DR. TONY BENNETT, AS COMMISSIONER OF EDUCATION,
vs.
Respondent.
Case No. 13-4274PL
A final hearing was held before David M. Maloney, Administrative Law Judge with the Division of Administrative Hearings, on August 20, 2014, in Lauderdale Lakes, Florida.
For Petitioner: Charles T. Whitelock, Esquire
Charles T. Whitelock, P.A.
For Respondent: Johnny L. McCray, Jr., Esquire
Law Office of Johnny L. McCray, Jr., P.A.
Whether Respondent committed any of the violations alleged in the Amended Administrative Complaint dated March 24, 2014, and, if so, what is the appropriate disciplinary penalty?
Under cover of a letter dated November 4, 2013, the Education Practices Commission (EPC) forwarded to the Division of Administrative Hearings (DOAH) the matter of Dr. Tony Bennett, as Commissioner of Education vs. Shadrick Fields, EPC # 13-0379-RT.
The letter requested a full evidentiary hearing pursuant to section 1012.796(6), Florida Statutes.
Among the materials attached to the letter were an Administrative Complaint executed July 8, 2013, and an Election of Rights Form dated September 3, 2013, submitted to the EPC by Mr. Fields’ attorney. The Administrative Complaint contained three paragraphs (paragraphs 3, 4, and 5) of “Material Allegations” and five counts of violations, the first three of which are entitled “Statute Violations” and the last two of which are entitled “Rule Violations.” The Election of Rights Form opted for a formal hearing to dispute “all factual allegations in paragraphs # 3 & 4 of the Admin. Complaint.”
The Division of Administrative Hearings designated Administrative Law Judge John G. Van Laningham to conduct the proceedings, and the case was assigned Case No. 13-4274PL. The hearing was set in December 2013. Pursuant to joint motions, the hearing was continued several times. Following Respondent’s motion for continuance and a hearing on the motion, the hearing was set for August 20 and 21, 2014, by video teleconference.
In the meantime, Petitioner filed a motion to amend the administrative complaint. An order was entered granting leave to amend, and the Amended Administrative Complaint was deemed by the order to have been filed on March 24, 2014. The Amended Administrative Complaint added additional factual allegations and two additional counts of “Rule Violations.”
The case was transferred to the undersigned on August 11, 2014. An Amended Notice of Hearing was issued that changed the hearing room location so that the hearing could be conducted in Fort Lauderdale with all parties present before the Administrative Law Judge rather than by video teleconference.
The hearing commenced as scheduled on August 20, 2014, and concluded the same day.
At the hearing, Petitioner presented the testimony of three witnesses: Julie Ann Bower, an employee of the Broward County Sheriff’s Office who was a detective in the Office’s Sex Crimes Unit in 2010; the mother of J.D.; and J.D., a 22-year-old woman at the time of hearing. Petitioner offered 11 exhibits, which were marked as Petitioner’s Exhibits 1 through 9, 11, and 16.
All were admitted into evidence. Respondent testified on his own behalf. He presented the testimony of one other witness, Dwanaill Sutton and offered two exhibits, marked as Respondent’s Exhibits 1 and 2. Respondent’s Exhibit 1 was admitted. An objection for lack of authenticity was raised as to Respondent’s
Exhibit No. 2. The objection was sustained and the exhibit was proffered.
A two-volume Transcript was filed on September 5, 2014. It had been agreed at the hearing that the parties’ proposed recommended orders would be filed 30 days after the filing of the transcript. Petitioner’s counsel, by letter, advised that the parties had agreed to an extension of time for filing the proposed recommended orders and requested an extension until October 17, 2014. Respondent’s subsequent unopposed motion to extend the time for filing proposed recommended orders was granted on October 14, 2014. Filed on November 7, 2014, the Proposed Recommended Orders of Petitioner and Respondent were filed on time and have been considered in the preparation of this Recommended Order.
References to statutes are to Florida Statutes (2012) unless otherwise noted.
