STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, AS COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. )

)

HARRISON D. KANE, )

)

Respondent. )

Case No. 02-3131PL

)

RECOMMENDED ORDER

The final hearing in this matter was held on September 8, 2003, before the Division of Administrative Hearings duly designated Administrative Law Judge, Diane Cleavinger, in Palatka, Florida.

APPEARANCES

For Petitioner: Matthew K. Foster, Esquire

Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett & Foster, P.A. 909 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Harrison D. Kane, pro se

301 Tobacco Road

Cullowhee, North Carolina 28723 STATEMENT OF THE ISSUE

The issue in this proceeding is whether Respondent’s educator's certificate should be disciplined.

PRELIMINARY STATEMENT

On May 9, 2002, the Department of Education (Department) filed an Administrative Complaint against Respondent, Harrison D. Kane. The Administrative Complaint alleged that Respondent’s license should be disciplined for alleged violations of Section 231.28, Florida Statutes, currently Section 1012.795, Florida Statutes, and Florida Administrative

Code Rule 6B-1.006, dealing with acts of gross immorality, loss of effectiveness as an employee of the school board and standards of professional conduct. Respondent disputed the allegations of the administrative complaint and timely requested a formal administrative hearing. The matter was assigned to the Division of Administrative Hearings.

At the hearing, Petitioner presented the testimony of five witnesses and offered 14 exhibits into evidence. The Petitioner also supplemented the record with the deposition testimony of witness Reita Hager. Respondent did not testify, but did present the testimony of four witnesses. Additionally, Respondent offered six exhibits into evidence.

After the hearing, Petitioner filed a Proposed Recommended Order on October 21, 2003. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. Respondent holds Florida Educator Certificate

   
   

   No. 807969 in Elementary Education and School Psychology. The certificate was valid through June 30, 2002.

2. During the 2000-2001 school year, Respondent was employed as a school psychologist with E. H. Miller School and Browning Pearce Elementary School in the Putnam County School District. The 2000-2001 school year was Respondent’s first year with the Putnam County School District. Respondent was new to the area and single and he was interested in meeting and dating women.

3. During the 2000-2001 school year, it was discovered that Respondent used school resources by scanning a bare-chested photograph of himself in a bathing suit into the library computer at the Browning-Pearce Elementary School. The evidence did not show that such use of school property interfered with any school function. Nor, did the evidence show that use of the scanner and the few bits of electricity it took to scan the photograph constituted any conversion of school property for personal gain. Indeed there was no evidence of personal gain. The photographs were not sexual in nature and did not show any activity or parts of the body which could reasonably be considered immoral. After the scan, the pictures remained on the school computer and were later discovered by a school

   employee. Unsworn statements by Petitioner at the hearing indicated that he did not intentionally leave the pictures on the library computer. Due to the photographs, the principal of Browning-Pearce Elementary requested that a different psychologist be assigned to Browning Pearce. However, there was no competent evidence to demonstrate that any child at the school saw the pictures or that any child in Florida, where water activities and bathing suits abound, would be harmed in any way by seeing a picture of a man in a bathing suit. The evidence did not demonstrate that Respondent violated any provisions of Chapter 1012 or Florida Administrative Code Rule 6B-1. The portions of the Administrative Complaint related thereto should be dismissed.

4. During his employment with the District, Respondent made some long-distance telephone calls on the school’s telephones. No competent evidence demonstrated the nature or the purpose of the phone calls. Unsworn statements by Respondent at the hearing indicated that the phone calls related to some research or scientific paper involving an educational subject that Respondent was involved in and that he felt that such work was related to and beneficial to his employment as a school psychologist. Respondent was counseled on the use of school telephones and reimbursed the district for the calls. The evidence did not demonstrate that Respondent intentionally

   used school property for personal gain or that he gained personally from the calls. Consequently, there was no violation of Chapter 1012 or Florida Administrative Code Rule 6B-1, and the portions of the Administrative Complaint related thereto should be dismissed.

