STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VOLUSIA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02-0115

)

REUBEN MORDECAI, JR., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

A hearing was held in the above-styled cause pursuant to notice by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, on April 9 and 10, 2002, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Thomas Gonzalez, Esquire

Thompson, Sizemore & Gonzalez

501 East Kennedy Boulevard, Suite 1400 Post Office Box 639

Tampa, Florida 33602

For Respondent: Anthony D. Demma, Esquire

Meyer and Brooks, P.A. Post Office Box 1547

Tallahassee, Florida 32302 STATEMENT OF THE ISSUE

Whether the Respondent engaged in sexual misconduct with

1. and S.L. when they were students at a district high

   school, and should be terminated for violation of Volusia County School Board Policies.

   PRELIMINARY STATEMENT

   
   

   The Respondent was charged with alleged sexual misconduct with two students, and the Superintendent recommended his termination to the School Board. By stipulation of the parties, the matter was referred to the Division of Administrative Hearings to conduct a formal hearing and provide the parties with recommended findings of facts and conclusions of law. See Judge's Exhibit 1.

   The case was set for hearing on April 2 and 3, 2002; however, the Petitioner moved for a continuance and the matter was reset for April 9 and 10, 2002.

   At hearing, the Petitioner called S.L. and L.G., the alleged victims, and Cheryl Ann Salerno. The Petitioner introduced Petitioner's Exhibits 1, 2, 4, 5, 6, 11, 12, 14, and 16 in its case in chief. The Respondent testified in his own behalf, and called Lisa Hahn-Renner, Robert C. Workman, Suzanne Gibson, Lucinda Webb, Susan Lewis, Bertha Simms, Rose Rowland, Walter Brunson, Janice Wilson, Jackie Brown, and Frank Carbiener. The Respondent introduced into evidence Respondent's Composite Exhibits 1 and 2. The Petitioner called Patricia Graham, Walter Brunson, Susan Lewis, Thomas

   Novotny, Lisa Hahn-Renner, L.G. and S.L. as rebuttal witnesses.

   The Transcript was filed on May 6, 2002, and the parties both filed on May 17, 2002, Proposed Findings of Fact and Conclusions of Law which were read and considered.

   FINDINGS OF FACT

   
   

   1. The Petitioner is the School Board of Volusia County.

      
      

      The Petitioner is charged with the operation of the public schools in Volusia County to including directing, controlling, and disciplining teachers employed to teach in those schools. The Petitioner has entered into contractual agreements concerning the discipline of its teachers. The instant case arises from Petitioner's execution of its duties to direct, control and discipline a teacher whom it had employed.

   2. The Respondent is Reuben Mordecai, Jr., who was employed as a classroom teacher and athletic coach at Mainland High School by the School Board of Volusia County.

   3. The Respondent had been employed as a classroom teacher and athletic coach for girls' basketball and track teams since 1989.

   4. On or about September 6, 2000, L.G., a female student at Mainland High School, alleged that the Respondent spoke to her in a sexually explicit and improper manner. On or about

      September 7, 2000, L.G. further alleged that the Respondent had touched her in a sexually inappropriate manner.

   5. These allegations were reported to the Board's Department of Professional Standards and to the Daytona Beach Police Department.

   6. Pursuant to policy, the Board limited its interviews of the alleged victim and delayed its investigation of the incident pending resolution of any potential criminal charges. While awaiting further investigation, the Board initially reassigned the Respondent to a non-instructional position in Facilities Maintenance Department. He was in this position from September 11, 2000, until the Board transferred him to the Educational Development Center in August 2001.

   7. After the police had finished their investigation, the Board conducted an investigation into the allegations. Based upon its investigation, the Board suspended the Respondent without pay and initiated termination proceedings against him.

   8. While the case was pending, the Board became aware of allegations made by S.L., a former student of the Respondent, who also alleged that he had made improper sexual comments to her and had improperly touched her. The charges against the Respondent were amended to include these allegations.

   9. S.L. and L.G. knew one another and had a friendly relationship with one another both in and out of school.

   10. The essence of S.L.'s allegation was that, while she was a student at Mainland in 1998, the Respondent let her use his coaching office in the morning to make telephone calls to her boy friend who was not in school; that during these calls, the Respondent was present on more than one occasion. The Respondent talked to her about having sex with his wife, talked about sexual matters with her, and on one occasion kissed her neck and fondled her buttocks and thighs.

   11. S.L. testified that she said nothing to the Respondent about his conduct and left for first period class. Thereafter, she stopped going to his office.

   12. S.L. testified that she reported this to Susan Lewis, a teacher at Mainland, but did not identify herself as the victim. She also testified that she reported the Respondent's actions to Walter Brunson and Rose Rowland, the assistant principal.

