STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

MARK AARON LESLIE,

Respondent.

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) Case No. 11-2252PL

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RECOMMENDED ORDER

At the request of the parties, this case was tried upon stipulated facts before Administrative Law Judge John G. Van Laningham. The parties' Joint Stipulation was filed on

September 20, 2011, and each filed a Proposed Recommended Order on October 6, 2011.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761 STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, a teacher, knowingly possessed the pornographic images found on a floppy

disk in his classroom and also in his school-issued computer. If Respondent engaged in any such wrongdoing, it will be necessary to determine what disciplinary action, if any, should be taken against his educator certificate.

PRELIMINARY STATEMENT

The instant proceeding began on May 3, 2011, when Mark Aaron Leslie filed Respondent's Motion to Re-Open Case and Schedule Final Hearing. Mr. Leslie requested a hearing to contest the allegations that the Commissioner of Education ("Commissioner") had made against him in an Amended Administrative Complaint executed on July 10, 2008. The Commissioner had charged

Mr. Leslie, the holder of a valid Florida Educator Certificate, with having violated the statutes and ethical rules governing teachers based on allegations that Mr. Leslie had knowingly possessed the pornographic images found on a floppy disk in his classroom and also in his school-issued computer.

The Administrative Law Judge scheduled a final hearing for August 23 and 24, 2011. On August 16, 2011, the parties filed a Joint Motion to Dispense With Formal Hearing, which was granted. Accordingly, the case was tried based upon an agreed statement of facts, which the parties submitted in a Joint Stipulation filed on September 20, 2011. Each party timely submitted a Proposed Recommended Order on October 6, 2011.

MATERIAL FACTS

The Accepted Historical Narrative1

1. Respondent Mark Aaron Leslie ("Leslie") holds Florida educator certificate 442908, which covers the areas of Educational Leadership, History, and Technology Education and is valid through June 30, 2015. He was employed as a teacher for

   24 years.

   
   

2. On May 25, 2005, Leslie was employed as a teacher at Feliz Varela Senior High School in the Miami-Dade County School District.

3. That day, a student in Leslie's class named A.B. was working on a project for the aerospace class. A.B. requested a computer disk from Leslie on which to store schoolwork. Leslie got up from his computer, reached inside a filing cabinet, and took out a black floppy disk that had a sticker from one of the modules. When the student opened this disk, it contained pornography. The student informed Leslie, who exclaimed, "Oh Jesus!" (or words to that effect), and took the disk back. Instead of reporting the disk's contents——or these events——to any school official, Leslie deleted the files in question.

4. Two other students, A.G. and A.C., also viewed the contents of the disk, and they reported the information to school officials several days after the event. The students' report triggered an investigation, which included a forensic

   
   

   search of Leslie's school-issued computer. In a meeting with the principal, Rafael Villalobos, Leslie explained that he was not aware of how the pornographic image had gotten on the floppy disk. Leslie informed the principal that the disk had since been erased.

5. Leslie gave a written statement on May 31, 2005, explaining these events. On July 20, 2006, he gave another statement——this time to Detective Rodriguez——in which he admitted having deleted the pornographic material on the disk and failed to report the incident to school authorities.

6. A forensic search of Leslie's school-issued computer was performed. Adult pornography under a file named "mleslie" was found on the computer, which also contained several "cookies" related to sexually explicit web sites, indicating that pornographic web sites had been accessed using the school- issued computer. This file also contained work-related documents.2

7. The school district's policies regulating computer and data use were contained in a document entitled, M-DCPS Network Security Standards ("NSS"). The NSS applied to all authorized staff (including Leslie), volunteers, students, and vendors, as well as unauthorized parties seeking access to the school district's computer resources. Section 4.1 of the NSS, entitled "M-DCPS Network Security System," outlined the school district's

   
   

   acceptable use policy and, in paragraph 18, required timeouts and passwords to prevent unauthorized access. Section 5.1, paragraph 3, of the NSS stated that a user is responsible for all activity associated with his or her user-id.

8. The floppy disk which contained the pornography that was found by a student on May 25, 2005, in Leslie's class was shared among students in five different classes and had been recycled by them. Further, Leslie's colleague who occupied the adjoining class often saw students using Leslie's computer to complete school projects. He also witnessed students using Leslie's computer during the after-school classes taught at the school by a teacher other than Leslie. This teacher confirmed that because Leslie's computer was the only one connected to the color printer, students needed to use that computer.