Petitioner, as Commissioner of Education for the State of Florida, is responsible for the investigation and prosecution of complaints against individuals who hold a Florida Educational Certificate when they are appropriately alleged to have committed a violation as provided in section 1012.795, Florida Statutes, and related rules. See § 1012.796, Fla. Stat.
Respondent, Shadrick Fields, a male and, at the time of the events pertinent to this case, a middle school teacher employed by the Broward County School District (the District), holds Florida Educator’s Certificate 977090. Valid through June 30, 2017, the certificate covers the areas of English for Speakers of Other Languages (ESOL), Social Science, and Exceptional Student Education.
Respondent was employed as a coach and Social Science teacher at Pompano Beach Middle School during the school years 2007-2010. In the 2009-2010 school year, Respondent was also employed as an assistant coach (but not as a teacher) at Coconut Creek High School. Pompano Beach Middle School and Coconut Creek High School are within and part of the District.
On or about April 26, 2010, Respondent resigned his teaching position in lieu of termination of his position. The District accepted the resignation and placed Respondent’s identification in its records under “non-hire” status. The personnel action was taken because of allegations of an inappropriate relationship between Respondent and a female
student.
An Inappropriate Relationship Develops
J.D. is a female. Born in 1992, she attended Pompano Beach Middle School in sixth, seventh, and eighth grades. She met Respondent at Pompano Beach Middle School although he was not
her teacher or her coach. The events that led to Respondent’s resignation occurred principally in the 2009-2010 school year when J.D. was 17 years of age (her 18th birthday was in
March 2010) and a student at Coconut Creek High School. The events had their origin, however, in 2006 when J.D. was a middle school child.
J.D. met Respondent as a seventh grader when Respondent was “doing security [for the school] at the time.” Hr’g Tr. 81. Later, J.D. had contact with Respondent in Respondent’s capacity as coach of the middle school football team.
On the last day of J.D.’s eighth grade school year (in 2006), Respondent gave J.D. a letter written from him to her.
The letter was not produced at the hearing. Respondent asked for it back, and J.D. returned it to him. When asked about the letter at the hearing, the following colloquy took place between
and counsel for Petitioner:
I have to go in detail about the letter?
Q. Well . . . just tell us in general, what was the nature of the letter?
A. He liked me. I liked him.
Hr’g Tr. 83.
J.D. did not see or communicate with Respondent over the summer between her eighth and ninth grade.
J.D. resumed contact with Respondent during her freshman year at Coconut Creek High School where she was a student and he was one of the coaches for the wrestling team. Respondent was not J.D.’s coach nor was he one of her teachers; he continued to teach at Pompano Beach Middle School. Nonetheless, they talked on the phone. On Valentine’s Day, Respondent gave J.D. a card. The card opens with the statement, “Falling in love with you was something I hadn’t expected but being in love with you is something I wouldn’t stop, even if I tried.” Pet’r’s Ex. 6. It closes with the statements, “I already have my Valentine’s Day Gift and it’s you! I love you.” Id.
J.D. claimed at the hearing that she and Respondent engaged in sexual relations once during her freshman year at Coconut Creek. She said they took place in Respondent’s truck, an arrangement they agreed to both by speaking about it and writing about it. The letters related to their rendezvous in the truck were not produced at the hearing because J.D. disposed of them in a trash receptacle.
J.D. claimed that she engaged in sexual intercourse with Respondent only one other time: during her senior year, again in Respondent’s truck. The time that elapsed between the two sexual events, according to J.D., was due to an agreement between Respondent and J.D.: they agreed to cease further sexual
involvement until she graduated from high school (albeit, as J.D. testified, the agreement failed in February of her senior year).
During the time between the two incidents of sexual relations to which J.D. testified, J.D. and Respondent frequently communicated through writings, cards, and letters. When Respondent wrote to J.D. he delivered the communications through one of two methods: he handed them to her directly or he placed them in an open tube affixed to the wall of a hallway outside the wrestling locker room. When the latter method was followed, Respondent would send a text to J.D. to alert her to the presence of a letter in the tube. The purpose of using the tube was to prevent suspicion by others should Respondent be observed handing written communication to J.D.
