STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PUTNAM COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-4472

)

MICHAEL DORSEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on February 9 and 10, 1999, a formal hearing was held in this case. The authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing location was the School Board Meeting Room, Campbell Administration Building, 200 South Seventh Street, Palatka, Florida. The case was considered by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Joe H. Pickens, Esquire

Holmes and Pickens, P.A.

222 North Third Street Palatka, Florida 32177-3710

For Respondent: Greg Kimball, Esquire

399 Reid Street Palatka, Florida 32177

and

Carl Zolezzi, Esquire

399 Reid Street Palatka, Florida 32177

STATEMENT OF THE ISSUES

Should Respondent be terminated from his employment as a member of Petitioner's instructional staff for his alleged relationship with Kristie Lynn Smith, who at the time of the alleged misconduct was a minor student and member of Respondent's household? In particular, Petitioner accuses Respondent of a romantic involvement with Ms. Smith, to include sexual intercourse.

PRELIMINARY STATEMENT

David Buckles, Superintendent of Schools for the Putnam County School District recommended that Respondent be terminated from his employment with Petitioner. On October 27, 1997, Petitioner suspended Respondent without pay pending a hearing on the recommendation for termination. In accordance with Section 231.36(6)(a), Florida Statutes, Petitioner elected to have the Division of Administrative Hearings conduct a hearing to consider the allegations against Respondent. Consistent with that election, the case was forwarded to the Division of Administrative Hearings on October 6, 1998, to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

Consideration of the case before the school board had been delayed pending the outcome of a criminal prosecution in the case of State of Florida, v. Michael Dorsey, Defendant, Circuit Court of Florida, Seventh Judicial Circuit in and for Putnam County, Case No. 97-1486-CF-52. That case influenced the pending

administrative proceeding between the Petitioner and Respondent, in that Mr. Dorsey was desirous of awaiting the outcome of the criminal prosecution before proceeding in the defense of the administrative action. The decision in the criminal court case favored Respondent Mr. Dorsey. There ensued the referral of the administrative action for hearing. The hearing was conducted upon dates agreed to by counsel for the parties and the administrative law judge.

To further clarify the allegations in this case, Petitioner in response to Respondent's request for a more specific pleading clarified Petitioner's position. The more detailed statement of charges was made through notice provided by Petitioner's counsel on February 5, 1999.

The following constitutes the specific factual allegations:

2a. On or between May 1, 1987 and August 26, 1997, Respondent a professional services contract teacher at Interlachen High School, initiated, fostered, nurtured and engaged in an inappropriate sexual and romantic relationship with K.L.S., a minor student at Interlachen High School, which said relationship included Respondent engaging in sexual intercourse with K.L.S. on numerous occasions.

1. Respondent initiated, fostered, nurtured and participated in an inappropriate romantic and emotional relationship with K.L.S., the gravamen of which is not actual sexual intercourse but, rather, the emotional and romantic relationship itself wherein Respondent confided in K.L.S. and discussed with her, among other things, his personal, family, and marital problems, professed his love and devotion to K.L.S., discussed his desire to make love to her, to hold her in

   his arms, to father a child (or children) with her, etc., all as more particularly set forth in a series of letters written by Respondent to K.L.S., the contents of which are known to Respondent and which Respondent is aware will be presented as a matter of documentary evidence in this proceedings.

   
   

2. Respondent engaged in a course of conduct that was designed to or had the natural and foreseeable effect of misleading K.L.S. with respect to [sic] actual Respondent's emotional and romantic feelings and 'love' for the student resulting in the creation of a genuine and well founded belief by K.L.S. that Respondent was in love with her, that Respondent wanted to marry her, that Respondent wanted to father her child, that Respondent wished to be divorced from his current wife so that he could be with her, etc., all as more particularly set forth in the referenced letters.

Petitioner presented the testimony of Kristie Lynn Smith, Lisa Comeau, K.W., and David Buckles. Petitioner's Exhibits numbered 1-19 were admitted. Respondent presented the testimony of Janice Pounds. Respondent's Exhibits numbered 1-2 were admitted.

A hearing transcript was prepared. The transcript was filed with the Division of Administrative Hearings on March 30, 1999.

Petitioner submitted a proposed recommended order. Respondent submitted a proposed recommended final order. The parties' proposals have been considered in preparing this recommended order.

