STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

ADRIAN JACKSON,

Respondent.

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RECOMMENDED ORDER

This case was heard on July 15, 2011, by video teleconference at sites in Tallahassee, Florida and Jacksonville, Florida, before E. Gary Early, an Administrative Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. David Holder, Esquire

40 Grand Flora Way

Santa Rosa Beach, Florida 32459

For Respondent: Adrian L. Jackson, pro se

1475 Sandbay Drive

Apartment 3007

Atlanta, Georgia 30331 STATEMENT OF THE ISSUE

Whether there are sufficient grounds for the imposition of disciplinary sanctions against Respondent‟s educator‟s certificate, and if so, the nature of the sanctions.

PRELIMINARY STATEMENT

On April 2, 2010, the Department filed an Administrative Complaint against Respondent which alleged that during the Spring 2009 semester, Respondent accessed pornographic materials on his school-issued laptop and desktop computers during school hours.

The case was heard as an informal hearing before the Educational Practices Commission on January 20, 2011. At that hearing, disputed issues of material fact were raised, whereupon the matter was referred to DOAH for a formal administrative hearing. The matter was set for a video hearing on May 4, 2011.

On April 26, 2011, the Department filed a Motion to Deem Matters Admitted and for Remand to the Education Practices Commission; Petitioner's Alternative Motion to Compel Discovery; and Petitioner's Alternative Motion to Continue Hearing. Each motion was predicated upon Respondent's failure to respond to outstanding discovery requests. By Order entered on April 26, 2011, Respondent was directed to respond to the Department‟s discovery requests, and the hearing was tentatively rescheduled to July 15, 2011. Respondent has since responded to all outstanding discovery.

On May 20, 2011, an Order Re-Scheduling Hearing by Video Teleconference was entered which set the final hearing for July 15, 2011. The hearing was held as scheduled.

At the hearing, Petitioner moved to amend the Administrative Complaint to delete the allegation that Respondent accessed pornographic materials on his school-issued desktop computer during school hours, on the ground that Respondent was never issued a desktop computer. The motion was granted without objection and the Administrative Complaint was deemed so amended.

Petitioner presented the testimony of James Culbert, the security manager employed by the Duval County Public School District, John G. McCallum, an investigator for the Duval County Public School District, Office of Professional Standards, and Sonita Young, Executive Director of Policy Compliance for the Duval County Public School District. Petitioner offered Petitioner‟s Exhibits 1 through 16, each of which was admitted into evidence. Respondent testified on his own behalf. He offered no exhibits.

A Transcript of the proceedings was filed on August 4, 2011. The parties were granted ten days within which to file proposed recommended orders. Both parties timely filed Proposed Recommended Orders which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, as Commissioner of the Florida Department of Education, is charged with the duty to investigate and take

   
   

   disciplinary action against individuals who hold a Florida educator's certificate and are alleged to have violated section 1012.795, Florida Statutes, and the Department‟s rules establishing standards of teacher conduct.

2. Respondent holds an educator‟s certificate,

   
   

   No. 1085138, issued by the Florida Department of Education.

   
   

3. At all times material to this proceeding, Respondent was a music teacher at Ed White High School in Duval County, Florida.

4. Respondent graduated from Florida A & M University in the Spring of 2008 with a bachelor‟s degree in music education.

5. Respondent was first employed by the Duval County School Board in February, 2008, immediately before his graduation from Florida A & M, as a substitute teacher at Ed White High School. He taught as a full-time music teacher during the 2008-2009 school year, until his resignation on April 6, 2009.

6. Respondent currently holds a teacher certification from the state of Georgia, and teaches music at Terrell High School in Atlanta, Georgia, a position that he has held for two years.

7. Mr. Jackson had a good reputation as a teacher. There was no allegation of any prior disciplinary history involving Respondent.

   
   

8. One of the resources provided to Respondent as a teacher at Ed White High School was a school-issued laptop computer. That computer was Respondent‟s only school-issued computer, as the school did not provide him with a desktop computer. There was no restriction against teachers taking school-issued laptops home for work-related purposes. Respondent occasionally took his school-issued laptop home with him. He also stored music files on his school-issued laptop after his personal laptop was stolen from the school.

9. Respondent had an account with the school, which included access to the internet. In order to have that account, Respondent was provided with a copy of the Duval County Public Schools Staff Network and Internet Acceptable Use and Security Policy and Guidelines (AUP). Among the guidelines were the following:

   All Network Usage is Subject to Monitoring

   
   

   The Internet and other networks are public places. There is no reasonable expectation of privacy. The district reserves the right to monitor all traffic on the network and review all files stored on or transmitted through its computer system.

