STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHARLIE CRIST, as COMMISSIONER ) Of EDUCATION, )
)
Petitioner, )
)
vs. )
)
VINCENT MCVEIGH, )
)
Respondent. )
_ )
Case No. 02-3091PL
RECOMMENDED ORDER
Upon due notice, a disputed-fact hearing was held in this case on December 4, 2002, in Bunnell, Florida, before
Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Brian A. Newman, Esquire
Pennington, Moore, Wilkinson, Bell & Dunbar, P.A.
215 South Monroe Street, 2nd Floor Tallahassee, Florida 32301
For Respondent: Anthony D. Demma, Esquire
Meyer and Brooks, P.A. Post Office Box 1547
Tallahassee, Florida 32302 STATEMENT OF THE ISSUES
Respondent school teacher is charged by an Amended Administrative Complaint with using a computer assigned to him by the Flagler County School District to access inappropriate
Internet sites during the school day. Penalties are sought with regard to the statutory and rule violations charged in the respective six counts, as more specifically set out in the Conclusions of Law.
PRELIMINARY STATEMENT
This cause was referred to the Division of Administrative Hearings upon the original Administrative Complaint on or about August 5, 2002. A Motion to Amend was granted, and the case proceeded to a final hearing on the merits of the allegations contained therein.
At the disputed-fact hearing, Joint Exhibits 1 and 2 were admitted by stipulation.
Petitioner presented the oral testimony of Respondent, Neal McCoppin, Lynn Hartley, Lawrence Hunsinger, and Louise Hurd.
Hurd testified as both a fact and expert witness. Petitioner's Exhibits 1-9 and 12-13 were admitted in evidence, including Respondent's deposition. Exhibits P-10 and P-11 were withdrawn.
At the close of Petitioner's case, Respondent moved to dismiss Counts IV and V of the Amended Administrative Complaint. That motion was taken under advisement for resolution in the Conclusions of Law of this Recommended Order
Respondent testified on his own behalf and presented the expert testimony of Stuart Vernon. Respondent had Exhibits R-1 through R-8 admitted in evidence.
A Transcript was filed on January 17, 2003. The parties' respective Proposed Recommended Orders were timely-filed within their agreed extended time frame and have been considered. The Joint Pre-hearing Stipulation has been incorporated with some stylistic changes.
FINDINGS OF FACT
Respondent holds Florida Educator's Certificate 612806, covering the areas of Biology, General Science, and Middle Grades. His license is valid through June 30, 2003.
Respondent has a Master of Arts Degree in Secondary Education. At all times material, Respondent taught science classes at the Flagler Palm Coast High School (FPCHS). As of the 1999-2000 School Year, he had taught in the same school and had been an effective, professional educator of the Flagler County School District for more than 12 years. He had received favorable performance evaluations during each of the immediately preceding five years.
At all times material, Respondent was employed as a science teacher at FPCHS.
Respondent has never, before this case, been subjected to any licensure sanctions.
On or about November 24, 1999, Student A.S. received a disciplinary referral from Respondent. Neal McCoppin, FPCHS's Assistant Principal in charge of discipline, noticed that A.S.
had received four disciplinary referrals from Respondent over a short period of time and that A.S. had not had any significant disciplinary problems earlier in the year. McCoppin's review of A.S.'s academic record revealed that the disciplinary referrals were a new trend.
Upon inquiry from McCoppin, Student A.S. provided information which prompted McCoppin to request that FPCHS's technology coordinator, Barbara Towle, review Respondent's Internet usage. Towle's initial review revealed that Respondent's school-issued computer was being used during classroom time to access inappropriate materials.1/
McCoppin and Towle reported their findings to FPCHS's Principal, Lawrence Hunsinger. Principal Hunsinger told Towle to lock Respondent out of the computer network. Towle did so that day, November 24, 1999.
November 24, 1999, was the Wednesday before the Thanksgiving school holiday from November 25, 1999, through November 28, 1999.
After returning from the Thanksgiving break on Monday, November 29, 1999, Principal Hunsinger went to Respondent's classroom and asked Respondent to come to his office. In his office, Hunsinger told Respondent that a review of Respondent's Internet usage had turned up access to inappropriate sexually
explicit website material. Respondent's only oral response was "could I be fired for this?"
On or about November 30, 1999, Hunsinger requested a more thorough investigation by Louise Hurd, the technology coordinator for the Flagler County School District.
Hurd was hired by the school district in 1998 to set up its computer network and has been its technology coordinator ever since. She has worked in the field of computers since 1984, as both an instructor and a network administrator. She is certified in Novell, Windows NT, Microsoft Windows, and Exchange 2000, and was accepted, without objection, as an expert in information technology and computer networks.
All FPCHS's teachers received computers by the Fall of 1999. According to Hurd's recollection, Respondent's school computer workstation was installed on one of two possible Saturdays in September 1999. Thereafter, it was available in his office. It was capable of interfacing with the school district's whole administration/teacher network and connected to the Internet. It was not capable of being accessed by the student network also established by the district. (See Findings of Fact 65-66.)
Respondent's office was located within his classroom.
He did not share his office, his classroom, or his computer with
any other teacher. He did not travel from classroom to classroom to teach his assigned classes.
Respondent's office, where his computer was kept, was walled-off from his classroom. Its door opened into the classroom. It had no windows, so with the door closed, anyone inside could not see out and those outside could not see in. The door usually remained open, but the computer screen faced away from the classroom and could not be seen from the classroom. The office was located behind a long lab table at the front of the classroom, and the long lab table was behind the podium from which Respondent lectured. According to Respondent, he usually sat at the long lab table, stood at the podium, or circulated through the classroom during class time.
Students were permitted to enter his office during class time to retrieve lab supplies and books stored on its shelves, unless he were lecturing.
There is no competent evidence that any student saw Respondent's computer screen during the time period material to the pending charges.
Respondent testified that during all of the time the computer was in his office, he did not lock his office or his classroom, even when he left at the end of a school day or over the weekends. However, he stated that he turned off his
computer at the end of each school day, between 2:15 and 2:30 p.m., when he left the campus.