FINDINGS OF FACT

1. At times relevant to the inquiry Respondent has been employed as a classroom teacher, part of instructional staff with

   the Putnam County School Board. His employment has been at Interlachen High School in Interlachen, Putnam County, Florida. Respondent has taught Driver Education and Health and Life Management Skills. Respondent has also served as coach for the girls' varsity basketball team.

2. Kristie Lynn Smith was born November 24, 1980. At the times relevant to the inquiry she was a student in the Putnam County School District.

3. Ms. Smith met Respondent as a student in Respondent's Health and Life Management Skills class, in the second semester of her ninth grade year.

4. In January 1997, Ms. Smith was placed in foster care in the custody of Respondent and his wife, Teresa Dorsey. Ms. Smith lived with the Dorseys in their home from January 1997 through August 1997. Other children residing in the Dorsey home were Respondent's children Mikey, Jeanny, and Raymond. Another foster child, K.W., lived in the home during Ms. Smith's residency.

5. The expectation of foster parenting for the benefit of Ms. Smith and K.W. was that Respondent and his wife would exercise parental authority over the foster children.

6. After Ms. Smith was placed with the Dorseys for foster care, she began to ride to her school with Respondent in his automobile. On these occasions Respondent and Ms. Smith would engage in conversation that was not unexpected.

7. In latter May 1997, Respondent began to discuss his marital problems with Ms. Smith. In these discussions Respondent confided that Respondent's marriage with his wife, Teresa, was over and that Respondent was contemplating the formal dissolution of his marriage. Respondent's discussions with Ms. Smith extended to expressing Respondent's feelings towards Ms. Smith by telling her he cared for her. This was followed by Respondent's statement to Ms. Smith that he was in love with her. Ms. Smith replied that she had similar feelings for Respondent.

8. Respondent and Ms. Smith in their discussions talked about having sexual relations with each other. Expression was given to their affection by flirting, hugging, and kissing each other with open mouths. The relationship between Respondent and Ms. Smith progressed to the point where Ms. Smith agreed to have sexual intercourse with Respondent.

9. Within a few days beyond reaching the agreement to have sexual intercourse, Respondent, in their home, took Ms. Smith from the room she shared with K.W. into the bedroom shared by Mikey and Jeanny, placed a mattress on the floor, removed his and Ms. Smith's clothing and engaged in sexual intercourse with

   Ms. Smith. This same activity took place three or four more times in the home in the month of May 1997.

10. While on a vacation in West Virginia that began the last week of May 1997, Ms. Smith confided in K.W. that Ms. Smith and Respondent had an ongoing romantic relationship.

11. K.W. observed some of the contacts between Respondent and Ms. Smith that involved hand holding, hugging, and what K.W. described as "French kissing," meaning that the tongues of Respondent and Ms. Smith were in each other's mouth.

12. Upon the return from West Virginia, in the first part of June 1997, Respondent and Ms. Smith continued their liaison, to include sexual intercourse that took place on numerous occasions either in Jeanny and Mikey's bedroom, Ms. Smith's bedroom, or Respondent's bedroom.

13. The sexual encounters that have been described took place at night when other persons had retired to sleep.

14. The numerous occasions of sexual relations between Respondent and Ms. Smith took place over the period from the end of May 1997 into August 1997. Those encounters were such that in June 1997, Ms. Smith believed that she had become pregnant by Respondent. To confirm her suspicion Ms. Smith went with a friend, Lisa Comeau, and purchased a pregnancy test kit.

15. At that time Ms. Comeau was also a student at Interlachen High School.

16. Ms. Comeau was mindful of the relationship between Ms. Smith and Respondent to the extent that Ms. Comeau had been told by Ms. Smith that Respondent and Ms. Smith were having sexual relations.

17. Respondent had taught Ms. Comeau as a Driver's Education and Health class teacher.

18. The results of the pregnancy test as administered at Ms. Comeau's home revealed that Ms. Smith was not pregnant.

19. In June 1997, Ms. Smith enrolled in a Driver's Education Course that was being taught at Palatka High School, part of the Putnam County School District. Respondent taught Ms. Smith in that class and was responsible for assigning

    Ms. Smith's final grade. During this time period Respondent and Ms. Smith were having sexual relations.