   
   

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   Appropriateness of Materials

   
   

   Access to the internet provides opportunities for staff and students to explore thousands of resources outside of the walls of their school or office. The

   
   

   district acknowledges that fact that inappropriate materials exist and will do everything it can do to actively avoid them, including the use of filtering software.

   The district has implemented technology protection measures that filter internet access to block visual displays that are obscene, pornographic, or harmful to minors, but this technology is not 100% effective.

   No software can filter out all of the materials that are unacceptable for academic purposes and it should be clearly understood by all staff and all students and their parents/guardians that intentional access to such material, in any form, is strictly forbidden. The network is designed to achieve and support the district‟s business and instructional goals and any information that does not support the goals is to be avoided. The district wants staff and students to use this valuable tool, but at the same time cannot condone the use of inappropriate information or unauthorized access. If a staff or student unintentionally accesses such information while doing legitimate research, he/she should contact the teacher or the person responsible for technology at his/her site for appropriate action.

   
   

   It is the responsibility of all users, staff, and students that at all times while in the Duval County Public Schools, the computers, the network, and the internet are being used primarily for educational or district business purposes.

   
   

   * * * Network Security Passwords

   The person in whose name a network account is issued is responsible at all times for its proper use

   
   

   Passwords must never be shared. To share a user ID or password exposes the authorized user to responsibility for actions the other party takes with the password and ID

   
   

   * * *

   
   

   Appropriate Behavior

   
   

   Staff members are responsible for appropriate behavior on the district‟s computers, business systems, network, and the internet and should adhere to all relevant federal, state, and local laws; district policies, guidelines, standards, procedures and controls; and the Code of Ethics and Principles of Professional Conduct of the Education Profession in Florida. Users who disregard the federal, state, and local laws and codes, district policies, guidelines, standards, procedures and controls may have their privileges suspended, revoked, and disciplinary action taken against them, including termination. Users granted access to the network through the district‟s computer systems assume personal responsibility and liability, both civil and criminal, for uses of the network not authorized by this policy and the district‟s guidelines. Employees should only use the information from business systems or the network in the performance of their duties/responsibilities with the school system unless that is a direct responsibility of the employee. The district does not sanction any use of its computers or the internet that is not authorized by or conducted strictly in compliance with this policy and the district‟s guidelines, standards, procedures, and controls. Users who disregard this policy and the district‟s guidelines, standards, procedures and controls may have his/her privileges suspended or revoked and disciplinary action taken against them. Users granted access to the network through the district‟s computers

   
   

   assume personal responsibility and liability, both civil and criminal, for uses of the network not authorized by this policy and the district‟s guidelines, standards, procedures and controls.

   
   

   The district retains the right to remove from its information systems any material it views as offensive or potentially illegal.

   
   

   The district declares unethical and unacceptable behavior as just cause for disciplinary action, the revocation of network access privileges, termination and/or the initiation of legal action for any activity through which an individual:

   
   

   1. uses the district‟s computers and/or network for illegal, inappropriate, or obscene purposes, or in support of such activities

      
      

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      b. Obscene activities shall be defined as a violation of generally accepted social standards for use of a publically owned and operated communication vehicle

      
      

10. Respondent acknowledged receipt of the AUP by electronic signature.

11. Respondent‟s laptop computer was password-protected, meaning that no one other than Respondent could access the school network or any computer files without having his password.

12. As a teacher, Respondent had access to certain websites that were blocked to students, most notably YouTube.

    
    

13. Respondent provided his password to three or four trusted students to complete online classwork, or to view videos of other bands on YouTube in preparation for their end-of-year, spring concert. Although sharing password information with students is prohibited by the AUP, and student access to the internet is conditioned upon the Duval County Public School employee obtaining signed parental consent, those potential violations were not pled in this case.

14. In the spring semester of 2009, James Culbert, as part of his weekly review of the school district‟s internet content filter system, determined that Respondent was accessing, or attempting to access, inappropriate internet sites through his school account, or was using search terms that the school district had determined to be inappropriate for use on the school district system.

15. Mr. Culbert reviewed the internet access logs, and prepared a full internet-use report for Respondent‟s account for the period from March 2, 2009 to April 6, 2009. The report consisted of 530 pages of internet history, and included every internet search performed using Respondent‟s account during that period. Those searches included educational and other non- restricted sites, and the inappropriate sites that form the basis of the Administrative Complaint. The internet-use records reflected access or attempted access to inappropriate,

    
    

    pornographic materials through Respondent‟s account on five occasions from March 12, 2009 to March 31, 2009.

16. Contemporaneously with Mr. Culbert‟s system analysis, Mr. McCallum accessed Respondent‟s computer, apparently by remote means, and determined that it contained downloaded video files that were pornographic in nature.

