vs.
Respondent.
Case No. 15-3501PL
Pursuant to notice, a final hearing in this cause was held by video teleconference between sites in Orlando and Tallahassee, Florida, on August 19, 2015, before Linzie F. Bogan, Administrative Law Judge of the Division of
Administrative Hearings.
For Respondent: Eric J. Lindstrom, Esquire
Egan, Lev & Siwica, P.A. Post Office Box 5276 Gainesville, Florida 32627
Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
On or about October 14, 2014, Petitioner, Pam Stewart, in her capacity as Commissioner of Education (Petitioner), filed an Administrative Complaint against Respondent, Brett Mulock (Respondent). Respondent timely filed his request for administrative hearing, and on June 19, 2015, the matter was referred to the Division of Administrative Hearings (DOAH) for a disputed fact hearing. The disputed fact hearing was held on August 19, 2015.
During the final hearing, Petitioner offered the testimony of Brett Mulock, Michael Blasewitz, Dennis McComb, Donna Reynolds, K.C., M.H., and M.A. Respondent testified on his own behalf and offered the testimony of M.C., Thomas Lenz, Leann Theiss, Danyell Harris, Pamela Gaskill, Jocelyn Novoa, and H.M. Petitioner's Exhibits 1 through 9, 14 through 16, 18, and 20 were admitted into evidence. Respondent’s Exhibits 1 and 2 were admitted into evidence.
A Transcript of the proceeding was filed with DOAH on September 18, 2015. On October 15, 2015, the parties submitted proposed recommended orders, which have been considered by the
undersigned.
During all times relevant hereto, Petitioner served as head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting
complaints of violations of section 1012.795, Florida Statutes (2012),1/ against teachers holding Florida educator certificates.
Respondent holds Florida Educator Certificate 730576, covering the areas of emotionally handicapped and mathematics, which is valid through June 30, 2016.
During all times relevant hereto, Respondent was employed as a mathematics teacher at Winter Springs High School (WSHS) in the Seminole County School District (SCSD).
Dr. Michael Blasewitz is currently the executive director of secondary education for Seminole County Public Schools and was principal at WSHS from 2004 through the 2011- 2012 school year. In 2006, Dr. Blasewitz hired Respondent as a teacher at WSHS.
On or about January 25, 2010, Dr. Blasewitz issued a letter of reprimand to Respondent for making inappropriate, sexually suggestive comments to female students. The reprimand contains the following directives:
You are to conduct yourself in a professional manner at all times;
You are to avoid making remarks that can be interpreted as sexual in nature while in the presence of students;
You are to redirect students who exhibit behavior that is unruly, inappropriate, or sexually suggestive; and
You are to maintain an appropriate student/teacher relationship at all times when interacting with students.
On or about March 5, 2012, Dr. Blasewitz issued a second letter of reprimand to Respondent for making an inappropriate, sexually suggestive comment to a student, and displaying a rubber penis on his desk, which Respondent had confiscated from a student. The reprimand contained the following directives:
You are to conduct yourself in a professional manner at all times;
You are to avoid making remarks that can be interpreted as sexual in nature while in the presence of students;
You are to redirect students who exhibit behavior that is unruly, inappropriate, or sexually suggestive; and
You are to maintain an appropriate student/teacher relationship at all times when interacting with students.
Respondent was informed in both letters of reprimand that further misconduct could result in more discipline, including termination of his employment.
Dr. Donna Reynolds has been the principal at WSHS since 2012. On or about October 11, 2012, a 16-year-old female student, A.T., reported that while in Respondent’s classroom, she was seated on Respondent's desk chair. A.T. alleged that Respondent asked her to remove herself from his chair and when she refused to do so, Respondent sat in the chair (with the student still seated) by physically wedging himself between the back of the chair and A.T.'s back. Respondent, by placing himself in such a position, allegedly caused the front of his
torso to press against A.T.'s back. A.T. allegedly did not like being touched by Respondent and, as an expression of her displeasure, poked Respondent in his eye with a marker. An investigation was launched as to Respondent’s alleged misconduct involving A.T., and it was pursuant to this investigation that other alleged misconduct by Respondent was discovered.2/
On or about October 26, 2012, the SCSD reassigned Respondent to the maintenance department pending the outcome of the investigation stemming from the allegations made by A.T.
