STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, AS COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 00-0819

)

THOMAS K. WEDEBROCK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before

1. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings, in Inverness, Florida, on June 2, 2000. The appearances were as follows:

   APPEARANCES

   
   

   For Petitioner: Bruce P. Taylor, Esquire

   Post Office 131

   St. Petersburg, Florida 33731

   
   

   For Respondent: Mark Herdman, Esquire

   Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

   
   

   STATEMENT OF THE ISSUES

   
   

   The issues to be resolved in this proceeding concern whether the Respondent's teaching certificate should be subjected to sanctions based upon whether he engaged in personal conduct that seriously reduces effectiveness as a teacher;

   whether he violated the principles of professional conduct of the education profession; whether he intentionally exposed a student to unnecessary embarrassment or disparagement; and whether he failed to take reasonable efforts to protect the student from conditions harmful to learning and to the student's mental health or physical safety.

   PRELIMINARY STATEMENT

   
   

   This cause arose upon the filing of an Administrative Complaint by the above-named Petitioner (Agency). The Respondent timely availed himself of the right to contest the Administrative Complaint through the provision of a formal hearing pursuant to Section 120.57(1), Florida Statutes. The hearing was conducted on June 22, 2000, in Inverness, in Citrus County, Florida, as noticed. During the course of the hearing the Petitioner presented the testimony of five witnesses and the Respondent presented his own testimony and that of two additional witnesses. The Petitioner presented twelve exhibits which were admitted into evidence, and by stipulation subsequent to the hearing the Petitioner presented transcripts of the depositions of four additional witnesses and the Respondent presented three witnesses' testimony by transcribed deposition. Upon concluding the hearing the parties requested a transcript thereof and an extended briefing schedule, which was granted.

   The Proposed Recommended Orders submitted have been considered in the rendition of this Recommended Order.

   FINDINGS OF FACT

   
   

   1. The Respondent holds Florida's Educator Certificate No. 533651, certifying him in the area of music. It is valid through June 3, 2004. At all times pertinent hereto, the Respondent was employed as a music teacher in the Citrus County School District. He has been a teacher for 14 years and began teaching in Citrus County in August of 1993.

   2. During the 1996-1997 school year C.C. was a seventh grade student. She was 12 years of age until May of 1997, when she turned 13. She had taken violin lessons from the Respondent during the 1996-1997 school year and the Respondent had been one of her teachers since she had been in the second grade.

   3. C.C. was admitted to the National Junior Honor Society (NJHS) when she was in the seventh grade because she had good grades and was a good student. One of the fund-raising projects for the NJHS was a pineapple sale. C.C. participated in this sale and asked the Respondent if he would like to buy a pineapple and he agreed. At that point he hugged her and told her he loved her. She became somewhat upset at being hugged by the Respondent and his telling her that and made a note in her diary for February 27, 1997, that "Mr. Wedebrock told me he

      loved me. I don't know what to make of it." This made her somewhat uncomfortable and embarrassed.

   4. The Respondent told C.C. he loved her several times over the early months of 1997. This made her feel uncomfortable since she was only 12 years old and did not think she needed to hear such comment from her teacher. She had never been spoken to by another teacher in that way and never saw Respondent tell any other students that he loved them in that way. It embarrassed her. The Respondent gave C.C. souvenirs from a trip to Disney World and marked two brochures from Disney World with his rankings of the many different rides or attractions. He gave her those brochures and gave her a key chain with her name on it and a pin. At the same time he gave her a note which said among other things "maybe some day we can go together" (referring to Disney World). The Respondent had called her into his office to give her the Disney World-related items. She had never seen the Respondent give presents to any other student.

   5. Near the end of the school year the Respondent wrote a note to C.C. and placed it in her violin case along with several pieces of music. The Respondent then told C.C. to go look in her violin case. When she did so she discovered the note along with "Music of the Night" a piece from Phantom of the Opera.

      The note read as follows:

      Please remember everything I told you this year. It's really true times a billion!

      Times infinity! Please just give me a chance. That's all I ask of you. You are my music of the night . . . I'll miss you (over) so much this summer! I'll miss seeing you in chorus next year. I'm sure you would have made All State! Did you know that you could be a peer counselor at CHS (hint hint). I just need to know how you feel about me. My love for you is so strong and deep. Should I just stop? Or do you think some day you'll love me? Have a great summer! Enjoy your new violin! I love you!!! (Emphasis from the original)

      
      

      C.C. thought the note was embarrassing and somewhat disgusting coming from a teacher. She showed the note to her sister who was one year younger than C.C. Her sister believed that C.C. should show the note to her mother and father. C.C. decided to tell her mother. Later, at a restaurant, C.C. placed the note in her mother's hands and then ran into the bathroom.