17. On April 6, 2009, Mr. Culbert and Mr. McCallum met with Ed White High School Principal Jim Clark to advise him of the results of the investigation. Principal Clark and

    Mr. Culbert then went to the band room at approximately 11:20 a.m., during Respondent‟s planning period, and asked Respondent to accompany them to the principal‟s office. The classroom visit was intentionally discreet so as not to call attention to the situation.

18. Respondent was joined in the principal‟s office by Principal Clark, Mr. Culbert, and Mr. McCallum. The school officials proceeded to provide Respondent with the substance of the allegations against him. During the investigative interview Respondent acted in a cooperative and gentlemanly manner.

19. When confronted with the conduct that gave rise to the allegations in this proceeding, Respondent voluntarily resigned his position with the Duval County School Board.

20. Respondent knew that the use of his school-issued laptop computer to access pornography was prohibited by the AUP,

    
    

    having signed an acknowledgement that he had received, read, and understood the policy. In addition, each time a teacher logs onto a school-issued computer, a banner page appears warning the teacher against inappropriate use, instructing that all use may be “monitored, intercepted, recorded, read, copied, or captured,” and advising that school personnel have no expectation of privacy as to any use of the system.

21. Nothing in the record suggests that Respondent tried to disable the District‟s computer and internet protection, downloaded any program to circumvent the District‟s filtering software, or took any steps to disguise his actions.

    Internet Searches

    
    

22. The only direct evidence of Respondent accessing or attempting to access inappropriate websites was for the following dates and times:

    March 12, 2009 at 7:33 a.m. - “google.com” and “youtube.com.”

    
    

    March 17, 2009 at 12:06 p.m. - “live.com.”

    
    

    March 18, 2009 from 11:37 to 11:46 a.m. and

    11:52 to 11:53 a.m. - “live.com,”

    “msn.com,” and “google.com.”

    
    

    March 23, 2009 at 10:46 to 10:49 a.m. - “google.com” and “youtube.com.”

    
    

    March 31, 2009 from 6:37 to 6:43 p.m. - “excusivepussy.com,” “blackcrush.com,” “live.com,” and “RUDE.com.”

    
    

    There is nothing inherently improper about accessing Google, YouTube, or msn.com. Rather, it is the search terms used that form the basis for the complaint. Those search terms, though not inherently graphic, were sufficient to support a finding of intent to access inappropriate content.

23. As part of his forensic investigation, Mr. Culbert retrieved JPEG files from the temporary internet files on Respondent‟s computer. The files consisted of photographic images of pornographic activity, and were created between 6:37 to 6:43 p.m. on March 31, 2009. Thus, I find the evidence to be clear and convincing that Respondent accessed pornographic materials on his school-issued laptop computer during that period.

24. March 30 through April 3, 2009 was spring break. The “Material Allegations” alleged in the Administrative Complaint indicate that Respondent‟s access of the inappropriate materials during school hours was material, and constitute the allegations of misconduct that Respondent must answer to. Since the access on March 31, 2009, occurred over spring break and beyond regular school hours, the access on that date does not form the basis for a violation.

25. The fact that inappropriate images were in temporary internet files is not evidence that Respondent downloaded any images, or had the intent to store those images on his computer.

    
    

    It is common knowledge that computers keep track of information that passes through them without any action on the part of the user. The evidence shows that to be the case here. Thus, although Respondent accessed the images on March 31, 2009, outside of school hours, there is no evidence that he intended to maintain such images in a manner that could be reasonably accessed by students.

26. During the six-minute period on March 31, 2009 in which inappropriate websites were accessed or had attempted access, the internet use report shows hits on “scutheti.com,” which is a malicious code/virus. The malicious code/virus first manifested itself at 6:37 p.m., contemporaneously with the first hit on the “RUDE.com” website, which was likely the infecting vehicle. Based on the uniform sequence of access to two of the more graphically-named websites following connection to “scutheti.com,” it is clear that the sites were interacting with each other, and that “scutheti.com” was trying to send tracking information to those sites. The only plausible way that those sites could have been accessed with the depicted frequency and regularity during that six-minute period was through the actions of a malicious application, rather than by action of Respondent. Thus, I find that Respondent did not access or attempt to access those graphically-named websites listed on the first three pages of the internet-use report.

    
    

27. The evidence of record contains no temporary internet files or downloaded images of pornographic materials for the March 12, March 17, March 18, or March 23, 2009, instances of access or attempted access to inappropriate materials. Each of those dates was a school day as shown on the 2008-2009 District Calendar. Given the lack of stored images in the temporary internet files for those dates, it is more reasonable than not that the school district‟s internet filter worked as designed, and prevented access to those sites. That finding is bolstered by the fact that it was the blocks of pornographic type websites that brought this matter to the attention of the school district.