Respondent's classroom was Room 107 on the ground floor of Building 220. The classroom had three doors: one to the hall, one to another classroom, and one to the outside. It was the closest first floor room to the teachers' parking lot. This parking lot was used by teachers during the school day but could be used by construction personnel as spaces became available after 2:15 p.m. weekdays.
During the whole of the time Respondent had the computer in his office, there was on-going construction involving 26 different subcontractors, who were doing new construction and renovating two buildings. The majority of the classroom renovation work was being completed after school hours, between 3:00 p.m. and 11:00 p.m. Some construction workers began to arrive between 2:30 p.m. and 3:00 p.m. Some of the subcontractors were issued keys to the buildings being renovated, one of which was Respondent's building.
Respondent testified, without corroboration, that construction workers sometimes worked in his classroom and office during school days, but he admitted he had never seen a construction worker at his computer.
The school custodial crew worked weekdays, 3:00 p.m. to 11:00 p.m. They had keys and assigned work areas throughout the campus, including Respondent's building.
The Adult Education Coordinator also had a key to Respondent's building, so that eight to twelve classes of adult education students, each with an adult education teacher, had access to Respondent's building after 4:00 p.m., Mondays through Thursdays.
Therefore, Respondent's classroom and office were vulnerable to entry by construction crews, custodians, regular teachers, regular students, adult education teachers, and adult education students, but so was every other classroom in his building.
Respondent had no Internet experience before the school district provided him a computer in September 1999. The school district gave him no computer-related training.
Respondent's username for the school district network was "McVeighV".
Respondent was required to choose his own password the first time he logged on to the school district network. The passwords chosen by teachers were confidential. Hurd did not keep a list and had no way of knowing a teacher's password. If a teacher forgot his or her password, Hurd or one of the school technology coordinators could reset the teacher's computer back
to a generic password, and the teacher could then choose another password the next time he or she logged onto the network.
All network users were instructed to keep their passwords secret, not to write them down, and not to use a word that was easy to guess, such as their own names or the name of a family member. Hurd threatened users that their machines would be disabled if their password was found posted at their computers.
Nonetheless, during a portion of October, and for all of November 1999, Respondent's computer password was his first name, "Vince."
When Hurd was asked to investigate Respondent's Internet usage on November 30, 1999, she, in turn, asked the FPCHS technology coordinator to run a report of Internet usage under Respondent's username, "McVeighV", from November 1, 1999 through November 24, 1999, the date Respondent was locked out of the system. The technology coordinator provided Hurd with a spreadsheet entitled "Proxy Server Access Report for McVeighV for 11/1/99 to 11/24/99," hereafter referred to as "the proxy server report."
The proxy server report identifies all Internet site addresses, also known as HTML addresses, accessed via the school district network, by network user "McVeighV" and the time and date the site was accessed. (P-3)
Each computer on the school district network has a unique local IP address. The proxy server report also identifies each computer address from which "McVeighV" signed in between November 1, 1999, and November 24, 1999, by listing the local IP address number for each entry during that period of time.
Hurd and another technology coordinator individually verified that the computer in Respondent's office was assigned local IP address 10.1.2.182. Although local IP addresses can change due to the addition to a network of a new computer workstation, the local IP address for the computer in Respondent's office had not changed between November 1, 1999, and November 30, 1999, because there were no new computers added to the school district network during that time period.
Local IP address number 10.1.2.182, Respondent's computer workstation address, is the only local IP address on the proxy server report. This indicates that user "McVeighV" only logged onto the school district network through the computer in Respondent's office. If Respondent or anyone else had logged onto the school network as "McVeighV" from any other computer during the time period examined, a different IP address would have been identified on the proxy server report.
Hurd went through all of the HTML addresses on the proxy server report, line by line, and personally accessed any
Internet address that appeared to have an inappropriate title. Among these addresses were such suggestive address titles as "sextracker.com," "tour.teeniesex.com," "sexswap.com," "slut- valley.porncity.net," "xxxteenzone.com," "teenteenteen.com" and "pornography4all.com." While other inappropriate addresses on the proxy server report were more subtle and many were innocent, any rational reader could assume that the foregoing sites, and other sites on the proxy server report with similar addresses, would be purveyors or exhibitors of pornography or graphic sexual images. This Finding of Fact explicitly rejects the suggestion of Respondent's expert that sexually explicit addresses may change to an innocent theme and therefore the addresses on the proxy server report may not reflect those sites' content at the time they were viewed.
Hurd found that 918 of the approximately 4075 HTML addresses on the proxy server report for "McVeighV" were addresses of Internet sites that were "inappropriate." Some of the sites were repeated more than once. The word "inappropriate" is used herein to indicate sites that contained depictions and/or photographs of nude men or women in sexually suggestive or explicit poses. Some such sites suggested some of the women were minors. At least one site was a live camera feed. Approximately 20 of the 918 sites involved gambling. Hurd printed out selected screens from some of these sites,
copies of which were admitted in evidence as Petitioner's Exhibit 6.
Hurd also ran a network search of the to determine whether other teachers or administrators had accessed Internet sites with sexually suggestive HTML addresses that included the words "sex," "porn," "sex tracker," and "XXX." She found ten users who had an HTML address history with those search terms. Of those ten users, she found that one of the users had accessed a total of six sites, and the other nine users had hits of four or fewer sexually suggestive addresses.
Hurd opined that "Everybody's going to try [to access such sites]."
However, in comparison, Respondent's password's and workstation's usage of more than 900 inappropriate hits was enormous. The total usage of the Internet reflected by the proxy server report amounted to much of the whole school network's Internet use for the review period.
During the month of November 1999, the school district's Cyber Patrol feature, which was intended to block the majority of sexually explicit sites, had worked some of the time and had not worked some of the time.
