STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. WINN, as Commissioner of Education,

Petitioner,

vs.

WALTER RUFFIN,

Respondent.

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) Case No. 05-3621PL

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on January 26, 2006, in St. Petersburg, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

Post Office Box 131

St. Petersburg, Florida 33731-0131

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2003),1 and Florida Administrative Code Rules 6B-1.006(3)(a),

6B-1.006(3)(h), and 6B-4.009(2), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On August 4, 2005, Petitioner, John L. Winn, as Commissioner of Education, filed an Administrative Complaint against Respondent, Walter Ruffin, alleging that Mr. Ruffin violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(h), and 6B-4.009(2).

Mr. Ruffin requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on

October 3, 2005, for assignment to an administrative law judge. On October 28, 2005, the parties filed an Agreed Motion for

Continuance, which was granted by order on October 28, 2005. The final hearing was rescheduled for January 26 and 27, 2006.

Prior to the final hearing, the parties submitted a

Pre-hearing Statement, which contained the facts to which the parties agreed. Those facts that are contained in Section E of the Pre-hearing Statement are incorporated into this Recommended Order to the extent relevant.

At the final hearing, Petitioner called the following witnesses: Jeffrey Haynes, J.L., J.W., P.A., and Michael Bessette. Petitioner's Exhibits 1 through 6 were admitted into evidence.

Mr. Ruffin testified on his own behalf at the final hearing and called the following witnesses: T.C., Calvin Patrick Williams, and Javan Christopher Taylor. Respondent offered one exhibit which was received into evidence as Respondent's Exhibit 1.

The one-volume Transcript was filed on February 13, 2006.

The parties timely filed their Proposed Recommended Orders, which have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Mr. Ruffin holds Florida Educator Certificate

   
   

   No. 893557 for teaching mathematics. His certificate is valid through June 30, 2010.

2. At all times relevant to the allegations in the Administrative Complaint, Mr. Ruffin was employed as a mathematics teacher at Dixie Hollands High School (Dixie Hollands) in the Pinellas County School District.

3. During 2003, T.C. was an eleventh-grade student at Dixie Hollands. Mr. Ruffin tutored T.C. in mathematics over the summer of 2002 to prepare her for the Florida Achievement Test (FCAT). During the following school year, Mr. Ruffin developed a mentoring relationship with T.C., and T.C. became Mr. Ruffin's teaching assistant.

4. Mr. Ruffin provided his cellular telephone number to all of his students, including T.C., in case they needed to contact him.

5. On or about May 3, 2003, Mr. Ruffin was in his classroom with two other students during lunchtime. T.C. entered the room to speak to Mr. Ruffin because she was upset and sought advice. The other two students eventually left, and

   T.C. and Mr. Ruffin were in the room alone. T.C. shut the door, which contained a window covered by paper. School policy required that the doors remain locked, but propped open.

6. After she shut the door, T.C. sat at the teaching assistant's desk, but soon started to cry and sat on

   Mr. Ruffin's lap. Mr. Ruffin and T.C. then hugged, and Respondent patted T.C. on her back. Both T.C. and Mr. Ruffin maintain that no other touching occurred during this incident and that T.C. was not on Mr. Ruffin's lap for more than 30 seconds.

7. During the time period when T.C. was in the classroom with Mr. Ruffin, other students were looking into the classroom through a hole in the paper on the window. The hole in the paper was small, which allowed only one student at a time to look into the classroom through the hole. Approximately seven to nine students observed T.C. and Mr. Ruffin. The school has

   video cameras in the hallways, which recorded the students looking into the classroom for a period of several minutes.

8. While observing from the hallway, the students witnessed T.C. sitting on Mr. Ruffin's lap behind the desk for several minutes. One student claimed she saw Mr. Ruffin rubbing T.C.'s leg; however, the student's testimony was not distinctly remembered and it was not precise and explicit. The students also saw T.C. going through some pictures from Mr. Ruffin's wallet.

9. Mr. Ruffin acknowledged at the final hearing, that T.C. came around to his desk, sat on his knees, put her arm around his neck, and initiated a hug. He patted her on her back. At the final hearing, T.C. also acknowledged that she sat on

   Mr. Ruffin's knee and that he hugged her. T.C. denied that there was any inappropriate touching by Mr. Ruffin.

10. One student, P.H., observed the encounter through the window. P.H. confronted T.C. about the incident and told T.C. that she could have gotten into trouble. T.C. told Respondent about the confrontation with P.H. P.H. then reported the incident to the School Resource Officer, Deputy Todd Pierce.

11. Following the reporting of the events, Michael Bessette of the School Board's Office of Professional Standards investigated the incident. When Mr. Bessette spoke with

    Mr. Ruffin, Mr. Ruffin claimed that he did not have any other

    contact with T.C. after the incident and did not know whether or not the other students had confronted T.C. about it.

12. Mr. Bessette then reported the incident to the principal, and the school district began an investigation. After speaking with all of the witnesses, T.C., and Mr. Ruffin,

    the School Board concluded that Mr. Ruffin acted inappropriately when he allowed T.C. to sit on his lap. Respondent's proper course of conduct when T.C. sat on his lap would have been to stand up and politely push T.C. away from him.