5. In August 2000, Ms. Rita Hager, who was employed as a bookkeeper at E. H. Miller and had served as an employee of the school system for 26 years, made a generalized offer to meet socially with Respondent outside of work. Ms. Hager made such offers “with every new person that comes into town from out of town” in an attempt to welcome that person and make the new person feel comfortable. Additionally, Ms. Hager and Respondent exchanged e-mails which included Ms. Hager’s offer to meet socially with Respondent.

6. At some point, Respondent, during office banter, jokingly informed Ms. Hager and some other co-workers that he owned another business named something like "Buck Naked Chimney Sweep" or words of a similar nature. An employee named Karen created a joke business card for the fictional business. The card reflected the proprietor of the business as "Buck Naked." Ms. Hager and Karen gave the card to Respondent at Respondent's office. There was no evidence which demonstrated that this activity was anything more than co-workers joking with each

   other. However, such conduct may have led Respondent to feel that he could behave more freely and personally with Ms. Hager.

7. Later, Respondent contacted Ms. Hager and asked if they could meet in a local park to walk his dogs. Ms. Hager agreed. During their visit Respondent asked Ms. Hager if she wore underwear. Initially, Ms. Hager believed Respondent was joking, and replied that she did wear underwear. As their conversation progressed, Respondent continued to ask Ms. Hager a number of highly personal questions, including: 1) when was the last time she had sex; 2) whether she would engage in anal intercourse;

   3) whether she would engage in anal intercourse to please a partner; and 4) whether she shaved. Again, Ms. Hager thought Respondent was joking and responded to some of the questions. Eventually, she became “very offended” by Respondent’s questions, and informed him that the information was “none of his business.” The evidence did not show that Petitioner continued to ask such questions after Ms. Hager showed her disapproval. During the conversation, Ms. Hager's questions to Respondent revolved around Respondent’s family, his previous employment in Las Vegas and "things he was interested in." After they had walked the dogs in the park, Ms Hager and Respondent returned to her home and ate pizza. He then left and went to his home. The evidence did not demonstrate that this

   meeting involved either person’s employment with the school district.

8. As a result of the nature of the questions asked by Respondent, Ms. Hager no longer wished to socialize with Respondent. She avoided further social contact with him. Respondent did not pursue any further social contact with Ms. Hager. There was no evidence that these events

   significantly interfered with Respondent's working relationship with Ms. Hager. The evidence did not demonstrate that Respondent acted in a grossly immoral manner with Ms. Hager, engaged in conduct which constituted sexual harassment or otherwise violated Chapter 231. The questions occurred in a purely social context between two adults, unrelated to work or Respondent’s professional duties. The nature or duration of the questions were not so offensive or pervasive as to amount to sexual harassment or a violation of Respondent’s professional duties.

9. On December 8, 2000, Respondent was introduced to Ginger Jordan, and ESE teacher with eight years experience. She was employed at James A. Long Elementary School. Respondent was not assigned to the Long Elementary School. Ms. Jordan and Respondent were introduced to each other by Julie Porch, a friend of Ms. Jordan’s who thought that Respondent and

   Ms. Jordan might want to get to know one another as friends.

   The first meeting between Ms. Jordan and Respondent took place in Ms. Jordan’s classroom during her “circle time” with her students. During their initial meeting, Ms. Jordan did nothing to indicate that she might be romantically interested in the Respondent. However, she was polite and friendly to Respondent. Also on December 8, 2000, after Ms. Porch introduced Respondent to Ms. Jordan, Respondent walked with Ms. Porch to the parking lot and asked if Ms. Jordan was dating anyone. Ms. Porch informed Respondent that Ms. Porch was dating someone “off and on.” In response, Respondent stated that he had been in the army and could kill people with his thumbs. Although Ms. Porch initially believed Respondent was joking, Respondent continued to state that he was serious and that he knew various techniques that could be used to kill another person.