The letters produced at the hearing that J.D. received are emotionally intimate. The third of the four letters that make up Petitioner’s Exhibit 7 is highly charged and sexually graphic. It refers, for example, in detail to love-making in which Respondent and J.D. had engaged. Respondent’s letters refer to himself as “King” and are signed “M.N.U.A.I.A.,” which stands for “Me and You Against It All.” See Pet’r’s Ex. 7.
During J.D.’s senior year in high school, J.D. and Respondent had increased opportunities to interact on school days. J.D. played on a school flag football team and became the assistant manager of the wrestling team for which Respondent was
the coach. Family members picked J.D. up after flag football practice or when she stayed after school in her capacity as the wrestling team assistant manager. But Respondent also provided her transportation home in his truck. He gave J.D. a ride home after these extra-curricular events whenever she asked. The question was asked at the hearing, “Generally, who gave you a ride home?” J.D. testified, “Mr. Fields.” Hr’g Tr. 98.
Respondent also gave J.D. cards and gifts, including a Teddy Bear that was delivered with a card. The card ends with “I’m your Teddy Bear baby, M.N.U.A.I.A. I Love You.” The card makes reference to the silence of Teddy Bears and that “they will never breath [sic] a word of secrets you may tell.” Pet’r’s
Ex. 8.
In December and January of the 2009-2010 school year (J.D.’s senior year), Respondent had significant contact with
J.D. by cell phone. Pet’r’s Ex. 9. For the month of December 2009, phone calls between J.D.’s cell phone and Respondent’s cell phone averaged more than one per day.
Following more than 40 phone calls in January of 2010, the phone contact continued into February. In the middle of the month of February 2010, Respondent handed a Valentine card to
J.D. (He did not place it in the tube because “[i]t wouldn’t fit in there.”). Hr’g Tr. 96. The card states, “You know that I would give anything to be in your arms, touching your face,
staring into your eyes and tasting your lips. I can’t but I can depend on our love to see me through.” The card addresses J.D. as “Lil Solja” and is signed:
Happy Valentine’s Day #1
M.N.U.A.I.A.
Love & “Sincerely Yours”, Solja
Pet’r’s Ex. 9.
Over the late 2009 and early 2010 time period, some of the many phone calls between J.D. and Respondent were for extended periods of time or were at odd hours. One set of calls was both. On February 19, 2010, a call was placed from Respondent’s cell phone to J.D.’s cell phone that is shown by phone records to have lasted for 186 minutes (until 2:50 in the morning of February 20, 2010). The same records show that one minute later, at 2:51 a.m., February 20, 2010, a phone call was placed from J.D.’s cell phone to Respondent’s cell phone. This second “middle of the night” phone call lasted another 76 minutes. The two calls total more than four hours.
The lengthy “middle of the night” phone calls in
mid-February of 2010 occurred roughly one week before events that precipitated the discovery of J.D.’s relationship with
Respondent. The events took place on February 26 and 27, 2010, the weekend before J.D.’s 18th birthday.
Discovered
February 26, 2010, was a Friday. J.D. worked that evening at Steinmart as a merchandiser. She had worked at Steinmart her entire senior year with a schedule of roughly
20 hours per week. The following are questions and answers from the transcript of the hearing about what occurred the evening of February 26, 2010, when J.D. was at work:
Q. Did Mr. Fields come to your work that day?
A. Yes.
Q. Tell us what happened.
A. I went to work, took a break right before the store closed, around eight-something. I had been talking to him throughout the day. He came to my job. We had sex. I got off work and went home.
* * *
Q. . . . Mr. Fields came to your work, correct?
A. Came to my job on my break.
Q. And how long of a break did you have?
A. Thirty minutes.
Q. Thirty minutes. And what did you do on that break?
A. I got in the truck with him, we talked, we had sex and I went back to work.
Q. When you say you had sex, you had sexual intercourse?
A. Yes.
Q. And this occurred in Mr. Fields’ truck?
A. Yes.
Q. Where at in the truck?
A. In the back seat.
Hr’g Tr. 101. When asked by counsel for Petitioner how she felt about having sex with Respondent in his truck, she testified as if it were nothing unusual: “I really didn’t feel no way.” Hr’g Tr. 102. When asked immediately after, “You felt what?” J.D. reiterated her testimony, “I really didn’t feel any type of way, you know.” Id.
