STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, AS COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 99-4142

)

EVERETT L. MAYS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 14, 2000, in Panama City, Florida, before Administrative Law Judge Don W. Davis of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. David Holder, Esquire

Post Office Box 489

DeFuniak Springs, Florida 32435

For Respondent: H. B. Stivers, Esquire

Law Offices of Levine & Stivers

245 East Virginia Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in Administrative Complaint and, if so, what penalties should be imposed?

PRELIMINARY STATEMENT

On April 27, 1999, the Petitioner, Tom Gallagher, as the Commissioner of Education, filed an Administrative Complaint alleging that Everett L. Mays, the Respondent, had violated Sections 231.28(1)(c) and 231.28(1)(i), Florida Statutes, along with provisions of Rule 6B-1.006, Florida Administrative Code.

Respondent subsequently requested a formal administrative hearing. The matter was then transferred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the hearing, Petitioner presented the testimony of five witnesses and offered five exhibits in evidence. Respondent presented the testimony of three witnesses and no exhibits. A Transcript of the final hearing was provided. The parties requested and were granted leave to file proposed recommended orders later than 10 ten days following receipt of the Transcript.

Proposed recommended orders submitted by the parties have been duly considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent holds Florida Education Certificate

   
   

   No. 670247 and has been employed in the Bay County School system for 10 years.

2. At all times material to this proceeding, Respondent was employed as a teacher at A.D. Harris High School, an alternative school for students who have problems in main stream high schools in the Bay County School District. Respondent has received satisfactory evaluations with no areas requiring improvement during his eight-year tenure at the High School.

3. M.M., a female student at A.D. Harris High School from eighth grade through twelfth grade, graduated from the high school in June of 1998. During her eleventh-grade year (school year 1996-1997), M.M. was in Respondent's first period media production class and also in his homeroom class. M.M. made good grades in the class and was not a disciplinary problem.

4. Anita Goodman is the principal of A.D. Harris High School. Students frequently discuss their personal problems with teachers and Goodman has encouraged relationships of trust between students and teachers. She cautions teachers, however, to be careful in the course of such activity, particularly with regard to male teachers providing counsel to female students on a one-to-one basis since often any resulting accusations become a credibility issue of student versus teacher.

5. Notwithstanding Goodman's advice, Respondent became the confidant of M.M. during the course of the school year. When M.M., who is white, initiated a discussion with Respondent concerning the difficulties of her relationships with the black

   boys she was dating, Respondent told her to try dating white boys since she was having trouble with the black male students.

6. Some time later, allegations were made by M.M., to the effect that Respondent spoke with her on two occasions and made denigrating comments about her associations with black males. These allegations by M.M., surfaced weeks after the alleged occurrences and after referral of M.M.'s boyfriend, J.W., to the office by Respondent for fighting (a fact corroborated even by M.M.). Based upon her demeanor, M.M.'s testimony is not otherwise credited.

7. Conversely, Respondent is the father of two adopted children of Korean lineage who socialize with black and white teenagers. Students of both races are jointly entertained in Respondent's home. Respondent has no history of using racially derogatory terms in school or at home.

   CONCLUSIONS OF LAW

   
   

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

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

10. Based on the evidence presented in this proceeding, Respondent has not committed "gross immorality or an act

    involving moral turpitude" and consequently is not guilty of violation of Section 231.28(1)(c), Florida Statutes.

11. Respondent is alleged to have also violated the Principles of Professional Conduct for the Education Profession, a proscription of Section 231.28(1)(i), Florida Statutes. That code of conduct is set forth in Rule 6B-1.006, Florida Administrative Code.

12. An examination of the Principles of Professional Conduct for the Education Profession as set forth in

Rule 6B-1.006, Florida Administrative Code, also fails to reveal any instance, supported by credible evidence in this proceeding, that Respondent has violated any of those principles.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED that a final order be entered dismissing the

Administrative Complaint.

DONE AND ENTERED this 19th day of May, 2000, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 19th day of May, 2000.

COPIES FURNISHED:

H. B. Stivers, Esquire

Law Offices of Levine & Stivers

245 East Virginia Street Tallahassee, Florida 32301

J. David Holder, Esquire Post Office Box 489

Defuniak Springs, Florida 32435

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

224-E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 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: 99-004142

Orders for Case No: 99-004142