28. Mr. Culbert testified that the website screen shots that he reviewed to determine the nature of the sites identified from the internet filter report were not retrieved from Respondent‟s computer, but were rather obtained during his investigative foray to those sites. Those screen shots do not constitute clear and convincing evidence that Respondent successfully accessed any inappropriate websites on March 12, 2009; March 17, 2009; March 18, 2009, and March 23, 2009.

29. There is no direct evidence that the access or attempted access to inappropriate websites on March 12, 2009; March 17, 2009; March 18, 2009, and March 23, 2009 occurred while students were in the classroom. Nonetheless, Respondent

    
    

    suggested that the access to inappropriate sites could have been the result of students surfing the internet on his laptop computer while unattended. It is plausible that students to whom Respondent provided his ID and password could have accessed inappropriate content while using his computer. However, there is neither an allegation nor proof of that having occurred.

    Regardless, the AUP made it clear that Respondent bore responsibility for unacceptable use in the event he chose to share information, a policy that is reasonable and appropriate. Video Files

30. During his inspection of Respondent‟s school-issued laptop computer, Mr. Culbert discovered five video files stored on the computer‟s hard drive that depicted graphic sexual conduct between adults. The files range from 18 to 34 minutes in length. The evidence indicates that the files were downloaded on March 31, 2009 from 9:45 to 9:46 p.m., and on April 1, 2009 from 3:20 to 3:26 p.m.

31. At some time prior to the incidents that are the subject of this proceeding, Respondent and other teachers at Ed White High School, were asked to clear their computers of personal files to allow for system work. Respondent had thousands of mp3 music files on his school-issued computer. Use of the computer for that purpose was not identified as being contrary to the school‟s acceptable-use policy. In order to

    
    

    clear his computer, Respondent loaded his mp3 files onto a series of personal “jump drives.”

32. After being cleared to do so, Respondent reloaded his files from the jump drives back onto his school-issued laptop computer hard drive. Respondent testified that he did not download any video files to the computer from the internet, and had no recollection of having intentionally loaded such files from any other source. He could only conclude that the video files were stored on one or more of the jump drives, and were downloaded with the mp3 files without the specific intent to do so. His testimony on that issue is both plausible and credible. Thus, the greater weight of the evidence demonstrates that the download of the video files was inadvertent and unintentional.

33. It does appear that Respondent did, while still on spring break, access two of the video files on April 2, 2009, at 9:33 a.m. Access on that day was not during school hours. However, such access reveals that Respondent became cognizant of their presence on the laptop computer, and should have led him to delete them from the school-issued computer.

34. The access log further indicates one of the videos was accessed at 9:43 a.m. on April 6, 2009, a school day. However, prior to Mr. McCallum and Mr. Culbert‟s 11:00 a.m. meeting with the principal on April 6, 2009, and prior to their taking physical control of the computer, Respondent‟s internet attempts

    
    

    were checked and “[i]n addition, a further check revealed that Jackson had downloaded pornographic videos onto his district assigned laptop.” Thus, it appears that remote access to Respondent‟s computer was obtained by the investigators prior to their 11:00 a.m. meeting. After that “further check,”

    Mr. McCallum drove to Mr. Culbert‟s office, picked him up, and they drove together to Ed White High School. Given the sequence and timing of events, it is more likely than not that the

    April 6, 2009, video access was made as part of the investigation. In any event, the evidence is not clear and convincing that Respondent accessed the video file at 9:43 a.m. on April 6, 2009.

35. Respondent denied ever having accessed or played the videos during school hours as alleged in the Administrative Complaint. The greater weight of the evidence supports his denial.

    DVD disc

    
    

36. When the school officials took possession of Respondent‟s school-issued laptop on the morning of April 6, 2009, they discovered a DVD in the computer‟s DVD drive. The DVD consisted of videos of adults engaged in a variety of sexual acts. The DVD was pornographic in nature.

37. The record is devoid of evidence as to when the DVD was inserted into the computer drive. Although Respondent

    
    

    disclaimed knowledge of how the DVD made it into the computer drive, the evidence is clear and convincing that it was placed into the computer drive while the computer was in Respondent‟s control. Respondent is responsible for his school-issued laptop computer, and its contents are fairly attributable to him.

38. There is no evidence that the DVD was ever accessed or played during school hours, or that it was ever viewed by or shared with any student, teacher, or staff member of Ed White High School.

39. The materials that were found on Respondent‟s computer, either as internet images, video files, or the DVD, all depicted sexual activity between consenting adults. None of them depicted sexual activity involving minors. There is no evidence that the materials were “obscene,” though they are clearly pornographic. In that regard, Ms. Young was twice asked her opinion as to whether the materials were “obscene or pornographic,” and her response on both occasions was that they were pornographic. There is no evidence that the materials were illegal or that they involved criminal activity. While the materials are without question offensive to some, accessing and watching images of adults engaged in sexual activity, in privacy, does not involve “the idea of inherent baseness or depravity in the private social relations or duties owed to man or by man to society.”