   13. Mr. Brunson was called to testify, but not asked if he recalled S.L.'s mentioning this to him. Ms. Rowland was asked if she recalled S.L. having reported this incident to her. She did not remember S.L. telling her about an incident involving inappropriate touching or speech by the Respondent.

   14. The Respondent denies having touched, kissed, or spoken to S.L. in an inappropriate fashion. He did not remember her being in his class, although he accepted that school records reflected that she was enrolled in one of his classes.

   15. I do not find the testimony of S.L. credible.

       
       

   16. L.G. testified that she had been a member of the girls' track team and the following year had been an assistant manager for the football program. She stated that she and the Respondent had made bets about various things, the outcomes of meets, individual performances, etc. The loser had to buy the other a soda or snack. They also discussed various matters, including her relationships and school. She stated that at some point, their discussions included sexual content. She stated that he had observed her in track shorts and commented on the imprint of her vagina.

   17. With regard to the allegations of improper touching, she stated that they had commenced a discussion about her boy friend who was bothering her. During this discussion, he discussed having had sex with his ex-wife. This alleged encounter between L.G. and the Respondent moved from the bench outside the gym, to the Respondent's classroom, where L.G. was going to wait for her ride to pick her up and the Respondent was going to grade papers.

   18. While in the classroom, L.G. testified that she was playing with the computer and a discussion occurred which led to a bet about the definition of oral sex. She stated that she wrote her answer on a piece of paper and gave it to the Respondent, who said it was wrong. Because she lost the bet, he wanted her to pull her pants down and show him her vagina. She testified that she said okay, and pulled down her shorts.

   19. L.G. testified that he asked her to sit on the front of his desk and spread her legs, which she did. When he touched her vagina, she jumped down, pulled up her shorts and left.

   20. L.G. did not explain why she abruptly ended the encounter when she had freely engaged in all of the previous conduct when refusing earlier would have been much easier both physically and emotionally. She testified that she did not initially report the incident because she was scared; however, her fear did not keep her from participating in the acts leading up to the touching.

   21. L.G. testified that she continued to go to school, but people asked her if she was okay. She assumed something about her manner was different. The Respondent asked her in the auditorium if she was okay, and she said she was. She stated she went and sat by herself, and Mr. Brunson came and asked her if she was okay. He asked her about rumors that

       were circulating in the school that the Respondent had said inappropriate things to her.

   22. L.G. denied having spoken to anyone about the alleged events prior to Mr. Brunson's speaking to her. See Page 82 of the Transcript. No one could have overheard L.G. and the Respondent. It is highly doubtful that the Respondent told anyone about the alleged events. L.G. says that she did not talk to anyone about the incident until several weeks after it occurred when she told her boy friend, R.M., about it. See page 94 of the Transcript. This contradicts her testimony on Page 82.

   23. The Respondent denies having made the statements attributed to him or touching L.G.

   24. I do not find the testimony of L.G. credible.

       
       

       CONCLUSIONS OF LAW

       
       

   25. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case.

   26. This case was forwarded to the Division of Administrative Hearings by stipulation of the parties to have a recommended order containing findings of fact and conclusions of law submitted to the Board.

   27. The burden of proof is upon the Board. It must show by a preponderance of the evidence that the allegations against the Respondent are true.

   28. This case was initiated by the complaint of L.G. From the outset, there were inconsistencies in L.G.'s accusations. Upon her initial interview, she mentioned only inappropriate comments by the Respondent of a sexual nature. The following day, her story expanded to included a report of a sexual touching. The incident described has disturbing inconsistencies. The wager for the bet was not discussed before the bet was made. The wager, pulling down her clothes, was an extreme departure from any previous wagers mentioned, yet L.G. did not object or say no to this wager. Without putting too fine a point on it, it is remarkable that L.G. permitted the Respondent to be the judge of whether her response was correct. In sum, there were too many ways out of the bet and paying off on the wager including walking out the door, which was unlocked, contrary to L.G.'s statement.

   29. S.L.'s story is more credible regarding the facts

she presented; however, she testified that she reported this incident to Mr. Brunson and Ms. Rowland. Neither confirmed her story. Ultimately, given the Respondent's denials, there is no objective evidence to support S.L.'s allegations. The scale remains at equipoise.

RECOMMENDATION

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

RECOMMENDED:

That no action be taken against the Respondent. DONE AND ENTERED this 2nd day of July, 2002, in

Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 2nd day of July, 2002.

COPIES FURNISHED:

Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547

Tallahassee, Florida 32302

Thomas Gonzalez, Esquire Thompson, Sizemore & Gonzalez

501 East Kennedy Boulevard, Suite 1400 Post Office Box 639

Tampa, Florida 33602

William E. Hall, Superintendent Volusia County Schools

Post Office Box 2118 Deland, Florida 32721-2118

Charlie Crist, Commissioner 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: 02-000115

Orders for Case No: 02-000115