STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, AS COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 00-4356PL

)

CLIFFORD L. BATTLES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case in West Palm Beach, Florida, on July 10 and 11, 2001, before Florence Snyder Rivas, a duly-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: Mark Wilensky, Esquire

Dubiner & Wilensky, P.A.

515 North Flagler Drive, Suite 325 West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

At issue is whether the Respondent committed the offenses set forth in the Amended Administrative Complaint dated

October 25, 2000, and if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By Amended Administrative Complaint dated October 25, 2000, Petitioner, Department of Education (DOE), alleged that Respondent, Clifford L. Battles (Battles), had an improper sexual relationship with a student. More specifically, DOE seeks to revoke Battles' teaching certificate pursuant to Section 231.2615(1)(c) Florida Statutes, which authorizes the Education Practices Commission ("EPC") to suspend or revoke the teaching certificate or to impose any other penalty provided by law where a certificate holder has been found guilty of gross immorality or an act involving moral turpitude; Section 231.2615(1)(f), Florida Statutes, which authorizes the EPC to suspend or revoke the teaching certificate or impose any other penalty provided by law upon a certificate holder being found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the School Board; and Section 231.2615(1)(i) Florida Statutes, which authorizes EPC to suspend or revoke the teaching certificate or impose any other penalty provided by law upon a certificate holder who has violated the principles of professional conduct for the education profession. DOE alleges that Battles' conduct violated State Board of

Education's rules requiring a teacher to make reasonable efforts to protect the student from conditions harmful to the student's mental and/or physical health or safety; to refrain from intentionally exposing a student to unnecessary embarrassment or disparagement; and not to exploit a relationship with a student for personal gain or advantage.

At the final hearing, DOE presented the testimony of Paul Houlihan, the principal of Palm Beach Gardens High School (Gardens); Robert Walton, an investigator with the Palm Beach County School Board; and Stephanie Carbone, Barbara Borucki, Joshua Knight, and Diane Marie Davis, all students at Gardens at the time of the events alleged in this case.

Battles presented the testimony of James M. Hegarty, a private investigator. In addition, Battles introduced and relies upon transcripts of the testimony elicited at the criminal trial to which these events gave rise, as well as sworn statements of Samuel Dunlap, a Pompano Beach Police Department Detective, and Ronald Coleman, and the deposition transcript of Amanda Mayo.

Petitioner's Exhibits 1-4 and 7-11 were admitted into evidence. Respondent's Exhibits 1-7 were also admitted into evidence.

The transcript of the formal hearing was filed on

August 10, 2001. The rendition of this Recommended Order was

delayed when the undersigned granted Battles' timely filed motion for extension of time within which to file his proposed recommended order. A second motion to extend time was rendered moot by the filing of Battles' proposed recommended order before that motion was ruled upon.

FINDINGS OF FACT

1. At all times material to this case, Battles was employed as a physical education teacher and head football coach at Gardens. He was popular with students and enjoyed a good relationship with his principal.

2. Battles' first full year as head coach began with the 1997-98 school year. At that time Battles was 33 and was an experienced teacher, having taught in Florida schools for a decade.

3. In the spring of 1998, a 14-year-old ninth grader at Gardens, Stephanie Carbone (Carbone), developed an infatuation with Battles. She confided her crush to one of her classmates and girlfriends, Barbara Borucki (Borucki), who promptly communicated the information to Battles.

4. Very shortly after that conversation, Battles commenced a sexual relationship with Carbone. Their initial sexual contact consisted of kissing and fondling.

5. The relationship continued for under two months.

   
   

   During that time, Battles and Carbone had sexual encounters two or three times a week.

6. Right around the time the relationship began, Carbone volunteered to be a student manager for the football team. Taking advantage of Carbone's fixation on him, Battles facilitated an improper relationship with her by allowing her to volunteer, and assigning her to duties which would involve being alone with him in areas of the school gym which he was able to lock and render inaccessible to third parties.