On or about March 15, 2013, the SCSD notified Respondent that at the next regularly scheduled board meeting, the SCSD would be recommending that Respondent's employment be suspended without pay and subsequently terminated.
On or about April 12, 2013, Respondent entered into a settlement agreement with the SCSD, wherein Respondent resigned from employment, effective immediately, and agreed not to seek reemployment with the SCSD in any capacity, “at this time or at any future time.” Respondent, in both the settlement agreement and his letter of resignation, did not admit to or otherwise acknowledge any wrongdoing as it relates to any matter pertaining to his employment with SCSD.
Background
Former WSHS student K.C., at the time of the disputed fact hearing, was 20 years old. K.C. entered the ninth grade at
WSHS during the 2009-10 school year and graduated from WSHS at the end of the 2012-13 school year.
During the 2011-12 school year, when K.C. was a junior at WSHS, one of her assigned classes was to work as Respondent’s aide. According to K.C, this resulted in her spending between one to two hours each school day in Respondent’s classroom.
M.A. is currently a senior at WSHS. During the 2012-13 school year, M.A. was enrolled as a student in one of
the algebra classes taught by Respondent. M.A.’s first language is Spanish and she only started speaking English a few years ago.
M.H. graduated from WSHS in 2015. M.H. was never enrolled as a student in any of the classes taught by Respondent but met Respondent during the 2011-12 school year when a student that M.H. befriended on the bus informed M.H. that she was involved sexually with Respondent. M.H., even though she did not know Respondent at the time, approached Respondent and inquired about the nature of his relationship with the student in question. Upon questioning by M.H., Respondent denied that he was involved in a sexual relationship with the student in question. As a consequence of this encounter, Respondent and
M.H. developed a friendship.
Girls Sitting on Respondent’s Lap
Throughout the course of the 2011-12 school year, K.C., while performing her duties in Respondent’s classroom as a
teacher’s aide, often observed female students conversing with Respondent while sitting on Respondent’s lap. K.C.’s specific recollection is that throughout the school year there were numerous times when she observed many different girls sitting on Respondent’s lap. According to K.C, the girls would often sit on Respondent’s lap in positions where they would straddle Respondent while facing him, sit such that their butts would be on Respondent’s lap with their backs facing Respondent, or sit across Respondent’s knees.
M.A. also witnessed Respondent engage in conduct similar to that described by K.C. During the 2012-13 school year, M.A. was enrolled as a student in one of the algebra classes taught by Respondent. The algebra class met during the first and second periods of the school day. M.A. credibly testified as follows:
Q: Okay. Did you ever see any girls sit on Mr. Mulock’s lap?
A: Yes. During class. Because I had him for a long time, first and second period.
So girls from different grades, older, they would come in the classroom and just talk to him, and they would sit on his lap.
Q: | I mean | how? Sideways? | Backwards? |
A: | Facing | out. |
|
Q: | Facing | out? |
|
A: Uh-huh.
Q: Backed up to him with their butt in his lap?
A: Yeah.
Q: What were they doing while they’re sitting [o]n Mr. Mulock’s lap?
A: Talking, laughing, joking around.
Tr., pp. 191, 192
M.H. credibly testified to an incident where, against her will, she ended up sitting on Respondent’s lap. According to M.H., one day while in Respondent’s classroom, she was walking past Respondent while he was sitting on a chair, when Respondent, for no reason, grabbed her forearm and tugged her towards him thereby causing her to fall in a seated position on Respondent’s lap.
Inappropriate Text Messages
K.C. credibly testified that on one occasion she received a sexually suggestive text message from Respondent.
K.C. explained that once while working as Respondent’s student aide, she was in Respondent’s classroom when the school’s front office called looking for Respondent. At the time of the call, Respondent was absent from the classroom. K.C., in an attempt to provide cover for Respondent, informed the front office that Respondent was in the hallway talking to another teacher, even though in reality she did not of Respondent’s whereabouts. After speaking with the front office, K.C. texted Respondent and asked “if he was coming to class.” Respondent replied to K.C. saying, “I’m not coming. I have not seen you yet.” K.C. was
bothered by Respondent’s sexually suggestive reply.
