STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHARLIE CRIST, AS COMMISSIONER ) OF EDUCATION, )
)
Petitioner, )
)
vs. )
)
KERRY L. WEST, )
)
Respondent. )
Case No. 03-0914PL
)
RECOMMENDED ORDER
A formal hearing was conducted in this case on June 3-4 and 23, 2003, in Bunnell, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Matthew K. Foster, Esquire
Edward T. Bauer, Esquire Brooks, Leboef, Bennett
& Foster, P.A.
863 East Park Avenue Tallahassee, Florida 32301
For Respondent: Mary F. Aspros, Esquire
Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302
STATEMENT OF THE ISSUES
The issues are whether Respondent violated Section 231.2615, Florida Statutes (2000), and Rule 6B-1.006, Florida Administrative Code, and if so, what penalty should be imposed.
PRELIMINARY STATEMENT
On or about July 30, 2002, Charlie Crist, as Commissioner of Education (Petitioner), filed an Administrative Complaint against Kerry L. West (Respondent). The complaint alleged that Respondent had violated Sections 231.2615(1)(c) and 231.2615(1)(f), Florida Statutes (2000), and Rules 6B- 1.006(3)(a), 6B-1.006(3)(e), and 6B-1.006(3)(h), Florida
Administrative Code.
Specifically, the complaint alleged that Respondent engaged in an inappropriate sexual relationship with her student, J.E. The complaint also alleged that Respondent had harassed J.E. by sending him electronic mail, gifts, and love letters, and by repeatedly visiting J.E. at his place of employment.
On or about August 28, 2002, Respondent advised Petitioner that she disputed all material allegations in the Administrative Complaint but requested a 45-day period of time in which to attempt a settlement. Respondent requested a formal hearing in the event that the parties could not reach a settlement agreement. Petitioner referred Respondent's request to the Education Practices Commission (EPC) on August 29, 2002.
On or about February 11, 2003, Petitioner advised EPC that settlement negotiations between the parties had failed.
Petitioner requested EPC to refer the case to the Division of Administrative Hearings for a formal hearing. EPC complied with this request, referring the case to the Division of Administrative Hearings on March 17, 2003.
The parties filed a Joint Response to Initial Order on March 20, 2003.
On May 23, 2003, Petitioner filed an Unopposed Motion for Leave to Amend Administrative Complaint. The amended complaint added allegations that Respondent had accompanied J.E. to a park where she placed her hand on his leg and held his hand. The amended complaint also alleged that Respondent had contacted J.E.'s mother to request permission for J.E. to spend the night at Respondent's residence.
Administrative Law Judge Charles C. Adams issued a Notice of Hearing dated March 26, 2003. The notice scheduled the case for hearing on June 3-6, 2003.
On May 28, 2003, Judge Adams issued an Order granting Petitioner's Unopposed Motion for Leave to Amend Administrative Complaint.
On May 30, 2003, Respondent filed a Motion for Clarification of Legal Issue. After hearing oral argument, Judge Adams issued an Order dated May 30, 2003. In the Order,
Judge Adams ruled that Respondent, as a person accused in a penal matter, was within her rights to refuse to answer substantive questions concerning the case at deposition while preserving her right to testify at hearing in her defense.
Judge Adams also ruled that if Respondent elected to testify at hearing, Petitioner would be given an adequate opportunity to refute that testimony through rebuttal.
Prior to the commencement of the hearing, the Division of Administrative Hearings transferred the case to the undersigned.
During the hearing, Petitioner presented the testimony of eight witnesses, including the testimony of Francis Abramczyk by deposition in lieu of live testimony, identified in the record as Exhibit No. P1. Petitioner offered seven exhibits, identified in the record as Exhibit Nos. P2-P8, which were admitted into evidence.
Respondent testified on her own behalf and presented the testimony of two additional witnesses, including the testimony of Kevin Baltzley by deposition in lieu of live testimony, identified in the record as Exhibit No. R1. Respondent offered six exhibits, Exhibit Nos. R2-R7. The undersigned admitted into evidence Exhibit Nos. R2, R3, R5, and R6 on the record at the hearing. Exhibit No. R7 was excluded on the record during the hearing. The undersigned reserved ruling on Exhibit No. R4, which hereby is excluded as improper impeachment.