Hurd also ran a "cookie report" from Respondent's profile. A "cookie" is an HTML text file that is sent back from a website and stored on the receiver's computer. Hurd's cookie
report contains several files with sexually suggestive titles, such as "counter.sextracker," "sexhound[1]," and "xxxcounter[3]." Her cookie report, run December 1, 1999, began September 13, 1999 and ended November 5, 1999. (P-2)
Respondent was shown the proxy server report on December 1, 1999. He wrote a December 2, 1999, letter, claiming, in part,
I did not knowingly enter these [pornographic Internet] sites as demonstrated by the time spent at them. The time spans range from less than one second to seven seconds at any one site as shown on the proxy sheet. As these sites came up on the screen I immediately attempted to exit. I never paid any money to enter these sites and browse.
There is no evidence whatsoever that Respondent ever paid any money to browse inappropriate Internet sites.
Respondent submitted a letter of resignation on December 14, 1999, effective January 12, 2000.
At hearing, Respondent denied ever intentionally accessing inappropriate sites, but admitted that if he had intentionally done so, that would constitute immoral behavior.
There is no evidence that the circumstances of Respondent's resignation were printed in the newspaper or otherwise became known to students or parents.
At hearing, Respondent claimed that during Period Two, his 1999 planning period, he usually worked at the lab table and
that he rarely went into his office during class time. He testified that he rarely used the computer except in spare moments during class or between classes to check e-mail or Internet sites, such as MSN, for news, weather, or stock activity, and that he usually did this checking by way of a "refresh" button. Respondent's testimony suggested the theory that someone got his password and accessed unwholesome sites from his computer because some accesses occurred after the end of the school day or on weekends, when Respondent claimed not to have been in school.
The proxy server report does not report any activity for "McVeighV" or Respondent's workstation on weekends in November 1999 or after 4:18 p.m. on weekdays in November 1999.
The proxy server report does show that many inappropriate addresses were accessed at 2:15 p.m. or later on school days. However, it also shows that there usually was frequent and intermittent computer use throughout entire school days; that inappropriate addresses were accessed in each class period or breaks between classes on one or more days; and that many inappropriate addresses were accessed during Respondent's planning period, Period Two.
The proxy server report shows activity on Respondent's computer for large portions of class periods and breaks between classes during November 1999. Based on the addresses recovered
in the proxy server report, some of this activity during the school day was relatively innocent non-school activity; some was pornographic or gambling activity; and some was related to the school district administrator/teacher network. It is not credible or worthy of belief that some unseen stranger entered Respondent's office, through his classroom, while he was in the classroom teaching or working at the lab table, and that stranger then spent variable amounts of time, ranging from a few minutes to more than an hour, accessing non-education-related sites, interspersed with accessing the administrator/teacher network, and then somehow exited the office and classroom without being seen. Students making quick trips into the office to retrieve lab and art supplies during classes would not account for this pattern of use. Construction workers who never sat at the computer during the school day would not account for this pattern of use.
Petitioner correctly points out that during November 1999, considerable computer activity also occurred after the end of his last class at 2:15 p.m. However, much of this activity began within two to eight minutes of 2:15 p.m., possibly before one could physically exit the classroom, and ended within an hour. Where it was essentially continuous, it never lasted beyond 4:18 p.m. Even with an early dismissal on
November 17, 1999, the after-2:15 p.m. pattern did not
materially change. Based on the addresses recovered in the proxy server report, some of this activity was innocent non- educational activity; some was pornographic or gambling activity; and some was related to the school district administrator/teacher network. It strains credulity to believe that someone entered Respondent's classroom and office within minutes of the end of class, while Respondent possibly was still in the classroom, and certainly while other teachers were still in the building, and spent up to an hour and a half on Respondent's computer, accessing non-work-related sites, occasionally interspersed with accessing the administrator/teacher network.
Respondent's testimony also suggested the theory that cookies or pop-up ads controlled his machine so that whenever he pressed "refresh", his machine was invaded by successive unwholesome pop-up ads and this is why successive sites were accessed in very short periods of time during the school day. This theory assumes that because many accesses were of extremely short duration (less than a second or for a few seconds each), the proxy server report only recorded pop-ups or "page-jacking," which Petitioner testified he deleted as rapidly as he became aware of them. "Page-jacking" is a computer phenomenon which occurs commonly with sexually explicit websites, whereby access to one such site, intended or not, triggers a series of pop-up
screens, usually of a similar nature, which can be difficult or impossible to escape without turning off the computer.
Respondent testified that on three occasions inappropriate website materials appeared on his computer screen; that he never intentionally acted to cause such materials to appear; and that in each instance of inadvertent access, he promptly made efforts to remove the offensive material, ultimately turning off the computer to end each of these episodes.
Respondent further testified that one icon (or thumbnail), "Orgy Boys," just appeared on his computer screen one day, and that for several days, he could not remove it; he denied that he ever entered the "Orgy Boys" site; and that from a dozen to fifteen objectionable sites appeared on his computer screen during the month of October, but that no objectionable site had ever appeared on his screen during the month of November. He indicated he personally deleted the "Orgy Boys" icon in late October, after trial and error. He attempted to explain his failure to mention the "Orgy Boys" site in his December 2, 1999, letter as being because he did not think it significant.
Hurd's cookie report, ending November 5, 1999, shows some weekend activity on Saturdays September 18, 1999, October 2, 1999, and October 16, 1999. Some of its
addresses/cookies appear to be inappropriate. It does not show a cookie for "Orgy Boys."
Respondent's witness, Stuart Vernon, accepted as an expert in Internet network security, network administration, and Internet programming, suggested that Hurd's cookie report was inconclusive and did not rule out the theory that cookies had accessed the inappropriate sites on the proxy server report which spanned November 1, 1999, through November 24, 1999, because the cookie server report ended November 5, 1999.
