STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on September 30, 2008, in Fort Myers, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Robert E. Weiss, pro se

1429 Ford Circle

Lehigh Acres, Florida 33936 STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Subsections 1012.795(1)(c) and 1012.795(1)(i), Florida Statutes (2006),1 and Florida Administrative Code Rules 6B-1.006(3)(a),

6B-1.006(4)(c), and 6B-1.006(5)(a), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On January 16, 2008, Petitioner, Dr. Eric J. Smith, as Commissioner of Education, filed a five-count Administrative Complaint against Respondent, Robert E. Weiss (Mr. Weiss), alleging that Mr. Weiss violated Subsections 1012.795(1)(c)

and 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(4)(c), and 6B-1.006(5)(a).

Mr. Weiss requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge to conduct a final hearing.

At the final hearing, the parties stipulated that Mr. Weiss admitted to items 1 through 6, 9, and 10 of Petitioner’s Request for Admissions.

Petitioner called the following witnesses at the final hearing: James Jackson, Denise Fitzpatrick, Amanda Jones, and Dwayne Alton. Petitioner’s Exhibits 1 through 10 and 12 were admitted in evidence. Mr. Weiss testified in his own behalf and submitted no exhibits for admission in evidence.

The Transcript was filed on October 15, 2008. The parties agreed to file their proposed recommended orders within ten days of the filing of the Transcript. On October 20, 2008,

Petitioner filed a request for an extension of time to file proposed recommended orders. The request was granted by order dated October 22, 2008, and the time for filing proposed recommended orders was extended to November 4, 2008. Both parties timely-filed Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Mr. Weiss holds Florida Educator Certificate 845839, covering the areas of elementary education and English to speakers of other languages, which was valid through June 30, 2008. Mr. Weiss has an application pending for a professional certificate in the area of educational leadership.

2. At all times material to the Administrative Complaint, Mr. Weiss was employed as a computer teacher at Tice Elementary School (Tice Elementary) in the Lee County School District (School District). He worked primarily with third, fourth, and fifth-grade students.

3. The School District has a policy which prohibits the use of the School District’s computers for viewing inappropriate content. The School District’s Regulation 3.41, entitled “Acceptable Use Policy Governing Internet and Technology Access,” provides:

   The following procedures shall be followed for governing Internet and technology access. Failure to adhere to these

   regulations shall result in suspension and/or revocation of access to District information resources pending formal investigation and could result in termination of employment (staff) or suspension/expulsion (student) from the School District.

   
   

   * * *

   
   

   (2) All users are prohibited from:

   
   

   (a) Deliberate access or transmission of obscene, indecent, abusive, or defamatory or otherwise offensive material in any form.

   
   

4. The School District maintains an internet filtering system on the School District’s computers. The filtering system is called Chaperone and is used to monitor all accounts using the School District’s network. If a user of the School District’s network visits a known adult-content site, Chaperone blocks access and alerts the School District of the incident.

5. Chaperone also looks for patterns in the access to content which appears to be adult-related, even if the website being viewed is not on the list of inappropriate sites. If Chaperone detects a pattern of behavior involving the viewing of inappropriate sites, a technical support person at the school where the computer is located will be alerted. The alerts sent to the school detail the username, IP address, website, time, and date of the incident. An alert is not typically generated the first or second time an inappropriate site is viewed, but is generated when a pattern of behavior develops. Access to a

   website is recorded by the central office of the School District. If Chaperone does not detect anything inappropriate about the website reviewed, no alert is sent to the school.

6. All users in a school have a unique user ID to identify them on the network. Mr. Weiss’ user ID at Tice Elementary was “RobertWe.”

7. Mr. Weiss’ classroom was the computer laboratory. The classroom contained computers which were used by the students, and Mr. Weiss also had a computer for his use as the teacher.

   At times the number of students exceeded the number of computers in working order, and a student would use Mr. Weiss’ computer during class. The laboratory was open to any teacher or class when it was not otherwise occupied by Mr. Weiss’ class.

8. On November 1, 2006, Chaperone generated a report and sent an alert to Amanda Jones, Tice Elementary’s technology support specialist, notifying her that a computer at the school had been used to access inappropriate material. The report identified the username associated with the incident as RobertWe. The computer involved was the computer assigned to Mr. Weiss.

9. Ms. Jones gave the report to the assistant principal at Tice Elementary, Denise Fitzpatrick. Ms. Fitzpatrick went to Mr. Weiss’ classroom and found Mr. Weiss in the classroom.