10. After school on December 8, 2000, Ms. Jordan encountered Respondent standing outside her car as she arrived at her local bank. Respondent started a conversation with Ms. Jordan, and stated that it “must be fate seeing her here like this.” Since Palatka is a very small town, there was nothing in the evidence which demonstrated Respondent was stalking Ms. Jordan. Respondent asked for her phone number; Ms. Jordan declined to give her phone number. She informed Respondent that she was not ready to date. During this

    conversation, Respondent made a second request for Ms. Jordan’s

    telephone number. Ms. Jordan again declined to give her telephone number. Ms. Jordan indicated that she would be willing to get to know Respondent as friends and that they could exchange e-mails. Thereafter, Ms. Jordan and Respondent began to exchange e-mails.

11. During late December 2000 and early January 2001, Respondent sent Ms. Jordan numerous e-mails that Ms. Jordan described as “very long” and “very personal.” However, the evidence did not show that the content of the e-mails was immoral or grossly immoral. Indeed, very few of the e-mails were introduced into evidence and those that were did not demonstrate immorality or unprofessionalism.

12. Ms. Jordan next encountered Respondent during a New Year’s Eve party at the residence of her principal, Werner Hollaway. During the party, Respondent again requested that Ms. Jordan give him her telephone number. Ms. Jordan again declined to give her telephone number. Ms. Jordan also refused Respondent’s offer to cook dinner and again informed him that she only wished to correspond through e-mail as friends.

13. Notwithstanding Ms. Jordan’s numerous statements that she did not wish to date Respondent, later that evening Respondent sent Ms. Jordan a romantically oriented e-mail that read as follows:

    I just got home . . . my dogs are running amok . . . and did you know that I drove right past my home, thinking of you . . . I wasn’t quite ready to say goodnight to you, but I know there is always time . . . but this short note gives me just a moment more with you, and I like that.

    
    

14. Respondent telephoned Ms. Jordan at her residence on January 2, 2001. Ms. Jordan was surprised by the call, and asked the Respondent twice where he obtained her telephone number, which was listed in the telephone book. Each time, the Respondent would not specifically tell her where he obtained the number, stating only that it was provided “through a friend.” Not wanting to “hurt somebody’s feelings,” Ms. Jordan chose not to terminate the call and conversed with Respondent more than 45 minutes. During their conversation, Respondent repeatedly asked Ms. Jordan where she lived. Ms. Jordan responded by stating that she was not comfortable revealing that information. Respondent again attempted to convince her to reveal her address, stating in a tone of voice Ms. Jordan described as “sexy” and “seductive,” that he had some “special naked cookies” that he wanted to bring her. Ms. Jordan asked Respondent if he referred to the cookies as “naked” because they did not contain any chips. Respondent replied by stating, “No, that’s not why

    . . . I’ll tell you one day, but I want you to taste them . . . I’ll let you know one day why I call them that.” Respondent continued to want to give the cookies to Ms. Jordan.

    Exasperated, Ms. Jordan informed Respondent that if he wanted her to have the cookies, he could send them through her friend, Julie Porch.

15. Prior to Ms. Jordan’s ending the call, Respondent informed her “out of the blue” that he did not wear underwear. When Ms. Jordan replied that she did not care, Respondent stated in a suggestive voice, “Yes you do . . . I know that you were wondering if I wear underwear or not.” At no point during this conversation did Ms. Jordan make any statement that would lead Respondent to believe that she was romantically interested in him. It was clear that Respondent wished to be romantically involved with Ms. Jordan and was attempting, in a remarkably inept manner, to get Ms. Jordan to agree to such a relationship. However, Respondent’s conduct was harassing after so many rebuffs by Ms. Jordan.

16. The next day, on January 3, 2001, Respondent arrived at Ms. Jordan’s school at approximately 11:30 a.m. Respondent had no official business at the school, and his visit was for the sole purpose of developing a romantic relationship with

    Ms. Jordan. Respondent brought Ms. Jordan a picnic basket that contained a quiche, a rose, a candle, a stuffed frog, “naked cookies,” and a capsule containing a note which read “tea or me.” Respondent personally delivered the basket to Ms. Jordan in her classroom in front of her students. After handing the

    basket to Ms. Jordan, Respondent took out a bag of cookies and stated here are my “special naked cookies.” Respondent held one of the cookies close to Ms. Jordan’s face while repeatedly asking her to try one. Ms. Jordan refused to eat the cookies due to the fact that she was “afraid of what might be in them.” Prior to leaving the classroom, Respondent again made repeated requests for Ms. Jordan’s address so he could pick up the basket and dishes. Ms. Jordan refused to provide her address to the Respondent and told him that she would return the dishes through Julie Porch.