On June 18, 2003, the court reporter filed excerpts of the June 4, 2003, hearing procedures. The entire transcript for the June 3-4, 2003, hearing procedures was filed on June 23, 2003.
The transcript for the June 23, 2003, hearing procedures was filed on July 11, 2003.
On July 14, 2003, Petitioner filed an Unopposed Motion to Enlarge Time for Filing Proposed Recommended Order. The motion was granted in an Order dated July 16, 2003.
The parties filed their proposed recommended orders on August 11, 2003.
All citations are to Florida Statutes (2002) unless otherwise indicated.
FINDINGS OF FACT
Respondent holds Florida Educator Certificate No.
711503, covering the areas of elementary education, varying exceptionalities, and pre-kindergarten handicapped.
Respondent's certificate was valid at all times material to this proceeding.
Respondent began teaching in 1995. There have been no complaints against Respondent prior to the allegations in this case. Over the years, Respondent has attempted to help students over and beyond her classroom duties. On at least two occasions, she temporarily has taken students into her home in time of need.
Flagler County School Board employed Respondent as an exceptional student education (ESE) teacher at Flagler Palm Coast High School (FPC) in the Flagler County School District during the 2000-2001 school year. That school term was her first year on the faculty at FPC.
J.E. was a 17 year-old male student who attended FPC during the 2000-2001 school year. J.E. was classified as an 11th-grade ESE student because he suffered from attention deficit disorder.
J.E. also worked as a part-time firefighter with the Flagler Beach Fire Department. J.E.'s employment as a firefighter was sponsored by the Boy Scouts of America Explorer Program.
At some point during the month of October 2000, J.E. transferred into Respondent's math class. Initially, J.E. was unable to make a passing grade in math due to his learning disability. J.E.'s academic problems were aggravated by several in-school and out-of-school disciplinary suspensions, which caused him to miss class.
Toward the end of November or the beginning of December 2000, J.E. was arrested for fighting with his sister. He was in the custody of the juvenile authorities for several days before being placed on juvenile home detention.
When J.E. returned to school, Respondent contacted J.E.'s mother, D.B. Respondent requested permission to tutor
J.E. after school to help him make up missed assignments. After receiving the approval of the juvenile authority staff, D.B. agreed that Respondent could tutor J.E.
Respondent and D.B. agreed that, after each tutoring session, Respondent would transport J.E. to the place where D.B. was employed. Respondent then informed the assistant principal that she would be assisting J.E. after school in her classroom.
The tutoring sessions began on December 12, 2000, and lasted for almost two weeks. The sessions terminated when FPC recessed for the holidays.
During the tutoring sessions, Respondent and J.E. spent time working on J.E.'s math assignments. However, as time passed, they progressively spent more time discussing personal issues. These conversations included discussions regarding J.E.'s problems and history of abuse, as well as the physical abuse that Respondent experienced during her marriage to her
ex-husband. Respondent revealed that she had been molested as a child, a fact that Respondent had shared only with her long-term boyfriend, her sister, and her closest friends. Respondent told
J.E. about her two children and her relationship with her boyfriend. At times, Respondent spoke negatively about her boyfriend, referring to him as an "asshole."
Respondent and J.E.'s student-teacher relationship became more personal as they spent more time together. J.E. began visiting Respondent during her planning period, during which they would discuss personal issues. Occasionally, J.E. would visit Respondent during her science class even though he was scheduled to be in another class. The personal conversations continued during the time that J.E. waited in Respondent's car for his mother at the school bus compound, sometimes for 20 to 30 minutes.
Prior to one tutoring session, Respondent allowed J.E. to ride with her to a fast-food restaurant. She then took J.E. by the fire station before returning to the school. Respondent did not have anyone's permission to transport J.E. off campus.
Sometime before the holiday break, J.E. told Respondent that he liked the music of a certain rap artist. The last day of school before the holiday break, Respondent gave
J.E. a gift bag containing a compact disk (CD) of the artist's music. The gift bags that Respondent presented to other students contained only cookies and trinkets.
