STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, AS COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 00-3719PL

)

LOWELL W. BRAGG, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by and through its duly-designated Administrative Law Judge, Diane Cleavinger, held a formal hearing in this case on December 8, 2000, in Pensacola, Florida.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

528 East Park Avenue Tallahassee, Florida 32301

For Respondent: Michael Tidwell, Esquire

811 North Spring Street Pensacola, Florida 32501

STATEMENT OF THE ISSUE

Whether Respondent's teacher's certificate should be revoked or otherwise disciplined.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent accusing Respondent of misconduct. Specifically, the Administrative Complaint alleged that Respondent violated Section 231.28(1)(c), Florida Statutes, in that Respondent was guilty of gross immorality or acts involving moral turpitude; Section 231.28(1)(f), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board; Section 231.28(1)(i), Florida Statutes, in that Respondent violated the Principles of Professional Conduct for the Education Profession in Florida prescribed by the State Board of Education, Rule 6B- 1.006(3)(a), (e) and (h), Florida Administrative Code, in that Respondent failed to make reasonable efforts to protect a student from conditions harmful to learning, to the student's mental health and/or physical safety; intentionally exposed students to unnecessary embarrassment or disparagement; and exploited relationships with students for personal gain and/or advantage. All of the charges of the Administrative Complaint involve Respondent's sexual relation with two minor female students.

Respondent requested a formal hearing to contest the allegations in the administrative complaint. The case was

forwarded to the Division of Administrative Hearings to conduct a formal hearing.

At the hearing Petitioner presented the testimony of seven witnesses and offered one exhibit into evidence. Respondent did not personally appear at the hearing but made an appearance through his attorney. Respondent presented no witnesses.

However, Respondent offered two exhibits into evidence. After the hearing, Petitioner submitted a Proposed

Recommended Order on January 22, 2001. Respondent, through his attorney, notified the undersigned that he would not submit a proposed recommended order.

FINDINGS OF FACT

1. Respondent held Florida Educator's Certificate

   
   

   No. 609670, covering the areas of Physical Education, General Science, and Education Leadership. The certificate expired on June 30, 2000. However, Respondent has the option to ministerially renew his certificate.

2. In 1989, Respondent was a teacher at Pensacola High School. During the summer of 1989, Dona Snyder, then 18 years old, was a student at Pensacola High School. Respondent would often speak with Dona at school and telephone her at home to ask her to go out with him. She turned him down. However, the day before summer school ended Dona and Respondent engaged in

   romantic hugging and kissing. The last day of school they went to eat at a local restaurant.

3. Later in the year, after Ms. Snyder had graduated, Dona and Respondent engaged in sexual intercourse, which resulted in the birth of a child.

4. From 1994-1998, Respondent was employed as a Physical Education teacher at Pine Forest High School, in Escambia County.

5. In 1994, M.M., aged 14, was a ninth-grade student at Pine Forest High School. She met Respondent during that year.

6. When M.M. was in the tenth grade, Respondent chaperoned M.M's. ROTC class to Seattle, Washington. M.M. and Respondent became more familiar with each other during the trip. They became very comfortable with each other and Respondent began making comments of a sexual nature about M.M's. appearance.

   M.M. developed a crush on Respondent.

   
   

7. When Respondent and M.M. returned from the Seattle trip, they visited each other at various locations at Pine Forest High School.

8. In April 1996, towards the end of M.M.'s tenth grade year, Respondent told M.M. that he would like to see her away from school. Respondent made it clear that he was interested in a sexual relationship with M.M. M.M. was around 16 years old at the time.

9. Respondent encouraged M.M. to either lie to her mother or sneak out of her home at night in order to meet him. At first, M.M. refused Respondent's suggestions. She did not think sneaking out was right.

10. Later in 1996, Respondent and M.M. saw each other at a football jamboree. Respondent gave M.M. his telephone number.

    M.M. later telephoned Respondent and they decided to meet at the University Mall. It was agreed that M.M. would concoct a pretextual reason to go to the mall which she would tell her mother. After they met at the mall, Respondent took M.M. to his home. They went to his bedroom and had sex.

11. After this first sexual encounter, Respondent and M.M. started meeting each other and having sex almost every weekend for more than a year. M.M., with Respondent's encouragement and complicity, would sneak out of her mother's home from her bedroom window at approximately 2:00 a.m. Respondent would pick her up several blocks away from her house. They would go to Respondent's house and have sex. Afterwards, Respondent would take M.M. back to the place where he picked her up. M.M. would then walk back to her house and enter through her bedroom window. Clearly, Respondent placed M.M. in a dangerous situation by encouraging and facilitating these late-night excursions.

