STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 13-0476TTS

JERRY R. COE,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on May 7, 2013, in Bartow, Florida, before Thomas P. Crapps, a designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Donald H. Wilson, Jr., Esquire

Boswell and Dunlap, L.L.P.

245 South Central Avenue Bartow, Florida 33831

For Respondent: Branden Vicari, Esquire

Mark Herdman, Esquire

Herdman and Sakellarides, P.A. Suite 110

29605 U.S. Highway 19, North

Clearwater, Florida 33761 STATEMENT OF THE ISSUE

Whether Petitioner, Polk County School Board (School Board), established "just cause" to terminate Respondent's employment as a teacher.

PRELIMINARY STATEMENT

On January 30, 2013, Respondent, Jerry Coe (Mr. Coe), was notified by letter that the Polk County School Superintendent would recommend to the School Board that it terminate Mr. Coe's employment. The letter stated that an investigation into

Mr. Coe's conduct showed that he had:

1. Inappropriately touched young female students during classroom demonstrations and by while engaging in "horseplay" with the students;

   
   

2. Inappropriately administered corporal punishment to a young female student off- campus with a parent's approval;

   
   

3. Inappropriately invited eighth-grade students to his Facebook page which contained objectionable photographs; and

   
   

4. Inappropriately discussed the School Board's investigation into his conduct on his Facebook page, and identifying a student by name that he believed had made allegations against him.

Mr. Coe disputed the factual allegations and requested an administrative hearing. On February 4, 2013, the School Board transmitted Mr. Coe's request for a hearing to DOAH. The undersigned was assigned the case, and a final hearing was set for May 7, 2013.

At the final hearing, the School Board presented the testimony C.S., L.B., T.W., M.N., K.G., M.L., Manny Rodriguez, Jeannie McCarthy and Yolanda Healy.1/ The School Board introduced

into evidence Exhibits 1 through 7, and 9. Mr. Coe testified on his own behalf and presented the testimony of H.A., S.B., Kozette Hubbard, and Deborah Lee. He did not offer any exhibits into evidence.

A one-volume hearing Transcript was filed with DOAH, and the parties filed proposed recommended orders on June 10, 2013.

FINDINGS OF FACT

1. The School Board is responsible for the operation, control, and supervision of free public schools in Polk County, Florida. The School Board's responsibilities include the hiring and termination of school personnel.

2. Mr. Coe teaches health science to seventh and eighth grade students at Bartow Middle School. The health science class includes instruction on basic first-aid and health assessment skills, such as how to check a person's vital signs, how to conduct an assessment of a person's injuries, as well as Cardio- Pulmonary Resuscitation (CPR). Upon successful completion of the class, the students earn a high school credit.

3. Mr. Coe's teaching method included practical application of these health care instruction skills. Typically, he would first demonstrate the skill that he was teaching to the class with a student, and then have the students work in groups. For example, when teaching students how to use a stethoscope, Mr. Coe would first demonstrate how to use the stethoscope on a student

   
   

   that he called to the front of the class. After his demonstration, students would then use a stethoscope on their fellow students.

4. The School Board did not meet its evidentiary burden of showing that Mr. Coe's classroom demonstrations of practical applications, such as using a stethoscope or conducting a "pat- down" of students when teaching how to conduct a patient assessment were inappropriate.

5. K.G., a 14-year-old female student, credibly testified that Mr. Coe asked her to help him demonstrate how to use a stethoscope. She described that he placed the stethoscope on the left side of her chest demonstrating how to listen for the heartbeat and breathing. Further, she described that Mr. Coe, in listening to her lung and heart sounds, lifted her breast with the back of his hand to place the stethoscope on her chest.