On the afternoon of December 27 or 28, 2000, J.E. invited Respondent to visit the fire station with her children, a 9-year-old son and an 11-year-old daughter. Respondent and her children spent approximately one hour at the station while
J.E. showed them the facility and firefighting equipment.
Next, J.E. told Assistant Fire Chief Shane Wood (Chief Wood), that he was going to a nearby park with Respondent and her children. He advised Chief Wood that he would return to the station if it received a call.
J.E. rode to the park in Respondent's vehicle.
Francis Abramczyk, another student firefighter and J.E.'s friend, rode a bike to the park at J.E.'s request. When the group arrived at the park, Respondent asked Mr. Abramczyk to watch her children so she and J.E. could talk in a nearby gazebo.
About 45 minutes after Respondent and J.E. left to go to the park, Chief Wood got off from work. Chief Wood then rode his motorcycle to his parent's house near the park. Chief Wood visited his parents for 10-15 minutes before riding his motorcycle to the park where he spoke briefly to J.E.
Respondent and J.E. were sitting in the gazebo when Chief Wood came by on his motorcycle
Once in the gazebo, Respondent and J.E. spent at least
30 minutes talking about Respondent's recent trip to North Carolina, among other things. During this time, Respondent and
J.E. sat side-by-side. At one point in time, Mr. Abramczyk saw Respondent's hand resting on J.E.'s hand, which was resting on his leg. Respondent jerked her hand back when she made eye
contact with Mr. Abramczyk, who was retrieving a ball from the far side of the gazebo.
While sitting in the gazebo, Respondent asked J.E. if he was willing to baby-sit for her that evening while she went out with a girlfriend. Respondent told J.E. that she would not be returning home until late and suggested that he spend the night at her residence. J.E. did not think his mother would approve of Respondent's suggestion.
In the meantime, Mr. Abramczyk decided to walk to a nearby store to get some ice cream. Respondent's son tagged along with Mr. Abramczyk. When Mr. Abramczyk returned to the park, Respondent and J.E. were sitting in Respondent's vehicle.
While J.E. was sitting in Respondent's vehicle, two or three girls came to the park in a car. One of the girls was J.E.'s former girlfriend. At first J.E. did not want the girls to see him, but eventually he got out of Respondent's vehicle and talked to Mr. Abramczyk and the girls. During this conversation, J.E. was teased about hanging out with his teacher. Mr. Abramczyk rode the bike back to the fire station after this conversation.
At approximately 5:00 p.m., J.E., Respondent, and Respondent's children went back to the fire station. J.E. then called his mother to ask permission to baby-sit for Respondent.
D.B. told him that he could baby-sit.
In a later conversation between Respondent and D.B., Respondent stated that she would not be home that evening until approximately 2:00 a.m. Respondent asked D.B. if J.E. could spend the night at her residence. D.B. responded negatively, telling Respondent to take J.E. home or to the fire station where there was adult supervision at all times.
After leaving the fire station, J.E. rode with Respondent and her children to a convenience store where Respondent purchased soft drinks and snacks for her children. She also purchased several wine coolers for herself.
At approximately 6:00 p.m., Respondent, her children, and J.E. arrived at Respondent's residence. J.E. changed out of his work uniform before walking to a nearby beach with Respondent and her children. The children played on the beach and in the clubhouse area while Respondent talked to J.E. During this time, Respondent consumed one of her wine coolers. J.E., Respondent, and her children returned to Respondent's home after spending about an hour at the beach.
Next, Respondent prepared dinner for J.E. and her children. She then got dressed to go out while J.E. played video games with the kids in the living room. The evidence is not clear and convincing that Respondent walked out of her bedroom into the living room wearing only a skirt and bra during this time.
Between 8:00 and 9:00 p.m. Respondent left her residence to meet her girlfriend, taking her wine coolers with her. The girlfriend was not at home, so after waiting for a while, Respondent returned to her home between 9:30 and 10:30
p.m. The evidence is not clear and convincing that Respondent was heavily intoxicated when she returned.
