STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, as Commissioner ) Of Education, )

)

Petitioner, )

)

vs. ) Case No. 00-0391

)

CLIFFORD H. DURDEN, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 22, 2000, at West Palm Beach, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316

For Respondent: Sammy Berry, Jr., Esquire

516 South Dixie Highway, Suite 1 Lake Worth, Florida 33461

STATEMENT OF THE ISSUES

Whether the Respondent committed the violation alleged and if so what penalty should be imposed.

PRELIMINARY STATEMENT

This case began on December 22, 1999, when Tom Gallagher, as Commissioner of Education, entered an Administrative Complaint

against the Respondent, Clifford H. Durden, Jr. The complaint alleged four violations of Florida law regarding an incident that occurred while the Respondent was a school principal employed by the Palm Beach County School District. The Respondent timely challenged the allegations and requested a formal hearing to contest the charges. Thereafter, the matter was forwarded to the Division of Administrative Hearings for formal proceedings.

At the hearing, the Petitioner presented testimony from the Respondent; Joanne Kaiser, the chief personnel officer with the Palm Beach County School District; and Robert Walton, a police investigator for the Palm Beach County School District. The Petitioner's Exhibits 1, 2, 4, 5, and 6 were admitted into evidence.

The Respondent testified in his own behalf and presented a witness, Rebecca H. Price, a former guidance counselor at John F. Kennedy Middle School. No exhibits were offered by the Respondent.

The Transcript in this cause was filed on June 16, 2000.

The Petitioner timely filed a proposed recommended order that has been considered in the preparation of this order. The Respondent has not filed a proposed order.

FINDINGS OF FACT

1. At all times material to the allegations of this case the Respondent was employed by the Palm Beach County School

   District and was assigned as principal at John F. Kennedy Middle School (JFK).

2. On or about March 9, 1998, a guidance counselor at JFK spoke with the Respondent regarding a complaint from a female student that she had been inappropriately touched by a male teacher at the school.

3. Given the casual nature of the complaint, the Respondent believed the matter to be a "rumor" and made a note to himself to "check on" the allegation. The Respondent did not follow up on the allegation and did not "check on" the rumor.

4. The Respondent also did not verify whether or not the guidance counselor investigated the allegation.

5. Subsequently the Respondent became aware of other allegations involving the same teacher. The complaints alleged inappropriate acts with students. At least one of the incidents was witnessed by a student who supported the complainant's allegation.

6. All of the incidents involving the teacher occurred before a criminal complaint was filed by a parent. It is undisputed that the Respondent knew of one or more of the alleged complaints.

7. At no time prior to the teacher's arrest did the Respondent notify school authorities or the Department of Health and Rehabilitative Services (HRS) of the allegations previously made against the teacher.

8. At all times material to the allegations of this case, the Palm Beach County School District had a policy in effect that required the Respondent to notify HRS and school district authorities regarding the types of complaints involved in this case. Such policy is set forth in its entirety within the Petitioner's Exhibit 1.

9. Respondent did not view the incidents complained of as sufficiently serious to merit notification of authorities, as he maintained he did not have a reasonable cause to suspect that a child had been abused. Notwithstanding this position, the Respondent did nothing to confirm or disprove the allegations.

10. At least one female student complainant continued to be enrolled in the alleged perpetrator's class before the arrest of the suspect. The failure of the Respondent to report the incidents seriously reduced his effectiveness as an employee of the Palm Beach School District. As a result, the Respondent was relieved of his position as principal at JFK and reassigned to another position.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding.

12. The Petitioner bears the burden of proof in this matter to establish that the Respondent committed a violation as alleged.

13. The Education Practices Commission (EPC) is authorized to impose any penalty provided by law, provided it is established that the Respondent has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board or has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

14. Section 231.262, Florida Statutes, authorizes the EPC to impose sanctions from among the following penalties: an administrative fine not to exceed $2,000 for each count or separate offense; the imposition of a probation for a period of time and subject to such conditions as the commission may specify, and the issuance of a reprimand with a copy to be placed in the certification file of such person.

15. In this case the Petitioner has established by clear and convincing evidence that the Respondent failed to report the incidents of alleged inappropriate touching. Further, the Respondent, by his own admission, discounted the seriousness of the allegations and failed to follow up to verify the accuracy of the claims. Moreover, the Respondent did not require his subordinates to follow up on the allegations. Despite his claim that he had no reasonable basis to report the allegations (which has not been deemed persuasive), the Respondent took no action to protect the interests of students. Had he deemed the allegations unfounded, he should have nevertheless reported the matter

according to school policy to insure a proper investigation of the incidents. The failure to act resulted in the serious impairment of his effectiveness to serve as the principal at JFK and led to his reassignment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order reprimanding the Respondent.

DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida.

J. D. Parrish 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 31st day of July, 2000.

COPIES FURNISHED:

Charles T. Whitelock, Esquire Whitelock & Associates, P.A.

300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316

Sammy Berry, Jr., Esquire

516 South Dixie Highway, Suite 1 Lake Worth, Florida 33461

Kathleen M. Richards, Executive Director Department of Education

Education Practices Commission

325 West Gaines Street

Florida Education Center, Room 224-E Tallahassee, Florida 32399

Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education

325 West Gaines Street Suite 224-E

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: 00-000391

Orders for Case No: 00-000391