   Mr. Coe, in placing the stethoscope, used the back of his hand against her torso. Similarly, K.G. also described an instance when Mr. Coe demonstrated to the class with her on how to assess trauma victims. She described Mr. Coe using the back of his hand to run across her torso and legs to demonstrate how one would conduct a "pat-down" to assess a person's injuries. K.G. testified that she did not find anything of a sexual nature in Mr. Coe's demonstrations; however, she acknowledged that after the "pat-down" demonstration, she felt uncomfortable with his

   
   

   hand touching her legs and had to leave the class for a period of time to compose herself. With the exception of one student, the students uniformly testified that Mr. Coe's classroom demonstrations made learning the material easier and that they perceived the demonstrations as non-sexual in manner.2/

6. Kozette Hubbard (Ms. Hubbard), a vocational instructor at the Polk County School Board at the Bartow Hospital, Medical and Fire Academy, credibly testified that Mr. Coe's practical approach was proper for teaching the health skills curriculum. She explained using classroom demonstrations on how to use a stethoscope, how to assess a patient by having practical "hands- on" approach, was correct instruction. Further, she credibly testified that it was proper to use the back of the hand on the person's body for a “pat-down.” Similarly, Ms. Hubbard described the proper method when checking the vital signs of a female with large breasts. Ms. Hubbard stated that it is appropriate to have the patient lay on her back and that the breasts will naturally move to the person's side, and "[i]f you do need to move a breast, you always use the back of your hand." This method reduced the likelihood that a person might misconstrue the touch for being inappropriate. Finally, she found that students who attended Mr. Coe's class were well prepared for the next level class.

   
   

7. The School Board, however, did meet its evidentiary burden of showing Mr. Coe inappropriately touched female students in activities that were not related to any classroom instruction.

8. Mr. Coe inappropriately touched K.G. in a number of instances that were not tied to any proper instruction.

   Instances of Mr. Coe's inappropriate actions include him tickling

   
   

   K.G. in the ribs during class, placing his chin on her shoulder so that their heads were together, and reaching into her pants pocket to remove K.G.'s cell phone in two instances. In one instance of reaching into K.G.'s back pocket, K.G. was lying on her stomach watching a movie about "C.P.R." in Mr. Coe's class. Mr. Coe came behind her and reached into K.G.'s pocket, removing her cell phone. K.G. grabbed Mr. Coe's leg and he "drug me across the floor a little bit. And we were both laughing, because he was my favorite teacher." K.G. grabbed the phone from Mr. Coe and he fell onto a table. In a second incident, K.G. was sitting on a stool at a lab table, and again Mr. Coe grabbed her cell phone from her back pocket. K.G. jumped on Mr. Coe's back, "piggy-back" style, and Mr. Coe continued to walk until he lost his balance, and they both fell to the classroom floor. Mr. Coe ended up on top of one of K.G.'s legs. Another incident of inappropriate “horseplay” by Mr. Coe involving K.G. concerned him wrapping her in gauze. In this incident, which was digitally recorded and introduced into evidence, one sees Mr. Coe wrapping

   
   

   K.G. in gauze. K.G. is sitting on a stool. Her hands are bound by gauze, and being held up in the air. The top of K.G.'s head and eyes are covered with gauze. Mr. Coe is seen wrapping gauze around K.G.'s torso, covering the area of her breasts. At one point in the short recording, Mr. Coe passes gauze near K.G.'s breasts and says, "I got a little close to that, someone might accuse me of something." Mr. Coe's wrapping of K.G. in gauze, as shown in the digital recording, is not related to any discernible first-aid instruction, and is inappropriate.

9. Mr. Coe also inappropriately touched C.S., another 14- year-old female student. C.S. is a student at Bartow Middle School and the daughter of another teacher. C.S. was in her mother's classroom after school. Also in the classroom were C.S.'s mother and another teacher, Yolanda Healy. C.S.'s mother and Ms. Healy were discussing lesson plans. Mr. Coe entered the classroom, and C.S. asked him to "work out a knot in her back."

   C.S. explained that she was learning to play the cello and that as a result her shoulders and back were sore. Mr. Coe began to massage C.S.'s shoulders and down her back until Ms. Healy saw him. Ms. Healy sharply asked Mr. Coe, "Are you aware that this is very inappropriate?" Mr. Coe immediately stopped and left the classroom. C.S. also described an incident where Mr. Coe had "cracked her back" in the past by lifting her up from behind when she had complained about her back hurting.

   
   

10. Mr. Coe inappropriately touched M.L., a 14-year-old female student, when he administered corporal punishment to her at the request of M.L.'s mother off school grounds.