Respondent's long-term boyfriend was spending time that evening with one of his male friends. The boyfriend usually stayed with Respondent but decided that evening to stay at his separate residence in St. Augustine, Florida, because he had consumed some beer and did not want to risk driving back to Respondent's residence. However, Respondent did not know that the boyfriend would not come to her house later that evening.
When Respondent returned to her residence, her children were asleep and J.E. did not want to go home. Without checking with J.E.'s mother, Respondent decided to let J.E. stay. J.E. listened to music in Respondent's bedroom while she straightened up the house and did the laundry. Respondent took time to talk to J.E. and to listen to some music with him.
Sometime during the evening, Respondent spoke to her boyfriend on the telephone. During this call, Respondent learned for the first time that her boyfriend probably would not be returning to her home that night.
Respondent talked to her boyfriend a second time that night from her garage. When she went back into the house, J.E. pretended to be asleep but when Respondent approached him, he sat up and appeared to have been crying. Respondent assumed that J.E. was upset because he was jealous of her boyfriend.
The evidence is not clear and convincing that Respondent provided J.E. with alcohol or engaged in inappropriate sexual conduct with him while he was in her home. However, Respondent admitted during the hearing that J.E. might have consumed beer kept in her refrigerator while she was gone because she found one beer can in her closet weeks later.
At approximately 2:00 a.m., Respondent drove J.E. to the fire station. The lights were off in the station. After waiting a few minutes to see if any of the adult firemen were going to return to the fire station, Respondent drove J.E. home, arriving there between 2:30 and 3:00 a.m. On the way to J.E.'s house, Respondent made J.E. promise not to tell anyone that he baby-sat at her residence. She paid J.E. $20 for baby-sitting.
When J.E. got home, his mother was asleep on the couch. D.B. woke up as J.E. entered the house. She did not smell any alcohol on him or see any signs of intoxication.
Respondent went with her children to the fire station two days later on December 29, 2000. The purpose of the visit
was to return one of J.E.'s CDs that he had left at her house. Respondent visited with J.E. for about 15 minutes.
During the visit on December 29, 2000, J.E. appeared upset. He told Respondent that he was worried because a man from his past was about to be released from jail. He also stated that he had been fighting with his mother. J.E. told Respondent that he was afraid the fire chief would not like him having visitors. He wanted Respondent to leave, telling her that he would talk to her later.
By the end of December, Respondent knew that the other students were teasing J.E. about their close relationship and that he was embarrassed about the situation. J.E. and Respondent had agreed that they would not continue with the after-school tutoring and that they would not socialize at school or at the fire station.
Despite this agreement, Respondent returned to the fire station on December 31, 2000. The purpose of the visit was to give J.E. a six-page handwritten letter that included references to Respondent's personal experiences.
Several of J.E.'s friends from FPC were at the fire station when Respondent arrived. When J.E.'s friends told him that Respondent was in the lobby area, he told them he did not want to see her and hid in a back room in an effort to avoid
her. Two of J.E.'s friends then told Respondent that J.E. was not at the fire station.
Respondent started to leave when she realized that her son, who had been waiting in the car, had probably gone into the fire station through the open bay doors. Respondent then went into the station through the bay doors to look for her son.
Upon entering the bay, Respondent noticed that J.E. was at work. Instead of asking about her son, Respondent approached J.E. holding the letter. As Respondent walked toward J.E., his friends began to tease him again. J.E. was visibly upset and demanded to know what Respondent was doing at the station. Respondent knew or should have known that she was giving the other students reason to pick on J.E.
J.E. was angry and embarrassed by Respondent's presence. He told Respondent to come back later just to hasten her departure. He shredded the letter as soon as she left the station.
Notwithstanding J.E.'s extreme displeasure during Respondent's visit, Respondent returned to the fire station later that day about 5:00 p.m. J.E. was not there when Respondent arrived. At that time, Chief Wood told Respondent that J.E. was gone and that she needed to stop visiting him at the station because it did not look right for her to be there "hanging all over J.E."
The relationship between J.E. and Respondent dropped off beginning in early January 2001. Shortly after the holidays, J.E. became angry with Respondent. He told her to go screw her boyfriend. Respondent just ignored this comment.