    
    

40. Neither the conduct alleged, nor the investigation or interview of Respondent was known to anyone outside of the principal and the two school board employees involved in the investigation. There was no evidence that any student, parent, or other teacher had any knowledge of Respondent‟s access or attempted access of inappropriate material from his school- issued laptop. His conduct was not, in any sense of the term, “notorious.” The fact that Respondent‟s school-issued laptop computer was used to access, store, or hold pornographic images in various forms and on various media did not have any adverse affect on Respondent‟s effectiveness as a teacher at Ed White High School.

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

41. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to sections 120.569 and 120.57(1), Florida Statutes.

    1. Standards

       
       

42. Section 1012.795(1), Florida Statutes, which establishes the violations that subject a holder of an educator certificate to disciplinary sanctions, provides in pertinent 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 up to 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 up to 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 an order of the court or notice by the Department of Revenue relating to the payment of child support; or may impose any other penalty provided by law, if the person:

    * * *

    
    

    (d) Has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education.

    
    

    * * *

    
    

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

    
    

    * * *

    
    

    (j) Has violated the Principles of Professional Conduct for the Education

    
    

    Profession prescribed by State Board of Education rules.

    
    

43. Rule 6B-1.006 Principles of Professional Conduct for the Education Profession in Florida, provides, in pertinent part, that:

    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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    4. Obligation to the public requires that the individual:

    
    

    * * *

    
    

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

    
    

44. Section 1012.796(7) provides in pertinent part, that:

    
    

    1012.796 Complaints against teachers and administrators; procedure:

    
    

    * * *

    (7) A panel of the commission shall enter a final order either dismissing the complaint

    
    

    or imposing one or more of the following penalties:

    
    

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    1. Revocation or suspension of a certificate.

       
       

    2. Imposition of an administrative fine not to exceed $2000 for each count or separate offense.

       
       

    3. Placement of the teacher, administrator, or supervisor on probation for a period of time and subject to such conditions as the commission may specify, including requiring the certified teacher, administrator, or supervisor to complete additional appropriate college courses or work with another certified educator, with the administrative costs of monitoring the probation assessed to the educator placed on probation. An educator who has been placed on probation shall, at a minimum:

       
       

       1. Immediately notify the investigative office in the Department of Education upon termination of employment in the state in any public or private position requiring an educator's certificate.

          
          

       2. Have his or her immediate supervisor submit annual performance reports to the investigative office in the Department of Education.

          
          

       3. Pay to the commission within the first 6 months of each probation year the administrative costs of monitoring probation assessed to the educator.

          
          

       4. Violate no law and shall fully comply with all district school board policies, school rules, and State Board of Education rules.

          
          

       5. Satisfactorily perform his or her assigned duties in a competent, professional manner.

          
          

       6. Bear all costs of complying with the terms of a final order entered by the commission.

          
          

    4. Restriction of the authorized scope of practice of the teacher, administrator, or supervisor.

       
       

    5. Reprimand of the teacher, administrator, or supervisor in writing, with a copy to be placed in the certification file of such person.

    
    

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    (h) Refer the teacher, administrator, or supervisor to the recovery network program provided in s. 1012.798 under such terms and conditions as the commission may specify.

    
    

    1. The Burden and Standard of Proof.

    
    

45. The Petitioner bears the burden of proving the specific allegations of fact that support the charges alleged in the Administrative Complaint by clear and convincing evidence.

    § 120.57(1)(j), Fla. Stat.; Latham v. Fla. Comm‟n on Ethics, 694 So. 2d 83, 87 (Fla. 1st DCA 1997); see also Dep‟t of Banking

    & Fin., Div. 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); and Pou v. Dep‟t of Ins. and

    
    

    Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998).

    
    

46. Clear and convincing evidence “requires more proof than a „preponderance of the evidence‟ but less than „beyond and to the exclusion of a reasonable doubt.‟” In re Graziano,

    696 So. 2d 744, 753 (Fla. 1997). For proof to be considered

    
    

    clear and convincing” . . . 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.

    
    

    In re Davey, 645 So. 2d 398, 404 (Fla. 1994) quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005). "Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler Bros.,

    Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

    
    

47. Section 1012.795 and the Principles of Professional Conduct for the Education Profession in Florida, Florida Administrative Code Rule 6B-1.006, are penal in nature, and must be strictly construed, with any ambiguity construed against the Petitioner. Penal statutes must be construed in terms of their literal meaning, and words used by the Legislature may not be expanded to broaden the application of such statutes. Latham v.