M.H. testified that she also received a sexually inappropriate text message from Respondent. M.H. credibly testified that a few months after befriending Respondent, he randomly sent her a text message generally asking, “hey, what’s up?” M.H. responded by saying, “hey, not much. Just hanging around.” Respondent then texted that “he was sexually frustrated and in need of release.” M.H. was uncertain of Respondent’s motives, and because she felt uncomfortable with Respondent’s text, she elected not to respond to his sexually charged statement.
Sexually Suggestive/Inappropriate Comments and Gestures
K.C. testified that one of her fellow students died while K.C. was a student at WSHS. Following a memorial service for the departed student, K.C., Respondent, and a number of other female students went to a business establishment near the school for refreshments. While at the establishment, Respondent asked the girls if they were still virgins. According to K.C. “everyone [was] just like shocked and like hurried up and changed the topic.” In a separate incident, Respondent also asked K.C. if she and her then boyfriend were engaged in sexual activity. K.C. advised that Respondent’s inquiry about whether she and her former boyfriend were having sex “was kind of awkward [and] I just felt like he shouldn’t be asking that[,] it was like personal.” Eventually K.C. ceased all contact with
Respondent because being in his presence made her feel very uncomfortable.
Respondent also made inappropriate comments to M.A. On one occasion, Respondent told M.A., “you are very beautiful. Just wait a little bit longer till you’re 18, because I’m going to be at your door knocking.” M.A. said that she felt embarrassed by Respondent’s statement.
M.A. also testified that while in class with Respondent, she observed Respondent jokingly arguing with a female student (C.C.) about a marker. M.A. credibly testified that during this incident, she saw Respondent grab C.C. around her waist and touch C.C. on her butt with his hand.
Former WSHS student M.H. credibly testified that Respondent discussed his sex life with her, including sexual fantasies that he had about a female co-worker and his sex life with his wife. Respondent told M.H. that “he was a little frustrated with his wife because she want[ed] to conceive more children at the time, and he liked being more spontaneous about it, and she was scheduling sex on a calendar.”
M.H. also credibly testified that Respondent made inappropriate comments about her breasts, stating that Respondent once said that she “looked perky today.” There was also an instance where Respondent pinched M.H. on the butt.
M.H. also credibly testified that while Respondent was planning for a scalloping trip with her and several other students, she
heard Respondent exclaim that “he couldn’t wait to see [K] (another student at WSHS) in her bikini.” On another occasion
M.H. was present when Respondent, while standing next to another female student, squeezed the female student’s lips and said, “doesn’t she have perfect lips for a blow job.” On yet another occasion, M.H. heard Respondent proclaim that a student named
C.W. “had big tits” and that another student, S.G., “had a great body.” Finally, M.H. heard Respondent offer the following proposition to student S.G.:
Q: And tell us what exactly did you hear Mr. Mulock say.
A: He had made a proposition to her that if she could get him off orally, blow job, then he would treat her to a weekend of whatever she wanted to do. Anything. And if she failed to get him off orally, then it was vice-versa, that she got – or he got to do whatever he wanted with her for an entire weekend.
Tr., p. 183.
M.A. also witnessed Respondent making sexually suggestive gestures and inappropriate comments. M.A. credibly testified as follows:
Q: Okay. Did you ever observe Mr. – hear Mr. Mulock make any inappropriate comments and make inappropriate gestures?
A: Yes.
Q: Tell us about that.
A: He would – when he was teaching, he would always talk and then always try and make it out of sex. He would make gestures
with his tongue. He would poke his cheek (indicating) with his tongue and just make gestures like that (indicating). And trying to be funny or being nasty.
Q: This is kind of embarrassing for you?
A: A little bit, yeah. He would do like stuff like that (indicating), like open his mouth and –
Q: And move his hand back and forth? A: Yeah.
Q: And poke his tongue inside his cheek?
A: Yeah (indicating). And he would then swallow stuff and like that.
Q: Okay. When he would do those things, in your mind what is he doing?
A: I didn’t understand why he would do th[at] stuff in front of the whole class. And the funny thing is that it was only – he was always around girls. So the girls would find that a little bit funny at that time, some girls. And then some guys would just shake their heads. It was very clear what he was trying to do, you know.
Q: When you say it was very clear –- A: Yeah.
Q: -- what’s clear in your mind? What is he doing?
A: Because he’s being nasty, perverted. It’s not right.