9. Leslie used the password "ML" or "MLI" to access files on his computer. He entered his password on students' computers, in the presence of students, to give them access to his files for purposes of printing documents.

10. Respondent resigned his position with the School Board on August 28, 2006, in lieu of a termination proceeding. By resigning, Respondent was able to receive approximately

    $60,000.00 in sick day benefits.

    
    

    The Charges

    
    

11. In his Amended Administrative Complaint against Leslie, which was executed on July 10, 2008, the Commissioner made the following pertinent factual allegations:

    1. On or about May 25, 2005, a student in [Leslie]'s class requested a computer disk on which to store school work.

       [Leslie] handed the student a disk. The disk contained child pornography. When the student showed [Leslie] the disk, [he] exclaimed, "Oh Jesus," or words to that effect. [Leslie] took the disk back and failed to report the contents or these events to any school official. [Leslie] deleted the files in question.

       
       

    2. The student or other students who witnessed the contents of the disk reported the information to school officials several days after the event. A forensic search of [Leslie]'s school-issued computer was performed. [Leslie] possessed adult pornography under a file named "mleslie" on his school-issued computer. He also possessed several "cookies" related to sexually explicit web sites, indicating that he had accessed pornographic websites using the school-issued computer. The file also contained work-related documents.

       
       

    3. The computer also contained child pornography, but the filepath was unable to be identified, leaving the dates of storage and username unknown.

       
       

12. On these allegations, the Commissioner accused Leslie of having committed six disciplinable offenses, namely those defined in subsections (1)(c) and (1)(f) of section 1012.795, Florida Statutes (2004); and violations of subsections (3)(a),

    
    

    (4)(c), (5)(a), and (5)(n) of Florida Administrative Code Rule 6B-1.006, which are part of the Principles of Professional Conduct for the Education Profession in Florida. If proved by clear and convincing evidence, the alleged rule violations would be grounds for discipline under section 1012.795(1)(i).

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes (2011).

14. Upon a finding of probable cause to believe that grounds exist to revoke or suspend a teaching certificate, or to impose any other appropriate penalty against a teacher, the Commissioner is responsible for prosecuting the formal administrative complaint. § 1012.796, Fla. Stat. (2004).

15. If the Commissioner proves any of the grounds for discipline enumerated in section 1012.795(1), then the Education Practices Commission ("EPC") is empowered to punish the certificate holder by imposing penalties that may include one or more of the following: permanent certificate revocation; certificate revocation, with reinstatement following a period of not more than ten years; certificate suspension for a period of time not to exceed five years; an administrative fine not to exceed $2,000 for each count or separate offense; restriction of the authorized scope of practice; issuance of a written

    
    

    reprimand; and placement of the teacher on probation for a period of time and subject to such conditions as the EPC may specify. §§ 1012.796(7), 1012.795(1).

16. Section 1012.795(1)(c) authorizes the EPC to take disciplinary action against a teacher when it has been shown that he "[h]as been guilty of gross immorality or an act involving moral turpitude." This is the offense which the Commissioner has charged in Count 1 of the Amended Administrative Complaint.

17. Section 1012.795(1)(f) authorizes the EPC to take disciplinary action against a teacher when it has been shown that he "[h]as been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board." This is the offense which the Commissioner has charged in Count 2 of the Amended Administrative Complaint.

18. Section 1012.795(1)(i) authorizes the EPC to take disciplinary action against a teacher when it has been shown that he "[h]as violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules." This is the offense which the Commissioner has charged in Counts 3 through 7 of the Amended Administrative Complaint, with Counts 4 through 7 specifying the particular rules that Leslie is alleged to have violated.

    
    

19. Rule 6B-1.006 provides in pertinent part as follows:

    
    

    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.

          
          

          * * *

          
          

    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.

    
    

    * * *

    
    

    (n) Shall report to appropriate authorities any known allegation of a violation of the Florida School Code or State Board of Education Rules as defined in Section 231.28(1), Florida Statutes.

    
    

    These are the rules which the Commissioner has alleged Leslie violated.