17. That evening, while Ms. Jordan was away from her residence, Respondent telephoned her home at least one time and left a message on Ms. Jordan’s answering machine asking her in a “sexy voice” if she enjoyed the cookies. Ms. Jordan did not return Respondent’s call.

18. Despite Ms. Jordan’s repeatedly informing Respondent that she did not wish to date him, Respondent continued to

    e-mail Ms. Jordan numerous messages of a romantic nature. The evidence was not clear if Ms. Jordan answered Respondent’s

    e-mails.

    
    

19. On January 4, 2001, Respondent returned to

    
    

    Ms. Jordan’s school approximately fifteen minutes before the end of the school day. Although Respondent was not assigned to that school and did not evaluate any students on the campus,

    Respondent walked into Ms. Jordan’s classroom (while students were present) and handed her several pictures, one of which was a photograph of the Respondent sitting on a lounge chair with no shirt. Respondent explained to Ms. Jordan that he wanted her to have the pictures so she could think of him when he was not around. Respondent’s conduct was both sexually harassing and unprofessional towards a colleague.

20. After handing Ms. Jordan the pictures, Respondent sat down and set up his notebook computer. Given that Ms. Jordan had never invited Respondent to her classroom or in any manner indicated that a visit would be appropriate, Ms. Jordan thought that Respondent’s behavior was strange. Not wanting to confront Respondent in front of her students, she simply told Respondent that she was leaving in eight minutes. Several minutes later, apparently after all of the students had been dismissed from the classroom, Respondent asked Ms. Jordan if she enjoyed the “special naked cookies.” Ms. Jordan again asked Respondent why he referred to the cookies as naked cookies. Respondent did not answer, and just looked at Ms. Jordan with a grin and a “sexy, sexual look on his face.” Based on Respondent’s suggestive faces, Ms. Jordan asked if the cookies were referred to as “naked” because Respondent was not wearing clothes when he made them. At that point, Respondent replied “yes,” and stood up and tugged on the snap on his pants, stating, “Would you like to see

    the scars from the burns?” Again Respondent’s conduct was sexually harassing and unprofessional towards Ms. Jordan.

21. Later during this conversation, Ms. Jordan confronted Respondent about his telephone calls to her residence against her wishes. Respondent replied by stating that he was not satisfied with the frequency or timing of her e-mails, so he decided to call her anyway. Respondent and Ms. Jordan thereafter engaged in an argument over Respondent’s use of “psychological games” on her, which culminated in Ms. Jordan’s indicating that it was time for him to leave. Respondent did not leave the classroom and instead sat down with a “scowl on his face.” Eventually, Ms. Jordan’s assistant, who had overheard the exchange and was worried about Ms. Jordan's safety, pretended that she had misplaced her keys and asked

    Ms. Jordan for a ride home.

    
    

22. Ms. Jordan next saw Respondent at a local restaurant several weeks later. For reasons unknown to Ms. Jordan, Respondent paced back and forth outside the restaurant in front of the doors. Respondent’s conduct made Ms. Jordan feel “sick to [her] stomach” and “afraid.” She tried to hide from him. However, it was unclear if Respondent knew Ms. Jordan was in the restaurant.

23. Several days later, on January 14, 2001, Ms. Jordan arrived at church to find Respondent sitting next to her family

    on her family's usual pew. Ms. Jordan had earlier told Respondent about her church and the pew her family always sat on. Respondent’s presence at Ms. Jordan’s church was odd since, as Respondent lived approximately 45 minutes away in a different city and had never previously attended Ms. Jordan’s church.

    Respondent did not speak to Ms. Jordan, but “leaned up on the pew so [Ms. Jordan] could see that he was there” and then sat back.

