respondent taught an electronics technology course at PTEC in which approximately twenty-six (26) to thirty (30) students were enrolled. The course lasted one year, and upon completion of the course work,
the students received a certificate. Except for one seventeen year old who was enrolled in the course, all of the students in Respondent's class were between the ages of twenty (20) and forty-eight (48) years old.
On or about March 1996, a male student named Thomas Mitchell, who was approximately forty (40) years of age, enrolled in the electronics technology course taught by Respondent. Mitchell, who was not married, held himself out as an ordained minister and told Respondent that he wanted to be called "Reverend Mitchell". Consequently, Respondent as well as students in the class referred to and addressed Thomas Mitchell as Reverend Mitchell.
On or about July 15, 1996, Mr. Mitchell gave the Respondent a letter in which Mr. Mitchell expressed a physical and emotional attraction to her and discussed starting a relationship with the Respondent.
Prior to July 19, 1996, while on school premises, Respondent approached Mr. Mitchell and asked him if he would accompany her and her thirteen year old daughter to the Summer Olympics in Atlanta, Georgia, and act as their bodyguard during their stay.
On or about July 19, 20 and 21, 1996, Mr. Mitchell accompanied Respondent and her daughter to the Summer Olympics in Atlanta. Mr. Mitchell drove the Respondent's car to Atlanta. While in Atlanta, Mr. Mitchell stayed with Respondent and her
daughter in a hotel room which Respondent had reserved and paid for a year in advance. Respondent paid for Mr. Mitchell's meals and gave him $50.00 spending money. Mitchell later return the
$50.00 to Respondent.
After class, on or about July 22, 1996, Respondent drove several students to a nearby bus stop and Mr. Mitchell to Workforce, a center near PTEC where he tutored children. While Respondent was driving Mr. Mitchell to Workforce, she asked him if he would house-sit for her while she and her daughter were on vacation for two weeks. The Respondent offered to pay Mr. Mitchell $100.00 each week, and in return he was to feed her pets, clean her pool and live in her house while she was vacationing. Mr. Mitchell accepted the Respondent's offer.
After class, on July 25, 1996, the last day of school before the summer break, Respondent drove several students to the bus stop and gave Mr. Mitchell a ride to his mother's apartment where he lived. Both the bus stop and Mr. Mitchell's mother's apartment were in the vicinity of PTEC. Respondent had given Mitchell a ride home on one other occasion and often gave other students rides to various places when they so requested.
Shortly after Respondent dropped Mr. Mitchell off at his mother's apartment, while driving home, Respondent was involved in an automobile accident in which Respondent's vehicle struck a teen-age girl.
After police and paramedics arrived at the scene of the accident, Respondent remained on the scene. However, about one hour after their arrival, the police who were investigating the accident advised Respondent to go home. Respondent was quite shaken, and did not feel that she was in any condition to drive herself home. Rather than driving herself home, Respondent went to Mr. Mitchell's residence, which was nearby, and asked him to drive her home. Mr. Mitchell complied with Respondent's request.
On the way to Respondent's house, Mitchell and Respondent made two stops. The first stop was at a bank where the Respondent made a cash withdrawal for the $200.00 that she was going to give Mr. Mitchell for house-sitting. The second stop was at a liquor store where Mr. Mitchell, at the Respondent's request, went inside and purchased a bottle of vodka.
Mr. Mitchell then drove Respondent home and when they arrived, Respondent had one drink of orange juice and vodka. Respondent then went into her swimming pool to calm herself and was shortly thereafter joined by Mr. Mitchell. While both were in the pool, Respondent asked Mr. Mitchell to hug her because she wanted to be comforted. Mr. Mitchell then hugged Respondent and the two engaged in sexual intercourse.
On or about July 27, 1996, Respondent and her daughter drove to Mr. Mitchell's residence and picked him up. Mr. Mitchell accompanied Respondent and her daughter to a swim meet
in which the daughter was participating. After the swim meet, Mr. Mitchell drove the Respondent and her daughter to the airport for their departure on a two-week vacation.
Mr. Mitchell returned to Respondent's home and house- sat for Respondent for two weeks while she was away on vacation, pursuant to their previously made agreement. As promised, Respondent paid Mr. Mitchell $100.00 per week for house-sitting.