During the interlude in the truck, J.D. and Respondent developed plans for the next night, Saturday, February 27. J.D. did not have to work that Saturday, but she “planned to lie to [her] mom” and tell her she did so she could, in her words, “spend the time with him before my birthday.” Hr’g Tr. 103.
Hewing to the plan, J.D. told her mother that she was needed at Steinmart on Saturday to help her manager with inventory. J.D.’s mother, accordingly, drove her to work and dropped her off in the middle of the day. Later in the day, J.D.’s mother returned to Steinmart to purchase a shirt for her husband using a family discount by virtue of J.D.’s employment.
She asked for J.D. in the store because J.D. had to sign a form to make the discount effective. When it turned out that J.D. was not at work and had not been at work, J.D.’s mother became extremely concerned. She called J.D. and texted her. When the calls and texts to J.D. went unanswered she enlisted other family members to assist in contacting and locating J.D. She lodged a missing person’s report with local law enforcement, and she began her own investigation.
J.D.’s cell phone was under her mother’s account. When her mother checked the phone log she saw a number “that had been calling back and forth.” Hr’g Tr. 40. The phone number was Respondent’s: 954-691-6468. J.D.’s mother did not recognize the phone number, but discovered later that it belonged to Respondent. When asked about a voice message she left on Respondent’s phone, J.D.’s mother testified, “I don’t want to say under oath what I said but I was upset once I realized whose phone it was.” Hr’g Tr. 41. After testifying that the pattern and consistency of the phone calls between her daughter and an older male made her distraught, she was asked to explain by counsel. She answered, “Because I just felt like that communication shouldn’t have been going on, as many times as I’d seen it in the call log.” Id.
Between being transported to her work place and the frantic activity of her mother, J.D. had talked to Respondent on
the phone. He picked her up at Steinmart and drove her across the county to a movie theater in the western part of the county about 35 minutes away by car. After watching a movie, “The Crazies,” the two had something to eat at “TGI Friday’s,” hearing transcript 105, a restaurant in the same plaza as the movie theater. J.D. noticed that she had received phone calls from her mother, but she was “scared,” id., to call her back. While the
two were still inside the restaurant, Respondent noticed that he had received telephone calls from J.D.’s mother as well. J.D. told Respondent not to return the call, and he did not.
Respondent drove J.D. back to Steinmart and dropped her off at roughly 9 p.m., the time J.D. should have been getting off work had she worked that day. Respondent did not return J.D.’s mother’s call before he left J.D. at Steinmart. J.D.’s brother picked her up at Steinmart and drove J.D. home where she was met by Deputy Matthews, who had responded on behalf of local law enforcement to the missing person’s report. Deputy Matthews’ report indicated that J.D. was questioned about sexual activity with Respondent and that she denied sexual activity.
Text Messages
On Sunday (February 28, 2010), Respondent texted J.D.:
Does she still want to talk to me? I’ll take da day off in effort to make things right by
sitting down with her. A million more apologizes from da heart.
Pet’r’s Ex. 5, at P010/011 [marked in hand-writing as “83”].
On March 1, 2010, the next Monday, Respondent sent text messages to J.D. At 3:17 in the morning, his text reads,
I hope I haven’t tarnished or messed your life first and everyone else that looks up to me. I’ve let so many down . . . mainly you. I pray for ur fams forgiveness.
Pet’r’s Ex. 5, P0087/011 [marked in hand-writing as “81”]. Another text follows at 3:45 in the morning:
I never lied to you. Everything I said I meant from the heart but I should have never told you. Every day forward free is a blessing & will be cherished.
Id. Later in the day, at 3:36 in the afternoon, Respondent
texted “I’m going to turn myself in. Its all in your hands, my life.” Pet’r’s Ex. 5, P0097/011 [marked in hand-writing as “82”].