20. During the period May 1997 through August 1997, Respondent and Ms. Smith exchanged letters describing their affection. Those letters were passed directly from Respondent to Ms. Smith and from Ms. Smith to Respondent or on other occasions letters were being indirectly transmitted through K.W.

    Respondent would also leave letters for Ms. Smith in a dresser drawer in the home.

21. The letters were being written and exchanged sometime between May 1997 and August 1997.

22. K.W. and Lisa Comeau were aware of the contents of some of this correspondence.

23. Through the letters which Respondent wrote to Ms. Smith he expressed his love and devotion, the anticipation of having children with Ms. Smith, the desire to be Ms. Smith's husband, and the specific statement of wanting to make love to Ms. Smith and to hold her in his arms and to lay there for hours. The

    contents of some of the letters are more completely described in the Petitioner's Exhibits numbered 4-13.

24. Although Respondent expressed some reservation in testimony concerning their relationship, about first receiving letters from Ms. Smith which expressed her feelings towards Respondent, his manner of addressing his concerns was to begin writing letters back to Ms. Smith of the nature that has been described previously.

25. While Respondent in his testimony concerning the relationship with Ms. Smith has denied the finding made here that he had engaged in sexual relations with Ms. Smith, he does not deny discussion of their intention to have sexual relations at a time in the future. Neither does Respondent deny having written the letters that have been discussed which describe lovemaking and fathering Ms. Smith's children.

26. The July 24, 1998, edition of the Palatka Daily News reported some of the contents of correspondence from Respondent to Ms. Smith that have been described, in particular, the reference "I want to make love to you . . . and hold you in my arms and lay there for hours." The article also referred to Respondent's admission that he loved Ms. Smith at the time of their relationship and hoped the two of them would be married and have a family. As reported in the newspaper article Respondent had testified in the trial that he had "fallen" for Ms. Smith. The account of Respondent's statement that he loved Ms. Smith, as

    found in the newspaper was consistent with his trial testimony. Respondent's trial testimony constituted testimony for the present proceeding.

27. Mr. David Buckles, District School Superintendent for Putnam County School District, testified concerning his opinion on Respondent's loss of effectiveness as a teacher. Before offering that testimony Mr. Buckles had been accepted as an expert to provide opinion testimony concerning loss of effectiveness in the community to teach. Upon reviewing the contents of correspondence from Respondent to Ms. Smith,

    Mr. Buckles opined that the authorship of that item, Petitioner's Exhibit numbered 4 and its delivery to Ms. Smith, then a 16-year- old student, followed by public admission of such contact between Respondent and Ms. Smith would cause Respondent to be less than effective in teaching. Respondent in his testimony at trial, had acknowledged writing the correspondence found in Petitioner's Exhibit numbered 4. Additionally, Mr. Buckles offered the opinion that a teacher would lose effectiveness in the instance where the teacher stated a desire to father a child by one of his students, as published in the community. Respondent in his trial testimony acknowledged that in one of the letters written to

    Ms. Smith, he had stated that he wanted to father Ms. Smith's children.

28. Moreover, Mr. Buckles offered the opinion that a teacher would lose effectiveness in the community to serve as a

    teacher if the teacher admitted in a public forum that the teacher was in love with a 16-year-old student. Respondent in his trial testimony acknowledged that he loved Ms. Smith at the time of their relationship. Respondent in his trial testimony also acknowledged writing letters to Ms. Smith which expressed his love for her.

29. Mr. Buckles expressed the opinion that a teacher, who in a public forum acknowledges having discussed having sexual intercourse with a student on a future date, had lost effectiveness. In the trial testimony Respondent indicated that he had talked with Ms. Smith about having sex after they were going to be married, and that it was something Respondent and Ms. Smith knew would take place as part of the marriage. Additionally, Mr. Buckles' opinion countenances the previously mentioned discussion in correspondence from Respondent to Ms. Smith, reported in the newspaper and testified about in hearing, in which Respondent acknowledged authoring the correspondence which includes the phrase "I want to make love to you . . . and hold you in my arms and lay there for hours."

30. Eventually, the relationship between Respondent and Ms. Smith was found out. Although Ms. Smith denied their

    relationship initially, upon its discovery, out of fear of losing her attachment to Respondent and getting in trouble, eventually, Ms. Smith admitted to the relationship.

31. Ms. Smith and K.W. were removed from Respondent's home.

32. Respondent did not carry forward his stated intentions to divorce his wife and marry Ms. Smith. Respondent continues to be married to Teresa Dorsey.

