STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

On May 29, 2008, an administrative hearing in this case was held by video teleconference between Tallahassee and Orlando, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675 Douglasville, Georgia 30154-0012

For Respondent: (No appearance)

STATEMENT OF THE ISSUES

The issues in the case are whether the allegations set forth in the Administrative Complaint filed by the Petitioner against the Respondent are correct, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated December 13, 2006, the Petitioner, John L. Winn, as Commissioner of Education, charged that the Respondent, Cynthia Jean Bradford, a teacher in an exceptional student education class, violated Subsections 1012.795(1)(c), (1)(f), and (1)(i), Florida Statutes (2005), by reading sexually explicit material to her classroom students at Meadowbrook Middle School.

The Respondent disputed the allegations and requested a formal hearing. The Petitioner forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the hearing.

At the hearing, the Petitioner presented the testimony of Valeria Maxwell and had one exhibit admitted into evidence. The Respondent did not appear at the hearing and was not otherwise represented.

A Transcript of the hearing was filed on June 11, 2008. The Petitioner filed a Proposed Recommended Order on June 20, 2008.

FINDINGS OF FACT

1. At all times material to this case, the Respondent held Florida Educator's Certificate number 852375, valid through

   June 30, 2006, and covering the area of specific learning disabilities.

2. At all times material to this case, the Respondent was employed as a teacher in an exceptional student education class at Middlebrook Middle School in the Orange County School District. Her students were 13 to 14 years of age.

3. On more than one occasion during January of 2005, the Respondent read sexually explicit material from a book called "Dumb as Me" to her classroom.

4. The book, admitted as the Petitioner's exhibit, includes graphic and explicit sexual content and frequent use of vulgar language.

5. The classroom paraprofessional reported the matter to the school's principal, Valeria Maxwell.

6. Ms. Maxwell went to the Respondent and discussed the report. During the discussion, the Respondent acknowledged that she read from the book to her students.

7. Ms. Maxwell testified that the Respondent had not been authorized to read the book to her class.

8. There is no evidence that the book was part of any lesson plan created by the Respondent.

9. Ms. Maxwell testified that the students interviewed reported being embarrassed by the Respondent's reading the book to them during class, but none of the students testified at the hearing.

10. Ms. Maxwell also testified that the Respondent's use of the text in the classroom seriously reduced the Respondent's effectiveness as a teacher and created a condition in the classroom that was harmful to learning.

11. The Respondent's employment with the Orange County School Board was terminated on June 14, 2005.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. § 120.57(1), Fla. Stat. (2007).

13. The Petitioner has the burden of proving by clear and convincing evidence the factual allegations set forth in the Administrative Complaint against the Respondent. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The grounds established to support imposition of disciplinary action against the Respondent's teaching certificate must be those specifically alleged in the Administrative Complaint. Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v.

    Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So. 2d 842

    (Fla. 2nd DCA 1984). Clear and convincing evidence is that which is credible, precise, explicit, and lacking 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 the firm belief of conviction, without hesitancy, as to the truth of the allegations. Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). In this case, the burden has been met.

14. The Administrative Complaint charges that the Respondent's conduct is a violation of Subsections 1012.795(1)(c), (1)(f), and (1)(i), Florida Statutes (2005), which provide, in part, as follows:

    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 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students 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 or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students 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 thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; 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.

       
       

15. The terms "gross immorality" and "an act involving moral turpitude" are not defined in Chapter 1012, Florida Statutes (2005). Florida Administrative Code Rule 6B-4.009, which applies to dismissal actions initiated by school boards against instructional personnel, provides guidance as to the meaning of the terms as they are used in Section 1012.795, Florida Statutes (2005). Castor v. Lawless, 1992 WL 880829 (EPC Final Order 1992).

16. "Immorality" is defined by Florida Administrative Code Rule 6B-4.009(2) as follows:

    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.

17. "Gross immorality" has been described as misconduct that is more egregious than mere "immorality." As stated in Brogan v. Mansfiled, Case No. 96-0286 (DOAH August 1, 1996) (EPC Final Order 1996):

    The term "gross" in conjunction with "immorality" has heretofore been found to mean "immorality which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." Education Practices Commission v. Knox, 3 FALR 1373-A (Department of Education 1981).

    
    

18. "Moral turpitude" is defined by Florida Administrative Code Rule 6B-4.009(6) as follows:

    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.

    
    

19. Moral turpitude has also been defined as anything done contrary to justice, honesty, principle or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated. State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660 (1933).

20. In determining whether any teacher is guilty of gross immorality or an act involving moral turpitude, it must be

    remembered that "[b]y virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community." Adams v. Professional Practices Council, 406 So. 2d 1170, 1171 (Fla. 1st DCA 1981).

21. The Respondent's reading of the referenced text to her classroom students constituted gross immorality because it was an act of serious misconduct indicating a flagrant disregard of proper moral standards and was an act involving moral turpitude, because the material read to the students was contrary to proper moral standards. Therefore, the evidence establishes that the Petitioner violated Subsection 1012.795(1)(c), Florida Statutes (2005).

22. The evidence also establishes that reading the material to her students seriously reduced the Respondent's effectiveness as an employee of the school board, thereby violating Subsection 1012.795(1)(f), Florida Statutes (2005).

23. Additionally, the Respondent violated Subsection 1012.795(1)(i), Florida Statutes (2005), by violating the Principles of Professional Conduct for the Education Profession, which in relevant part provide as follows:

    6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.

    
    

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

    2. 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.

       
       

    3. Obligation to the student requires that the individual:

       
       

       1. 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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          (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          
          

24. The evidence establishes that the Respondent is guilty of a violation of Florida Administrative Code Rule 6B- 1.006(3)(a) by failing to protect her students from conditions harmful to learning.

25. The evidence is insufficient to establish that the Respondent is guilty of a violation of Florida Administrative Code Rule 6B-1.006(3)(e). Although it may be reasonable to presume that some students could have been embarrassed by the Respondent's readings, there is no reliable evidence upon which to make this determination. The school principal's testimony in this regard was uncorroborated hearsay. Additionally, there is no evidence that the Respondent read the material with the intent of exposing a student to unnecessary embarrassment or disparagement.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order determining that the Respondent has violated Subsections 1012.795(1)(c), (1)(f), and (1)(i), Florida Statutes (2005), and Florida Administrative Code Rule 6B-1.006(3)(a) and revoking the Respondent's educator's certificate.

DONE AND ENTERED this 24th day of June, 2008, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 24th day of June, 2008.

COPIES FURNISHED:

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

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

Cynthia Bradford

428 Los Altos Way, No. 201 Altamonte Springs, Florida 32714

Cynthia Bradford

30700 Wekiva River Road, No. 395

Sorrento, Florida 32776-9003

Ron Weaver, Esquire Post Office Box 5675

Douglasville, Georgia 30154-0012

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services Department of Education

Turlington Building, Suite 224-E

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: 08-001769PL

Orders for Case No: 08-001769PL