vs.
Respondent.
) Case No. 02-1913PL
Pursuant to notice, the Division of Administrative Hearings by its Administrative Law Judge, Diane Cleavinger, held a formal hearing in this cause on July 10, 2002, in Cross City, Florida.
For Petitioner: J. David Holder, Esquire
24357 U.S. Highway 331, South Santa Rosa Beach, Florida 32459
The issue in this cause is whether Respondent's teaching certificate should be disciplined.
Petitioner, the Department of Education, filed an Administrative Complaint on February 20, 2002, seeking to
discipline Respondent's Florida Educator's Certificate for alleged violations of Subsections 231.28(1)(c), (f), and (i), Florida Statutes; Rules 6B-1.006(3)(a), (e), and 6B-1.006(3)(h); and 6B-1.006(4)(c), Florida Administrative Code, for improper conduct with a minor female student; failing to properly supervise his students; permitting his 16-year-old wife to supervise and discipline his students; and permitting his wife to use his school computer for personal business.
On March 27, 2002, Respondent disputed all of the material allegations of the Administrative Complaint and requested a formal administrative hearing. Respondent's request was forwarded to the Division of Administrative Hearings.
At the hearing, Petitioner presented the testimony of 10 witnesses and offered 14 exhibits into evidence. Respondent testified in his own behalf and presented the testimony of one other witness. Additionally, Respondent offered two exhibits into evidence.
After the hearing, Petitioner and Respondent submitted Proposed Recommended Orders on July 25, 2002, and August 20, 2002, respectively. Respondent supplemented his Proposed Recommended Order on September 18, 2002.
Respondent holds Florida Educator's Certificate No. 418505 in the area of Music. The certificate was valid
through June 30, 2002. There was no evidence that Respondent had renewed his certificate.
During the 1997-1998 school year, Respondent was employed with the Sumter County School District as the band director at Central High School.
Elizabeth Pooley was born on August 9, 1983. She attended West Hernando Middle School in the 1996-1997 school year. She attended Central High School as a ninth-grade student in the 1997-1998 school year. She was a member of the Central High School band directed by Respondent.
Respondent met Ms. Pooley during her eighth-grade year at West Hernando Middle School. During her ninth-grade year (1997-1998) at Central High School, Respondent became aware that Ms. Pooley had a crush on him. Ms. Pooley was 14 years old.
At the time he met Ms. Pooley in the 1996-1997 school year Respondent was 45 years old, married and had two minor children, one girl and one boy. Both children were around Ms. Pooley's age.
In April 1998, at Central High School, Respondent wrote a note containing inappropriate sexual innuendo about Respondent having a sexual encounter with Ms. Pooley on a boating excursion with her family. The note, while somewhat hard to follow, described Ms. Pooley as a virgin, acts of masturbation by
Ms. Pooley, and referenced something about a burp. Respondent
gave the note to a minor female student, H.P., and told her to give the note to her sister, C.P., another minor female student in the band at Respondent's school. When the girls' mother overheard her daughters talking about the note, she took it from them and read it. Realizing how inappropriate the content of the note was for a male teacher to be writing about a minor female student, she kept the note. The next day, she turned the note over to the principal of Central High School.
When the principal, Dennis McGeehan, questioned Respondent about the note, Respondent admitted writing it. However, he did not remember writing the note and could not fathom why he had written the note. At hearing Respondent claimed that he believed he had been slipped a drug in a cupcake by some students. However, he offered no credible evidence of such.
Based upon this admitted misconduct, Mr. McGeehan recommended that Respondent be suspended with pay.
On April 23, 1998, Respondent was advised that he would not be recommended for renewal of his employment contract with the district. Respondent resigned his position of employment on April 25, 1998, after he received the notice of his non-renewal.
A copy of the note written by Respondent and an article about it were published in the St. Petersburg Times newspaper on April 30, 1998. Other news articles about the
matter were also published. Ms. Pooley and her father were both interviewed about the incident and quoted in one of the newspaper articles. Both denied the incident described in the note ever occurred.
After this incident, Ms. Pooley was teased at school.
She was unhappy because of the teasing. Respondent continued to meet with Ms. Pooley and talk with her. At some point, the relationship evolved from mentoring to one of romance. However, other than kissing and caressing, no sexual intercourse occurred. Ms. Pooley's parents were very concerned about Respondent's involvement with their daughter. They requested he have no further contact with her. Their request was not honored by Respondent or Ms. Pooley. Eventually they moved with her approximately 2 1/2 to 3 hours away to New Port Richey, Pasco County, in order to avoid further contact between their child and Respondent and to remove her from teasing at school about the incident.
