RICHARD CORCORAN, AS COMMISSIONER OF EDUCATION, Petitioner, vs. MICHAEL LARKIN, Respondent. / | Case No. 19-5240PL |
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this proceeding, pursuant to sections 120.569 and 120.57(1), Florida Statutes (2020), on January 5 and 11, 2021, by Zoom conference, before Administrative Law Judge ("ALJ") Cathy M. Sellers of the Division of Administrative Hearings ("DOAH").
APPEARANCES
For Petitioner: Charles T. Whitelock, Esquire
Charles T. Whitelock, P.A. 300 Southeast 13th Street
Fort Lauderdale, Florida 33316
For Respondent: Mark S. Wilensky, Esquire
Dubiner & Wilensky, LLC
1200 Corporate Center Way, Suite 200
Wellington, Florida 33414-8594
STATEMENT OF THE ISSUE
Whether Petitioner proved, by clear and convincing evidence, that Respondent violated section 1012.795(1)(d), (g), and (j), Florida Statutes (2014),1 and Florida Administrative Code Rules 6A-10.081(2)(a)1.,
6A-10.081(2)(a)5., and 6A-10.081(2)(a)8.2; and, if so, the penalty that should be imposed against Respondent's Florida Educator's Certificate.
PRELIMINARY STATEMENT
On or about October 4, 2018, then-Commissioner of Education Pam Stewart, issued an Amended Administrative Complaint against Respondent, Michael Larkin, charging him with having engaged in conduct that was alleged to violate section 1012.795 by constituting gross immorality or acts involving moral turpitude; seriously reducing Respondent's effectiveness as an employee of the school; and violating the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. On November 14, 2018, Respondent timely filed an election of rights form, selecting the option of negotiating a settlement agreement, or, if settlement was not reached, a "formal" administrative hearing pursuant to sections 120.569 and 120.57(1). On October 2, 2019, the matter was referred to DOAH for assignment of an ALJ to conduct a hearing pursuant to sections 120.569 and 120.57(1).
1 The 2014 and 2015 versions of section 1012.795, which were in effect at the time of the conduct giving rise to this proceeding, apply to this proceeding. See Orasan v. Ag. for Health Care Admin., 668 So. 2d 1062, 1063 (Fla. 1st DCA 1996)(law in effect at time of alleged violations applies in disciplinary proceedings). The pertinent provisions of section 1012.795 were not amended in the 2015 Legislative Session, so, as a practical matter, are the same.
2 The version of rule 6A-10.081 adopted on January 11, 2013, was in effect, and, therefore, applies to, the conduct alleged to have occurred in the 2014-2015 school year, including during March and April 2015. Rule 6A-10.081 was amended on March 23, 2016; therefore, the March 2016 version applies to conduct alleged to have occurred in April 2016.
The final hearing initially was scheduled for December 2 and 3, 2019, but pursuant to the parties' Joint Motion to Continue Hearing filed on
October 30, 2019, was rescheduled for January 23 and 24, 2020. On January 6, 2020, Petitioner requested to continue and reschedule the hearing, and the final hearing was rescheduled for March 24 and 25, 2020.
On February 25, 2020, less than a month before the final hearing, Petitioner's Motion to Amend Administrative Complaint, with an accompanying Amended Administrative Complaint, was filed. As explained in the Order Granting Motion to Amend Administrative Complaint issued on March 5, 2020, the Amended Administrative Complaint substantially amended the Administrative Complaint issued on October 4, 2018, to add nine new material allegations alleging, for the first time, specific facts regarding numerous instances of alleged misconduct on the part of Respondent, and charging Respondent with two new rule violations. In granting the request to amend the Administrative Complaint, the undersigned explained that the only reason the request was granted was because of the extremely serious nature of the new allegations, which, if proven, would significantly affect the penalty to be imposed in this case. In continuing the final hearing yet again, the undersigned explained:
Respondent argues that if the Motion is granted, 'minimum due process would dictate that a continuance be offered or granted.' The undersigned agrees that a continuance of this proceeding is necessary to afford Respondent due process by granting him sufficient time to conduct discovery and otherwise prepare to defend against the new allegations."
Order Granting Motion to Amend Administrative Complaint, p. 2.
Pursuant to the parties' stated mutual availability, the final hearing was rescheduled for June 24 and 25, 2020. Thereafter, pursuant to an agreed
motion to again continue the final hearing—this time, due to the unavailability of witnesses and the difficulty in engaging in discovery due to the Covid-19 pandemic—the final hearing was continued to November 16 and 17, 2020. However, as the result of a discovery dispute between the parties that resulted in the issuance, on November 2, 2020, of an Order compelling Petitioner to provide Respondent responses to certain discovery requests, the final hearing was continued yet again—this time, to provide Respondent sufficient time to receive and review the compelled discovery.