Mr. Vernon felt it would have been better to continue running the cookie report after Respondent was locked out of the system, to see if the illicit hits under "McVeighV" continued in Respondent's absence. However, this criticism is not valid in light of Hurd's explanation that because cookies were filling up the school computers' hard drives, the school district disabled cookies and temporary Internet files from all its network's profiles in late October 1999. That explanation would seem to at least eliminate the possibility that Respondent's computer started out as a victim of sexually salacious cookies on November 5, 1999, and further suggests that cookies could not have caused the multiple inappropriate accesses from Respondent's machine from November 5, 1999 through November 24, 1999. However, I have carefully considered the testimony of both Hurd and Vernon and analyzed the proxy server report of
4075+/- entries against that testimony. As a result, I accept that in November of 1999, some of the repeated addresses with an "ad" or "doubleclick" prefix were, indeed, pop-up ads, and that a rapid series (within one minute) of addresses with a "www." prefix may have constituted an overlay of several ads. However, this is not persuasive that every such series of addresses or that every inappropriate address on the proxy server report was an ad, constituted "page-jacking," arose from an unintentional initial access, or arose without Respondent being present in his office.
Admittedly, Hurd found examples of page-jacking on the proxy server report. However, this does not necessarily demonstrate that Respondent unintentionally accessed the inappropriate Internet sites. Legitimate websites, such as MSN, will not "page-jack" the user to a pornographic Internet site. Both Vernon and Hurd concur that if one inadvertently reaches an undesired site by a typographical or other error, turning off the computer will usually eliminate the problem. According to Vernon, incessant page-jacking could continue all day and night, but Respondent testified that he turned his machine off when he left his classroom at the end of the day and it still might have an inappropriate site when he first turned it on the next morning. The proxy server report identifies after-school use. It does not identify any Internet activity in the evenings or on
weekends in November. The proxy server report does not show unacceptable sites appearing with the first use each morning. The proxy server report also shows repeated instances of the user logging off and then back onto the network and then accessing a sexually explicit address.
It is noted, in this regard, that according to the proxy server report, "McVeighV" actively surfed the Internet from the computer in Respondent's office on November 23, 1999, from 9:02 a.m. until at least 12:49:04 p.m., with possibly two one hour breaks, depending upon whether these pauses in activity show inactivity or merely show the computer staying at a single site for a long period of time. The proxy server report for that day also shows that surfing was continuous from 2:22 p.m. to 4:18 p.m., although Respondent claimed to have left his office by 2:15 p.m.2/ Many of the HTML addresses for those periods of time match the addresses given above in Finding of Fact 34. Also according to the proxy server report, "McVeighV" actively surfed the Internet from the computer in Respondent's office on November 24, 1999, the day that Respondent sent A.S. to McCoppin's office and before Respondent was locked out of the computer system. This period of surfing was from 9:52 a.m. to 11:43 a.m. Some of these addresses are merely questionable. The foregoing shows frequent, and often lengthy, periods of computer use during class time.
The proxy server report demonstrates that Respondent's screen did exhibit inappropriate sites in the month of November 1999. Respondent's suggestion that cookies or page-jacking could have been invisible on his screen was rebutted by Hurd's credible testimony that any open webpage or cookie would show up somewhere on the screen or on the row of icons below the main screen at any time the computer was operating, regardless of whether something else (like Respondent's legitimate work or another ad or pop-up) occupied the main screen.
Respondent also testified that in late October 1999, he reported to Assistant Principal Lynn Hartley and School Technology Advisor Barbara Towle the problems he had allegedly encountered earlier that month with unwanted site access, particularly with the "Orgy Boys" icon, and that neither administrator expressed significant concern or took any affirmative steps to remove the information or determine its source. Respondent's testimony on this score was not corroborated by Hartley, who testified, nor by Towle, who did not testify. Hartley's recollection of their conversation was that Respondent had only complained when, on Hunsinger's orders, he had been locked out of the network system in late November 1999. At that time, Hartley did refer Respondent to Towle. Hartley had no recollection of Respondent or any other teacher
ever complaining about pornographic sites invading their computers or monitor screens.
No school district witness had ever had a problem with unwanted inappropriate sites invading his or her computer and none had received a complaint concerning pornographic sites from any teacher or administrator, including Respondent and others who had accessed inappropriate sites. (See Finding of Fact 36.)
Vernon, Respondent's expert, contended that several things could have happened to make Respondent look guilty of accessing inappropriate sites on his school-provided computer: that cookies could have taken over his machine and driven it to those websites; that a virus sent via e-mail or a "bot" infected Respondent's computer so that it looked as though he were deliberately viewing inappropriate sites, when in fact his viewing them had been inadvertent; that his computer workstation was accessed by someone who entered his office and somehow figured out his password; that he was "spoofed," that is, someone on another computer in the network made it look as if the inappropriate activity were coming from Respondent's workstation instead of from the spoofer's workstation; or that Respondent's computer was "page-jacked." However, Respondent offered no affirmative proof that any of these conjectured scenarios had occurred, except to testify that he had sometimes
seen contractors in his room or office before 2:15 p.m. (See Finding of Fact 20.)
According to Vernon, the proxy server report and other evidence is insufficient to determine whether Respondent was the person intentionally accessing sexually explicit Internet sites. In his view, it would have been better for Hurd to have continued to run the proxy server report after Respondent resigned, to see if the inappropriate Internet activity continued from his computer. The undersigned concurs that such a method would have been better, but not using that method does not render non-probative the method Hurd used. Neither does a MAC search seem necessary, although one might have been helpful.
Also, according to Vernon, the only surefire way to determine if Respondent were intentionally accessing sexually explicit Internet sites, without scanning for a remote virus ahead of time, would be to see his computer monitor screen at the precise moment that Respondent accessed an inappropriate site.
Vernon's desire for absolute certainty is commendable, but even he concedes that the conjectures of Finding of Fact 60 would not be the most likely causes of the Internet activity verified by the proxy server report.
Hurd's explanation is credible that the proxy server report results which point to Respondent cannot be explained
away by a computer virus or other "hacking" activity such as a remote device or IP spoofing.