On another day during the first week of January, J.E. attempted to leave Respondent's class on a pretext that he was required to go to the school attendance office. J.E. became angry when Respondent would not let him leave the classroom.
A short time later, during the same class period, two of J.E.'s friends walked by and looked into the classroom through the window in the door. J.E. noticed his friends, went to the door to speak with them, and asked them to help get him out of class. Respondent again refused to let him leave, causing him to be even more angry. Respondent told J.E. that if he left the class without permission, she would write him up. He then said, "You're gonna write me up? Well, I could do something about that."
The first semester ended on January 8, 2001. Although
J.E. was failing math in early December, he received a grade of B in Respondent's class for the semester. He then transferred to another teacher's math class for the second semester. After the transfer, J.E.'s grades began to decline again.
The other students continued to tease J.E. about Respondent. On or about January 19, 2001, a rumor surfaced that Respondent was pregnant with J.E.'s child. Respondent first learned about the rumor during her science class.
The class discussion involved the harmful effect of fumes from spray bottles on the environment and humans. Someone in the class stated that fumes could harm a fetus like Respondent's fetus. Another student said, "Oh, I wonder who the father is." A third student responded, "Oh, it's J.E." The class then began laughing. Respondent made no effort to report the incident to FPC's administrators.
Instead, on a day when Respondent was extremely depressed and disillusioned with her career, and when she was feeling "emotionally cheated" and/or "manipulated" by J.E., Respondent wrote J.E. an e-mail message that states as follows:
Hi
I hope your Term 2 classes are going well so far, and life in general. I heard you're in Mr. Krenichen's class for Algebra now. If you need any help or need a place to escape to you know where to go. I still have 3rd period planning, except for lunch duty 3rd lunch. Even if you still are or stay mad at me forever, I'm still rooting for you to make it. I hope you're staying out of trouble. Well, I just wanted to say hi. I was thinking about you and my kids have been asking about you too. They think you're so cool! Yeah, I guess you're all right most of the time. Ha Ha. I miss you. I miss you talking to me every day most of all.
Well, see you around. K.
p.s. I also wanted to thank you for keeping your word. Means a lot. Gives me a little bit of hope the whole thing wasn't a lie all along. That helps even if that's all I'll ever have. Well, there's other things I need to talk to you about but don't want to say in an e-mail, so will just let you go now.
Bye.
Respondent's statement in the e-mail that she hoped J.E. was not still mad at her referred to her refusal to let J.E. leave class. She thanked him for keeping his word about not dropping out of school, not telling anyone that he baby-sat at her home, and not revealing her personal confidences. The e-mail was not specifically romantic in nature but clearly and convincingly evidences an inappropriate personal relationship between Respondent and J.E.
After receiving this e-mail, J.E. asked Chief Wood to help him draft a reply that would break off his relationship with Respondent. Chief Wood declined to help but told J.E. he would proofread the message after J.E. wrote it. After reading the e-mail, Chief Wood decided that J.E. had adequately communicated his message to Respondent and did not make any changes.
On or about January 24, 2001, a fellow student told
J.E. that Respondent had said she was pregnant with J.E.'s child. J.E. became frightened by the false rumor. That same
day, J.E. lied to his mother, stating that Respondent had given him alcohol and that, while he was in an intoxicated state, Respondent had forced him to have sexual intercourse on the night that he visited her home. D.B. immediately contacted the sheriff's office.
On January 26, 2001, the principal of FPC confronted Respondent with J.E.'s allegations regarding the alcohol and sexual misconduct. During this conversation, Respondent stated that she wished she had never had J.E. baby-sit in her home. She admitted that her relationship with J.E. was inappropriate. Respondent immediately drafted and submitted her resignation effective February 6, 2001, the day of the next scheduled school board meeting.
Following Respondent's resignation, J.E. continued to endure severe teasing at the hands of his classmates. Some students referred to J.E. as a "teacher fucker." Understandably, such comments caused J.E. a great deal of stress.