24. During this period of time, Respondent was allegedly spotted driving up and down Ms. Jordan’s street in a rental car, although there was no credible evidence that Respondent did drive down Respondent’s street.

25. As a result of Respondent’s behavior discussed above, as well as other conduct of which Ms. Jordan was aware because of the gossip about Respondent among the women working in and around the special education office, Ms. Jordan was extremely frightened of Respondent. In fact, Ms. Jordan was so fearful that she slept with a baseball bat on a mattress near the front door of her residence. Ms. Jordan’s fear also prompted her to ask friends and family to spend the night at her home. Much of her fear seemed to be caused by the incident at school on January 4, 2001, the attendance of Respondent at her church, in combination with the rumors of Respondent’s driving up and down

    her street and the gossip among women co-workers of “things” Respondent had done.

26. Ms. Jordan’s fear of Respondent also caused her and her teaching assistant to no longer take their students to the school playground. Ms. Jordan was admittedly a “nervous wreck” at work which adversely affected her performance for weeks. Clearly Respondent’s behavior was having an adverse impact on the work environment and violated Chapter 1012 and Rule 6B-1.

27. During the 2000-2001 school year, Respondent also engaged in harassing behavior toward other Putnam County School District employees, including Julie Porch, who has been employed with the district as an occupational therapist for six years.

28. Ms. Porch was leery of Respondent since his comments about being trained to kill people in early December 2000. During the Christmas Break in late December 2000, Respondent appeared unannounced in Ms. Porch’s office. Respondent stated that he was shopping for a house and asked Ms. Porch where she lived. She told Respondent where she resided.

29. The next week, Respondent again showed up unannounced at Ms. Porch’s office. By this time, Ms. Porch had spoken with Ms. Jordan and was aware that Respondent was making Ms. Jordan “very uncomfortable . . . and completely freaked out.” During this visit, Respondent told Ms. Porch that he was interested in purchasing a home approximately one block away from her

    residence. Although Respondent’s announcement was not alarming or threatening, Ms. Porch was alarmed because of what she had been told about Respondent’s conduct with Ms. Jordan; she attempted to discourage Respondent by telling him that she lived in a bad neighborhood.

30. During the week of January 8, 2001, Respondent attempted to speak with Ms. Porch at her office on three occasions. On the third instance, because the gossip about Respondent was circulating, Respondent followed Ms. Porch out of her office and attempted to apologize for his behavior with respect to Ms. Jordan. Ms. Porch was frightened by Respondent, and stated that she did not wish to discuss the issue with him. Respondent then abruptly changed the subject, and stated in a “spooky,” “sexual” voice that he had “driven by [her] house again last night” and that he thought the inside of the house looked “cozy.” Respondent then informed her in a “sexual, freakish” tone of voice that he was seeking to purchase a different house in her neighborhood that was only two houses down from where she lived. This frightened Ms. Porch, and she tried to walk away. Respondent then cut in front of Ms. Porch and blocked her path. At that point, Respondent again inquired if Ms. Jordan was dating anyone, and reminded Ms. Porch in an angry tone that he could kill people with his thumbs. Respondent’s conduct was unprofessional towards Ms. Porch.

31. Respondent also repeatedly informed Ms. Porch’s mother, with whom he shared an office, that he was driving by her daughter’s residence.

32. Following this conversation, Respondent again attempted to speak with Ms. Porch while she was alone in her office. By this time, due to her fear of Respondent, Ms. Porch hid and did not answer the door.

33. As a result of Respondent’s behavior, Ms. Porch’s principal forbade her from working at school alone. Ms. Porch’s principal also required her to keep a separate sign out log to prevent Respondent from learning her whereabouts during the school day. Clearly, Respondent’s conduct had an impact at work.

34. In January 2001, on the same day in which Respondent appeared at Ms. Jordan’s church, Respondent also was rumored to have attempted to visit Ms. Porch’s church.

35. Ms. Porch was “extremely frightened” of Respondent.

    
    

    Her fear was heightened by her knowledge of Respondent’s behavior toward Ginger Jordan and Rita Hager.