Over several days, J.D. and her mother engaged in a number of emotion-laden conversations. J.D.’s mother reached the point of “yelling” and “crying.” Hr’g Tr. 56. At some point in the midst of the emotional interchanges between J.D. and her mother, J.D.’s mother told her that she intended to take J.D. to a gynecologist for an examination for sexual activity.
J.D. did not want her mother to know that she was not a virgin. But she was not concerned for herself alone. She did
not want to tell anyone that she had engaged in sexual activity with Respondent because she wanted to protect him.
The gynecological examination of J.D. revealed that she had been sexually active. Despite misgivings both for herself and because of the potential impact to Respondent, J.D. told her mother she had engaged in sex with Respondent.
J.D.’s mother’s impression was that J.D. had not been sexually active even though she had a boyfriend (who was not Respondent). When J.D. revealed the sexual nature of her relationship with Respondent after the examination, J.D.’s mother called local law enforcement to report it. As a result of the call, a case was opened, and it was assigned to Deputy Julie Bower of the Broward County’s Sheriff’s Office of Sex Crimes.
Deputy Bower questioned J.D. and reviewed the phone records, as well as the cards and letters that have been admitted into evidence in this proceeding.
Deputy Bower confirmed that J.D. was 17 years’ old, a minor, when Respondent took her to the movies and that Respondent was over the age of 24 at the time. Their ages led Deputy Bower to conduct an investigation into whether Respondent had committed the crime of “Unlawful Sex with Certain Minors.”
March 5 Statement to the Sex Crimes Unit
On March 5, 2010, Officer Bower took a statement from
J.D. In the statement J.D. admitted that she and Respondent had engaged in sexual activity on February 26, 2010.
As the interview for the statement progressed, Deputy Bower took J.D. through the history of the relationship. J.D. stated that Respondent seemed to take an interest in her more than the other girls at school (Pet’r’s Ex. 2, p. 4 of 24). She also related that she received the first letter from him at the end of the eighth grade, but that she was not interested in him until her senior year in high school when Respondent started writing her and giving her gifts: “clothes, shoes, . . . cards, letters” id., page 7 of 24, and a bracelet of white gold. In the meantime, during her ninth, tenth, and eleventh grades, J.D. claimed in the statement that their relationship was “nothing
. . . just a hi and bye.” Pet’r’s Ex. 2, p. 6 of 24. She related that in December of 2009, however, her relationship with Respondent started changing after “he made the move” (Id., p. 8 of 24), at which time she decided she wanted to start dating.
They discussed having sex, and Respondent told J.D. that he loved her. J.D. stated to Deputy Bower that she was a virgin until the encounter with Respondent in his truck on her break from work on Friday, February 26, 2010, at which time she claimed they engaged in sexual intercourse.
Deputy Bower was unable to verify J.D.’s claim of sexual intercourse with Respondent through any source other than J.D.’s statement. Nonetheless, Respondent was prosecuted
criminally.
Acquittal
Respondent was charged with the crime of Unlawful Sexual Activity. He was tried by jury in the circuit court in and for Broward County and was found not guilty. See
Respondent’s Ex. 1, Circuit Court Disposition Order in and for Broward County, Florida, rendered October 31, 2011, and an attached “Felony Order of Acquittal.”
The Administrative Complaint
and the Amended Administrative Complaint
An Administrative Complaint seeking appropriate disciplinary sanction of Respondent’s educator’s certificate was issued by Dr. Tony Bennett, as Commissioner of Education, on July 8, 2013, 20 months or so after the acquittal.
The complaint contains three counts of statutory violations and two of rule violations all based on facts alleged in a section entitled “Material Allegations.” The gist of the material allegations are contained in the section’s first sentence, “During the 2009/2010 school year, Respondent engaged in an inappropriate relationship with J.D., a 17-year-old, female student.” Administrative Complaint.