7. Battles and Carbone engaged in sexual activity in the coach's office, the equipment room, and the shower area of the gym.

8. Their relationship and their encounters, which were clearly and convincingly described at the final hearing by Carbone, are best described as pathetic. The relationship consisted of kissing, groping, fondling, giving and receiving oral sex, digital penetration, or some combination thereof, for periods of short duration during or after the school day, two or three times per week. On one occasion, the two unsuccessfully attempted intercourse.

9. Carbone's memory with respect to minor details of the relationship was imperfect, but not inconsistent with what would

   be expected of a witness testifying truthfully from memory as to emotionally charged events which occurred three years ago.

10. The undersigned fully credits the testimony of Carbone as to the existence of the relationship, and the nature and frequency of the sexual contact between her and Battles. The undersigned carefully observed Carbone's demeanor under oath. In her direct testimony and on cross-examination, she was unflinching. There is no evidence that she committed perjury for the purpose of harming Battles, or due to a mental illness, nor for any other reason. Carbone was candid and unsparing of herself as she described how she had thought she was in love with Battles, and how she had initially been the aggressor and invited his attentions.

11. When the relationship eventually became known to school authorities, Carbone at first denied its existence, in order to protect Battles. Before, during, and after the relationship began, Battles was well liked by Carbone and by her friends. There is no evidence that Carbone nor any of her friends desired to "set him up."

12. There is no evidence that Carbone has any financial stake in proving the existence of the relationship. Nor is there any plausible explanation of why she would perjure herself in order to injure Battles.

13. Although at some point in the relationship, Carbone came to be uncomfortable, knowing that sex with a teacher was wrong, her testimony clearly and convincingly establishes that she would have kept up her end of the relationship for at least some additional period of time, had she not first been confronted by school authorities. The confrontation came about six to eight weeks into the relationship.

14. Battles was a married man, and at the start of the relationship had instructed Carbone to keep whatever happened between them a secret. Carbone disobeyed that instruction from the start.

15. Instead, she shared their "secret" with one friend at a time. By May 4, 1998, Gardens Principal Paul Houlihan (Houlihan) had heard a rumor that there was an improper relationship between Battles and Carbone.

16. Coincidentally, on that same day, Carbone's mother brought her or Carbone to Houlihan's office. Mrs. Carbone was upset because she had found her daughter off campus in a van with other students. During that meeting, Houlihan asked Carbone about the rumors that she was involved with a teacher.

17. Initially, Carbone denied involvement with Battles by name, even though Houlihan had not mentioned the name of any particular teacher.

18. Houlihan and Carbone's mother did not credit Stephanie's denial, in part because of her demeanor as she denied the allegation, and in part because Stephanie was the first to use Battles' name.

19. The following day, Houlihan confronted Battles.

    
    

    Battles did not deny the existence of a relationship. Instead, he expressed two thoughts: fear that his wife would leave him on learning of the allegations; and concern for what impact the allegations would have on the football team.

20. Carbone's story is corroborated in some aspects by the testimony of fellow students who had opportunities to observe how Carbone's "volunteer work" for the football team provided cover for her relationship with Battles. For example, classmate Josh Knight (Knight) would on occasion accompany Carbone to the gym and wait with her outside until the football team left, usually to go to the weight room, at which time Battles would wave her in and close and lock the doors behind them.

21. The undersigned carefully observed the demeanor of Knight and each of the other students who testified regarding their observations of Battles and Carbone, as well as about things Carbone had told them about the relationship. Based upon the demeanor of the student witnesses under oath; how they handled themselves during cross-examination; their lack of a financial stake in the outcome; the fact that they had no

    difficulties with Battles as a teacher and otherwise lacked any apparent motive to harm him; and the lack of any other plausible motive to commit perjury, the undersigned credits the testimony of Carbone's friends as substantially accurate accounts of what Carbone told them contemporaneously during the time she was involved with Battles, as well as their observations of some exchanges between Battles and Carbone which they believe were appropriate to a boyfriend-girlfriend relationship, rather than one of student and teacher.