    
    

20. The foregoing statutory and rule provisions are penal in nature and must be strictly construed, with ambiguities being resolved in favor of the licensee. Lester v. Dep't of Prof'l & Occ. Regs., 348 So. 2d 923, 925 (Fla. 1st DCA 1977). Whether Leslie committed an offense, as charged, is a question of ultimate fact to be decided in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

21. For the EPC to suspend or revoke a teacher's certificate, or to impose any other penalty provided by law, the Commissioner must prove the charges by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987); McKinney, 667 So. 2d at 388. Further, the grounds proven must be those specifically alleged in the administrative complaint. See, e.g., Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Kinney v. Dep't of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Dep't of Prof'l Reg., 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

22. Regarding the standard of proof, in Slomowitz v.

    
    

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court developed a "workable definition of clear and convincing evidence" and found that of necessity such a definition would

    
    

    need to contain "both qualitative and quantitative standards." The court held that:

    clear 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 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.

    
    

    Id. The Florida Supreme Court later adopted the Slomowitz court's description of clear and convincing evidence. See In re Davey, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding the interpretive comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. denied, 599 So. 2d 1279 (Fla. 1992)(citation omitted).

23. All of the charges against Leslie hinge on whether, in fact, Leslie was in actual or constructive possession of the pornography that was seen on the floppy disk, the pornography found in his computer, or both. Unless the Commissioner can show that Leslie knowingly possessed any of this pornography, the teacher cannot be punished.

    
    

24. Leslie was shown to have had actual physical possession only of the pornographic images on the floppy disk. This actual possession of the offensive material occurred, however, after a student had brought the images to Leslie's attention; it was, of course, then appropriate for Leslie, as the person in authority at the time, to take possession of the disk. Thus, under these circumstances, Leslie's actual possession of the pornography on the floppy disk does not establish that he had prior knowledge of the images. Consequently, culpability must rest on a theory of constructive possession, if Leslie is to be found guilty.

25. "Constructive possession exists where the accused does not have physical possession of the contraband but knows of its presence on or about the premises and can maintain dominion and control over it." Evans v. State, 32 So. 3d 188, 189 (Fla. 1st DCA 2010). In this case, Leslie's classroom was the premises where the pornography was found. The facts establish that a number of other persons besides Leslie had access to this classroom, including Leslie's students and at least one other teacher and that teacher's students, not to mention other school personnel, e.g., custodial staff and members of the administration, who likely entered the classroom occasionally while performing their regular duties. The facts establish, as well, that although Leslie could exercise dominion and control

    
    

    over the floppy disk and computer on which pornographic images resided, he lacked exclusive control over either of them. The relevant premises therefore were in joint possession.

26. Where, as here, premises are "in joint rather than exclusive possession, one cannot infer either the 'knowledge' or 'ability to maintain dominion and control' element from mere ownership of the residence or proximity to the contraband." Id. at 190. Both elements must established by "independent proof." Id.

27. There is no independent proof that, when Leslie gave one of his students a floppy disk, he knew that the disk contained pornographic images. There is, indeed, no proof whatsoever that Leslie saved the offensive images to the floppy disk, or that he ever had viewed them (before the student showed him the pictures). The facts, instead, are that the images were found on a portable, rewritable storage medium, which was shared among students in five different classes. In these circumstances, the evidence is insufficient to establish, clearly and convincingly, that Leslie knew of the presence of pornography on the floppy disk.3

28. The pornography on Leslie's school computer presents a closer question, given that his control over the computer was more absolute. The Commissioner relies upon the facts that the pornographic files were located in a folder named "mleslie,"

    
    

    stored side by side with work-related files. He deems it "inconceivable" that a student would save pornographic images to a "work file" on the teacher's computer.

29. That work-related documents (presumably Leslie's) had been saved to the same folder as the pornographic images does suggest that Leslie might have placed the offensive pictures there or at least known of their presence. What is unknown, however, is when the work-related documents were created, modified, or accessed in relation to when the files containing the pictures were created, modified, or accessed. Such basic information about the files' properties should have been discovered during the forensic search of Leslie's computer. Without a time frame with regard to when the pornographic files were created or accessed, the fact that some of Leslie's work- related files were present in the "mleslie" folder together with the pornographic files is insufficient to prove Leslie's knowledge of the latter, which might, for example, have been created months or years after the work files had last been opened. See Evans, 32 So. 3d at 191 (reversing appellant's conviction for possession of controlled substances because, while the "presence of appellant's passport in the duffel bag [where the contraband was found] suggests he could have placed the passport there[, s]uch an inference . . . provides no time frame with regard to when the contraband came to reside in the

    
    

    bag," which was not under appellant's exclusive dominion and control. "Without more, the mere presence of the passport is [insufficient] proof of appellant's knowledge of, and dominion over, the contraband.")