The final hearing was rescheduled for, and held on, January 5 and 11, 2021.
Petitioner presented the testimony of Eulises Munoz, Michael Rakis, Anna Sloan, Richard Saturnini, Keith Oswald, and D.S., a student.
Petitioner's Exhibit Nos. 4 through 6 and 8 through 10 were admitted into evidence without objection, and Petitioner's Exhibit Nos. 1 through 3, 7, and 11 were admitted into evidence over objection. Respondent testified on his own behalf and presented the testimony of Stephanie Pankewich, Halee Corbin, Sydney Wayne, Kaitlyn Moschera, Debra Wasserman, Paul Destito, Sharon Warwick, and William Miller. Respondent's Exhibit Nos. 1, 3, 10 through 15, and 19 were admitted into evidence without objection, and Respondent's Exhibit Nos. 5 and 18 were admitted into evidence over objection.
Four volumes of the Transcript of the final hearing were filed at DOAH on March 17, 2021, and the parties were given until March 29, 2021, to file their proposed recommended orders. Pursuant to a joint motion, the deadline for filing proposed recommended orders was extended to May 3, 2021. In reviewing the Transcript, the parties discovered that it had not been completely transcribed. The parties notified the undersigned and requested that the deadline for filing proposed recommended orders again be extended, until after the remaining portion of the Transcript was filed at DOAH.
Volumes 5 and 6 of the Transcript were filed at DOAH on May 4, 2021, and the deadline for filing proposed recommended orders was extended to May 17, 2021. Petitioner's Proposed Recommended Order was timely filed on May 17, 2021, and Respondent's Proposed Recommended Order was filed on May 18, 2021.
On May 24, 2021, Respondent filed an Emergency Motion to Strike Portions of Petitioner's Proposed Recommended Order, requesting the undersigned to strike portions of Petitioner's Proposed Recommended Order on the basis that it incorrectly represented certain statements of fact in the Proposed Recommended Order as having been stipulated by the parties. On May 24, 2021, Petitioner filed Petitioner's Response to Respondent's Motion to Strike Portions of Petitioner's Proposed Recommended Order, disputing some of the representations in Respondent's motion, and agreeing to delete references of certain facts as having been stipulated from its Proposed Recommended Order. To correct the error, Petitioner filed an amended Petitioner's Proposed Recommended Order on May 24, 2021.3 This document superseded the document filed on May 17, 2021, and constitutes the final, operative version of Petitioner's Proposed Recommended Order in this proceeding.
Both parties' proposed recommended orders have been duly considered in preparing this Recommended Order.
FINDINGS OF FACT
The Parties
Petitioner, Richard Corcoran, the Commissioner of Education for the State of Florida, is responsible for determining whether there is probable
3 Because Petitioner corrected the error by filing a corrected Proposed Recommended Order, the undersigned denied the motion to strike as moot.
cause to warrant disciplinary action against an educator's certificate, and, if probable cause is found, for filing and prosecuting an administrative complaint pursuant to chapter 120.
Respondent held Florida Educator's Certificate No. 1153464, which was valid through June 30, 2020, covering the certification area of Music. He was employed as a high school band teacher in the Palm Beach County School District ("District") from 2010 to 2016, and he was employed at Jupiter High School at all times relevant to this proceeding. He was not reappointed to his employment position on June 3, 2016.4
Respondent no longer teaches in Florida. He currently resides, and is employed as a teacher, in Texas.
Charges Stated in Amended Administrative Complaint
At its core, the Amended Administrative Complaint (hereafter, "Amended Complaint") charges Respondent with having engaged in conduct during the 2014-2015 and 2015-2016 school years that is alleged to violate section 1012.795, rule 6A-10.081, and Palm Beach County School Board Policy 3.29.
Paragraph 3 of the Amended Complaint alleges that a female student, H.C.,5 reported to the Jupiter Police Department that Respondent was engaged in sexual relations with male and female students, in his office at Jupiter High School, and at his residence, in Tequesta, Florida.
Paragraph 3 also alleges that student H.C. stated that student D.S. had contacted Respondent on the Grindr application ("app"), and that D.S. told other students that he had a relationship with Respondent.
4 Respondent was not terminated from his employment with the District. As discussed below, the letter notifying him that he was not reappointed stated that he was eligible to apply for other positions in the District for which he was qualified.