While on vacation, Respondent received one phone call from Mr. Mitchell in which he requested an additional $100.00. Respondent wired Mr. Mitchell the $100.00.
When Respondent returned from vacation, she found that Mr. Mitchell had trashed and vandalized her house. She later determined that Mitchell had run up an exorbitant phone bill and had stolen approximately $2,300 from her by making unauthorized cash withdrawals on a credit card that had been mailed to her home while she was away.
When school began at PTEC in August 1996, Mr. Mitchell was still enrolled as a student in Respondent's electronics technology course. At that time Mr. Mitchell had approximately two weeks of course work remaining to be completed in order to receive a certificate of completion.
Upon returning to PTEC after the summer break, Respondent went to see Dr. Warren Laux, Director at PTEC, concerning Mr. Mitchell. Respondent was afraid of Mr. Mitchell,
and requested that he be removed from her class because she did not want to come in contact with him.
Respondent explained that Mr. Mitchell house-sat for her during a two-week vacation and left the house a mess, stole money from her and ran up an exorbitant phone bill during his stay. Because she had notified police of these incidents involving Mr. Mitchell, the Respondent told Dr. Laux that the situation created a conflict for her if Mr. Mitchell remained in her class.
During their discussion, Dr. Laux asked Respondent if there had been any sexual relationship between herself and Mr. Mitchell. The Respondent stated that she had sex with Mr.
Mitchell on one occasion. | However, Respondent did not | give |
details of the time, place, | or circumstances surrounding | that |
encounter. |
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Dr. Laux explained to Respondent that for the moment it appeared that Mr. Mitchell had done nothing which violated the Student Code of Conduct and, accordingly, there was no valid reason to remove him from her class.
During August 1996, Respondent told some students in her class that the person who had house-sat for her when she was away on vacation had trashed her house. However, Respondent did not identify Mr. Mitchell as that person.
During August 1996, while in her classroom, Respondent told Mr. Mitchell that she would rather scratch his eyes out than
have him in her class. At the time this comment was made by Respondent, there were students in the classroom, but on the other side of the room. Respondent's comments to Mr. Mitchell were not made loudly enough for other students to hear.
The School Board's Office of Professional Standards conducted an investigation regarding the allegations that the Respondent had been involved with a student. As a part of this investigation, Respondent was interviewed on three occasions: August 28, 1996; September 3, 1996; and mid-September 1996. During each interview, Respondent admitted that on one occasion she had engaged in sexual intercourse with one of her students, Thomas Mitchell.
Respondent's conduct impaired her effectiveness as a teacher. Respondent failed to maintain a professional relationship with her student Thomas Mitchell and used her position to enter into a personal relationship with him. Once that relationship deteriorated, as admitted by Respondent, it was impossible for her to work with that student, and her effectiveness was significantly impaired.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Superintendent of the Pinellas County School District has the authority to make recommendations for dismissal
of school board employees as prescribed in Section 230.33(7)(e), Florida Statutes.
The Pinellas County School Board, is empowered to dismiss school board employees pursuant to Section 230.23(5)(f), Florida Statutes. Furthermore, the School Board has the authority to dismiss instructional staff with professional service contracts at any time during the school year. However, the charges against the employee must be based on just cause. Section 231.36(6)(a), Florida Statutes.
The Florida Legislature, by defining just cause as including, but not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude, in Section 231.36(1)(a), Florida Statutes, gave school boards discretion to determine what actions constitute just cause for suspension or dismissal. Carl B. Dietz v. Lee County School Board, 647 So.2d
217 (Fla. 2nd DCA 1994).
Petitioner seeks to dismiss Respondent from her employment as a teacher for just cause pursuant to Section 231.36(6)(a), Florida Statutes.
Specifically, the School Board has charged Respondent with violating School Board Policy 6Gx52-5.29, Guidelines to Prevent Sexual Harassment, Policy Manual of Pinellas County School Board; and School Board Policy 6Gx52-5.31(1)(a) and (o), Disciplinary Guidelines for Employees, Policy Manual of Pinellas
County School Board. School Board Policy 6Gx52-5.29, as its title implies, relates to sexual harassment. School Board Policy 6Gx52-5.31(1)(a) and (o), respectively, relate to inappropriate sexual conduct with students and inappropriate relationships with students.