The statutory violations are of section 1012.795(1)(d), Florida Statutes, for “gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education;” section 1012.795(1)(g), Florida Statutes, for “personal conduct which seriously reduced his effectiveness as employee of the school board;” and, of section 1012.795(1)(j), Florida Statutes, for violation of “the Principles of Conduct for the Education Profession prescribed by the State Board of Education rules.” Administrative Complaint, p. 2 of 3.
The rule violations are of Florida Administrative Code Rule 6A-10.081(3)(a), “in that Respondent has failed 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,” and of Florida Administrative Code Rule
6A-10.081(3)(e), “in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement.”
On March 24, 2014, Petitioner executed an Amended Administrative Complaint deemed filed as of that date by an Order Granting Leave to Amend.
The amended complaint adds two new paragraphs to the material allegations. The new paragraphs expand the time frame for the basis of the statutory and rule violations outside the 2009-2010 school year to prior years back to 2006. The second of the two paragraphs of material allegations alleges:
In subsequent years [post-2006], including 2010, Respondent wrote type [sic] letters
. . . to J.D., along with cards and music CD’s. Some of the letters contained sexually graphic language . . .
Amended Administrative Complaint, para. 3 and 4.
The amended complaints also add two new rule violations, one of Florida Administrative Code Rule 6A- 10.081(3)(f) that Respondent intentionally violated or denied a student’s legal rights; and, the second of Florida Administrative Code Rule 6A-10.081(3)(h) that Respondent exploited a relationship with a student for personal gain or advantage. Amended Administrative Complaint, Counts 6 and 7.
Respondent’s Defense to the Factual Allegations
The following statement appears in the Joint Prehearing Stipulation filed by the parties: “Respondent admitted his text messages and phone calls to J.D. but denied any sexual activity or involvement with the notes and letters.”
In addition to Respondent’s testimony under oath that he did not engage in sexual activity with J.D., he points to a number of facts that support his argument for why J.D.’s testimony that it occurred should not be credited: a. her denials to law enforcement the night of February 27, 2014; b. her denials to her mother at first; c. her claim to her mother that she had sex with Respondent only after the pressure of emotional conversations and the gynecological examination that showed her
to have been sexually active; d. the inconsistency between her statement under oath to Deputy Bower that the first sexual encounter with Respondent was in her senior year and the statement under oath that her first sexual encounter with Respondent was when she was in the ninth grade; and e. the testimony of Dwanaill Sutton.
Mr. Sutton was a year behind J.D. in high school and a member of the wrestling team. He met J.D. when he was in the ninth grade through his best friend at the time, another male member of the wrestling team. The coaches of the wrestling team were “Coach Carradine and Shadrick Fields [Respondent].” Hr’g Tr. 279. Respondent also coached Mr. Sutton on the football team, again as an assistant coach. Eventually, Mr. Sutton and
J.D. became “best friends.” Id. They remained so into
Mr. Sutton’s junior year (J.D.’s senior year). They do not see each other much anymore but they communicate “[v]ia social media.” Hr’g Tr. 280. Mr. Sutton has no ill feeling about J.D.’s allegations against Respondent.
While J.D. and Mr. Sutton were still under the status “best friends,” Mr. Sutton was interviewed at school one day before lunch by a detective who asked him questions about J.D. and Respondent. At lunch, Mr. Sutton asked J.D. what she knew about the detective. J.D. replied that she had given
Mr. Sutton’s name to the detective. Mr. Sutton followed up by
asking J.D. “what was going on with her and Coach Fields because those were the only two names that the detective mentioned.” Hr’g Tr. 284. J.D. replied “‘nothing happened.’” Id. When
asked by counsel if Mr. Sutton asked J.D. “did you guys do something?” id., Mr. Sutton replied that J.D. said “‘We didn’t do
anything.’” Hr’g Tr. 285.
With regard to the written communication J.D. claims to have received from Respondent, he argues J.D.’s testimony should not be credited because:
Respondent denies sending any such items [and did so under oath]. [citation omitted] Respondent testified that he does not write in the fashion the card and letters were written and that it seems as if someone with less than a college education prepared them. [citation omitted] He denies giving J.D. any cards, stuffed bear or bracelet. [citation omitted] Petitioner failed to produce any evidence to support the conclusion that the handwriting on the various cards and letters was that of Respondent. No handwriting expert testimony was adduced and no lay testimony was presented that the writings were that of Respondent.