5 All students are identified in this Recommended Order using their initials because they were minors at the time that the matters giving rise to this proceeding are alleged to have occurred.
Paragraph 4 alleges that in March 2015, Respondent approached B.M., a 12th-grade student who was 18 years old at the time, through Grindr.
Paragraph 5 alleges that Respondent sent D.S. sexually-graphic communications and nude photographs through the Grindr app.
Paragraph 6 alleges that on March 17, 2015, Respondent "exchanged sexually-explicit messages with one [Grindr] User (#47281451), who first stated that he was 19 years old, before claiming to be 18 years of age"; that the following day, "Respondent texted the User[,] who first states that he's only 17 years old, then claims to be 18, before finally stating he was only 16 years of age"; that "[d]espite this admission, Respondent later requests a 'threesome' with a third party and sends a sexually-explicit image and message before announcing the other User was 16 years old who [sic] he had 'hooked up' [with] previously"; and that Respondent then sent photos of himself and the 16[-]year[-]old to the third party."
Paragraph 7, quoted below, alleges that in a Grindr chat exchange that took place on April 13, 2015, with another user:
Respondent asked the user if he was in high school. When the user responded 'Yes', Respondent asked, "Cool, what grade?" The user stated '11th['.] Respondent failed to confirm the user[']s age and continued with sexually[-]explicit communications that included exchange of explicit photographs with D[.]S[.], a 16-year-old student at Respondent's school.
Paragraph 8 alleges that:
During the 2014/2015 school year, Respondent accessed an internet application that, while technically restricted to males 18 years of age and older, had no effective process to guard against access by underage individuals or by individuals who were 18 years old, but attended high school. Respondent knew or should have known that underage individuals, including students, could have access to the application. Respondent's
actions described herein failed to properly protect the health and welfare of students when he posted sexually explicit comments and pictures on an internet application that was accessible to underage or current high school students, including D[.]S.
Paragraph 9 alleges that on April 27, 2016, school detectives obtained a video that was stored on Respondent's school district Google Drive account; that the video depicted a male of unknown identity posing nude and masturbating; that the video had no educational purpose; and that the video was stored "on the premises accessible to students, in violation of school board policy."
Evidence Adduced at the Final Hearing
This case arose as a result of rumors circulating at Jupiter High School in the 2014-2015 and 2015-2016 school years, to the effect that Respondent was having sex with students in his office; as well as a rumor started by student D.S., then a junior at Jupiter High School, that he was having, or had had, an online sexual relationship with Respondent.
Student H.C. heard these rumors. She did not have any personal knowledge of any of the events that were the subject of the rumors, but out of concern, reported them to School Police Officer Carla Irons. H.C. told Irons that she heard rumors that Respondent was having sex with students, both in his school office and outside of school, and that she also had heard a rumor that Respondent was having a sexual relationship with student D.S.
As a result of these rumors, in April 2016, Palm Beach County School District Police Department Detectives Eulises Munoz and Anna Sloan were directed to investigate whether Respondent had engaged in the conduct that was the subject of the rumors.
Evidence Regarding Charge that Respondent had Sex with Students
As part of the investigation, Respondent's office at Jupiter High School was examined for evidence of him having had sex in the office.
This examination did not reveal any evidence that Respondent had had sex with anyone in his office.
Additionally, Munoz and Sloan investigated whether Respondent had, or was having, sexual relationships with students in other locations, such as in his home.
The investigation yielded absolutely no evidence that Respondent was, or ever had been, engaged in sexual relationships with students—whether at his home, in his car, or at any other location.
To the contrary, all of the evidence presented at the final hearing showed that there was absolutely no factual basis to the rumors that Respondent was having, or ever had, sexual relationships with students.
Evidence Regarding Allegation that Respondent had Sex with D.S.
To investigate H.C.'s statements that Respondent had, or was having, a sexual relationship with D.S., Munoz and Sloan went to D.S.'s house, interviewed him, and searched his cell phone and home computer.
Munoz testified that during his interview of D.S., D.S. denied ever having a physical sexual relationship with Respondent.
D.S. testified at the final hearing, and also attested in his affidavit,6 that he never had a sexual relationship with Respondent; that Respondent had never spoken to him or vice-versa; and that he did not think Respondent knew who he was.
Evidence Regarding Charge that Respondent Sent Sexually-Explicit Communications to D.S. through the Grindr App
6 D.S.'s affidavit is hearsay. Hearsay evidence is admissible in administrative proceedings, and may be used to supplement or explain other evidence, but is not sufficient in itself to support a finding of fact unless, pursuant to sections 90.802 through 90.805, Florida Statutes (2020), it falls within an exception to the hearsay exclusionary rule in section 90.802.