J.E. eventually dropped out of FPC and entered the adult education program, where he admitted to one student that he did not have sex with Respondent. He told the student that he wished he could take it all back.
Respondent is now employed in a real estate office.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 1012.796(6), Florida Statutes.
Petitioner has 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).
The Administrative Complaint alleges that Respondent violated Sections 231.2615(1)(c) and 231.2615(1)(f), Florida Statutes (2000). Prior to the effective date of Florida Statutes (2000), these statutes, in substantially the same form, were located in Section 231.28, Florida Statutes (1999). They are currently located in Section 1012.795, Florida Statutes.
Section 231.2615, Florida Statutes (2000), states as follows in pertinent part:
The Education Practices Commission may suspend the teaching certificate of any person . . . for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); to revoke permanently the teaching certificate of any person . . . or to impose any other
penalty provided by law, provided it can be shown that the 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 district school board.
* * *
(i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education rules.
The Administrative Complaint also alleges that Respondent violated Rules 6B-1.006(3)(a), 6B-1.006(3)(e), and 6B-1.006(3)(h), Florida Administrative Code. Rule 6B-1.006, Florida Administrative Code, states as follows in relevant part:
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.
* * *
(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
* * *
(h) Shall not exploit a relationship with a student for personal gain or advantage.
Count I
The statutes do not define gross immorality or moral turpitude. However, "gross immorality" is immorality, which involves an act or conduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards. See Brogan v. Redo, Case No. 95-2804 (DOAH December 11, 1995).
Rule 6B-4.009, Florida Administrative Code, which deals with dismissal actions initiated by school boards against instructional personnel, and provides additional guidance to ascertain the meaning of the terms "gross immorality" and "moral turpitude." That rule states as follows in pertinent part:
(2) Immorality is defined as conduct that is inconsistent with the 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.
* * *
(6) 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 the 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.
In the instant case, Petitioner has not proved by clear and convincing evidence that Respondent engaged in an act that constitutes gross immorality or moral turpitude. She did not knowingly provide J.E. with alcohol. She did not engage in sexual intercourse or any other type of sexual misconduct with him. To the extent that Respondent touched J.E. or affectionately held his hand, Respondent's conduct was professionally and socially inappropriate, but it did not rise to the level of violating Section 231.2615(1)(c), Florida Statutes (2000).
Count II
Petitioner has proved by clear and convincing evidence that Respondent's close personal and social relationship with
J.E. seriously reduced her effectiveness as an employee of the school board in violation of Section 231.2615(1)(f), Florida Statutes (2000). Her conduct at the park, her consumption of alcohol in front of J.E., her failure to take J.E. home at an appropriate hour, her repeated and obviously unwelcome visits to
the fire station, her letter and e-mail message, and other incidents of poor judgment resulted in a false but vicious rumor that severely undermined her effectiveness as a teacher.
Comments by other students and Chief Wood, made directly to J.E. and to Respondent, clearly indicate a lack of respect for her as a teacher by the public.
Count III
Petitioner has proved by clear and convincing evidence that Respondent violated Rule 6B-1.006(3)(a), Florida Administrative Code, by failing to make a reasonable effort to protect J.E. from conditions harmful to learning and/or to his mental and/or physical health. Respondent knew J.E. was being ridiculed about his personal relationship with her. She knew
J.E. was, at the very least, infatuated with her and jealous of her boyfriend. Despite this knowledge, Respondent persisted in her efforts to maintain a close personal relationship with J.E. She took no action to report the false rumor once she became aware of it. Eventually, J.E. dropped out of FPC, in part to avoid a very embarrassing and stressful situation.
It is true that J.E. complicated the circumstances by lying about Respondent's providing him alcohol and forcing him to have sexual intercourse. However, as Respondent admitted to FPC administrators, she knew the problem would never have existed but for her inappropriate conduct. Respondent's failure
to exercise good judgment resulted in additional actual and real mental stress to a student who was already at risk for academic failure.