11. Mr. Coe is good friends with M.L. and her mother. He met them shortly after M.L. and her mother moved to Florida.

    M.L. considers Mr. Coe a father figure, because he is "always there for her." After befriending Mr. Coe, M.L. enrolled in his class. Some time during the school year, Mr. Coe, M.L., and her mother attended a car race at the Auburndale Speedway. At the race, M.L. began to misbehave, speak rudely to her mother, and give Mr. Coe some "attitude." M.L.'s mother asked Mr. Coe if he would discipline her. In response, Mr. Coe spanked the girl twice with his hand across her buttocks.3/ Similarly, in another instance, Mr. Coe spanked M.L. with a flip-flop at M.L.'s home after she had misbehaved. M.L.'s mother testified that Mr. Coe was allowed to discipline M.L., and that he had been a positive influence upon her daughter. Although Mr. Coe's ostensibly had the parent's approval to administer corporal discipline to M.L. off school grounds, this action is wholly inappropriate for a teacher and shows extremely poor judgment.

12. Mr. Coe wrongly discussed the allegations against him during the School Board investigation, despite being directed not to discuss the investigation. Ms. McCarthy, a fellow teacher, credibly testified that she had been interviewed by the School

    
    

    Board's investigator concerning allegations against Mr. Coe. The next morning, Mr. Coe came into her classroom and said that he was leaving because of the investigation. Mr. Coe said, "I'll tell you, whenever I find out who is doing this and saying these things about me, I'm going to make them pay, no matter what."

13. Mr. Rodriguez, an investigator for the School Board, credibly testified that Mr. Coe had been informed not to discuss the investigation with anyone. After learning from the school's principal that there was a rumor that Mr. Coe was discussing the investigation on his Facebook page, Mr. Rodriguez visited

    Mr. Coe's Facebook page. Mr. Rodriguez found on Mr. Coe's Facebook page comments from Mr. Coe to another school employee discussing the investigation and naming the student that initiated the complaint against him.4/, 5/ Specifically, Mr. Coe stated that an eighth-grade girl complained that he had "touched her," and then he identified the student by name, M.N.

    CONCLUSIONS OF LAW

    
    

14. DOAH has jurisdiction over the parties and subject matter of this proceeding. §§ 120.57(1) and 120.569, Fla. Stat. (2012).6/

15. The School Board has the burden of proving by a preponderance of the evidence that "just cause" exists to terminate Mr. Coe's employment. McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996).7/

    
    

16. The School Board is responsible for the operation, control, and supervision of the free public schools in Polk County, Florida. Art. IX, § 4(b), Fla. Const.; and

    § 1001.32(2), Fla. Stat. The School Board's authority extends to personnel matters including the power to suspend or dismiss an employee. §§ 1001.42(5)(a) and 1012.22(1)(f), Fla. Stat.

    Further, the law permits the School Board to adopt policies establishing standards of ethical conduct for instructional personnel. § 1001.42(6), Fla. Stat.

17. The law requires that an instructional employee be provided with a written contract that contains "provisions for dismissal during the term of the contract only for just cause."

    § 1012.33(1)(a), Fla. Stat. "Just cause" is defined to include, but not be limited to, instances defined by the State Board of Education, including "misconduct in office," which is pertinent to this case. § 1012.33(1)(a).

18. The State Board of Education, in Florida Administrative Code Rule 6A-5.056(2)(b), has defined "misconduct in office," in pertinent part, as:

    (b) A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C.;

    
    

19. The Principles of Professional Conduct for the Education Profession in Florida, Florida Administrative Code Rule

    
    

    6A-10.081, provides, in pertinent part, that a teacher has the following obligation to a student:

    1. 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.

          
          

20. The School Board's Disciplinary Policy mirrors the statutory language requiring "just cause" for employee discipline or dismissal, and recognizes "misconduct in office" as one of the listed reasons for dismissal. Policy 6Gx53-3.005(2), Sch. Bd. of Polk County. Further, the School Board Policy provides that the "Superintendent shall not be limited to the statutory 'just cause' provisions in connection with employee misconduct and may utilize any lawful, rational, non-arbitrary reason for employee discipline or dismissal, subject to approval of the Board." Policy 6Gx-53-3.005(I)(C); generally, see also Dietz v. Lee Cnty.