§§ 120.569(2)(g), 120.57(1)(c), Fla. Stat.; Fla. Admin. Code R. 28-106.213(3).
The Grindr App
Grindr is a popular adult mobile dating/social networking application (hereafter, Grindr or "app").
To open and maintain a Grindr profile for purposes of using the Grindr app, Grindr's terms and conditions of service expressly require that the user must be at least 18 years old.
As part of the process of creating a Grindr profile, the person seeking to create the profile must state, in response to a question, that he or she is 18 years of age or older. Thus, the only way for a person below the age of
18 to create a Grindr profile is for the person to respond untruthfully to the question—i.e., lie—about his or her age.
The competent, credible evidence established that more than one Grindr profile can be created using the same phone number, so that a telephone number is not necessarily tied to one specific Grindr profile.7
The competent, credible evidence also established that a person can create a Grindr profile using any name and any photograph, including one taken from another Grindr user's profile, and that Grindr does not take any measures to verify a user's actual name or other indicia of identity, such as the profile photograph.8
Interview of D.S. and Recovery of Photographs from Computer and Phone
As stated above, as part of the investigation into whether Respondent engaged in sexual relationships with students, Munoz and Sloan interviewed
D.S. at his home, and searched his cell phone and home computer.
In the course of the interview, D.S. told Munoz and Sloan that he had opened a Grindr profile using his yahoo.com email account.
7 Miller testified as a fact witness regarding his own investigation into how a Grindr profile is created and how the profile is confirmed by Grindr through the user's provided phone number. Miller did not testify as an expert witness, and he did not render opinion testimony. Rather, he testified about his own personal experience in investigating, and determining, how files could come to be stored on a Google Drive.
8 Refer to note 7.
D.S. admitted that he had lied about his age when he created his Grindr profile.
D.S. initially told Munoz that he could not remember what Respondent's Grindr profile name was, but then subsequently told Munoz that he believed that a Grindr user having the profile name "Grindr Guy, 28," with whom he had communicated, was Respondent.
D.S. claimed that he "knew" he was communicating with Respondent because Grindr Guy, 28 sent him photographs of Respondent's face.
The profile photograph for the Grindr Guy, 28 profile consisted of a person in a spacesuit. Nowhere on the profile photograph for Grindr Guy, 28 is there any information about, or indication of, the identity of the person to whom the "Grindr Guy, 28" profile belonged. To that point, there is no information whatsoever on the profile photograph of Grindr Guy, 28 indicating that Respondent is Grindr Guy, 28.
D.S. told Munoz and Sloan that he communicated with Grindr Guy, 28, who he assumed was Respondent, for a short period of time in March and April 2015.
D.S. admitted to Munoz that through Grindr, he had sent body and "butt" photographs to Grindr Guy, 28, who he assumed was Respondent. He claimed that through Grindr, he had received body and penis photographs from Grindr Guy, 28.
Munoz and Sloan searched D.S.'s computer and cell phone and found numerous photographs of many different people. Many of these photographs depicted what Munoz characterized as "a substantial amount of nudity and things of that nature."
Among the photographs D.S. had stored on his computer and phone were images of Respondent's face. Although D.S. initially told Munoz that Respondent had sent him these photographs via the Grindr app, he later told Munoz that he had downloaded those images off of Facebook or the internet.
Another photograph stored on D.S.'s computer/phone depicted a male torso unclothed from shoulders to waist. D.S. told Munoz it was a photograph of Respondent. The photograph does not show the face of the person whose torso is depicted, nor does it contain, or provide, any other information indicating the identity of the person depicted in the photograph. To that point, there is no information whatsoever on the photograph indicating that the person depicted in the photograph is Respondent.
Munoz testified that D.S. kept an encrypted Keepsafe file on his computer. Contained in the file were, in Munoz's estimation, between 100 and 200 photographs of penises. Of these photographs, D.S. identified two photographs, each depicting a penis, which he claimed were sent to him by Respondent through the Grindr app. Of all of those images, D.S. claimed that he knew which photographs were from Respondent because he (D.S.) "could remember which penis was sent to him by a teacher."
Respondent's face was not depicted on any of the photographs of penises that were stored on D.S.'s computer or cell phone. Stated another way, there were no photographs stored on D.S.'s computer or cell phone, or otherwise in D.S.'s possession, that showed both Respondent's face and his penis. Further, there is no information whatsoever on or in the photographs showing that Respondent sent the photographs to D.S.