36. Respondent also behaved unprofessionally and inappropriately towards Pat McLaughlin, the lead school psychologist for the Putnam County School District. Respondent offered to rent several movies starring “Divine,” a transvestite actor, and bring them to Ms. McLaughlin’s home. Ms. McLaughlin

    refused, and the next day she received an e-mail postcard of “Divine” pointing a gun in the direction of the viewer from Respondent. There was no evidence to suggest that the e-mail was meant as a threatening gesture.

37. A short time later, Ms. McLaughlin was eating lunch in the office Respondent shared with several of Ms. McLaughlin’s friends. At one point, Respondent and Ms. McLaughlin were left in the room alone when Respondent stated that he loved the song he was playing on his computer. Ms. McLaughlin said that she could not hear or recognize the song, at which point Respondent increased the volume and began to sing the lyrics, “Stick it up your big fat ass.” While singing the lyrics, Respondent was smiling and made direct eye contact with Ms. McLaughlin. Respondent’s behavior was intended as a rebuke for her decline of Respondent’s offer to socialize. Respondent’s conduct involving the song was clearly unprofessional towards

    Ms. McLaughlin.

    
    

38. Sometime in January 2001, Respondent met with

    
    

    Ms. McLaughlin to tell her “his side of the story” concerning the situation with Ginger Jordan. During the meeting,

    Ms. McLaughlin indicated to Respondent that has employment might be in jeopardy. At the conclusion of their meeting, Respondent remarked that if the school district took a “slash and burn” attitude toward him, then he would do the same.

39. The next day, Respondent brought Ms. McLaughlin an article entitled “Why ignore the g factor? – Historical Considerations,” which Respondent co-authored with Christopher Brand, a controversial psychologist whom Respondent described as “his hero.” Respondent was very excited about the article and extremely eager for Ms. McLaughlin to read it. Respondent was identified in the article as an employee of the Putnam County School District. Publishing such articles was not a requirement of Respondent’s employment with the District. However, such publication was related to Respondent’s field of psychology and therefore arguably related to his employment.

40. The article is purportedly a scholarly work discussing the g factor, one of the measures of general intelligence and the issue of why certain racial and ethnic groups have statistically lower g factor scores than their Caucasian counterpart. The article argues that the g factor should not be ignored simply because it is not considered politically correct to consider differences in intelligence based on racial and ethnic criteria. The existence of the g factor gap has not been scientifically explained and there are many theories about why the gap exists. The article critiques various theories and reasons given by educators and psychologists to ignore the g factor. Indeed, in its critique the article is quite racist and contains a number of troubling themes, including: 1) African-

    Americans are intellectually inferior to Caucasians due to genetic weaknesses that cannot be remedied through educational and social interventions; 2) Caucasian males are being subjected to “witch hunts” as “stalkers” and “harassers,” thereby ridding the workplace of men and replacing them with women and “token Black people;” and 3) subtle references to the acceptability of pedophilia. The article strays from a scientific critique of various theories and becomes a diatribe against virtually every ethnic, racial, or gender group other than Caucasians.

41. The following are just two excerpts that demonstrate tone and themes of the article:

    Presently the breakdown of marriage in the West is promising a much reduced white population which will come increasingly from the least responsible parents. Rather than blunder into such an Afro-Caribbean future, it is time to admit the realities of human g differences.

    
    

    * * *

    
    

    Today, as the West has learned the folly of communism and seen the collapse of most of the regimes that ever adopted it, left-wing politicians have no longer been able to offer economic policies of state control, high taxation, welfare extravagance and serious redistribution of wealth. Instead, a busy new method of rectifying ‘disadvantage’ has been found: the neosocialists of modern America and Britain have offered to minorities - whom they encourage to immigrate - not hard cash but all the perquisites of ‘affirmative action.’ Such ‘positive’ discrimination against healthy and heterosexual males of European

    descent gives minorities degrees and jobs regardless of merit, and a working environment that is ‘safe’ from the many forms of harassment and prejudice from which they are deemed to suffer. Formal and informal witch-hunting of ‘harassers’, ‘stalkers’, ‘pedophiles’, ‘date rapists’, ‘homophobes’, ‘lookists’, and ‘racists’ rids the workplace of men and provides jobs for women and a few token Black people who, if poorly qualified, must be carried as passengers by firms in what is essentially a novel form of taxation. (emphasis added).