22. Cross-examination of Carbone and each of Petitioner's other witnesses established that various witnesses had given testimony which Battles contends is in conflict with testimony they had provided on previous occasions. Such alleged conflicting testimony is set forth in Paragraphs 7-19 of Battles' Proposed Recommended Order. Battles contends that allegedly conflicting testimony between witnesses, or in some cases between details testified to by the same witness at different times, effectively discredits the testimony and renders DOE unable to establish its case by clear and convincing evidence.

23. The undersigned has painstakingly reviewed the testimony which Battles argues to be conflicting or impeaching, and deems the conflicts, to the extent any were actually established, to be irrelevant.

24. To take one example, Carbone once testified that Borucki had walked her to Battles' office on the day of her first intimate encounter with Battles. On another occasion, she testified that Knight had walked her to the office that day. Whether she misspoke, or was mistaken, or whether someone else or nobody else had walked her to the office, is insignificant in the context of the entire record. The record as a whole reveals that Carbone was close to and had frequent contact with both Borucki and Knight, and spoke with as well as hung around with both of them often. The discrepancy in her testimony on this point may reflect a confused memory. Or it may have been a misspeak. Or she might have misunderstood the question. The factual resolution of this and other "discrepancies" raised by Battles does not affect the substantive factual issue in this case.

25. In January 2000, Battles was tried, but not convicted, on criminal charges arising out of his alleged relationship with Carbone. Battles testified in the criminal case, and submitted a copy of his testimony as evidence in these proceedings. He was not obligated to testify in these proceedings, and elected not to. No inference for or against him was drawn by reason of this decision.

26. In his criminal court testimony, Battles admitted that Borucki, whom he described as his "good friend" had made him

    aware that Carbone "liked" him. He claimed that he did not take this information seriously at the time, and promptly forgot about it, and denied the existence of any improper relationship with Carbone.

27. In the course of his criminal trial testimony, Battles admitted that Carbone was accurate in her description of his underwear. He attributed her knowledge to the fact that he bends over a lot and anyone standing nearby would be able to see his underwear when he does.

28. Battles' explanation for why Carbone can describe his underwear is rejected as not credible. A 33-year-old gym teacher would reasonably be expected to be able to conceal his underwear from his students. Given Battles' obvious, overwhelming motive to deny, as he did, the existence of any improper relationship with Carbone, the undersigned concludes that the transcript of Battles' trial testimony, when considered with the other evidence presented by Battles, is insufficient to refute the clear, consistent, and convincing testimony of Carbone as to the existence, nature, and duration of an improper sexual relationship between them.

29. By letter dated May 18, 1998, Houlihan informed Battles that his teaching contract would not be renewed for the 1998-1999 school year.

    CONCLUSIONS OF LAW

    
    

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

31. In a license discipline proceeding, the petitioner has the burden of proving its allegations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Smith v. Department of Health and Rehabilitative Services, 522 So. 2d 956 (Fla. 1st DCA 1988). The Court in Smith stated that clear and convincing evidence is more than the preponderance of evidence standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases.

32. Through Count 1 of the Amended Administrative Complaint, Battles is alleged to have engaged in misconduct in violation of Section 231.2615(1)(c), Florida Statutes, which states:

    (c) Has been guilty of gross immorality or an act involving moral turpitude;

    
    

33. There could be no clearer act of moral turpitude than for a teacher to exploit a student's crush in the manner Battles was shown by clear and convincing evidence to have done.

34. Through Count 2 of the Amended Administrative Complaint, Battles is alleged to have engaged in misconduct in

    violation of Section 231.2615(1)(f), Florida Statutes, which states:

    (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board.