In order to prevail, Petitioner must prove that Respondent committed the alleged offenses by a preponderance of the evidence. Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 3rd DCA 1990).
School Board Policy 6Gx52-531(1)(a) is a blanket prohibition against teachers engaging in inappropriate sexual conduct with a student. The policy is interpreted to include sexual intercourse as one type of inappropriate sexual conduct that is prohibited. The evidence presented at hearing clearly establishes that on one occasion, Respondent engaged in sexual intercourse with a student. Although, the student was a consenting adult, the policy focuses on the teacher-student relationship and does not include an exception based on the age or consent of the student involved. Based on the foregoing, the School Board has established that Respondent engaged in inappropriate sexual conduct with a student.
According to School Board Policy 6Gx52-5.31(1)(a), the sole penalty for a substantiated charge of inappropriate sexual conduct with a student is dismissal.
With regard to the charge that Respondent violated
School Board Policy 6Gx52-5.31(1)(o), by having an inappropriate relationship with a student, Petitioner has met its burden. The evidence presented at the hearing clearly establishes that Respondent's involvement with Thomas Mitchell, one of her students, developed into more than a professional teacher-student relationship. Respondent admitted that (1) she took the student to Atlanta to serve as a bodyguard and while there allowed him to stay in her hotel room; (2) occasionally drove him home, to work, or to the bus stop; (3) called on him during a stressful time; and (4) hired him to house-sit while she was away on vacation. When viewed independently and in isolation, these acts in and of themselves may not constitute an inappropriate relationship. However, in this case, it is not insignificant that all these activities occurred shortly after Mr. Mitchell expressed a romantic interest in Respondent. These actions by Respondent, as well as the act of engaging in sexual intercourse with the student, resulted in Respondent's having an inappropriate relationship with a student.
The penalty range specified in School Board Policy 6Gx52-5.31(1)(o) for a substantiated charge of having an inappropriate relationship with a student includes disciplinary measures from a reprimand to dismissal.
Petitioner has failed to meet its burden with regard to the allegation that Respondent violated School Board Policy 6Gx52-5.29, relating to sexual harassment. According to that
policy, any inappropriate sexual comment or any sexual behavior from an adult toward a student is unethical and considered sexual harassment. Furthermore, the policy provides that behaviors considered to be sexual harassment include "creating a hostile, offensive or intimidating environment based on or related to gender that has the purpose or effect of interfering with an individual's work performance." The School Board alleged that Respondent's comments to Mr. Mitchell constitute such behavior.
Notwithstanding the School Board's assertion to the contrary, there is no evidence that Respondent's statements to Mr. Mitchell came within the purview of this policy. Based on the evidence adduced at hearing, the comments made by Respondent to Mr. Mitchell in the class after the relationship deteriorated cannot be deemed to constitute sexual harassment. The comment, that she would rather scratch Mr. Mitchell's eyes out rather than have him in her class, may have created a hostile offensive or intimidating learning environment. Nevertheless, under the policy, it is not enough that Respondent's behavior creates a hostile, offensive, or intimidating environment. The comments or behavior must be based on or related to the student's gender and have the purpose or effect of interfering with the person's work performance. In this case, Respondent's comments were not based on or related to the student's gender, but rather were because of Respondent's anger based on her belief that the student had "trashed" her house, stolen money from her, and ran up her
telephone bill. No evidence was presented as to the purpose or effect of these comments on Mr. Mitchell. Having failed to establish these requisite elements, the School Board has failed to prove that Respondent violated School Board Policy 6Gx52-5.29.
The School Board has proven by a preponderance of the evidence that Respondent had an inappropriate relationship with one of her students, Thomas Mitchell, and engaged in an inappropriate sexual conduct with him in violation of school board polices. Respondent's actions impaired her effectiveness as a teacher and constitute just cause for her dismissal.
Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1997.
Keith B. Martin Assistant School Board
Robert F. McKee, Esquire Kelly and McKee, P.A. Suite 301
J. Howard Hinesley, Ed.D. Superintendent
Ms. Dorothy Simon
St. Petersburg, Florida 33710
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.