Respondent’s Proposed Recommended Order, p. 6 of 11, para. 16.
Respondent claims that the purpose of his relationship with J.D., and the many phone calls and communications with her, was to lift her spirits in the face of personal problems at home, particularly with her step-father and not being able to live with her biological father, and ensuing academic problems and problems at school. But he admits the relationship was inappropriate:
[A]s far as lifting her spirits . . . [w]hat I should have did is had a female teacher or mentor be that person for her. I shouldn’t have been there like that. That was inappropriate for me to be there.
Hr’g Tr. 228.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. §§ 120.569, 120.57(1), and 1012.796(6), Fla. Stat.
Petitioner must prove the material allegations of the Amended Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
The “clear and convincing” standard is an intermediate standard between “preponderance of the evidence” and “beyond a reasonable doubt.” In re Graziano, 696 So. 2d 744,753 (Fla.
1997). Thus, whatever value it may have in this case, Respondent’s criminal acquittal is not determinative of whether he engaged in a sexual relationship with J.D. Having sex with J.D., moreover, was not directly charged in the Amended Administrative Complaint. It was only referenced indirectly in connection with the letters’ description of sexual encounters.
The fundamental material allegation pled is that Respondent had an inappropriate relationship with J.D. while she was a 17-year-old student. Respondent admits as much. Petitioner, moreover, proved the depth of both the relationship
and its inappropriateness by virtue of Respondent’s phone calls and texts to J.D. which were uncontested. It was also uncontested that Respondent took J.D. out on a date on
February 27, 2010, to celebrate her birthday.
Additional material allegations are that Respondent gave the Valentine’s Day card in 2006 to J.D. inscribed with the note found in Finding of Fact 9, above, and that in subsequent years, Respondent gave J.D. letters and cards that “contained sexually graphic language . . . while describing their sexual encounters.” Amended Administrative Complaint, para. 3 and 4.
There is no doubt that some of the cards and letters contained graphic sexual language and that language was used to describe sexual encounters between J.D. and the sender. Respondent argues, however, that it was not proven by clear and convincing evidence that he was the sender because other than J.D.’s testimony there was nothing to tie him to the cards and letters.
J.D. did not always tell the truth when asked by law enforcement or her mother about whether she had engaged in sexual relations with Respondent. She denied the same when asked by Mr. Sutton.
Untruthful refusal by a 17-year-old, however, to reveal a relationship of a sexual nature with an adult who has been at her school in a teaching capacity and an authority in school
extra-curricular activities is not surprising. Nonetheless, Respondent argues that her claim that Respondent sent her the cards and letters unsubstantiated by expert handwriting testimony or similar evidence does not meet the “clear and convincing” standard when weighed against his testimony under oath that the cards and letters were not from him.
The argument by Respondent overlooks the highly inappropriate nature of the phone calls and text messages sent to
J.D. Both the length of some of the phone calls and the odd hours at which they were placed and the wording of some of the text messages make clear that J.D.’s relationship with Respondent was not that of teacher/student or mentor/mentee as Respondent attempted to establish with his testimony. Rather, the relationship was one that involved emotional intimacy to which the cards and the letters also speak.
To summarize, the Petitioner’s case consists of: uncontested phone calls and text messages which reveal a depth of intimacy; J.D.’s testimony; and, the cards and letters and their romantic and sexually charged nature, including description of sexual activity between J.D. and Respondent. Respondent’s case consists of: J.D.’s propensity to reveal nothing of her sexual relationship to law enforcement and her mother (at first) and her best male friend in high school who was coached by Respondent; an unproven theory of why J.D. would have implicated Respondent; and
Respondent’s denials under oath. When the two cases are weighed against each other, Petitioner’s case clearly and convincingly outweighs Respondent’s because of the weight assigned to Respondent’s inappropriate phone calls and text messages.