    
    

    Fla. Comm‟n on Ethics, 694 So.2d 83 (Fla. 1st DCA 1997); see also Beckett v. Dep‟t of Fin. Svcs., 982 So. 2d 94, 100 (Fla. 1st DCA 2008; Dyer v. Dep‟t of Ins. & Treasurer, 585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).

48. The allegations of fact set forth in the charging document are the facts upon which the disciplinary proceeding is predicated. Trevisani v. Dep‟t of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005). See also Cottrill v. Dep‟t of Ins.,

    685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). In this case, the Administrative Complaint was predicated on the allegation that “[d]uring the Spring 2009 semester, Respondent accessed pornographic materials on his school-issued . . . laptop computer[] during school hours.”

49. As leaders and role models in the community, teachers are held to a high moral standard. Adams v. Prof'l Practices Council, 406 So. 2d 1170, 1172 (Fla. 1st DCA 1981).

    Count 1: Section 1012.795(1)(d), Florida Statutes

    
    

50. Count 1 of the Administrative Complaint charges Respondent with violating section 1012.795(1)(d) by being guilty of gross immorality or an act involving moral turpitude as defined by rule of the Department.

51. Section 1012.795(1)(d) does not define "gross immorality" or "an act involving moral turpitude". However, Florida Administrative Code Rule 6B-4.009, which contains

    
    

    definitions for use by school districts in disciplining instructional staff, has been used as a tool for interpreting section 1012.795(1)(d), Florida Statutes. John L. Winn, as Comm'r of Educ. v. Adela Popescu, Case No. 06-1620 (Fla. DOAH Aug. 23, 2006; Fla. EPC Jan. 23, 2006); Jim Horne, as Comm‟r of Educ. v. Mark S. Sanchez, Case No. 04-0733PL (Fla. DOAH Oct. 29, 2004; Fla. EPC June 15, 2005); accord Dr. Eric J. Smith, as Comm'r of Educ. v. Maria Elena Malvar, Case No. 10-2784 (Fla.

    DOAH Sept. 13, 2010; Fla. EPC Jan. 11, 2011).

    
    

52. “Gross immorality” is not defined by rule. However, 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.

    
    

53. "Gross immorality" has been described as an act of misconduct that is serious, rather than minor in nature; it is a flagrant disregard of proper moral standards. Brogan v. Mansfield, Case No. 96-0286 (Fla. DOAH Aug. 1, 1996; Fla. EPC Oct. 18, 1996).

54. In order to dismiss a teacher for immoral conduct the factfinder must conclude: a) that the teacher engaged in conduct inconsistent with the standards of public conscience and good

    
    

    morals, and b) that the conduct was sufficiently notorious so as to disgrace the teaching profession and impair the teacher's service in the community. McNeill v. Pinellas Cty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996, citing McKinney v.

    Castor, 677 So. 2d 387 (Fla. 1st DCA 1991).

    
    

55. Petitioner has failed to prove by clear and convincing evidence that viewing images of adults engaged in consensual sexual activities, without more, constitutes a flagrant disregard of proper moral standards. In addition, neither the conduct itself, nor the investigation or interview of Respondent was in any sense of the term “notorious.” No evidence was presented as to any public knowledge of the incident.

56. Likewise, this incident cannot be considered conduct involving moral turpitude. Rule 6B-4.009(6) defines the term “moral turpitude” as “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.” Furthermore, moral turpitude has been defined by the Supreme Court as

    involv[ing] the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. . . . It 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. (citations omitted)

    
    

    State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 611 (Fla. 1933)

57. Respondent‟s conduct, while considered crude and objectionable by many, does not rise to the level of an act of vileness, baseness, or depravity. See Nelson v. Dep‟t of Bus. and Prof. Reg‟n, 707 So. 2d 378 (Fla. 5th DCA 1998)(holding that setting off a “smoke bomb” at a government office as a form of political protest did not show a “baseness or depravity” that impugned the professional licensee‟s ability to deal fairly with the public so as to constitute an act involving moral turpitude). Thus, Respondent is not guilty of Count 1 of the Administrative Complaint.

    Count 2: Section 1012.795(1)(g), Florida Statutes

    
    

58. Count 2 of the Administrative Complaint charges Respondent with violating section 1012.795(1)(g) by having been found guilty of personal misconduct that seriously reduces his effectiveness as an employee of the school board.

59. There are no facts to indicate that any student was exposed to or had knowledge of the images on Respondent‟s laptop computer. Respondent did not share the images with any other teacher. There was no evidence that Respondent‟s brief and

    
    

    random efforts to view adult pornographic images during school hours adversely affected his performance as a teacher, or affected his relationship with the students, teachers, or administration at Ed White High School. But for the school‟s filtering software, it is not likely that anyone would have become aware of the images on Respondent‟s school-issued laptop computer.