   Ms. Fitzpatrick deferred in the matter to the principal of Tice Elementary, James Jackson.

10. Mr. Jackson went to Mr. Weiss’ classroom and found Mr. Weiss on a computer viewing a site called Sparksvideos.com. Weiss claimed that he was looking for videos for the students to use. He told Mr. Jackson that inappropriate materials had “popped up” on his screen and that he had deleted the inappropriate materials immediately. Mr. Jackson gave Mr. Weiss an oral reprimand and warned Mr. Weiss to be careful in what he viewed because young children were present in nearby classrooms.

11. Mr. Weiss’ claim that the inappropriate materials were “pop-ups” is without merit. Pop-ups are intrusions on a website from a third-party, and the viewer usually has no control over the intrusion. Pop-ups differ from “solid site” in that the solid site stays on the screen and does not open new windows without user interaction.

12. Ms. Jones was asked to pull up the list of sites that were involved with the November 1, 2006, incident to determine if Mr. Weiss’ explanation of pop-ups was true. The videos that she pulled up were video clips of different women. Ms. Jones took the list of sites involved in the incident home to view on her unfiltered computer. She found that the sites were not pop- ups, but were videos of females engaging in sexual activity.

13. Mr. Weiss’ assertion that he deleted the pop-ups as soon as they came up is false. The Chaperone report showed that during the time period in which inappropriate materials were being accessed, Mr. Weiss remained on the computer sites for approximately 12 minutes.

14. On January 10, 2007, Chaperone sent another report to Ms. Jones at Tice Elementary, alerting her of inappropriate activity. Ms. Jones reported the activity to Dwayne Alton, the technology director for the School District. He instructed

    Ms. Jones to look through each computer in the school to determine which computer was involved. Ms. Jones and Ms. Fitzpatrick went to Mr. Weiss’ classroom and found Mr. Weiss alone. A search of the computers in the classroom turned up a computer which had accessed inappropriate sites. Mr. Weiss told Ms. Fitzpatrick that it was probably a student in one of his third grade classes. He identified the student, and

    Ms. Fitzpatrick went to question the student.

    
    

15. The student identified by Mr. Weiss was a student whose primary language was Spanish, not English. The student barely spoke English and did not appear to have the level of technological knowledge or the communication skills necessary to access the inappropriate materials. The student stated that he had accessed the Disney site, and his claim is supported by the Chaperone report.

16. Mr. Weiss asserts that possibly a student could have confused the website with the name of a cartoon character and accessed the inappropriate material by accident. Such an assertion is without merit. The Chaperone report shows that the account involved accessed several inappropriate sites between 9:28 a.m. and 9:38 a.m. One of the same adult websites was accessed by the same account at 8:50 a.m., belying the appearance of an accident. Mr. Weiss’ claim that a student accessed the inappropriate materials is not credited.

17. Ms. Fitzpatrick took the list of sites involved in the January 10, 2007, incident and viewed the sites at her home.

    She found them to be inappropriate, including hundreds of small, sexually explicit images. It is concluded that on January 10, 2007, Mr. Weiss accessed the site containing the sexually explicit images.

18. On January 12, 2007, another Chaperone report was generated based on activity from a computer in Mr. Weiss’ classroom. Ms. Jones became concerned that Mr. Weiss may have been using a student account to mask his usage of the computer. She contacted Mr. Alton, who told her to wait until a pattern of activity occurred and have Ms. Fitzpatrick go to the classroom while the activity was occurring.

19. Another Chaperone report was generated, and Ms. Fitzpatrick took the report and went to Mr. Weiss’

    classroom. She found Mr. Weiss alone on the computer. When she came into the room, he minimized the window that he was viewing on the computer. She put the report on his desk and told him that there was a problem.

20. Mr. Weiss responded that he had been looking up the word “boobs” because a student had accessed it during class. However, the search term that triggered the Chaperone report was “blow job.” The Chaperone report listed the activity being generated by Mr. Weiss’ account. Mr. Weiss offered to share his internet browsing history with Ms. Fitzpatrick.

21. After Mr. Weiss left for the day, Ms. Fitzpatrick and Ms. Jones went to Mr. Weiss’ classroom to check the computer to see which sites had been accessed. The history had been deleted. The computer could not be restored back in its entirety to an earlier date because there was no restore data to use. Ms. Jones ultimately used a third-party software to bring back a list of the files viewed.