    
    

35. Battles conduct, reprehensible as it was, may well have caused the Gardens school community to lose confidence in his teaching and coaching abilities. But DOE presented little evidence that it did. There was no testimony which would support a finding by clear and convincing evidence that the relationship between Battles and Carbone was sufficiently known in the school or community to be disruptive to the learning environment, nor was there any testimony that the students who did have knowledge of the relationship were affected in their ability to relate appropriately to Battles as a teacher. There was testimony that Battles permitted Carbone and her friends to take certain minor liberties with school rules. But the evidence also showed that the few students who were aware of the relationship continued to cooperate with Battles as a teacher. The record as a whole does not contain clear and convincing evidence that Battles' affair with Carbone seriously reduced his effectiveness as an employee of the School Board.

36. Through Count 3 of the Amended Administrative Complaint Battles is alleged to have engaged in misconduct in

    violation of Section 231.2615(1)(i), Florida Statutes, which states:

    1. Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

       
       

37. Specifically, Battles is alleged in Count 4 to have engaged in misconduct in violation of Rule 6B-1.006(3)(a), Florida Administrative Code, which states:

    (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.

    
    

38. Clear and convincing evidence was presented that Battles was a willing participant in a sordid and egregiously inappropriate relationship with a 14-year-old student. It is difficult to imagine a more indefensible failure to protect a student from a condition harmful to learning, and to her mental and physical health and safety.

39. In Count 5, Battles is alleged to have engaged in misconduct in violation of Rule 6B-1.006(3)(e), Florida Administrative Code, which states:

    (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

    
    

40. Carbone's testimony, standing alone, provides clear and convincing evidence that she was exposed to unnecessary embarrassment. Although Carbone had initiated the relationship,

    it was incumbent upon Battles, the adult authority figure who occupied a position of utmost trust and responsibility, to treat her as the confused child she was. As a professional educator, Battles was obliged, upon learning of Carbone's feelings for him, to defuse the situation, and to exercise utmost caution to avoid even the appearance of impropriety. Instead, he exploited her crush and the team's need for student volunteers to pursue his own gratification, resulting in embarrassment to Carbone which began almost immediately and which continued through the final hearing in this case, and which may continue indefinitely.

41. In Count 6, Battles is alleged to have engaged in misconduct in violation of Rule 6B-1.006(3)(h), Florida Administrative Code, which states:

    (h) exploiting a relationship with a student for personal gain or advantage.

    
    

42. For the reasons set forth above, clear and convincing evidence supports a finding that Battles exploited Carbone's immaturity for his own sexual gratification.

43. Pursuant to Section 231.28(1), Florida Statutes, and Rule 6B-11.007(2)(i), Florida Administrative Code, the appropriate penalty for sexual misconduct is suspension or revocation. Any one of the foregoing violations, standing alone, is sufficient in itself to the penalty provisions.

44. Rule 6B-11.007 (3), Florida Administrative Code, provides for consideration of certain mitigating and aggravating circumstances. It is conceivable that Battles, whose ten-year career was otherwise unblemished, may have been a candidate for rehabilitation after this most serious lapse of mature judgment which the public reasonably expects teachers to exercise. However, Battles never acknowledged a lapse. His entire strategy was one of denial, a course which caused additional pain and humiliation to the student he exploited. The serious nature of his offense, together with Battles' lack of remorse, warrant the permanent revocation of his teaching certificate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent Clifford L. Battles is guilty of the violations alleged in Counts 1, 3, 4, 5, and 6 of Amended Administrative Complaint; dismissing Count 2 of the Amended Administrative Complaint; and permanently revoking Battles' teaching certificate.

DONE AND ENTERED this 19th day of October, 2001, in Tallahassee, Leon County, Florida.

FLORENCE SNYDER RIVAS

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 October, 2001.

COPIES FURNISHED:

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

300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316

Mark Wilensky, Esquire Dubiner & Wilensky, P.A.

515 North Flagler Drive, Suite 325 West Palm Beach, Florida 33401

Kathleen M. Richards, Executive Director Florida Education Center

Department of Education

325 West Gaines Street Room 224-E

Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Chief Bureau of Educator 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: 00-004356PL

Orders for Case No: 00-004356PL