At some point in 1999, hacking was discovered to have breached the student network to the extent that some students downloaded a list of student names, but no similar breach of the teacher/administrator network ever occurred. Likewise, this hacking incident involved downloading only, with no ability to install, or successful installation of, a program. Also, sometime during 1999, the Red Code virus affected all the school district computers, but that was a world-wide virus and is immaterial for purposes of this case.
Hurd personally scanned Respondent's computer and all network servers for any virus. A remote device virus would require the installation of a program on the school district network. However, at the material time, only local network administrators could install programs on the network, and the school district network had anti-virus software. It is not worthy of belief that Respondent's machine would be the only school computer the existing anti-virus software did not protect against a "porno virus," or that a computer hacker downloaded or purchased software directed only to Respondent's machine among all the others.
Likewise, other remote access conjectures do not exculpate Respondent. As described in Findings of Fact 31-33,
all the "McVeighV" accesses came from Respondent's IP address in his office, not from any other IP address/workstation.
Even if Respondent's testimony at hearing as to how others might have guessed his password could exonerate him from after-school use, that factor is not material because it requires further belief in the absurd scenario that sometimes, while Respondent was actually speaking from the podium or working at the lab table in front of his office door, someone entered his office and surfed the Internet for extended periods of time.
An e-mail can contain a link (e-mail address in blue) to a pornographic website. However, typically, that link will require that the user click on the link, which will contain the name of the Internet address to be accessed. This would require affirmative action. However, Respondent denied that he had ever received an e-mail which took him directly or indirectly to a pornographic website. Therefore, the issue of an e-mail link to a pornographic site is irrelevant.
Even accepting Respondent's testimony that he had opened e-mail attachments and that attachments can contain a virus, Hurd searched Respondent's computer's hard drive and still found no virus to account for the inappropriate addresses.
Giving Respondent the benefit of the doubt, it simply is not logical or reasonable that he would be the innocent
victim of 900+ inadvertent or malevolently aimed pornographic sites during a 24-day period. It also is not credible that he alone should have had a problem of this magnitude in comparison to all other users on the system.
Therefore, despite Respondent's denial, it has been proven that Respondent was the user who accessed all of the inappropriate material, some inadvertently and some deliberately, and who logged the excessive time on the computer during class time, even though some of that excessive class time was not devoted to inappropriate material.
Teachers at FPCHS are expected to remain in the classroom at all times that students are present, to supervise and instruct. Failure to remain in the classroom has liability implications for the school district if a student should be injured.
Also, when the teacher is absent from the classroom for extended periods of time, it is clear that he is not providing education to his or her students.
It is not a reasonable hypothesis that Respondent's frequent address accesses in the month of November 1999 could possibly be sufficiently job-related so as to render the excessive class time he devoted to his computer valuable to his students' education. The excessive time he spent on the computer during classes detracted from time he should have
devoted to lecturing or lab work with his students. His absence from the classroom to this degree could have created liability problems for the school district if a student had been injured, but apparently no student was injured.
There was a potential for harm to students if any students had seen inappropriate materials on Respondent's computer screen. However, there is no clear and convincing evidence that any student ever observed any inappropriate website materials.
In his deposition (P-12) Respondent testified that he had been successfully employed as a science teacher at a private Catholic School in another county from the effective date of his public school resignation, January 12, 2000, until late 2001, but that he had been "let go" due to calls to that school's principal by the Flagler County School District about this case.
Respondent has been married for 25 years and has two sons who live at home with him and his wife. He is active in his church's Knights of Columbus. He is currently active in the local Chamber of Commerce as the owner of his own successful pool service business.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of,
these proceedings, pursuant to Section 120.57 (1), Florida Statutes.
Because this case involves the potential loss of Respondent's license to engage in his business or livelihood -- teaching -- the burden is upon Petitioner to go forward and prove the violations charged in the Amended Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1997).
Only the charges articulated in the Amended Administrative Complaint may be considered.
The Amended Administrative Complaint sets forth the following charges:
Count I: Violation of Section 231.2615
(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act of moral turpitude;
Count II: Violation of Section 231.2615
(1) (f), Florida Statutes, in that, upon investigation, Respondent has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board;
Count III: Violation of Section 231.2615
(1) (i), Florida Statutes, in that the Respondent has violated the Principles of Professional Conduct for the Education Profession in Florida prescribed by the State Board of Education;
Count IV: Violation of Rule 6B-1.006 (3) (a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from
conditions harmful to learning and/or to the student's mental health and/or physical safety;
Count V: Violation of Rule 6B-1.006 (3) (e), Florida Administrative Code, in that Respondent had intentionally exposed a student to unnecessary embarrassment or disparagement; and
Count VI: Violation of Rule 6B-1.006 (4) (c), Florida Administrative Code, in that Respondent has used institutional privileges for personal gain or advantage.
The statutory sub-sections cited in the Amended Administrative Complaint are correct for Florida Statutes (2000). However, the correct citations for events occurring in 1999 would have been to subsections of Section 231.28, which was renumbered in 2000 to Section 231.2615, Florida Statutes. The operative language of the 1999 and 2000 statutes remained identical for all material allegations and counts of the Amended Administrative Complaint. No issue in this regard was raised by the Respondent. Therefore, this Recommended Order cites to Section 231.28, Florida Statutes, to reflect the proper citation of the 1999 Statutes. It is noted that all applicable statutes have since been transferred to Chapter 1000, Florida Statutes (2002).
Clear and convincing evidence is defined in the seminal case of Slomovitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983), as follows:
[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts and issues. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy as to the truth of the allegations sought to be established.
Clear and convincing evidence must be credible, competent, precise, explicit, and weighty, but it need not eliminate every alternative possibility, however far-fetched. The prosecuting agency must eliminate every rational doubt but not all speculative or fanciful doubts.
As to Count I, Petitioner must prove by clear and convincing evidence that Respondent (1) engaged in misconduct and (2) that the misconduct in which he engaged constitutes an act of gross immorality or one involving moral turpitude.