    Sch. Bd., 647 So. 2d 217, 218-19 (Fla. 2d DCA 1994)(Blue, J.,

    
    

    specially concurring).

    
    

21. Turning to the facts here, the School Board proved by preponderance of the evidence that Mr. Coe is guilty of misconduct in office; thus, "just cause" exists for terminating his employment. The testimony showed that Mr. Coe inappropriately touched young female students in numerous instances not tied to proper instruction of the health science

class, but rather, are examples of a grown man engaging in inappropriate physical “horseplay” with the young female students in his class. Mr. Coe's actions, on their face, are not a reasonable effort to protect a student from conditions harmful to learning, and are harmful to the students' mental and physical health. Similarly, Mr. Coe's actions in giving one student a shoulder massage and administering corporal punishment to another off school grounds are inappropriate, and cross the boundary of the high expectation of professionalism that is expected of teachers. Although the young female students did not perceive Mr. Coe's actions as sexual in nature, there is no justification for Mr. Coe's over-familiarity and physical contact with the students. These events, standing alone, are sufficient to support a finding that Mr. Coe is guilty of misconduct in office; and thus, establish “just cause” for terminating his employment. Moreover, Mr. Coe violated specific instruction not to discuss the School Board investigation concerning his behavior. It is extremely troubling that he would threaten and identify a student by name on a social media site. Again, Mr. Coe's behavior shows misconduct in office and not making efforts to protect a student from harmful conditions. Identifying a student, who he believed had accused him of wrongful behavior, on a social media site shows a reckless disregard for the student's privacy and safety. Consequently, Mr. Coe is guilty of misconduct in office.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Polk County School Board find that it has “just cause” to dismiss Mr. Coe as a teacher.

DONE AND ENTERED this 1st day of July, 2013, in Tallahassee,

Leon County, Florida.

S

THOMAS P. CRAPPS

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 1st day of July, 2013.

ENDNOTES

1/ The students who testified are all minors; thus, in order to protect their privacy, the Recommended Order refers to each student by her initials.

2/ One student, M.N., found Mr. Coe's demonstrations "not looking right," and "pretty weird." M.N. did not like the "hands-on" aspect of the health science class, and would have rather taken a drama class. The undersigned did not find from her testimony sufficient proof to support the allegation that Mr. Coe had inappropriately touched a student during his "how-to" classroom demonstrations.

3/ An interesting fact that may explain the close relationship between M.L., her mother, and Mr. Coe is that Mr. Coe had helped

M.L. during a health scare. During one of the health science classes, M.L. experienced tachycardia or rapid heart rate.

Mr. Coe recognized the problem and called for paramedics to stabilize M.L. Both M.L. and her mother characterized Mr. Coe's actions as saving her life.

Mr. Coe's testimony that he did not discipline M.L., but rather used a caution flag from the Raceway to move M.L. out of harm's way because he had "a 3,200 pound late model come flying off the racetrack" is simply unbelievable. Both M.L. and her mother admitted that Mr. Coe had disciplined M.L., and that it was permissible. Further, M.L. and her mother credited Mr. Coe with saving M.L.'s life by diagnosing her tachycardia. Yet, neither

M.L. nor her mother corroborated Mr. Coe's description of his actions at the racetrack. Consequently, the undersigned found Mr. Coe's testimony on this point not credible.

4/ The Facebook page, Exhibit 7 was admitted into evidence over Respondent's objection on authenticity, hearsay, invasion of privacy, and relevance.

First, the undersigned will address whether or not the offered Facebook page had been authenticated in order to be admitted into evidence. Section 90.901, Florida Statutes, requires all evidence be authenticated or identified before it is admitted.

When a writing is offered during a trial, counsel must show that the evidence is probative of a material issue. "For example, if a letter is offered as being one which was written by the defendant, it will not be admitted unless there is evidence that the defendant, in fact, wrote the letter in question." C. Ehrhardt, Florida Evidence, § 901.1 (2009 Edition).