Also stored on D.S.'s computer and phone were photographs of what appeared to be two text message conversations that D.S. claimed were text messages, through Grindr, between him and Respondent. None of these photographs contained or depicted any information whatsoever—such as name, phone number, or email address—regarding the identities or locations of the persons sending and receiving the text messages.
In the course of the interview, D.S. initially denied, then admitted, that he and some friends had gone to Respondent's residence. D.S. told him that he thought Respondent was a good-looking man and that he (D.S.) thought it would be "fun" to go to Respondent's residence. D.S. told Munoz
that he left a cookie with a note consisting of a drawing of an eyelash and the words "kiss me" outside of the door to Respondent's apartment. D.S. told Munoz that Respondent did not know that he (D.S.) had gone to his apartment and left the cookie and note.
After interviewing D.S. and obtaining photographs from his computer and phone, Munoz sent a subpoena to Grindr on April 15, 2016. The subpoena requested information for "user name: Grindr Guy, 28; and/or name: Michael Shawn Larkin; and/or phone number: 561-351-4286; and/or email address: mlarkin19990@yahoo.com." The subpoena requested, for accounts having the above-listed user(s), information regarding the Grindr subscriber name and address; types of services used; instrument number of subscriber or identity; means and source of payment for a subscription to Grindr; records of session times and duration; IP logs and IP history; and length of service, including start date of service.
Munoz also subpoenaed records from Grindr for D.S.'s Grindr account, but did not receive any records in response to the subpoena.
On April 19, 2016, Munoz received electronic documents from Grindr in response to the subpoena. These documents consisted of what appeared to be several photographed screenshots of information for Grindr profile number 287427, and "chat logs" for three separate Grindr account profile numbers: 287427, 47281451, and 48665082.
The "chat logs" actually consist of documentary logs of individual text messages between two individual users, rather than simultaneous communications between multiple users. A Grindr user selects another individual user with whom he or she will communicate, and sends a text message. That test message is seen only by the individual user to whom it was sent, rather than appearing in a "chat" forum that can be seen by others besides the specific user to whom the message was sent.
One screenshot photograph of information for Grindr profile number 287427 included a photograph depicting Respondent's face. This photograph
is the same as, or very similar to, one of the photographs of Respondent that
D.S. had stored on his computer.
The chat logs for the three Grindr account profile numbers do not contain any information identifying any of the persons participating in any of the communications.
Nor is there any evidence linking any of the documents received from Grindr, including the chat logs and the screenshot information for Grindr profile number 287427, with "Grindr Guy, 28."
Moreover, because the subpoena request was structured in the disjunctive "or," the documents produced by Grindr may have been for any of the individual persons, all of the persons, or any combination of the persons who were described in the subpoena. It is not possible to determine from the documents themselves which person or persons described in the subpoena for which the records were provided by Grindr,9 and Petitioner did not present any competent or persuasive evidence regarding the identity of the individual or individuals to which the documents provided by Grindr pertained.
As extensively discussed below, the documents obtained from Grindr do not fall within the business records exception to the hearsay rule. The documents are not business records of the District (which conducted the investigation), nor are they business records of Petitioner.10 Further, Petitioner did not present any competent evidence establishing the predicate foundation for the admission of the documents under a hearsay exception.11
9 This information is crucial to definitively determining whether any of the documents pertain to Respondent, and, if so, which ones.
10 See Knight v. GTE Fed. Credit Union, 310 So. 3d 959, 962-63 (Fla. 2d DCA 2018)(employee of one entity not qualified to establish foundational elements of business records exception for records of another entity).
11 See Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008)(the evidentiary proponent has the burden of establishing a proper predicate for applicability of an exception to the hearsay rule). Petitioner did not present evidence establishing a proper predicate for the admission of the records under any exception to the hearsay rule. Accordingly, pursuant to section 120.57(1)(c), the records cannot be afforded weight.
Additionally, although Petitioner presented Munoz's testimony for purposes of having the documents admitted into the evidentiary record, Munoz did not have any personal knowledge of the matters asserted in the documents, and Petitioner did not present competent or persuasive evidence, such as the testimony of persons having personal knowledge, regarding the truth of the matters asserted in the documents.12 Accordingly, the documents cannot be assigned any weight for purposes of proving the truth of the matters—such as the age of the persons engaging in the communications— asserted in them.13
Furthermore, although Munoz was able to verify that the documents constituting Petitioner's Exhibits 1, 2, and 3 were received from Grindr in response to the subpoena he served on Grindr, Munoz did not—and was unqualified to—attest that the photographs and chat logs were a fair and accurate representation of what they purported to be—i.e., records regarding the Grindr accounts for Grindr Guy, 28; Michael Shawn Larkin; the subscriber having phone number 561-351-4286; or the holder of email address mlarkin19990@yahoo.com.14
Testimony by a person, such as a Grindr employee, having personal knowledge regarding the creation and storage of the documents is required to authenticate the documents. Petitioner did not present such testimony, or any other competent evidence, to authenticate the documents. Thus, the
12 Hunter v. Aurora Loan Servs, LLC, 137 So. 3d 570, 573 (Fla. 1st DCA 2014)(a person who was not an employee of the entity creating records and who lacked personal knowledge regarding the entity's record-keeping procedures was not qualified to authenticate records or testify regarding the elements of the business records exception to the hearsay rule).