    
    

42. When Ms. McLaughlin read the article, she was “upset” and “horrified,” by the tone and themes of the article and , particularly upset with the article’s allusion to the acceptability of pedophilia. Concerned with the reference to pedophilia, Ms. McLaughlin examined the Internet site of the article’s co-author (and Respondent’s professed “hero”), Christopher Brand. The content of the Internet site attempted to advance Mr. Brand’s view that pedophilia is acceptable and a good learning experience if the child is 12 years of age and no coercion or force is involved.

43. “Shocked” and “flabbergasted,” Ms. McLaughlin confronted Respondent about the content of the article. Respondent defended the positions advanced in the article.

44. Not surprisingly, Respondent’s article was brought to the attention of Ms. Janet Cavouti, the Director of the ESE program with over 30 year’s experience as an educator.

    Ms. Cavouti likewise found the article “distasteful” and was “outraged” by its content.

45. Based on Respondent’s view that African-Americans are intellectually inferior to Caucasians due to genetic deficiencies, Ms. Cavouti and Ms. McLaughlin were concerned about the legitimacy of the numerous intelligence and other psychological tests administered to students by Respondent. These tests contain many subjective components. Since African- American students account for approximately 40 per cent of the students in the district, Ms. McLaughlin took the remedial action of retesting some students, as well as examining the results of every test Respondent had previously administered. Upon examining the tests administered by Respondent,

    Ms. McLaughlin discovered protocol errors which were related to pre-test practice. She was “very uncomfortable with what was not done.” However, there was no evidence that any protocol was improperly ignored or that Respondent had done anything to cause erroneous test results. Indeed, until the article surfaced, Respondent’s testing results were so good that others wished to emulate his methods. No evidence showed that Respondent’s views interfered or lessened his effectiveness as a school psychologist. Given these facts and this one expression of a minority viewpoint, Respondent has not violated Chapter 1012 or Rule 6B-1 by circulating the article referenced above. Indeed,

    the fact that the no erroneous test results were discovered demonstrates that Respondent did not let his personal views affect his work as a school psychologist.

46. Following the incidents discussed above, Ms. Cavouti met with Respondent and informed him that she could not give him a recommendation to another school system.

47. Respondent resigned his position with the Putnam County School District on March 14, 2001 and is currently employed in an out-of-state school system.

48. There was no evidence that Respondent has been disciplined in the past.

    CONCLUSIONS OF LAW

    
    

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

50. Because Respondent’s teaching certificate is at risk, Petitioner bears the burden of proving the allegations in the administrative complaint by clear and convincing evidence. See

    Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

51. Section 1012.795, Florida Statutes, provides in pertinent part:

    1. The Education Practices Commission may suspend the educator certificate of any person as defined in Section 1012.01(2) or

       (3) 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); may revoke the educator 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); may revoke permanently the educator certificate of any person; . . . or may impose any other penalty provided by law, provided it can be shown that such person:

       
       

       * * *

       
       

       (c) has been guilty of gross immorality or an act involving moral turpitude . . . .

       
       

       * * *

       
       

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

       
       

       * * *

       
       

       (i) has violated the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education rules . . . .

       
       

52. Florida Administrative Code Rule 6B-1.006(5)(d), requires that an educator not engage in harassment or discriminatory conduct which unreasonably interferes with an individual’s performance of professional or work responsibilities, with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment.

53. Florida Administrative Code Rule 6B-1.006(4)(c), requires that an educator not use institutional privileges for personal gain or advantage.

54. It has been held by the courts that, “The moral standard to be upheld by teachers is different from that of other professionals . . . teachers are charged with providing leadership and maintaining effectiveness as teachers. Acts which may be morally permissible in some quarters may be considered immoral when committed by a teacher.”

