STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) Case No. 96-6082

)

CHARLES T. INNES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on May 27, 1997, in Miami, Florida.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

501 First Avenue, Suite 600 St. Petersburg, Florida 33701

For Respondent: Patricia M. Kennedy, Esquire

United Teachers of Dade 2929 Southwest Third Avenue Miami, Florida 33129

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

On October 28, 1996, Petitioner issued an Administrative

Complaint against Respondent charging him with violating several statutes and rules regulating his conduct as a teacher, and Respondent timely requested an evidentiary hearing regarding those allegations. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner presented the testimony of Anneil Sullivan and Ganene Cooper. Respondent testified on his own behalf.

Additionally, Respondent's Exhibits numbered 1 and 2 were admitted in evidence.

Both parties submitted post hearing proposed recommended orders. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. Respondent has been a mathematics teacher at Miami Killian Senior High School for the last 27 years.

2. For the last 15 years he has tutored students in math for a fee. During the 1991-92 and 1992-93 school years, he tutored Beth Sullivan, a student attending a different school than Killian.

3. During the summer of 1993, Beth's mother contacted Respondent and inquired about the math courses Beth could take when she started the 11th grade at Killian that fall. They discussed the options. Respondent advised her that if Beth took analytical trigonometry, Respondent could tutor her for a fee.

   However, if Beth took Respondent's pre-calculus course, Respondent could not tutor her for a fee.

4. Beth enrolled in his pre-calculus class and was Respondent's student during the 1993-94 school year. When she encountered difficulty, Respondent told her to come to the public library where he tutored students and, if she would help him by grading papers for him, he would help her with her math while he was working with his paying students. She did, and he did.

5. During the 1993-94 school year, Mrs. Sullivan did not give Respondent money for tutoring Beth. She did, however, give Beth $35 in cash to give to Respondent each time Beth went to the library for tutoring.

6. During the 1987-88 school year, Ganene Cooper was a student in Respondent's Algebra II class. She was a senior in high school at the time.

7. Ganene was a "B" student during the first semester of Algebra II. However, her grades "deteriorated" during the second semester.

8. Respondent asked Ganene why her grades were falling, and she told him she had problems at home with additional responsibilities which prevented her from studying. He suggested that she come to his classroom during the lunch period when he assisted students who needed help in math. Although she began attending the lunch study sessions almost daily, she did not actively participate and did not ask questions.

9. She started coming to the library where Respondent was tutoring, sometimes just walking past the room he used for his tutoring sessions and sometimes telling him that she needed to talk to him, which he was unable to do since he was busy tutoring. After her graduation in June 1988, she continued to

   
   

   come to the library where Respondent tutored, and she began appearing unannounced and uninvited at his apartment.

10. In August 1988 Respondent and Ganene began engaging in sexual activity in his apartment and in her car. After a month or so, Respondent insisted their relationship was over, but Ganene wanted it to continue.

11. She threatened to go to his principal if he refused to see her. She told him she was pregnant although she was not.

    She called every night. If Respondent would not talk to her, she showed up at his apartment and knocked on the door for hours.

    She came to the school to see him. She obtained Respondent's ex- wife's home address from her place of employment and drove by Respondent's ex-wife's home a number of times. She told Respondent's ex-wife about Ganene's relationship with Respondent. She wrote a note threatening his job and other forms of "payback".

12. When she came to the school to see him, he told her to leave. He went with her to see her psychologist twice. He contacted Ganene's family to enlist their aid. Her grandmother

    came to Respondent's apartment to pick up Ganene when Respondent telephoned her to say Ganene was at his apartment and would not leave.

13. In July 1989, Ganene called a crisis intervention service and threatened to kill herself because Respondent did not want to see her. Dade County Public Schools conducted an investigation into her allegations. After that, Respondent continued to insist to Ganene that he had no reason to speak with her now that everything was public. Yet, she continued to come to the school, asking him to speak to her, and continued to call his home and come to his apartment trying to see him.