13 As discussed above, under sections 120.569(2)(g) and 120.57(1)(c), hearsay evidence is admissible in administrative proceedings to supplement or explain other, competent, evidence in the record. However, it cannot constitute the sole basis for a finding of fact unless it falls within an exception to the hearsay rule.
14 See Aurora Loan Servs., 137 So. 3d at 573.
documents received from Grindr, which constitute Petitioner's Exhibits 1, 2, and 3, were not authenticated, and, therefore, cannot be assigned weight.15
In sum, none of the documents received from Grindr pursuant to Munoz's subpoena constitutes competent evidence for purposes of substantiating the allegation in paragraph 7 of the Amended Complaint that Respondent engaged in sexually-explicit communications with D.S.
To determine whether Respondent had engaged in sexually-explicit text messaging with D.S., Munoz also subpoenaed text records from AT&T for D.S.'s phone and from Verizon for Respondent's phone. The records Munoz obtained from AT&T and Verizon did not show that D.S. and Respondent had ever engaged in any text messaging with each other by phone.
Ultimately, the investigation by the Palm Beach County School District Police Department revealed no evidence whatsoever showing that Respondent had ever had sexual relations with minors in his office or at his residence, or that he had otherwise engaged in sexual activity involving students, including D.S., at Jupiter High School.
No criminal charges were filed against Respondent. D.S.'s Testimony at the Final Hearing
D.S. testified that he never met or spoke to Respondent in person. He confirmed that he never socialized, dated, or had any physical interaction with Respondent. He testified that he never had a physical sexual encounter with Respondent.
D.S. would see Respondent at school because he took a chorus class, the room for which was next door to the band room, where Respondent taught his courses.
15 Authentication of evidence is required as a condition precedent to its admissibility.
§ 90.901, Fla. Stat. To this point, documentary and electronic evidence must be authenticated in order to be admissible. See Channell v. Deutsche Bank Nat'l Tr. Co., 173 So. 3d 1017, 1019 (Fla 2d DCA 2015).
D.S. testified that he became interested in Respondent because he (Respondent) was a good-looking teacher. He acknowledged that he "probably" went on social media applications to search for Respondent.
As noted above, D.S. was approximately 16 years old when he created a Grindr profile. D.S. acknowledged that he had lied about his age when he created a Grindr profile.
D.S. said that he had a photograph of his face on his Grindr profile, and "probably" had his "stats," such as height, body type, and ethnicity, as information stated on his Grindr profile. He did not recall if he used a profile name. He did not recall his profile number, and never saw a chat log bearing or containing his profile number.
D.S. testified regarding the communications through Grindr that he had with Grindr Guy, 28, who he believed was Respondent.
D.S. thought that Grindr Guy, 28 was Respondent based on having received photographs of Respondent's face from Grindr Guy, 28, and because on one occasion, the Grindr app showed Grindr Guy, 28 as being approximately 160 feet16 away from him. However, D.S. subsequently acknowledged that "there's no proof, like hard core evidence" that Grindr Guy, 28 was Respondent, and that he had "connected the dots" because he guessed Respondent's age was 28. D.S. admitted that "the only thing I have to go off are the pictures he sent to me. And the distance."
D.S. further acknowledged that the proximity of Grindr Guy, 28 did not reveal or otherwise indicated the identity of Grindr Guy, 28, and that "it could be anybody."
D.S. testified that when he was bored in class, he would open the Grindr app, although he "tried to keep [his Grindr activity] more off campus."
16 The profile photograph of Grindr Guy, 28 showing the distance between him and D.S. is of poor quality and does not clearly depict the precise distance. The distance appears to be "160 feet," rather than the "150 feet" to which the parties' counsel referred in direct and cross-examination of D.S. This discrepancy is noted for accuracy purposes. The exact
distance is immaterial; the point is that on one occasion, the Grindr app showed Grindr Guy, 28 in close proximity to D.S.