   6. After receiving the note, C.C. became quite withdrawn, having less interaction with others. When she gave her mother the note her mother noticed that she was extremely upset and teary-eyed and did not want to talk to her mother or step- father. This was unusual behavior for her. C.C.'s mother and step-father decided to notify the school about the note; however, at C.C.'s request they waited until the last day of class with the Respondent before revealing it to the school administration. C.C.'s mother and step-father went to the school and in Mr. Eldridge's absence they spoke to Ms. Staten,

      the assistant principal. They informed her of the situation with the Respondent and the note, although C.C. did not go with them because of her embarrassment. Both C.C.'s mother and step- father were very upset about the contents of the note and the Respondent's expressions towards C.C.

   7. After meeting with the parents Ms. Staten informed the principal, Mr. Eldridge, of the situation when he returned. Mr. Eldridge had a meeting with the Respondent that day and the next day Ms. Staten, Mr. Eldridge, and the Respondent met again. During the course of that second meeting the Respondent agreed to resign.

   8. Ms. Stiteler, the Director of Personnel for Citrus County Schools met with the Respondent on May 30, he admitted to her that he had given the note to C.C. He appeared rational and lucid during the course of that interview and told Ms. Stiteler that he did not know why he wrote the note in question but admitted having feelings for C.C. and said he had not intended to have those feelings. He said he was fond of her and that she was a special student and was very bright and musical. The Respondent acknowledged that he himself had noticed a change in C.C.'s behavior (withdrawal) after he had given her the note in question.

   9. The Respondent also wrote a note to C.C.'s parents which he gave to Ms. Stiteler. Among other things he promised

      in that note to never again express his feelings for C.C., but does not deny that he had the feelings previously expressed.

   10. The Respondent's actions damaged the trust that C.C.'s parents, C.C., and her sister had placed in him as a teacher. It also lessened the trust the administrators, such as Ms. Stiteler, Mr. Eldridge, and Ms. Staten, confided in him as well as their trust in his judgment.

   11. The Respondent has experienced weight problems much of his life and, in fact, during the relevant time period he was considered "morbidly obese." He strongly desired for obvious health reasons, to end his obesity and so on April 19, 1996, began seeing Dr. Azeele Borromaeo, M.D. Dr. Borromaeo prescribed the dietary drug combination of Phentermine and Fenfluoramine, commonly known as "Phen-fen."

   12. While he was taking Phen-fen the Respondent met regularly with Dr. Borromaeo. In the fall of 1996, he complained of mood swings, great irritability, forgetfulness, and other side effects, such as dry-mouth, frequent headaches, and sexual problems. In November of 1996, after such complaints, the doctor took him off Phen-fen for about a month. The side effects subsided at that time.

   13. During the time the Respondent had been on Phen-fen through November 1996, his weight decreased from 359 pounds to

       289 pounds. Given that degree of success he decided to begin

       again taking Phen-fen in December of 1996. He noticed a return of the side effects almost immediately. The forgetfulness, confusion, nausea, sensitivity to light and sound, and irritability all returned and the Respondent says it got progressively worse through the first half of 1997 while he was taking Phen-fen. His wife described the effects as getting worse and worse.

   14. Beginning in about February of 1997 through May 1997, the Respondent wrote and said the inappropriate things to C.C. referenced in the above findings of fact. The Respondent candidly admits that he expressed these feelings, of an amorous nature, referenced in the above findings but professes not to know why he wrote or said those things to the student in question. He maintains he was confused, depressed, and suffering from the other referenced side effects of the drug at the time.

   15. The Respondent's professional peers, Mr. Eldridge and Ms. Staten, did not notice any abnormal behavior by the Respondent while he was working at school. They perceived him to be happy and in control of his personality. Ms. Staten was his supervisor during the school year and saw him almost daily, including in his classroom setting. She did not notice anything unusual about his behavior and found him personable and jovial. Neither C.C. nor S.G., a classmate, noticed any unusual behavior

       by the Respondent in the classroom, such as forgetfulness or excessive irritability. In his visits to Dr. Borromaeo and his primary care physician, Dr. Dwinelle, the Respondent noted the he was a little irritable and had some sexual problems and dry mouth from February through May of 1997, but did not, at least according to the doctors' notes, complain of any of the other side effects of Phen-fen. The Respondent did not mention any effects of the use of the drugs as a possible explanation for his conduct in his conversations with Mr. Eldridge, Ms. Staten, and Ms. Stiteler around the time of his resignation.

   16. Following his resignation from his teaching position, the Respondent underwent a neuro-psychological examination from Sidney J. Merrin, Ph.D., a psychologist in private practice in Tampa, Florida. A variety of psychological tests on the Respondent was performed, lasting approximately 15 hours. Dr. Merrin also conducted a counseling session with the Respondent. Dr. Merrin concluded as shown in his report, in evidence as the Respondent's Exhibit No. 1, including Exhibit A thereto, that:

       . . . There was nothing in his examinations that would support any contention he is an emotionally or mentally disturbed individual that would prompt him to invade the privacy of a young student or disturb the decency of normal interpersonal relationships. I see nothing in his examinations that would describe him in pathological terms.