    Castor v. Cannon, DOAH Case No. 87-1592 (October 7, 1987). However, the higher moral standard applied to educators has only been applied where a student was the subject of a teacher's inappropriate conduct or where the conduct has been notoriously public. In this case, the alleged inappropriate conduct was directed toward adult female peers who have the capacity and maturity to defend themselves against unwanted advances and set their personal feelings aside in order to continue to work with the person who made such unwanted advances. Given this distinction, there is no reason to apply a higher moral standard to the peer-to-peer relationships between educators. Moreover, even if a higher standard is applied, Respondent's conduct would not be so serious as to constitute grossly immoral conduct.

55. Section 1012, Florida Statutes, fails to define “gross immorality” or “moral turpitude.” Courts asked to apply “gross

    immorality” as a standard to particular types of conduct have held that “gross immorality” is immorality which involves and act or conduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards. See Brogan v. Rito, 1995 WL 1053 (Fla. Div. Admin.

    Hrgs. 1995).

    
    

56. The evidence did not show that Respondent committed acts that constitute a flagrant disregard of proper moral standards. His conduct was certainly offensive, but did not rise to the level of gross immorality when directed against adult peers. However, Respondent’s conduct was both harassing and unprofessional towards those peers. That conduct included:

    1) repeatedly attempting to pressure Ginger Jordan into a romantic relationship; 2) repeatedly informing Julie Porch that he could kill Ginger Jordan’s boyfriend with his thumbs;

    1. advising Ms. Porch that he knew where she lived and drove by her house in a threatening manner leaving the impression that Respondent would do something malicious to Ms. Porch; and

    2. retaliating against Ms. McLaughlin after she turned him down for a movie by singing offensive lyrics to her at work. These actions pervaded and adversely impacted the work place and violated Section 1012.795(l)(i) and Rule 6B-1.006(5)(d).

57. Additionally, there is clear and convincing evidence demonstrating that Respondent’s conduct seriously reduced his

    effectiveness as a school employee, in violation of Section 1012.795(1)(f), Florida Statutes. As discussed earlier, Respondent’s conduct with respect to Ginger Jordan, Ms.

    McLaughlin and Julie Porch resulted in the repulsion and fearfulness of his colleagues and their understandable unwillingness to work with him. Finally, the evidence demonstrated that Respondent’s effectiveness was impaired to the point that he resigned his position with the district.

58. The evidence was neither clear nor convincing that Respondent violated Rule 6B-1.006(4)(c), involving the use of a teacher’s position for personal gain. The evidence did not show that Respondent gained anything by scanning personal photographs at school or by using school telephones to make long-distance phone calls that were not clearly of a personal nature. Therefore, the portions of the Administrative Complaint related to Rule 6B-1.006(4)(c) should be dismissed.

59. Since Respondent is guilty of violating Chapter 1012 and Rule 6B-1 he is subject to discipline by Petitioner. In this case, the evidence did not show that Respondent had been disciplined in the past. Since this is Respondent's first violation his conduct does not warrant revocation. On the other hand, Respondent conduct is serious enough that a reprimand would likewise be inappropriate. Therefore, suspension of

Respondent's certificate with appropriate educational requirements should be imposed.

RECOMMENDATION

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

RECOMMENDED:

That the Education Practices Commission enter a final order finding Respondent guilty of violating Section 1012.795(1)(f) and (i), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(3)(a), (e), and (h), for which the Respondent’s educator’s certificate should be revoked for one year and requiring that Respondent, prior to any reinstatement, attend and complete courses approved by the Board in professionalism, sexual harassment, and diversity training.

DONE AND ENTERED this 2nd day of January, 2004, in Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 2004.

COPIES FURNISHED:

Matthew K. Foster, Esquire

Brooks, Leboef, Bennett & Foster, P.A. 863 East Park Avenue

Tallahassee, Florida 32301

Harrison D. Kane

301 Tobacco Road

Cullowhee, North Carolina 28723

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

325 West Gaines Street, Room 224E Tallahassee, Florida 32399

Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education

325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400

Daniel J. Woodring, General Counsel Department of Education

1244 Turlington Building

325 West Gaines Street 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: 02-003131PL

Orders for Case No: 02-003131PL