Furthermore, Respondent’s denials are not credited.
Consideration of the evidence as a whole leads to the conclusion that Petitioner proved the material allegations of the Amended Administrative Complaint by clear and convincing
evidence.
Immorality and Moral Turpitude
In Count 1, Respondent is charged with “gross immorality” or an act involving moral turpitude as defined by rule of the State Board of Education. Florida Administrative Code Rule 6B-4.009 provides in pertinent part:
“Immorality” means conduct that is inconsistent with the standards of public conscience and good morals. It is conduct that brings the individual concerned or the education profession into public disgrace or disrespect and impairs the individual’s service in the community.
“Gross immorality” is more egregious than mere immorality. “Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society . . . [i]t has also been defined as anything done contrary to justice, honesty, principle or good morals, though it often involves the question of intent
as when unintentionally committed through error of judgment when wrong was not contemplated . . . .” State ex rel. Tullidge v.
Hollingsworth, 146 So. 660, 661 (Fla. 1933).
“By virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community.” Adams v. Fla. Prof’l Practices Council, 406 So. 2d 1170, 1172 (Fla. 1st DCA 1981). Whether a teacher’s conduct constitutes an act of gross immorality or an act of moral turpitude should be measured against that standard. The court in Tomerlin v. Dade County School Board, 318 So. 2d 159 (Fla 1975), noted:
[A] school teacher holds a position of great trust. We trust the custody of our children to the teacher. We look to the teacher to educate and prepare our children for their adult lives. To fulfill this trust, the teacher must be of good moral character; to require less would jeopardize the future lives of our children.
Tomerlin at 159.
Respondent’s actions as found in this Recommended Order constitute gross immorality or moral turpitude. Respondent is guilty as charged in Count 1 of the Amended Administrative Complaint.
Reduced Effectiveness
Respondent’s reduced effectiveness may be inferred from the nature and seriousness of the conduct proved by Petitioner. See Walker v. Highlands Cnty. Sch. Bd., 752 So. 2d 127 (Fla. 2d
DCA 2000) and Purvis v. Marion Cnty. Sch. Bd., 766 So. 2d 492
(Fla. 5th DCA).
Consistent with the School District’s flagging of Respondent’s file so that he would not be rehired in the wake of his resignation, the facts found by this Recommended Order demonstrate that Respondent should not continue to hold his teacher’s certificate that would enable him to continue employment as a teacher.
Respondent is guilty as charged in Count 2 of the Amended Administrative Complaint.
Misconduct in Office
Respondent is charged with violation of the Principles of Professional Conduct for the Education Profession as prescribed by four State Board of Education rules (Count 3).
The first is Florida Administrative Code Rule 6A- 10.081(3)(a) in that he failed to make a reasonable effort to protect J.D. from conditions harmful to learning and/or to the student’s mental health and/or physical health and/or safety (Count 4).
The second is Florida Administrative Code Rule 6A- 10.081(3)(e) in that he intentionally exposed J.D. to unnecessary embarrassment or disparagement (Count 5).
The third is Florida Administrative Code Rule 6A- 10.081(3)(f) in that he intentionally violated or denied J.D.’s legal rights (Count 6).
The fourth is Florida Administrative Code Rule 6A- 10.081(3)(h) in that Respondent exploited a relationship for personal gain or advantage (Count 7).
Respondent is guilty as charged in Counts 4, 5, 6, and 7 of the Amended Administrative Complaint.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent’s educator’s certificate be permanently revoked and that he be barred from re-application.
DONE AND ENTERED this 5th day of December, 2014, in Tallahassee, Leon County, Florida.
DAVID M. MALONEY
Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2014.
Johnny L. McCray, Jr., Esquire
Law Office of Johnny L. McCray, Jr., P.A.
Charles T. Whitelock, Esquire Charles T. Whitelock, P.A.
300 Southeast Thirteenth Street, Suite E Fort Lauderdale, Florida 33316 (eServed)
Lois S. Tepper, Interim General Counsel Department of Education
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.