13. Following the investigation, Mr. Ruffin signed a Stipulation Agreement with the school district where he agreed to a transfer to another school, a suspension without pay for

    20 days, a retention of his annual contract for an additional year, and the designation of an "at will employee" for the 2004- 2005 school year.

14. By signing the agreement, Mr. Ruffin also conceded that he was aware that his actions violated the Code of Ethics and the Principals of Professional Conduct of the Education Profession in Florida.

15. Mr. Ruffin was transferred to Lakewood High School, where he is currently employed as a teacher. Mr. Ruffin has not been the subject of any other disciplinary proceedings since the incident giving rise to these allegations, and is an effective teacher at Lakewood High School.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2005).

17. Petitioner has the burden to establish the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983), the court developed a working definition of "clear and convincing evidence," which has been adopted by the Florida Supreme Court in In re Davey, 645 So. 2d 398 (Fla. 1994). The court in Slomowitz stated:

    [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 testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz, 429 at 800.

    
    

18. Petitioner alleged that Mr. Ruffin violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes, which provide:

    1. The Education Practices Commission may suspend the educator certificate of any person as defined in s. 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; may suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, provided it can be shown that the person:

       
       

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

       
       

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

       
       

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

       
       

19. Instructive in defining the terms "immorality" and "moral turpitude" in Subsection 1012.795(1)(c), Florida Statutes, are the rules relating to disciplinary actions which

    may be taken by school districts. Florida Administrative Code Rules 6B-4.009(2) and 6B-4.009(6) provide:

    (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.

    
    

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    (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.

    
    

20. Petitioner also alleged that Mr. Ruffin violated Florida Administrative Code Rules 6B-1.006(3)(a),

    6B-1.006(3)(h), and 6B-4.009(2). Florida Administrative Code Rule 6B-1.006 constitutes the Principles of Professional Conduct for the Education Profession in Florida and Subsection (3) provides that an educator has an obligation to the student which requires that the educator:

    (a) 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.

    
    

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    (h) Shall not exploit a relationship with a student for personal gain or advantage.

    
    

21. Petitioner has failed to establish by clear and convincing evidence that Mr. Ruffin is guilty of gross immorality or an act involving moral turpitude as set forth in Subsection 1012.795(1)(c), Florida Statutes. Petitioner has failed to establish by clear and convincing evidence that

    Mr. Ruffin exploited his relationship with T.C. for personal gain or advantage as set forth in Florida Administrative Code Rule 6B-1.006(3)(h).

22. T.C. came to see Mr. Ruffin to seek his consolation and advice. Although Mr. Ruffin acted within his role as an educator to listen and mentor T.C. when she came to him for support, he did not follow the proper course of conduct when

    T.C. came into the classroom upset. When T.C. sat on his lap and hugged Mr. Ruffin, he should have immediately realized that he had to remove himself from the situation to avoid having any physical contact with the student. Instead, he continued to allow the physical contact to occur, by hugging T.C. and allowing her to sit on his lap with the door closed and with no other students present. His actions evince bad judgment on his part, but do not rise to the level of gross immorality or an act of moral turpitude. Mr. Ruffin was sincerely trying to console

    T.C. and was not trying to exploit the situation for his own gratification.

23. Florida Administrative Code Rule 6B-4.009(2) relates to the grounds for dismissal of a teacher by a school district and does not constitute grounds for disciplinary action by the Education Practices Commission. Thus, Petitioner has no jurisdiction to take disciplinary action based on a violation of Florida Administrative Code Rule 6B-4.009(2).

24. Petitioner did establish that Mr. Ruffin violated Subsection 1012.795(1)(f), Florida Statutes. His failure to avoid physical contact with T.C. resulted in other students witnessing T.C. sitting on his lap and his hugging T.C. His conduct resulted in his being transferred to another high school; thus, his effectiveness as a teacher at Dixie Hollands was seriously reduced.

25. Additionally, Mr. Ruffin violated Subsection 1012.795(1)(i), Florida Statutes, by violating provisions of the Principles of Professional Conduct for the Education Profession in Florida. Further, he violated Florida Administrative Code Rule 6B-1.006(3)(a). He failed to protect T.C. from conditions that were harmful to learning and T.C.'s mental safety. By failing to dissuade T.C. from physical contact with a teacher, Mr. Ruffin allowed a situation to develop which was inappropriate. Teachers at Dixie Hollands had been told not to allow physical contact with students, and Mr. Ruffin should have made an effort to prevent the incident of T.C. sitting on his

lap and their hugging from occurring. By allowing such conduct, Mr. Ruffin was sending a message to his student that such conduct would be tolerated.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding that Walter Ruffin violated Subsections 1012.795(1)(f), and 1012.795(i), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(3)(a); suspending his teaching certificate for 30 days; and placing him on probation for three years.

DONE AND ENTERED this 19th day of April, 2006, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 19th day of April, 2006.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes shall be to the 2003 version.

COPIES FURNISHED:

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

325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400

Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

Bruce P. Taylor, Esquire Post Office Box 131

St. Petersburg, Florida 33731-0131

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

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

Daniel J. Woodring, General Counsel Department of Education

Turlington Building, Suite 1244

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: 05-003621PL

Orders for Case No: 05-003621PL