Tr., pp. 189 through 191.
Respondent Assisted M.H. with Skipping Class
M.H., by her own admission, was not a star student during her freshman year and she credibly testified that
Respondent materially contributed to her less than stellar performance as a student. M.H. testified as follows:
Q: Alright. Now at that point did you all, you and Mr. Mulock, then develop a friendship?
A: Yes.
Q: Did you spend a lot of time with him in class during the class day?
A: Yes.
Q: Tell us about when you would go to his classes – go to his room. How many times a week would you say you went to his room?
A: Probably on a daily basis.
Q: Daily basis. How long did you stay there?
A. Sometimes the whole day, sometimes just one or two classes, depending on which class I was trying to skip that day.
Q: Okay. Now if you’re spending time in his class, and he’s not one of your teachers, weren’t you supposed to be somewhere else?
A: Of course.
Q: Okay. And did he know that you were supposed to be somewhere else in class?
A: Yes.
Q: Okay. Did he ever make excuses for you with teachers, to get you back in the class?
A: To get me back in – into his classroom, or
Q: Into another class. A: Yes.
Q: Okay. How would he do that?
A: Either by email, or a phone call, or writing a pass.
Q: To the teacher whose class you were supposed to be in?
A: Yes.
Q: Okay. So you just went there often and just kind of hung out?
A: Yes.
Q: And he was okay with that? A: Yes
Tr., pp. 156 through 158.
Afterschool Activities
Petitioner alleges that Respondent, without the approval of students’ parents and the administration of WSHS, took students fishing on his boat and had students doing yardwork at his personal residence. Neither the boat trip nor the yardwork activity occurred during the school day. Respondent admits that administrative personnel for WSHS were unaware of these afterschool activities. However, as to the fishing trip and yardwork performed at Respondent’s home, the undisputed evidence establishes that the father of one of the students escorted his daughter on the fishing trip and the mother of one of the students that performed yardwork at Respondent’s home transported her daughter to Respondent’s home on the day in question. The evidence offered by Petitioner as
to these allegations is insufficient to establish that Respondent engaged in clandestine activities that breeched established standards related to parental consent.
Students Hanging Out in Respondent’s Classroom
Paragraph 6(e) of the Administrative Complaint alleges that Respondent, after being warned by his immediate supervisor, continued to allow students to hang out and socialize in his classroom during his lunch breaks and planning periods.
Dennis McComb arrived at WSHS in October 2011.
Mr. McComb was Respondent’s immediate supervisor. Within a month of his arrival, Mr. McComb observed that students, contrary to policy, were in Respondent’s classroom during Respondent’s planning period. Mr. McComb informed Respondent that he needed to cease allowing students in his classroom during the planning period.
As previously indicated, K.C. worked as Respondent’s student aide during the 2011-12 academic term. K.C. testified that she witnessed multiple girls hanging out in Respondent’s classroom “when we were switching classes . . . [o]r sometimes they would already be in there when I went to his class for the class I was supposed to be there for.” M.A. testified that “girls from different grades, older, they would come in the classroom and just talk to him, and they would sit on his lap.”
M.H. testified that Respondent “would have classes going on, and then other students throughout the day would come in and visit
him, or other students would skip in his class as well.” The testimony of these students is not specific as to when they made their observations in relation to Mr. McComb’s directive to Respondent regarding students being in Respondent’s classroom at improper times.
Respondent’s Effectiveness as Educator Undermined
Dr. Blasewitz, Dr. Reynolds, and Mr. McComb testified that based on Respondent’s conduct while employed at WSHS, they would not want Respondent employed as a teacher and believe the alleged misconduct engaged in by Respondent, if true, would undermine his effectiveness as an educator.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of and the parties to this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes (2015).
Petitioner seeks disciplinary action against the Florida Educator Certificate held by Respondent. Petitioner, therefore, has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v.
Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Dep't of Agric. & Consumer Servs., 550 So. 2d 112 (Fla. 1st DCA
1989); and Inquiry Concerning a Judge, 645 So. 2d 398 (Fla. 1994).
The Administrative Complaint alleges that Respondent violated section 1012.795(1)(g) and (j). Section 1012.795(1) provides, in relevant 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:
* * *
(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.