He also testified that he did not recall where he was when the Grindr app showed Grindr Guy, 28 as being nearby, but that he "probably" was at school when this occurred.
D.S. acknowledged that many other persons at Jupiter High School— including the approximately 3,000 students, teachers, school staff, and parents on campus—could have Grindr profiles, and that he did not know who, or how many others, at the school had Grindr profiles. He also acknowledged that other students "probably" had Grindr accounts.
The evidence did not definitively establish that D.S. was in the chorus room, or otherwise was in close proximity to Respondent at the time the Grindr app showed the location information for Grindr Guy, 28.
Furthermore, no competent, credible evidence was presented that Respondent ever used the Grindr app while he was on campus at Jupiter High School—much less that he used it while he was supposed to be teaching, or that he used it at the same time that D.S. was nearby.
D.S. verified that the photographs consisting of Respondent's face; the spacesuit profile of "Grindr Guy, 28," the unclothed male torso that did not depict a face; two photographs of penises, and the photographs of Grindr text conversations had been stored on his computer and phone.
He initially characterized the photographs as having been sent, through Grindr, by Respondent. However, on questioning, he acknowledged that on Grindr, anyone could send a photograph taken from anyone's profile. He also acknowledged that many people on social media platforms, including Grindr, use photographs taken from other users' Grindr profiles.
D.S. further acknowledged that he did not know the person in the spacesuit depicted on the profile of Grindr Guy, 28, that he did not believe it was an actual photograph of Respondent, and that he thought it was a photograph taken off of the internet.
He also acknowledged that the sources of the numerous photographs of penises he had stored on his computer were "probably me, internet, probably Grindr."
D.S. acknowledged that he received some photographs of Respondent's face and some photographs of bodies, but he never received a photograph of Respondent unclothed that also depicted his face such that he (D.S.) could be sure it was the same person. He stated: "I was sent some face pictures and some body pictures. I have no way of knowing if they were Michael Larkin's body."
D.S. never asked Grindr Guy, 28 if he was Respondent, and the person whose Grindr user name was Grindr Guy, 28 never told D.S. that he was Respondent.
D.S. never asked Grindr Guy, 28 if he was a teacher, whether he played the trumpet, or any other questions that may have given him (D.S.) more solid information on which to base his assumption that Grindr Guy, 28 was Respondent. In short, D.S. did nothing to verify or confirm his guess that Grindr Guy, 28 was Respondent.
Nonetheless, D.S. told his friends that he had sent photographs to Respondent and received photographs from Respondent through Grindr, and he sent some photographs he had received depicting Respondent's face to his friends through the Snapchat app.
He acknowledged that he placed the caption "Grindr messages with Larkin" on a screenshot of a Grindr text conversation between him and an unidentified Grindr user, and that the caption had not been placed on the screenshot by the Grindr app.
D.S. testified that when he opened a Grindr profile, he did not have any idea that Respondent was on Grindr. However, this testimony was directly contradicted by his sworn statement made during the April 2016 investigation to the effect that during the 2014-2015 school year, students were trying to locate Respondent on Grindr.
D.S. testified that during the time he was communicating with the Grindr user he assumed was Respondent, he never got the impression that the Grindr user knew or thought he was a student. In fact, D.S. acknowledged that he had gone to some length to make sure that he did not divulge to the Grindr user that he was a student. D.S. further testified that when he told this Grindr user that he was "underage"—i.e., younger than 18 years old—the user blocked him and had no further communication with him.
D.S. admitted that he thought it would be "fun" to go Respondent's residence. He "Googled" Respondent's home address and went to Respondent's home. He acknowledged that Respondent did not invite him to his home, and that Respondent did not know that he had gone to his home.
D.S. admitted having left a cookie for Respondent at his home, along with a note that said "kiss me" and contained his phone number. He testified that Respondent never called or texted him at his phone number.
D.S. also admitted to having taken photographs of Respondent at school without his (Respondent's) knowledge or permission, and having sent them to his (D.S.'s) friends via the Snapchat app.
D.S. acknowledged, when he spoke with Munoz during the April 2016 investigation, that he had stalked Respondent on social media. On questioning at the final hearing, D.S. admitted that he had stalked Respondent on social media.
Testimony of Other Student Witnesses
S.P. was a student at Jupiter High School at the time of the alleged conduct giving rise to this proceeding. She was, and still is, a friend of D.S.'s.
She testified that she did not have any personal, independent knowledge about the alleged online relationship between D.S. and Respondent, and that she only "knew" what D.S. had told her. To this point,
she testified that she was certain that Respondent did not knowingly engage in any communication with D.S.