Respondent, however, did not leave Ms. Pooley alone.
Respondent made numerous trips from his residence in Cross City, Florida, to New Port Richey, Florida, to see her during the summer of 1998. Again her parents requested that Respondent not see their daughter. Respondent again did not comply. As a result of Respondent's contacts with Ms. Pooley in June and
July 1998, her parents filed a criminal complaint with the Pasco County Sheriff's Office against Respondent.
Respondent's involvement with Ms. Pooley in New Port Richey involved love notes and letters to Ms. Pooley, furtively meeting with Ms. Pooley on a number of occasions without her parents' knowledge or consent, and engaging in kissing, hand- holding, hugging, and fondling of Ms. Pooley's breasts. No sexual intercourse occurred. Several of their secret meetings took place in the parking lot of a bar called the Pasco Pussycat.
In February 1999, at age 15, Ms. Pooley's parents placed her in a short-term residential run-away crisis center called the RAP House in New Port Richey. They did so because their relationship with Ms. Pooley had deteriorated due to her ongoing relationship with Respondent. While enrolled there, staff of the RAP House initiated a lewd and lascivious report to the Pasco County Sheriff's Office concerning Respondent's involvement with Ms. Pooley.
In her statement to the Pasco County Sheriff's investigators, Ms. Pooley told them that beginning in June 1998, Respondent picked her up in his truck on several occasions and drove her into some woods where they kissed and held hands. After Ms. Pooley moved to Pasco County, Respondent stayed in touch with her by telephone and letters. Respondent would meet
her at convenience stores and a mall. They would park and engage in kissing and petting. On one occasion, Respondent rubbed her breasts and inner thighs. Respondent would tell Ms. Pooley that he could not wait to put a ring on her finger and that they could make love. Ms. Pooley testified that she told the police officer this story because the officer had told her Respondent had been romantically involved with other
students and the thought angered her. Ms. Pooley's recanting of her earlier statements is not credible.
In a further effort to keep Respondent away from their daughter, Ms. Pooley's parents decided to send her to live with relatives in Kentucky. Respondent found out where she was and visited her there.
Ms. Pooley eventually returned to Florida in March 2000. The day after her return to Florida she and Respondent were married. The marriage took place on March 17, 2000.
Ms. Pooley was 16 years old and Respondent was 47 years old at the time of their marriage. Ms. Pooley's parents gave their legal consent to the marriage because they had finally given up on keeping Respondent away from their daughter. They did not want to lose her forever over the relationship between Respondent and her. Ms. Pooley, who could easily have graduated from high school, did not finish high school. She has since obtained her GED. To date, Ms. Pooley and Respondent remain
married. She is employed at the post office. Other than her failure to graduate from high school, her poor relationship with her parents, and inability to develop free of a romantic involvement with an adult, the evidence did not demonstrate any physical or mental harm to Ms. Pooley by Respondent's actions since most of the harm, if any, is of the type that will only manifest itself in the future. The evidence was clear and convincing that by his involvement with Ms. Pooley, Respondent inappropriately gained from his status as a teacher in violation of Rule 6B-1.006(3)(h), Florida Administrative Code. The evidence also demonstrated that Ms. Pooley was unnecessarily exposed to embarrassment and disparagement in violation of Rule 6B-1.006(3)(e), Florida Administrative Code. Indeed, her parents moved to remove her from such embarrassment. Finally and most seriously, through his actions Respondent harmed
Ms. Pooley in violation of Rule 6B-1.006(3)(a), Florida Administrative Code. Ms. Pooley did not finish high school and did not enjoy a normal or harmonious family relationship due to Respondent's actions. She was deprived of a normal high school experience and subjected to advances from a 45-year-old man who was infatuated with her. Such behavior is anathema to the professional requirements and primary duty of a teacher.
After his resignation from Central High School, Respondent was employed as a band director at Dixie County High
School in 1999-2000 school year. After marrying Ms. Pooley, he began bringing her to school with him to assure her and demonstrate that he was not romantically involved with other students. At times, Respondent allowed Ms. Pooley, who was a talented music and band student and who had helped choreograph the band's routine, to supervise and discipline his band students. Some of these students were the same age or older than Ms. Pooley. Ms. Pooley's participation in the class caused resentment in some of the students. The school's principal received complaints from both parents and students about Respondent permitting his 16-year-old wife to assume teaching responsibilities and discipline of his band students. Some students quit the band. The evidence did not show that the students who quit did so because of Respondent's actions. The principal instructed Respondent not to allow his wife to participate in his class and that his wife should not be present at the school. He received a reprimand for permitting his wife to help with his class. Respondent complied with these instructions. The evidence was not clear that Respondent lost effectiveness by permitting his wife to help with his class.