30. The possibility that a student might have saved pornographic images on Leslie's computer seems no less plausible to the undersigned than the scenario which the Commissioner posits, namely that Leslie stored such images on his school computer in a folder bearing his own name. More important than such speculation, however, is that an unknown number of students actually had access to, and routinely used, Leslie's school computer. There is no independent proof which rules out any of these students as the real culprit. Nor is there any independent proof which would make Leslie's culpability substantially more likely than that of others who used the computer——such as, for example, evidence showing that the files were created at times, e.g., after work or on weekends, when students would not likely have had access to the computer. See Bussell v. State, 66 So. 3d 1059, 1062 (Fla. 1st DCA 2011)(appellant's conviction for possession of child pornography was supported by sufficient circumstantial evidence, namely his admission that he was not working on the days the pornography was downloaded onto the family computer, coupled with the

    
    

    respective denials of his wife and son, each of whom gave testimony disclaiming responsibility for the downloads).

31. The undersigned concludes, therefore, that the evidence is insufficient to establish, clearly and convincingly, that Leslie knew of the presence of pornography on the school computer. That being the case, Leslie cannot be found guilty of any of the offenses charged, with the possible exception of the alleged violation of rule 6B-1.006(5)(n), which requires that "any known allegation of a violation of the" statutes or rules governing educators be reported to "appropriate authorities."

32. Leslie did not report the incident involving the floppy disk to the school administration. In this proceeding he has acknowledged that he should have. It is concluded, nevertheless, that Leslie did not violate rule 6B-1.006(5)(n), for two reasons. First, the rule does not require that a teacher self-report.4 Second, the rule does not impose a duty to investigate possible wrongdoing; rather, it provides that only "known allegation[s]" of wrongdoing must be reported. Consequently, because the only person whom the facts show was ever alleged to have violated a statute or rule in connection with the tainted floppy disk was Leslie himself, there was never any allegation of which Leslie could have become aware that rule 6B-1.006(5)(n) would have required him to report.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the EPC enter a final order dismissing the Amended Administrative Complaint against Respondent Mark Aaron Leslie.

DONE AND ENTERED this 2nd day of November, 2011, in Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

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 2nd day of November, 2011.

ENDNOTES

1/ The rule is settled that when, as here, "the parties agree that a case is to be tried upon stipulated facts, the stipulation is binding not only upon the parties but also upon the trial and reviewing courts. In addition, no other or different facts will be presumed to exist." Palm Beach Cmty. Coll. v. Dep't of Admin., 579 So. 2d 300, 302 (Fla. 4th DCA 1991); see also, e.g., Columbia Bank for Co-ops. v. Okeelanta Sugar Co-op., 52 So. 2d 670, 673 (Fla. 1951). Thus, the

material historical facts set forth herein are not "findings" in the usual sense; the undersigned neither added to, nor subtracted from, the agreed statement of facts that the parties submitted in their Joint Stipulation. The undersigned has, however, lightly edited the parties' Joint Stipulation for readability and clarity. The undersigned considers all of the judgments he has made concerning the significance of the agreed historical facts to be legal conclusions.

2/ Based on the context, the undersigned believes that the parties have used the term "file" to refer to a "folder." This is because each work-related document ordinarily would comprise a separate file, as would each pornographic image.

3/ The undersigned has not overlooked the fact that Leslie unilaterally deleted the pornographic images from the disk without reporting the incident to the administration, which could be considered a cover-up suggestive of a guilty conscience. Viewed in the context of all the circumstances, however, the undersigned does not consider Leslie's behavior suspicious enough to warrant the inference that he had prior knowledge of the pornography. The inference is at least equally reasonable that Leslie, despite being conscious of his innocence, deleted the files and told no one about them because he was afraid that if he reported the incident the disclosure would boomerang, triggering an investigation that could tarnish his reputation and ruin his career, even if he were eventually exonerated.

4/ Rule 6B-1.006(5)(m), in contrast, prescribes the circumstances under which a teacher must self-report, and it appropriately provides (as rule 6B-1.006(5)(n) pointedly does not) that the teacher's incriminatory statements shall not be admissible against him.

COPIES FURNISHED:

Mark Herdman, Esquire Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

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

300 Southeast 13th Street, Suite E Fort Lauderdale, Florida 33316

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

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

Lois Tepper, Interim 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: 11-002252PL

Orders for Case No: 11-002252PL