As to Count II, Petitioner must prove by clear and convincing evidence that (1) Respondent engaged in improper personal conduct which (2) seriously reduces his effectiveness as an employee of the school board.
Count III does not constitute a separate charge but, rather, is a statutory vehicle through which Petitioner asserts Counts IV, V, and VI, which constitute allegations of violating specific Board of Education Rules.
Count IV is an alleged rule violation, derived from the statutory provision referenced in Count III, for which Petitioner must clearly and convincingly prove that (1) Respondent failed to undertake efforts to protect his students from sexually explicit materials and (2) that his failure to make those efforts caused a condition harmful to a student's learning and/or mental health and/or physical safety.
Count V, also directly derived from Count III's statutory obligation to maintain professional conduct principles, requires clear and convincing proof that Respondent intentionally exposed students to unnecessary embarrassment or disparagement.
Finally, Count VI, also directly derived from Count III's statutory obligation to maintain professional conduct principles, requires clear and convincing proof that an institutional privilege was misused by Respondent for gain or personal advantage.
Much of the evidence in this cause seems murky, due to the mystique of computers, but emerging therefrom is clear and convincing proof that despite other plausible explanations for what might have happened, or speculative alternative possibilities as to what did happen, the following, in fact, occurred: Respondent was provided a computer by the school district for school-related purposes. He was urged to become
familiar with it by trial and error. In so doing, he accessed inappropriate, sexually explicit material. Some of this inappropriate material purported to involve under-age females, presumably teenagers of the age of some of his students. On some occasions, Respondent's Internet accesses of inappropriate sites may have been inadvertent or the result of pop-up ads or page-jacking, but on many occasions, his accesses were clearly intentional. It would have been easier to rule in this case if the experts had quantified the accesses in each of these categories, but they did not. The evidence is further clear and convincing that Respondent logged excessive time on the computer during class time, as well as during breaks, his planning period, and some after-school time, totaling approximately 4075 accesses/hits or one-third of all school network use for the material period of time. Not all of his class time or all of his accesses were devoted to inappropriate material, but the loss of instructional time was considerable and could not help but affect the educational progress of his students.3/ There is, however, no evidence that Respondent exhibited any inappropriate website to any student. There is no evidence that any student even inadvertently saw any inappropriate website. There is no evidence that Respondent achieved any monetary gain by his behavior, or that any student was physically or psychologically harmed or embarrassed by the inappropriate websites. The only
evidence that Respondent has lost effectiveness as an employee of the school board is that the Flagler County School District's inquiring phone calls concerning this case caused Respondent to be let go from a private school's science teaching position where he had taught, apparently effectively and uneventfully, from his January 12, 2000, FPCHS resignation until the fall of 2001.
Against the foregoing clearly and convincingly proven facts of guilt must be balanced the fact that Respondent had been a well-respected, successful science teacher in Flagler County for approximately 12 years. It is undisputed in the record that he was a knowledgeable and capable instructor with a Masters Degree; that he had always received favorable performance evaluations; and that he had never been subjected to any employment or certification disciplinary action. The record reflects that Respondent has been married for 25 years, that he has two sons who continue to live at home with him and his wife, and that he is active in his church's chapter of the Knights of Columbus.
The only standard of inappropriate Internet access with regard to the use of school computers was addressed by Hurd to the effect that "Everybody's going to look," and apparently, four to ten inappropriate accesses by other teachers did not upset Hurd or any other administrator. It seems to be the sheer
number of Respondent's inappropriate accesses which has resulted in this prosecution. Although Respondent's intentional, versus
unintentional, accesses to inappropriate sites were not clearly quantified, the record is clear that intentional accesses were way more than ten and something less than the 918 inappropriate accesses alleged. Respondent himself is the only witness who characterized this behavior as "immoral" behavior. No school administrator clearly characterized Respondent's proven behavior as "misconduct" or "immoral" but their opinions can be inferred from the actions they took to stop it. Respondent resigned to minimize any scandal. That said, there is no evidence of wide- spread dissemination of information about what occurred, and there is evidence that Respondent remained an effective educator at least until his new school became aware of the instant prosecution.
There is no doubt that Respondent engaged in misbehavior. He misused a school computer on school time to view depictions of nudes, some of whom purported to be teenage girls engaged in sexually explicit behavior. It is axiomatic that this was not good conduct or conduct becoming a teacher. It was misconduct. The question, however, is whether his misconduct rose to a standard of gross immorality or moral turpitude. Respondent acknowledges that the situation raises morality concerns, but submits that without evidence of criminal
conviction or student involvement, the acts proven against Respondent do not constitute acts so vile and depraved as to constitute gross immorality or moral turpitude.
Rule 6B-4.009(6), Florida Administrative Code, although not charged herein, is instructive. It defines "moral turpitude,"
Moral turpitude is a crime that is evidenced by an act of baseness, vileness, or depravity in the private and social duties, which, according to accepted standards of the time, a man owes to his or her fellow man or to society in general, and the doing of the act itself, and not its prohibition by statute, fixes the moral turpitude.
Also helpful, but again not charged, is Rule 6B- 4.009(2), Florida Administrative Code, which defines "immorality" as follows:
[I]morality is defined as conduct that is inconsistent with standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.
"Gross immorality" would have to reach an even more depraved stage.
In cases concerning the meaning of "moral turpitude" or "gross immorality," conduct of a serious criminal nature has generally been required as a base. See e.g., Gallagher v. Rosenthal, DOAH Case No. 00-3888PL (R.O. January 10, 2001)
(teacher who pled guilty to a federal felony of downloading photographs of adult sex acts with minors on his home computer, which he then transmitted for the purposes of soliciting a child for sexual contact with an adult of the same gender, was both guilty of moral turpitude and notorious); Gallagher v.
Desjarlais, DOAH Case No. 00-2767PL (R.O. October 31, 2000) (teacher pled nolo contendere to misdemeanor of setting fire to his car on school property); Feldman v. Brogan, DOAH Case No.
98-2909 (R.O. September 10, 1998) (plea of nolo contendere and purchase of cocaine is an act of moral turpitude); Castor v.