60. The facts of this case do not constitute clear and convincing evidence that Respondent's behavior reduced his effectiveness as a teacher to any degree, much less “seriously” reduced his effectiveness as a School Board employee. Thus, Respondent is not guilty of Count 2 of the Administrative Complaint.

    Count 3: Section 1012.795(1)(j), Florida Statutes

    
    

61. Count 3 of the Administrative Complaint charges Respondent with violating section 1012.795(1)(j) by having violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education Rules. Thus, Count 3 does not constitute an independent violation, but rather is dependent upon a corresponding violation of the rules constituting the Principles of Professional Conduct.

62. The Principles of Professional Conduct are set forth in Florida Administrative Code Rule 6B-1.006. The conclusions

    
    

    as to violations of the individual Principles of Professional Conduct are set forth in the analysis of Counts 4 and 5. To the extent Respondent‟s actions are determined to constitute a violation of the Principles of Professional Conduct alleged in Counts 4 and 5, those actions will likewise constitute a corresponding non-separate violation of section 1012.795(1)(j). Count 4: Florida Administrative Code Rule 6B-1.006(3)(a)

63. Count 4 of the Administrative Complaint charges Respondent with violating Florida Administrative Code Rule 6B- 1.006(3)(a), by failing to make reasonable effort to protect the student from conditions harmful to learning and/or to the student‟s mental health and/or physical health and/or safety.

64. Respondent‟s conduct regarding the actual or attempted internet searches was not such that Respondent failed to make a “reasonable effort” to protect his students from conditions harmful to learning or to their mental health.1/ He did not expose any student to inappropriate activity, and downloaded no images to his hard drive. The presence in a temporary internet file of images viewed during non-school hours does not support either a finding or a conclusion that Respondent failed to make a “reasonable effort” to protect his students.

65. As to the video files, the evidence supports the fact that the files were initially downloaded to the school-issued laptop computer as part of the transfer of his mp3 files, and

    
    

    without specific knowledge or intent on the part of Respondent. However, when Respondent became aware of their existence on April 2, 2009, he should have deleted them from his computer.

    He did not. The fact that Respondent allowed his students to access his computer during their free periods, though his intent in doing so was consistent with advancing their educational goals, opened the possibility, however slight, that the students might rummage through his personal files and access the videos.

66. Likewise, Respondent was responsible for the DVD, regardless of how it came to be in the computer. By bringing that content onto school grounds, it raised the possibility that a student, while on the laptop computer for legitimate purposes, could have stumbled across the DVD and played it.

67. The evidence demonstrates that Respondent had no intent to expose any student to inappropriate content, and in fact no student was so exposed. Furthermore, the evidence is persuasive that the existence of the videos and the DVD on and in the computer was more likely the result of carelessness than of any desire to have such materials available at school. Nonetheless, Respondent could have simply deleted the video files upon discovery, and could have checked the DVD drive before returning to school from a week-long break. Since he did not, Respondent failed to make a “reasonable effort” to protect his students from conditions harmful to learning or to their

    
    

    mental health. Thus, Respondent is guilty of Count 4 of the Administrative Complaint, and correspondingly is guilty of a non-separate violation of Count 3 of the Administrative Complaint.

    Count 5: Florida Administrative Code Rule 6B-1.006(4)(c)

    
    

68. Count 5 of the Administrative Complaint charges Respondent with violating rule 6B-1.006(4)(c), by using institutional privileges for personal gain or advantage.

69. There is no question but that Respondent took his school-issued laptop home on a regular basis for work-related purposes. It can only be inferred that, by issuing a portable laptop computer rather than a stationary desktop computer, the school had no objection to teachers taking their laptops to off- campus locations.

70. Respondent used his school-issued laptop for personal reasons. Such use included the storage of thousands of mp3 music files. Such allowable personal use was not a problem. Respondent ultimately used his laptop for accessing the internet to view inappropriate content. That use did not occur during school hours. The evidence is clear and convincing that Respondent attempted, though briefly and without apparent success, to access inappropriate content during school hours.

    He also used his laptop on at least one occasion to view a

    
    

    pornographic DVD though, again, no evidence was offered that the DVD was viewed during school hours.

71. The use of a school-issued computer to access inappropriate content violates the Principle of Professional Conduct prohibiting the use of institutional privileges for personal gain or advantage. Tom Gallagher, as Comm‟r of Educ.

    v. Ricardo F. Arnaldo, Case No. 00-2159 (Fla. DOAH May 16, 2001; Fla. EPC Sept. 14, 2001). Thus, Respondent is guilty of Count 5 of the Administrative Complaint, and correspondingly is guilty of a non-separate violation of Count 3 of the Administrative Complaint.