22. Ms. Jones and Ms. Fitzpatrick recorded the list of files and reviewed them. There were thousands of files, many containing image files from inappropriate sites. About

    70 percent of the files were sexual in nature and about

    30 percent were jokes. Mr. Weiss had accessed these inappropriate sites.

23. Mr. Weiss attempted to blame students for accessing inappropriate sites. He maintained that he kept a log of incidents in which students were accessing inappropriate sites. The log was never found, and, prior to being confronted with his own access to inappropriate sites, Mr. Weiss never mentioned a log to administrative staff at Tice Elementary or that students were accessing inappropriate sites. Mr. Weiss’ testimony that he maintained a log is not credible.

24. Mr. Weiss resigned from his employment with the School District by letter dated February 5, 2007.

    CONCLUSIONS OF LAW

    
    

25. 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. (2008).

26. 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). Clear and convincing evidence has been described by the courts as follows:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and

    the witness 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 the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

27. Petitioner has alleged that Mr. Weiss has violated Subsections 1012.795(1)(c) and 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a),

    6B-1.006(4)(c), and 6B-1.006(5)(a).

    
    

28. Section 1012.795, Florida Statutes, provides:

    
    

    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 a 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 to 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 ten 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:

       
       

       * * *

       
       

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

       
       

       * * *

       
       

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

       
       

29. The Principles of Professional Conduct for the Education Profession is found in Florida Administrative Code Rule 6B-1.006 and provides:

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

       
       

    2. Violation of any of these principals shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties 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.

          
          

          * * *

          
          

    4. Obligation to the public requires that the individual:

       
       

       * * *

       (c) Shall not use institutional privileges for personal gain or advantage.

       
       

       * * *

       
       

    5. Obligation to the profession of education requires that the individual:

       
       

       1. Shall maintain honesty in all professional dealings.

          
          

30. Chapter 1012, Florida Statutes, does not define the terms “gross immorality” or “moral turpitude,” which are contained in Subsection 1012.795(1)(c), Florida Statutes. See

    Sherburne v. School Board of Suwannee County, 455 So. 2d 1057 (Fla. 1st DCA 1984). However, Florida Administrative Code Rule 6B-4.009, which applies to dismissal actions initiated by school boards against instructional personnel, does provide guidance to the meaning of those terms.

31. Florida Administrative Code Rule 6B-4.009(2) defines “immorality” 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.

    
    

32. "Gross immorality" has been defined by the courts as misconduct that is more egregious than mere "immorality":

    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).

    
    

    Frank T. Brogan v. Eston Mansfield, DOAH Case No. 96-0286 (EPC Final Order 1996).

33. Florida Administrative Code Rule 6B-4.009(6) defines “moral turpitude” 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.

    
    

34. In determining whether a teacher is guilty of gross immorality or an act involving moral turpitude in violation of Subsection 1012.795(1)(c), Florida Statutes, one must consider 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, 1172 (Fla. 1st DCA 1981).

35. Petitioner has established by clear and convincing evidence that Mr. Weiss violated Subsection 1012.795(1)(c), Florida Statutes. He used his school computer to access websites containing sexually explicit materials when he knew that children in his classes could be using his computer.

    Additionally, he tried to blame innocent students for his misdeeds. In Horne v. Sanchez, EPC Case No. 05-189FOF (June 2, 2005), the Education Practices Commission found that a teacher who had used a school computer in his classroom to access pornographic websites while students were in the classroom was guilty of gross immorality and moral turpitude and, therefore, in violation of Subsection 1012.795(1)(c), Florida Statutes.

36. Petitioner has established by clear and convincing evidence that Mr. Weiss violated Subsection 1012.795(1)(i), Florida Statutes, by violating Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006 (4)(c), and 6B-1.006 (5)(a). By using his school computer to view pornographic websites when he knew that students were likely to use his computer when there were insufficient student-assigned computers available for the students in his class, he was not making reasonable efforts to

protect students from conditions which were harmful to learning. Mr. Weiss used school computers for his own benefit to view pornographic websites. Mr. Weiss tried to place the blame for his misconduct by accusing innocent students of accessing inappropriate websites.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Robert E. Weiss guilty of violating Subsections 1012.795(1)(c)

and 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(4)(c), and 6b-1.006(5)(a)

and revoking his certificate for six years.

DONE AND ENTERED this 14th day of November, 2008, 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

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

Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2008.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2006 version.

COPIES FURNISHED:

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

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

Robert E. Weiss 1429 Ford Circle

Lehigh Acres, Florida 33936

Charles T. Whitelock, Esquire Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

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: 08-003476PL

Orders for Case No: 08-003476PL