However, it was incredibly poor professional judgment on Respondent's part.
Respondent also allowed Ms. Pooley to use the school computer located in his office at Dixie County High School.
Ms. Pooley used Respondent's school computer on May 9, 2000, to send an inappropriate email to Respondent's ex-wife at the school where she was employed. However, the evidence was unclear whether Respondent knew that his wife had used the school's computer to send his ex-wife an email. Nor was it clear that such use was against school policy, since occasional personal use was permitted by the school. Respondent again complied with the principal's instructions not to permit his wife to use the school computer. Therefore, no violation has been established with regard to the use of the school's computer, if such activity can ever amount to a violation of the licensure statutes and rules which would subject a licensee to discipline.
Respondent was not recommended for renewal of his employment in Dixie County for the 2001-2002 school year.
Respondent takes the position that he has not done anything wrong regarding his romance with Ms. Pooley. It does not appear that Respondent will engage in similar conduct in the
future.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this proceeding and the subject matter hereof pursuant to Section 120.57, Florida Statutes
Petitioner has the burden of proof to prove its case by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Section 231.28, Florida Statutes (1999), provides in pertinent part:
The Education Practices Commission shall have authority to suspend the teaching certificate of any person as defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); to revoke permanently the teaching certificate of any person; to suspend the teaching certificate, upon order of the court, of any person found to have a delinquent child support obligation; or to impose any other penalty provided by law, provided it can be shown that such person:
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(c) Has been guilty of gross immorality or an act involving moral turpitude;
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(f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;
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(i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules . . . .
Rule 6B-1.006(3)(a), Florida Administrative Code, requires the educator to 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.
Rule 6B-1.006(3)(e), Florida Administrative Code, requires that the educator shall not intentionally expose a student to unnecessary embarrassment or disparagement.
Rule 6B-1.006(3)(h), Florida Administrative Code, requires that the educator shall not exploit a relationship with a student for personal gain or advantage.
Rule 6B-1.006(4)(c), Florida Administrative Code, requires that the educator shall not use institutional privileges for personal gain or advantage.
The primary duty of a teacher is "to work diligently and faithfully to help students meet or exceed annual learning goals, to meet state and local achievement requirements, and to master the skills required to graduate from high school prepared for postsecondary education and work." Section 231.09, Florida Statutes. Petitioner has proven that Respondent engaged in a course of conduct in which he romantically and sexually became
involved with a 14-year-old student. Even with consent of a fairly mature student, this conduct is grossly unprofessional and violates the primary purpose of the teaching profession. Tomerlin v. Dade County School Board, 318 So. 2d 159 (Fla. 1st DCA 1975). Teachers, by virtue of their leadership capacity and influence they have by example upon school children, are held to higher moral standards than other regulated professionals.
Adams and Ward v. Professional Practices Council, 406 So. 2d 1170 (Fla. 1st DCA 1981). Respondent's conduct was inherently wrong for a teacher because he took advantage of his former student for his personal emotional needs and interfered in her education to the extent she was removed from one school and placed in another school by her parents, eventually moved to another state where she did not graduate from high school in order to return to Florida to marry Respondent. This conduct is never something which should be encouraged for any teacher regardless of the depth of the love involved or the supposed maturity level of the young person involved. Such conduct violates the rules outlined above and is one of the most serious violations.
Rule 6B-11.007, Florida Administrative Code, establishes the disciplinary guidelines for a teacher found to have violated Chapter 231 and the rules of the Board. Rule 6B-11.007(e), Florida Administrative Code, provides for a
penalty in the range of probation to a two-year suspension for a teacher using his position for personal gain. Rule
6B-11.007(i), Florida Administrative Code, provides for a penalty in the range of suspension to revocation for sexual misconduct with any student or any minor.
Respondent presented no evidence of mitigation justifying a reduced penalty. Indeed, Respondent refused to cease his involvement with Ms. Pooley, even though he was requested to do so by her parents and they had taken multiple steps to remove her from his influence. Due to his love of his wife, Respondent has no remorse for his involvement with his teenage wife and does not appear to recognize or accept the fact that his conduct was absolutely inappropriate for a teacher. However, Respondent's love for his wife appears genuine, and it does not appear that Respondent's philandering will be repeated in the future.
RECOMMENDED that Respondent's Florida Educator's Certificate No. 418505 be revoked for a minimum of three years.
DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2002.
J. David Holder, Esquire 24357 U.S. Highway 331, South
Kathleen M. Richards, Executive Director Education Practices Commission Department of Education
Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education
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.