    Disciplinary Guidelines

    
    

72. The Department of Education has promulgated disciplinary guidelines in Florida Administrative Code Rule 6B-

    11.007 to establish the range of penalties for the violations established in this case. For using the school-issued laptop for personal gain or advantage in violation of rule 6B1-006(4), the penalty ranges from probation to revocation. For engaging in inappropriate electronic downloads involving pornography in violation of rule 6B1-006(3)(a), the penalty ranges from suspension to revocation. The rules specify no length of suspension or probation. The penalties for the other alleged but unproven violations range from probation to revocation.

    
    

73. In determining the appropriate discipline, rule 6B- 11.007(3) establishes aggravating and mitigating factors that may be applied to allow for a deviation from the penalties set forth in rule 6B-11.007(3).2/ I find that several mitigating factors apply in this case. The offenses proven are not so severe as to adversely affect any student, teacher, or staff member of Ed White High School, and in no demonstrable way affected Respondent‟s effectiveness as a teacher. The conduct presented no danger to the public. The number of repetitions of the conduct was small and over a very few days, and the offenses themselves were brief. Respondent has no previous disciplinary history. Respondent has continued his teaching career in Georgia with no allegations of further instances of inappropriate behavior. There was no pecuniary benefit or self- gain, as that term is generally considered, to Respondent.

    There was no mental harm from Respondent‟s activities to any student.

74. Finally, rule 6B11-007(3)(t) allows for consideration of “[a]ny other relevant mitigating or aggravating factors under the circumstances.” In making the penalty recommendation that follows, and in addition to the mitigating factors described in the previous paragraph, the undersigned has considered Respondent's brief but positive work history, his conduct upon being made aware of the investigation, and his bearing and

    
    

    demeanor at the hearing. There was no intent to expose any student to inappropriate images, and none were so exposed. The acts at issue in this proceeding appear to be a thoughtless error in judgment by a young man at the start of his career.

    Bringing pornographic images into the classroom cannot be tolerated and must be discouraged. However, Respondent‟s error was largely occasioned by Respondent treating his school-issued laptop as his own, a mistake that becomes more common as employers, including the Duval County School Board, embrace the advantages of portability, and as computers become increasingly mobile and ubiquitous.

75. I conclude that the facts and circumstances of this case, considered in their totality, warrant the imposition of a penalty sufficiently severe to discourage Respondent, and others who may be similarly situated, from similar errors in judgment, but not so severe as to dissuade Respondent from applying the lessons learned from this event, and continuing his efforts to advance his career as a teacher. The Department has proposed that Respondent‟s educator certificate be suspended for two years, that he be subsequently placed on two years of probation, that he take and complete an educational ethics course, and that he pay an administrative fine of $500.00. Although this penalty comes within the applicable range of penalties, it fails to account for mitigating circumstances, assumes a finding of guilt

on Counts 1 and 2, and is more severe than is necessary to protect the interests of the students and the public. The recommendation that follows is made taking all of the facts and circumstances established in this case into account.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED that a final order be entered:

1. dismissing Counts 1 and 2 of the Administrative Complaint;

2. finding the Respondent guilty of the violations alleged in Counts 4 and 5 of the Administrative Complaint and, as a result, also guilty of the non-separate violation alleged in Count 3 of the Administrative Complaint;

3. imposing a suspension of the Respondent's educator certificate for a period of 90 days;

4. imposing a probationary period of one year upon his return to teaching in any public or private school in Florida on such reasonable terms and conditions as the Educational Practices Commission determines are necessary to prevent recurrences of the conduct proven in this case;

5. requiring that Respondent take and pass a three-hour, college-level course in ethics during the probationary period; and

   
   

6. imposing a fine of $250 to be paid by the end of the probationary period.

DONE AND ENTERED this 18th day of August, 2011, in Tallahassee, Leon County, Florida.

S

E. GARY EARLY 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 18th day of August, 2011.

ENDNOTES

1/ There has been no suggestion that the acts alleged in this case would have had any effect on the physical health or safety of any student.

2/ Rule 6B-11.007 was last amended on April 9, 2009, three days after the last of the events alleged in the Administrative Complaint occurred. Therefore, the rule as amended on March 22, 2007 has been used in this case. The 2009 amendment contained no changes material to this case.

COPIES FURNISHED:

J. David Holder, Esquire

J. David Holder PA

40 Grand Flora Way

Santa Rosa Beach, Florida 32459

Adrian Jackson

1475 San Bay Drive, Apartment 3007

Atlanta, Georgia 30331

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

Turlington Building, Suite 224

325 West Gaines Street Tallahassee, Florida 32399-0400

Lois Tepper, Interim General Counsel Department of Education

Turlington Building, Suite 224

325 West Gaines Street Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services 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: 11-001113PL

Orders for Case No: 11-001113PL