       Consequently, should he have behaved as he described, in the manner he had, the basis for that behavior must then be ascribed to a

       temporary condition of short-term destabilization from which he has now very adequately recovered.

       
       

       In his deposition Dr. Merrin opined that whatever did occur in his estimation would have been unlike the Respondent's usual personality to the extent that something in the interim had to have changed his behavior or reduced his impulsivity controls. Dr. Merrin opined that it could have been the introduction of Phen-fen.

   17. Dr. Una D. McCann is an associate professor of psychiatry at Johns Hopkins University. She has conducted clinical and pre-clinical research on a variety of different amphetamine analogs, including Fenfluoramine, for over 10 years. Her interest in studying Phen-fen is that it is an amphetamine analog that happens to be neurotoxic. It has been shown in animals to damage certain brain cells which produce the chemical serotonin, related to mood. Her research has been directed to achieving understanding of the effect of Phen-fen and related drugs towards specific cells such as those that make serotonin in the brain. Thus Dr. McCann's primary interest as a psychiatrist has been to determine what happens to humans who take Phen-fen, whether the brain's serotonin neurons are damaged from taking the drug and whether and to what extent any psychiatric effects flow from that damage. There is no definitive study according to Dr. McCann's testimony, which

       shows that Phen-fen can cause such personality changes or behaviors as are involved in the Respondent's actions in this case. Dr. McCann is aware of some 30 case studies or histories of people who, while taking the drug combination called Phen-fen had exhibited aberrational psychiatric symptoms and behaviors.

       Dr. McCann did not examine and test the Respondent but upon being provided information of his circumstances and the actions he took at issue in this case, she concluded that his behavior toward the student could have been influenced by his use of Phen-fen. The Respondent is no longer taking Phen-fen and the evidence indicates he has returned to his baseline psychiatric state. He has exhibited no such abnormal and inappropriate behavior since abandoning the use of Phen-fen.

   18. The Respondent has an excellent teaching background, with excellent evaluations and no other disciplinary problems. He has been a teacher for 14 years and began teaching in Citrus County in August of 1983. He has been a very effective teacher with no personality traits or behaviors other than those in the time referenced-above which have caused any difficulties in his relationships with students, other teachers, or administrators. His family history is that of a stable marriage and of his being a loving father to his three children. There is little in the evidence of record to show any pattern to the objectionable behavior involved in this proceeding.

   19. Thus it would appear, with his history of exhibiting a stable personality and stability in his employment life and family life that, along with the rather scant available medical and scientific evidence, that there may indeed be some causal relationship between the Respondent's use of Phen-fen and his inappropriate actions towards the student in question. Persuasive evidence, however, has not been presented to show as through appropriate scientifically managed, and refereed that the use of Phen-fen abrogates such a person's exercise of free- will, that it abrogates his sense of reality nor that it prevents him from knowing what he is doing as he commits certain behaviors. It was not shown to prevent him from being able to control his own actions.

   20. Phen-fen may cause severe depression and the other symptoms and psychiatric problems referenced in the above findings of fact while the associated depression and other problems possibly, although not proven to have been caused by Phen-fen, may have caused a lowering of his impulse control which relates to the exercise of bad judgement, the clear and convincing evidence shows that at the time he committed the behaviors in question he was in touch with reality. Although he exhibited abysmally poor judgment on those occasions, he knew what he was doing at the time and in fact never denied it when interviewed by his superiors in the school system.

       Consequently, it cannot be found that the use of Phen-fen abrogated his responsibility for his actions.

       CONCLUSIONS OF LAW

       
       

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

   22. The burden of proof is on the Petitioner Agency to establish the allegations and charges against the Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   23. A teacher holding an educator's certificate can be subjected to discipline for either engaging in personal conduct that seriously reduces his effectiveness within the purview of Section 231.28(1)(a), Florida Statutes, or for violating the principles of professional conduct for the education profession (See Section 231.28(1)(i), Florida Statutes).

   24. Rule 6B-1.006(3)(a), Florida Administrative Code, prohibits a teacher from intentionally exposing students to unnecessary embarrassment or disparagement.

   25. Rule 6B-1.006(3)(c), Florida Administrative Code, prohibits a teacher from failing to take reasonable efforts to protect students from conditions harmful to learning or to the students mental health or physical safety.