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(j) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
Counts one through six of the Administrative Complaint allege collectively that Respondent violated the Principles of Professional Conduct for the Education Profession in Florida, as set forth in Florida Administrative Code Rule 6A-10.081(3)(a), (e), (h), and (5)(d), and the violation of the same was so severe that it seriously reduced his effectiveness as an employee of the School Board within the meaning of section 1012.795(1)(g).
Rule 6A-10.081 provides in part as follows:
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
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.
Obligation to the student requires that the individual:
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.
* * *
(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
* * *
(h) Shall not exploit a relationship with a student for personal gain or advantage.
* * *
(5) Obligation to the profession of education requires that the individual:
* * *
(d) Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual’s performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.
As alleged in the Administrative Complaint, and supported by the credible testimony of the Petitioner’s witnesses, there is clear and convincing evidence that:
Respondent commonly touched female students inappropriately, in that he allowed female students to sit on his lap and pulled them onto his lap, and touched their buttocks;
Respondent engaged in inappropriate conversations with female students, in that he discussed inappropriate topics of a sexual nature
and made sexual innuendos to female students; and
Respondent developed an inappropriate relationship with 15-year-old female student M.H., in that Respondent discussed his sex life with M.H., touched M.H. inappropriately, and wrote passes for M.H. to assist her in skipping class in order for her to spend time in his classroom during his lunch break and planning periods.
The evidence clearly and convincingly establishes that Respondent’s conduct, as outlined in the Findings of Fact, violates rule 6A-10.081(3)(a), (e) and (h). The evidence also clearly and convincingly establishes that Respondent’s conduct,
as outlined in the Findings of Fact, violates rule 6A- 10.081(5)(d), because Respondent breached his obligation to the profession by engaging in harassing conduct towards female students that caused a hostile, intimidating, abusive, offensive, and oppressive environment for K.C., M.A., and M.H.
As previously noted, section 1012.795(1)(g) provides for discipline against an individual's educator certificate in instances where the individual's effectiveness as a school board employee has been seriously compromised by the individual's conduct. Given the nature and seriousness of Respondent's conduct, it is reasonable to infer, as contemplated by section 1012.795(1)(g), that Respondent's effectiveness as an employee of the school board has been seriously impaired. See Walker v.
Highlands Cnty. Sch. Bd., 752 So. 2d 127 (Fla. 2d DCA 2000); Purvis v. Marion Cnty. Sch. Bd., 766 So. 2d 492 (Fla. 5th DCA
2000)(reduced effectiveness may be inferred from the nature and seriousness of the conduct). Additionally, credible testimony from Dr. Blasewitz, Dr. Reynolds, and Mr. McComb directly establishes Respondent’s impaired effectiveness as an educator due to Respondent’s conduct. Petitioner has met its burden.
Petitioner recommends that Respondent’s educator certificate be suspended for a period of five years. Given the circumstances present in the instant matter, it is reasonable that Respondent's educator certificate be suspended for a period of five years, followed by one year of probation. The Education
Practices Commission shall establish the terms and conditions for both the suspension and probation. In making this recommendation, the undersigned considered the Disciplinary Guidelines set forth in Florida Administrative Code Rule 6B- 11.007.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of the violations alleged in counts one through six of the Administrative Complaint.
It is further RECOMMENDED that the final order suspend Respondent's Florida Educator Certificate 730576 for a period of five years, to be followed by a one-year period of probation.
The terms and conditions of Respondent's suspension and probation shall be established by the Education Practices Commission.
DONE AND ENTERED this 30th day of October, 2015, in Tallahassee, Leon County, Florida.
LINZIE F. BOGAN
Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2015.
1/ Unless otherwise indicated, all rule and statutory references are to the 2012 versions, which were in effect at the time of the alleged misconduct.
2/ Paragraph five of the Administrative Complaint contains factual allegations related to the alleged incident between Respondent and A.T. There was no credible evidence offered during the disputed fact hearing that substantiates these allegations. This conclusion is bolstered by the fact that in its Proposed Recommended Order Petitioner suggests no proposed findings of fact as it relates to the alleged incident involving Respondent and A.T.
Gretchen K. Brantley, Executive Director Education Practices Commission Department of Education
Eric J. Lindstrom, Esquire Egan, Lev and Siwica, P.A. Post Office Box 5276 Gainesville, Florida 32627 (eServed)
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
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.