Chester, 9 FALR 5553 (1987) (teacher who "French-kissed" an underage female student committed an act of moral turpitude); But see, Gallagher v. Arnaldo, DOAH Case No. 00-2159 (R.O. May 16, 2001) (teacher's one-time access on school computer to non-pornographic nude image which was viewed by several Middle School students was not an act of moral turpitude).
In the instant case, Respondent's computer use was essentially private behavior, although it was conducted on a school computer, on school time, on school grounds. There is no proof pornographic material was downloaded for retention, reproduction, and dissemination as occurred in Gallagher v. Rosenthal, supra. Likewise, here, there was no guilty plea to a federal felony as occurred in that case, nor was there any proof
Respondent exposed students to nude photographs as did the teacher in Gallagher v. Arnaldo, supra.
Except for the Rosenthal case, private viewing of sexually explicit computer images has not been viewed as gross immorality. As stated in Crist v. Mitchell, DOAH Case No. 02- 2999PL (R.O. March 14, 2003),
In this modern era (for good or ill) it simply is not a clear and convincing departure from standards of public conscience and good morals to download pornographic material in the privacy of one's own home when similar material can be lawfully purchased in a publicly-accessible store or newsstand.
Likewise, private viewing of such material without conviction of a crime, without student involvement, and without proof of public disgrace and loss of ability to serve the community does not amount to gross immorality or moral turpitude. Accordingly, Respondent's misbehavior in private does not render him guilty of Count I, and Count I should be dismissed.
A lower level of misconduct, "personal misconduct," has been charged in Count II, but Respondent maintains that the second prong of the charge, that there has been a serious reduction in his effectiveness as an employee of the school board, has not been proven.
With regard to Count II, there is no doubt that this episode constitutes improper personal conduct, but there is a second prong to the test. Two lines of cases have developed. One holds that a serious reduction of effectiveness as an employee of the school board may not be inferred, but must be proven by clear and convincing evidence (see MacMillan v. Nassau
County School Board, 629 So. 2d 226, (Fla. 1st DCA 1993), that such serious reduction in effectiveness must be attested to by educators; and that the educators' testimony must be more specific than by mere conclusory remarks. MacMillan supra; Braddock v. School Board of Nassau County, 455 So. 2d 394 (Fla. 1st DCA 1984), Baker v. School Board of Marion County, 450 So. 2d 1194 (Fla. 5th DCA 1984). The other line of cases holds that these elements may be inferred. I conclude that the line of cases requiring direct affirmative proof of loss of effectiveness constitutes the better reasoning and is more fully in line with the statutes and rules. In any case, the following language of McNeill v. Pinellas County School Board, 618 So. 2d
476 (Fla 2nd DCA 1996), would apply herein:
The school board argues that Pollock's statement that "McNeill's conduct can and does reasonably fall within the definition of immorality" was an affirmative finding of immoral conduct without proof of impaired effectiveness. While we recognize that this abbreviated analysis of the offense has been applied by the Fifth District Court of Appeal in Summers v. School Board of Marion
County, 666 So. 2d 175 (Fla. 5th DCA 1995), we adopt the two part analysis set forth above. The administrative code's definition of immorality calls for this approach and we believe it will give full effect to the intent and purpose of Rule 6B-4.009(2) to protect the educational interests of students, parents and the public while promoting high moral standards among education professionals and assuring professional accountability.
See, also, Walker v. Highlands County School Board, 752 So. 2d 127 (Fla. 2nd DCA 2000), making the clear distinction that inference of ineffectiveness may be appropriate from what goes on in a classroom with students but an inference is not
appropriate where the nature of the misconduct is private and not the result of interaction with students.
No clear and convincing impairment of Respondent's service to the community or loss of effectiveness to the school district has been clearly and convincingly demonstrated. Respondent minimized any notoriety by resigning, and he taught effectively in the private sector for more than a year after his resignation.
Count II should be dismissed.
Respondent has moved to dismiss Counts IV and V, upon grounds that no proof has been presented to support them. Count IV, enabled by Count III, alleges Respondent has failed to make reasonable effort to protect students from conditions harmful to learning and/or to the student's mental health and/or physical
safety. Count IV, enabled by Count III, requires either an element of demonstrable harm to an identifiable student, or at least the showing that a type of student harm can be inferred to have occurred. Absolutely no student access to the computer or its tainted contents has been demonstrated. As to Count V, even assuming that Respondent purposefully accessed every listed website which by its address might be presumed to have been sexually explicit, a potential for harm to students is not punishable under either Count IV or Count V. There is no proof any student was exposed to the harmful material, intentionally or otherwise, was harmed mentally or physically, or was embarrassed or disparaged.
Counts IV and V should be dismissed.
Count VI, also enabled by Count III, alleges that Respondent misused institutional privileges for personal gain or advantage. Cases which include charges of misuse of institutional privileges generally involve theft or conversion of some tangible school resource by the accused for a purpose of, and a benefit to, the accused. See Broward County School Board v. Sapp, DOAH Case No. 01-3803 (R.O. September 24, 2002) (theft of computer laptop constituted misuse of privileges for personal gain); Miami-Dade School Board v. Fullington, DOAH Case No. 02-0664 (R.O. September 30, 2002) (non-instructional
employee's use of his School Board vehicle to conduct personal business).