Count IV
Petitioner has proved by clear and convincing evidence that Respondent violated Rule 6B-1.006(3)(e), Florida Administrative Code, by intentionally exposing J.E. to unnecessary embarrassment and disparagement. As stated above, but for Respondent's inappropriate personal relationship with him, J.E. would not have suffered the humiliation he experienced from his peer group. Respondent's conduct was intentional because she knew about the teasing, which caused J.E. to be so angry and unhappy that he wanted to terminate his relationship with Respondent altogether.
Count V
Petitioner has proved by clear and convincing evidence that Respondent violated Rule 6B-1.006(3)(h), Florida Administrative Code. While Respondent may not have exploited her relationship with J.E. by encouraging him to drink alcohol and taking advantage of him sexually, she did become personally involved to the extent that she revealed her own closely guarded secrets of abuse and molestation. By her own admission, she felt depressed and "emotionally cheated" when J.E. terminated the relationship. Under the circumstances of this case, it
cannot be said that Respondent derived no personal benefit from her close relationship with J.E. as long as it lasted.
Pursuant to the disciplinary guidelines set forth in Rule 6B-11.007, Florida Administrative Code, violations of Section 231.2615, Florida Statutes (2000), and Rule 6B-1.006, Florida Administrative Code, may result in penalties ranging from a reprimand to revocation, including probation and suspension. Some penalty ranges for particular statutory and rule violations are prescribed specifically. For example, the penalty for using one's position for personal gain ranges from probation to a two-year suspension. See Rule 6B-11.007(2)(e), Florida Administrative Code. Additionally, the penalty for harassment, which interferes with an individual's performance or work, ranges from a reprimand to revocation. See Rule
6B-11.007(2)(o), Florida Administrative Code.
Rule 6B-11.007(3), Florida Administrative Code, sets forth the aggravating and mitigating factors to be considered in individual cases. The aggravating factors that apply are as follows: (a) the severity of the offense; (b) the number of repetitions of offenses; (c) the deterrent effect of the penalty imposed; and (d) the degree of physical and mental harm to a student or child. The mitigating factors applicable here are as follows: (a) the number of times the educator has been previously disciplined by EPC; (b) the length of time the
educator has practiced and the contribution as an educator; and
(c) the effect of the penalty upon the educator's livelihood.
Respondent has acknowledged her inappropriate conduct.
When confronted with J.E.'s allegations, she did not want to embarrass the Flagler County School Board and submitted her resignation. She had been a successful teacher in the past and has the potential to become one again in the future with appropriate counseling. On the other hand, her acknowledged poor judgment is responsible for causing J.E. tremendous embarrassment and stress. On balance, Respondent's certificate should be suspended for two years, followed by five years of probation and counseling as deemed appropriate by EPC.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED:
That EPE enter a final order suspending Respondent's certificate for two years followed by five years of probation.
DONE AND ENTERED this 2nd day of September, 2003, in Tallahassee, Leon County, Florida.
S
SUZANNE F. HOOD
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 September, 2003.
COPIES FURNISHED:
Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302
Matthew K. Foster, Esquire
Brooks, Leboef, Bennett & Foster, P.A. 863 East Park Avenue
Tallahassee, Florida 32301
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 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 |
|---|---|---|
| Feb. 04, 2004 | Agency Final Order | |
| Sep. 02, 2003 | Recommended Order | Respondent`s teaching certificate suspended because she violated Section 231.2615 (1) (f), Florida Statutes (2000) and Rules 6B-1.006 (3)(a), 6B-1.006 (3) (e), and 6B-1.006 (3)(h), FAC. |
DR. ERIC J. SMITH, AS COMMISSIONER OF EDUCATION vs BILAL MUHAMMAD, 03-000914PL (2003)
JOHN L. WINN, AS COMMISSIONER OF EDUCATION vs WALTER RUFFIN, 03-000914PL (2003)
RICHARD CORCORAN, AS COMMISSIONER OF EDUCATION vs LASHON JENIECE MILLER, 03-000914PL (2003)
JEANINE BLOMBERG, AS COMMISSIONER OF EDUCATION vs ASLEY WINSTON STENNETT, 03-000914PL (2003)
CHARLIE CRIST, AS COMMISSIONER OF EDUCATION vs RAFAEL GARCIA, 03-000914PL (2003)