   26. Section 231.28(1)(f), Florida Statutes, prohibits a teacher from engaging in personal conduct that seriously reduces his effectiveness. The Respondent has violated this statutory provision and that cited above prohibiting violation of the principles of professional conduct for the education profession. More specifically, he has violated Rule 6B-1.006(3)(a), Florida Administrative Code, by exposing students to unnecessary embarrassment or disparagement and Rule 6B-1.006(3)(e), Florida Administrative Code, by not taking reasonable efforts to protect a student from conditions harmful to learning or to the students mental health or physical safety.

   27. There is no dispute that the Respondent committed the acts of which he has been accused. The quintessential issue devolves to whether his actions toward C.C. should be excused by his use of Phen-fen. The Respondent does not contest that his actions would be serious ethical breaches, but for his position that the use of Phen-fen abrogated his normal ethical sense in the matter.

   28. However, as the Respondent's own expert testified, there is no scientific proof that Phen-fen causes any psychological side effects at least in terms of definitive, scientifically managed studies having such results. The Respondent's expert did not assert that the Respondent did not know what he was doing when he committed the acts in question,

       nor do they claim that he was psychotic at the time. They do not maintain that the was unable to control his own actions, although his self-control may have been diminished, according to Dr. Merrin. Ms. Bowman who examined him agreed that he used bad judgment but did not indicate or establish that the he lacked the ability to exercise judgment.

   29. The experts advanced by the Respondent based their opinions on their assumptions that the Respondent was suffering the severe side effects referenced in the above findings during the first six months of 1997. During that relevant time period the Respondent in his visits to the doctors did not complain of such serious side effects but rather, according to the doctors' notes seemed to downplay any side effects from the Phen-fen. Neither Mr. Eldridge nor Ms. Staten noticed anything unusual in the Respondent's personality or behavior during those months at school. Moreover, Dr. Singh expressed the opinion that if the Respondent was truly unable to control his actions due to Phen- fen use his inability to control himself would be manifest in many other ways, which it was not. Dr. Singh's opinion was uncontroverted.

   30. The Respondent admitted to Ms. Staten that he had noticed that C.C. had become withdrawn. He was able to perceive this reaction and attempted to mitigate his actions by calling

       C.C. and her friend S.G. into his office so that he could

       apologize to C.C. He possessed the judgment at this point to not make any admissions as to what he had actually done in front of Stacia, a potential witness. He only confessed to

       Mr. Eldridge and Ms. Staten after learning that C.C. had saved the last note he had given her, the note in question. He also told Ms. Staten that he had such feelings for C.C. for several years. These feelings thus predated his use of Phen-fen. When he wrote a letter of apology to C.C.'s parents he did not deny having feelings for C.C. but simply promised to never express them again. Even after he stopped taking Phen-fen he called C.C.'s step-father and asked if he could teach her on an individual basis.

   31. Thus, while the Phen-fen may have caused depression, mood swings, and other personality changes in the Respondent, it cannot be determined that the ideation he formed which caused him to act on his impulses and engage in the behavior at issue resulted from the influence of Phen-fen. It may have, at most, reduced his impulsivity control so that he exercised bad judgment in this regard when, if he was not taking the drug he may have been able to control his impulses towards C.C. Importantly, the effects of Phen-fen were not found to be so severe as to have caused the behavior nor to have prevented the Respondent from being able to control his actions. Thus it

       cannot be found that the Respondent's behavior was totally excusable because of the use of Phen-fen.

   32. The Respondent, prior to engaging in the behavior in question was clearly an effective and widely admired teacher.

It also appears that the conduct in question was an aberrational and isolated occurrence and, although not caused by, may have been partially the result of the influence of the drug in question. Consequently, under these circumstances something less than the most severe penalty would appear to be warranted.

RECOMMENDATION

Accordingly, in consideration of the above findings of fact, including those of the mitigatory circumstances, it is therefore,

RECOMMENDED that a final order be entered by the Petitioner Agency suspending the Respondent's teaching certificate for a period of three years, during which time he should engage in therapy and counseling from a qualified psychiatrist or psychologist with a view towards showing that he is mentally and emotionally recovered and able to work with children and otherwise perform the duties of a public school teacher. Upon his completion of such counseling and therapy, under a professionally-mandated schedule and regimen, he should be required to provide a written opinion of a qualified psychiatrist or psychologist to the Department of Education,

establishing that he is mentally and emotionally able to work with children and otherwise perform the duties of a public school teacher before his licensure should be restored to active, unrestricted status. He should also be placed on probation for a period of five years following any such reinstatement, under such terms and conditions as the Education Practices Commissions may deem appropriate.

DONE AND ENTERED this 6th day of December, 2000, in

Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 6th day of December, 2000.

COPIES FURNISHED:

Bruce P. Taylor, Esquire Post Office Box 131

St. Petersburg, Florida 33731

Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

Kathleen M. Richards, Executive Director 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

Honorable 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: 00-000819

Orders for Case No: 00-000819