14. In October or November 1989 Ganene came to Respondent's apartment. Respondent called the police who came and arrested Ganene. She was sentenced to six months' probation and ordered to stay away from Respondent.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.

16. The Administrative Complaint contains three factual allegations. Petitioner offered no evidence as to the factual allegations in paragraph numbered 5. That paragraph of the Administrative Complaint must be dismissed.

17. Paragraph numbered 3 of the Administrative Complaint alleges that during the 1988-89 school year Respondent entered

    into an inappropriate romantic relationship with Ganene, a student, which relationship involved sexual activity. The parties stipulated during the final hearing to amend this paragraph to read 1987-88 school year instead of 1988-89.

18. Paragraph numbered 4 of the Administrative Complaint alleges that during the 1993-94 school year Respondent tutored Beth Sullivan for a fee, in violation of school board policy. The parties stipulated during the final hearing that the school board has a policy prohibiting teachers from tutoring their own current students for pay.

19. Counts 1 through 3 of the Administrative Complaint allege that Respondent violated various statutes, and Counts 4 through 8 allege that Respondent violated various rules regulating his conduct as a teacher. None of the Counts specifies whether it relates to paragraph 3 or paragraph 4 of the factual allegations. Accordingly, each statutory or rule violation alleged has been considered as applicable to both the alleged sexual relationship with Ganene and the alleged tutoring of Beth for pay.

20. The law is well settled that Petitioner must prove his allegations in this license disciplinary proceeding by clear and convincing evidence. Petitioner has failed in his burden of proof by failing to present either clear or convincing evidence as to the factual allegations in the Administrative Complaint. As to the allegation that Respondent tutored Beth Sullivan for

    pay while she was a student of his, the only competent evidence offered by Petitioner was that Beth's mother gave Beth money. No evidence was offered that Beth gave the money to Respondent. As to the allegation that Respondent engaged in an inappropriate, romantic relationship with Ganene while she was a student, her testimony is not credible.

21. Count 1 alleges that Respondent is guilty of gross immorality or an act involving moral turpitude, in violation of Section 231.28(1)(c), Florida Statutes. Count 2 alleges that Respondent is guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, in violation of Section 231.28(1)(f), Florida Statutes. Count 3 alleges that Respondent has violated the Principles of Professional Conduct for the Education Profession in Florida, in violation of Section 231.28(1)(i), Florida Statutes. Since Petitioner has failed to prove the factual allegations, then, a fortiori, Petitioner has failed to prove that Respondent committed the statutory violations charged.

22. Count 4 alleges that Respondent has failed to make reasonable effort to protect students from conditions harmful to learning and/or to the students' mental health and/or physical safety, in violation of Rule 6B-1.006(3)(a), Florida Administrative Code. Count 5 alleges that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement, in violation of Rule 6B-1.006(3)(e). Count 6

alleges that Respondent has harassed or discriminated against a student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, or social and family background and has failed to make reasonable effort to assure that each student is protected from harassment or discrimination, in violation of Rule 6B- 1.006(3)(g). Count 7 alleges that Respondent has exploited a relationship with a student for personal gain or advantage, in violation of Rule 6B-1.006(3)(h). Count 8 alleges that Respondent has used institutional privileges for personal gain or advantage, in violation of Rule 6B-1.006(4)(c). Since Petitioner has failed to prove the factual allegations, then, a fortiori, Petitioner has failed to prove the rule violations charged.

RECOMMENDATION

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

RECOMMENDED THAT a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause.

DONE AND ENTERED this 17th day of October, 1997, at Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 17th day of October, 1997.

COPIES FURNISHED:

Bruce P. Taylor, Esquire

501 First Avenue, Suite 600 St. Petersburg, Florida 33701

Patricia M. Kennedy, Esquire United Teachers of Dade

2929 Southwest Third Avenue Miami, Florida 33129

Kathleen M. Richards, Executive Director Department of Education

224-E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Program Director

Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education

The Capitol, Plaza Level 8 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: 96-006082

Orders for Case No: 96-006082