12. Respondent and M.M. had sex in various places, such as Respondent's home, Respondent's car, Belleview ball park, the school baseball field, and the baseball locker room.

13. On one occasion, Respondent took M.M. and another female high school student to a local hotel for group sex. Respondent provided alcohol to the girls. He directed the girls to have sex with each other. While the girls had sex with each other, Respondent watched. Respondent had sex with the other student and then had sex with M.M.

14. During their relationship, Respondent told M.M. not to tell anyone about their affair because he could lose his job and go to prison. Respondent also talked M.M. into foregoing her desire to pursue college and ROTC. Through this relationship, he directly contributed to M.M.'s grades deteriorating and a loss of self-esteem. The good relationship she had with her mother deteriorated. M.M. was known as Coach Bragg's girlfriend. He encouraged her to lie to her mother. None of these behaviors should be encouraged or promoted by a teacher.

15. The relationship between Respondent and M.M. came to light when M.M's. mother woke one night and discovered her daughter missing. She confronted M.M. when M.M. was attempting to get back into her bedroom through the window. M.M's. mother telephoned the police.

16. Later, Respondent lost his effectiveness as a teacher when he was removed from his teaching position.

17. Respondent was arrested and charged with unlawful sexual activity with a minor. On or about July 7, 1998, the case against Respondent was nolle prosequi by the court because

    Respondent had instructed M.M. to lie about their relationship. During the time of the prosecution, Respondent also caused M.M. to ignore her subpoena to testify at Respondent's trial and go into hiding until the prosecution was dismissed. However, a bench warrant was issued for M.M. Once it became clear that the prosecution would be pursued, M.M. returned to Escambia County and was arrested and jailed on a bench warrant which had been issued for her failure to appear at trial. Respondent concocted a story for M.M. to tell to the prosecution. He talked her into marrying a best friend of Respondent's so that she could say she was seeing this friend instead of seeing Respondent.

    Respondent's lack of moral character is apparent.

    
    

18. As a teacher, Respondent held a position of trust towards M.M. and Dona Snyder. Clearly by engaging in a sexual relationship with them he breached that trust and violated both the Florida Statutes and Florida Administrative Code. Respondent has repeated this predatory behavior over the course of his teaching career and cannot be trusted to protect female students from his amorous intentions. Clearly, Respondent does

    not have the moral character to be a teacher and should not be permitted to hold or renew his teaching certificate.

    CONCLUSIONS OF LAW

    
    

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

20. The Commission seeks to impose discipline against Respondent's Florida Educator's Certificate No. 609670 for alleged violations of Section 231.28, Florida Statutes, and Rule 6B-1.006, Florida Administrative Code.

21. Petitioner has the burden to prove the allegations of the administrative complaint by clear and convincing evidence. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

22. In this case, Petitioner has met its burden of proof.

    
    

    Respondent has violated Section 231.28(1)(c), Florida Statutes, in that he has been guilty of gross immorality and acts involving moral turpitude by having sexual relations with at least two students and encouraging M.M. to lie and commit criminal acts of perjury.

23. Respondent has violated Section 231.28(1)(f), Florida Statutes, in that Respondent is guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board since he cannot be trusted to protect students from his conduct.

24. Through his actions Respondent has violated Section 231.28(1)(i), Florida Statutes, by violating the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education, Rule 6B-1.006(3)(a), (e) and (h), Florida Administrative Code, in that he failed to make reasonable effort to protect students from conditions harmful to learning students' mental health and/or physical safety; exposed students to embarrassment and/or disparagement: and exploited relationships with students for personal gain or advantage.

25. Respondent's violations were willfully egregious and without mitigation. Therefore, permanent revocation with no right of renewal of Respondent's Florida Educator's Certificate No. 609670 is appropriate.

RECOMMENDATION

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

is

RECOMMENDED:

That a final order be entered by the Education Practices Commission permanently revoking Respondent's Florida Educator's Certificate No. 609670.

DONE AND ENTERED this 15th day of February, 2001, in

Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 15th day of February, 2001.

COPIES FURNISHED:

Ron Weaver, Esquire

528 East Park Avenue Tallahassee, Florida 32301

Michael D. Tidwell, Esquire 811 North Spring Street Pensacola, Florida 32501

Kathleen M. Richards, Executive Director Department of Education

224-E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

James A. Robinson, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

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

325 West Gaines Street, Suite 224-E 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: 00-003719PL

Orders for Case No: 00-003719PL