Professor Ehrhardt explains that:

Evidence is authenticated when prima facie evidence is introduced to prove that the proffered evidence is authentic. The finding of authenticity does not mean that the trial judge makes a finding that the proffered evidence is genuine. The judge only determines whether prima facie evidence of its genuineness exists. Once the matter has been admitted the opposing party may challenge its genuineness.

Id. (footnotes omitted). One method of authenticating a document or writing is:

by showing that distinctive characteristics of the evidence itself or the circumstances

surrounding the acquiring, possession, or transmittal of the evidence are sufficient to link it to the person or transaction in issue. The use of circumstantial evidence to authenticate is permissible. Authentication occurs in a situation where the offered item, considered in the light of the circumstances, logically indicates the personal connection sought to be proved. Id. at § 901.5 (footnotes omitted).

Further, authentication may be shown "through a showing that the appearance, contents, substance, internal patterns, or other distinctive characteristics are sufficient to establish that the evidence is genuinely what it purported to be." Id.

Turning to the offered Facebook page, the undersigned finds that the School Board introduced sufficient circumstantial evidence to make a prima facie showing that the offered Facebook page was created by Mr. Coe. At the outset, the question is whether

Mr. Coe created the Facebook page and comments that were offered into evidence. To show authenticity, the School Board introduced the testimony of Mr. Rodriquez that he did a public search of Mr. Coe's name on Facebook, identified the Facebook page from a picture of Mr. Coe, and saw from the publicly viewed information comments from Mr. Coe. These publically available comments were between Mr. Coe and another person, whom Mr. Rodriquez recognized as an employee of the school, and contained a reference to one of Mr. Coe's students. Based on this circumstantial evidence, the School Board made a prima facie showing that its offered exhibit was an authentic and genuine document created by Mr. Coe. Once Exhibit 7 was admitted into evidence, Mr. Coe had the opportunity to test or refute that the exhibit was authentic. He did not challenge the genuineness of the offered exhibit.

Next, concerning the hearsay objection, the undersigned finds that Exhibit 7 meets the definition of admission exception to the hearsay. § 90.803(18), Fla. Stat.

Third, concerning the issue that using Mr. Coe's Facebook page is an invasion of his privacy is unpersuasive. Mr. Rodriquez credibly testified that he obtained the information from Mr.

Coe's Facebook page that was observable to the general public. There was no testimony that the discussion was obtained from Mr. Coe's Facebook page by sending him a "false friend" request or had violated any privacy setting.

Finally, the offered Facebook page showing Mr. Coe's statements regarding the School Board's investigation is relevant to the disciplinary hearing, concerning his failure to follow instructions and discussing a student by name.

5/ Admission of Mr. Coe's Facebook page, Exhibit 7, differs from the School Board's offered Exhibit 8 that the undersigned rejected. Offered Exhibit 8 purported to show Mr. Coe in an objectionable photograph. First, unlike Exhibit 7, the School Board did not articulate how the purported photograph was relevant to establishing "just cause" other than to argue that some individuals may find the photograph objectionable. More importantly, a close examination showed that the photograph was not from Mr. Coe's Facebook page, and there was no competent evidence to show where or how the photograph was obtained.

Although Mr. Rodriquez testified that the photograph came from Mr. Coe's Facebook page, the bottom of the offered printed paper showed that it was from a different Facebook page, a different user. There was no evidence showing the relevance, or authenticity of the photograph. Therefore, Exhibit 8 was not admitted into evidence.

6/ References to Florida Statutes shall be the 2012 edition, unless otherwise designated in the Recommended Order.

7/ The preponderance of the evidence requires proof by "the greater weight of the evidence" or evidence that more likely than not tends to prove a certain proposition. See Gross v. Lyons, 763 So. 2d 276, 280, n.1 (Fla. 2000).

COPIES FURNISHED:

Mark S. Herdman, Esquire Herdman and Sakellarides, P.A. Suite 110

29605 U.S. Highway 19, North

Clearwater, Florida 33761

Donald H. Wilson, Jr., Esquire Boswell and Dunlap, LLP

245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831

Dr. Kathryn LeRoy, Superintendent Polk County School Board

Post Office Box 391 1915 S. Floral Avenue Bartow, Florida 33830

Dr. Tony Bennett, Commissioner Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 13-000476TTS

Orders for Case No: 13-000476TTS