    CONCLUSIONS OF LAW

    
    

33. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

34. Petitioner must prove its allegations against Respondent by a preponderance of evidence. Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990) and Allen v. Dade County School Board, 571 So. 2d 568 (Fla. 3d DCA 1990).

35. In accordance with Section 231.36(6)(a), Florida Statutes,1 Respondent as a member of instructional staff for the Putnam County School District may be suspended or dismissed from his employment for just cause as provided in Section 231.36(1)(a), Florida Statutes. The latter provision identifies just cause as misconduct in office when considering the factual allegations in this case.

36. Rule 6B-4.009(3), Florida Administrative Code, further describes the opportunity for discipline of instructional personnel under the authority set forth in Section 231.36, Florida Statutes, by defining misconduct in office:

    Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule

    6B-1.001, FAC; and the Principles of Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, FAC., which is so serious as to impair the individual's effectiveness in the school system.

    
    

37. Respondent is accused of violations of the Code of Ethics of the Education Profession Rule 6B-1.001(2) and (3), Florida Administrative Code, which state:

    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, or parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

       
       

38. Respondent is accused of violations of the Principles of Conduct for the Education Profession Rule

    6B-1.006(3)(a),(3)(e),(3)(h), and (5)(a), Florida Administrative Code, which states that educators:

    (3)(a) 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.

    * * *

    
    

    (5)(a) Shall maintain honesty in all professional dealings.

    
    

39. In accordance with non-specific opportunities for discipline in Section 231.36(1)(a), Florida Statutes, Petitioner seeks to impose discipline for alleged immorality by Respondent as defined in Rule 6B-4.009(2), Florida Administrative Code, which states:

    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.

40. As described in the provisions that further define misconduct in office, Petitioner in all respects has proved that misconduct by a preponderance of the evidence. The Respondent's conduct was so serious it impaired his effectiveness in the school system. Respondent has also been proven to have engaged in conduct that constitutes immorality. Respondent did engage in a romantic relationship with Ms. Smith, that included sexual intercourse on numerous occasions. Further, Respondent did foster, nurture, and participate in an inappropriate romantic and emotional relationship with Ms. Smith, aside from actual sexual intercourse, by which he discussed his personal, family, and marital problems, professed his love and devotion to Ms. Smith, discussed a desire to make love to Ms. Smith, to hold her in his

    arms, to father children with her, evidenced not only by his testimony and the testimony of his accuser, but through correspondence directed to Ms. Smith. Ultimately, Respondent misled Ms. Smith into believing that his attachment to Ms. Smith would lead to their marriage following the divorce of his wife.

41. Whether Respondent had sexual intercourse with Ms. Smith or not, adequate grounds have been shown for Respondent's dismissal, in that the other misconduct constituted serious violations of the various provisions defining the term "misconduct" and evidenced "immorality."

42. Here, unlike the circumstance in Tenbroeck v. Castor, 640 So. 2d 164 (Fla. 1st DCA 1994), the existence of an inappropriate teacher and student relationship has been proven.

43. The allegation in accordance with Section 231.36(1)(a), Florida Statutes, in association with conviction of a crime involving moral turpitude as that term is further defined at Rule 6B-4.009(6), Florida Administrative Code, was not proven.

RECOMMENDATION

Upon consideration of the findings of fact and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered by the Putnam County School Board dismissing Respondent from his employment with the Putnam County School District.

DONE AND ENTERED this 7th day of May, 1999, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1999.

ENDNOTE

1/ The specification of issues referring to Section 231.36(6)(b), Florida Statutes, is perceived as a typographical error in that the provision pertains to discipline of persons within the school district who are not members of the instructional staff.

COPIES FURNISHED:

Joe H. Pickens, Esquire Holmes and Pickens, P.A.

222 North Third Street Palatka, Florida 32177-3710

Greg Kimball, Esquire

399 Reid Street Palatka, Florida 32177

Carl Zolezzi, Esquire

399 Reid Street Palatka, Florida 32177

Dr. David Buckles, Superintendent Putnam County School Board

200 South Seventh Street Palatka, Florida 32177

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

Tom Gallagher, Commissioner of Education Department of Education

The Capitol, Plaza Level 08 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: 98-004472

Orders for Case No: 98-004472