Respondent conceded that his access to sexually explicit Internet sites on his office computer, if it occurred, would constitute misuse of an institutional privilege, and I have determined that this misuse has been clearly and convincingly proven. However, the question remains as to whether Respondent experienced personal gain or advantage thereby. Petitioner amended the original Administrative Complaint in the instant case to add Count VI, based upon the authority of Gallagher v. Arnaldo, supra. No other cases are cited by Petitioner or Respondent as applicable to this charge. In that case, the Administrative Law Judge found, as fact, that Arnaldo had misused his classroom computer for personal gain or advantage when he accessed at least one nude photograph (without any sexual innuendo) which was widely viewed by his Middle School students. Although the Administrative Law Judge in Arnaldo did not elaborate on what Arnaldo's gain or advantage might be, Respondent speculates that his personal gain or advantage had to do with the fact that Arnaldo was a nudist and that he was essentially engaging in his hobby when he accessed the nudist picture that his students saw. It must be observed that the situation herein is not a brief viewing by Respondent or his students of a single, relatively innocent photograph of a
naked person. Although Respondent's students did not view the pornographic sites, and although the pornographic sites neither cost Respondent money nor gained him remuneration, it remains abundantly clear that Respondent (1) misused institutional privileges; (2) used those institutional privileges for his own purposes, not the educational purposes for which the computer was provided; and (3) deprived his students of his planning and instructional time by his misuse of that time for his own purposes. If Respondent had falsified time cards, the act could have amounted to moral turpitude, due to the fraud aspects of such a course of action. Respondent's "playing hooky" in his office by accessing an overwhelming number of pornographic sites still amounts to receiving a paycheck without working for it.
Respondent was paid for teaching while he was pursuing his own interests and while he failed to adequately supervise and teach students. This is sufficient to support a conclusion that Respondent gained an advantage by his misuse of the school computer, if only in the time he spent on it. A similar conclusion might be inappropriate where a teacher spent a few personal minutes on the computer or even a few hours, but here, the use was so clearly excessive as to effectively deprive the school board of Respondent's services for which it was paying him. Therefore, Respondent is guilty of a violation of Count
VI, misusing institutional privileges for personal gain or advantage.
Rule 6B-11.007(2), Florida Administrative Code, sets forth the following applicable disciplinary guideline:
(e) Using position for personal gain in violation of Section 2321.28 (1)(c), [sic] and Rule 6B-1.006 (4)(c) from Probation to 2-Year Suspension.
The foregoing guideline may be deviated from if aggravating or mitigating factors are present, as set out in Rule 6B-11.008(3), Florida Administrative Code.4/
Having considered all of the applicable aggravating and mitigating factors, it is concluded that Respondent's license should be suspended for three years, subject to re- application, since his current license will expire in the interim.
Based on the foregoing Findings of Facts and Conclusions of Law, it is
RECOMMENDED that the Department of Education enter a Final Order which:
Dismisses Counts I, II, IV, and V of the Amended Administrative Complaint;
Finds Respondent guilty of Counts III and VI of the Amended Administrative Complaint; and
Suspends Respondent's license for three years, subject to re-application thereafter.
DONE AND ENTERED this 11th day of April, 2003, in Tallahassee, Leon County, Florida.
ELLA JANE P. DAVIS
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 11th day of April, 2003.
ENDNOTES
1/ Student A.S. did not testify at the disputed-fact hearing. Therefore, the hearsay and "after-thought" evidence submitted concerning the content of his conversation with McCoppin cannot explain or supplement A.S.'s direct evidence. This material also is not the type upon which reasonably prudent persons rely. It therefore is insufficient for purposes of making any finding of fact as to what, specifically, Student A.S. saw, experienced, or reported to McCoppin.
Assuming arguendo, but not ruling, that such evidence could be utilized for a finding of fact, it constitutes a "two-edged sword," showing (1) that students were never admitted to Respondent's office and therefore students could not have surfed the Internet on his computer for inappropriate sites, making their activity look like Respondent's activity, and (2) that students were never admitted to Respondent's office and therefore students never viewed any inappropriate sites on Respondent's computer.
2/ Giving Respondent the benefit of the doubt, for argument's sake, but not ruling, that the computer did not linger on the last site for the interim from the preceding address appearing on the proxy server report, but was only turned on again after Respondent had turned the computer off at 2:15 p.m., the time differences from 2:15 p.m. until the first after-school log-on would have been as follows: November 1: 13 minutes; November 3:
16 minutes; November 4: 4 minutes; November 5: 18 minutes; November 8: 8 minutes; November 9: 1 minute (old and new addresses less than 2 seconds apart); November 10: 4 minutes; November 12: 3 minutes; November 15: 2 minutes (old and new addresses less than 5 minutes apart); November 17: 4 minutes; November 19: 3 minutes; and November 23: 7 minutes.
3/ The amount of time Respondent devoted to the Internet, regardless of website destination, suggests addiction to the computer, although no such diagnosis can be made without expert evidence, which is absent from this record.
4/ In this respect, I conclude that Rule 6B-11.007(3)(c), (d), (e), (f), (g), (h), (i), (j), and (r), Florida Administrative Code apply.
COPIES FURNISHED:
Brian A. Newman, Esquire Pennington, Moore, Wilkinson,
Bell & Dunbar, P.A.
215 South Monroe Street, 2nd Floor Tallahassee, Florida 32301
Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547
Tallahassee, Florida 32302
Kathleen M. Richards, Executive Director Florida Education Center
Department of Education
325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400
Marian Lambeth, Program Specialist Bureau of Educators Specialist Department of Education
325 West Gaines Street, Room 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.
| Issue Date | Document | Summary |
|---|---|---|
| May 30, 2003 | Agency Final Order | |
| Apr. 11, 2003 | Recommended Order | Clear and convincing evidence standard requires eliminating every rational doubt but not all speculative/fanciful doubts. Clear and convincing evid. on every part of every charge is required for guilt, including loss of effectiveness of a teacher. |
DR. ERIC J. SMITH, AS COMMISSIONER OF EDUCATION vs ROBERT E. WEISS, 02-003091PL (2002)
OKALOOSA COUNTY SCHOOL BOARD vs JEROME MCINTOSH, 02-003091PL (2002)
DUVAL COUNTY SCHOOL BOARD vs STEVEN MAKOWSKI, 02-003091PL (2002)
CHARLIE CRIST, AS COMMISSIONER OF EDUCATION vs JACKI MITCHELL, 02-003091PL (2002)
ORANGE COUNTY SCHOOL BOARD vs JAMES DESHAY, 02-003091PL (2002)