She also testified that she was not aware of Respondent ever having engaged in inappropriate conduct with any students.
S.P. was with D.S. the day that D.S. went to Respondent's home. She did not recall the specific details of that event.
H.C. was a student at Jupiter High School at the time of the alleged conduct giving rise to this proceeding.
She had heard a rumor from other students that D.S. and Respondent were having a sexual relationship on Grindr, and she told a police officer about what she had heard.
She knew that D.S. was going around telling people at Jupiter High School that he was in an online relationship with Respondent.
She did not personally know of any relationship between Respondent and D.S.
Respondent's Testimony at Final Hearing
Respondent taught in the Palm Beach County School District for six years before his contract was not renewed for the 2016-2017 school year as a result of the allegations giving rise to this proceeding.
The evidence establishes that Respondent had not previously been subjected to discipline. Although his teaching position at Jupiter High School was not renewed due to the allegations giving rise to this proceeding, the evidence establishes that he was not terminated or otherwise disciplined by the Palm Beach County School Board under its progressive discipline policy in connection with the allegations giving rise to this proceeding.
In fact, the letter notifying Respondent that he was not being reappointed to the band director position at Jupiter High School states that "you may apply for vacant positions for which you qualify," and directs Respondent to a link on the Palm Beach County School District's website.
Respondent has been a teacher for eleven years, and he presently is teaching in Texas. He has been employed as a band teacher in Texas for four years.
His employer in Texas was made aware of the investigation into the matters giving rise to this proceeding, and obtained information from the District. The State of Texas conducted its own investigation and determined that Respondent should remain employed there. Respondent has not been subjected to any disciplinary or other adverse employment action during his tenure as a teacher in Texas.
While Respondent taught in the District, the band program at Jupiter High School substantially grew in size and prominence. The marching band, which had been mediocre prior to Respondent becoming band director, finished in the top five at the state level competition every year while Respondent was employed at Jupiter High School. During Respondent's last two years as band director at Jupiter High School, the band won back-to-back state championships for the first time in its history.
Also under Respondent's leadership, the band engaged in community service projects and performed at community events.
Respondent testified, credibly, that he never had sex with students. He occasionally spoke to students in his office regarding disciplinary matters. He would call students into his office because he did not want to discipline them in front of others and subject them to embarrassment.
Respondent testified, credibly, that while he was on campus at Jupiter High School, he did not go onto his computer or phone to access social media platforms or sites.
To that point, the evidence showed that the District's internet system restricts persons from connecting to social media sites while on school campuses.
Respondent testified, credibly, that until the day of the final hearing in this proceeding, he had never seen D.S., and that he has never met D.S.
He testified, credibly, that he has never had a personal or a professional relationship with D.S.
He also testified, credibly, that he never sent text messages to D.S. or any other student, and that he never received text messages from D.S. or any other student. He testified, credibly, that he never gave his phone number to students and that, to the best of his knowledge, no students had his phone number.
To the extent Respondent communicated with students or parents, he sent and received emails through his school Gmail account, which was part of the Google Educator software to which teachers had access. Jupiter High School published a list of all faculty Gmail addresses, which was accessible to all students and parents of students attending Jupiter High School.
Respondent did give his phone number to a very select group of parents who were band boosters, for purposes of communicating with them on chaperoned band trips.
Respondent testified that he was on certain social media platforms, such as Facebook. He testified, credibly, that he never shared his social media accounts with students because he wanted to keep his professional life separate from his private life.
He testified that he did previously have a Grindr profile. He testified, credibly and persuasively, that he joined Grindr because people his age engage in online dating. As he put it, "I was brought up in the social media era [O]nline dating is a big thing. So you know, in my era, of my age, you
know, that's a very common thing to happen." He noted that other teachers at the school also used social media dating platforms, and credibly testified that he never told students or his colleagues that he used social media dating platforms.
He credibly denied that "Grindr Guy, 28" was his Grindr profile name, and, as discussed above, there is no competent or persuasive evidence establishing that Respondent was Grindr Guy, 28.
Respondent also credibly denied that he had joined Grindr to interact with students.
He noted that when a person creates a Grindr profile, he or she must verify that he or she is over 18 years of age. Due to this requirement for a person to be able to use Grindr, Respondent knew—or, at least, reasonably assumed and felt assured—that he would not "run into" students on Grindr.
Respondent credibly denied ever having communicated with D.S., or with any other minors, on Grindr. To that point, Respondent credibly testified that he was not looking for younger people on the internet and would not misrepresent his age to persons with whom he was communicating. As he put it, being untruthful about one's age is "not appropriate to do." He credibly testified that while on Grindr, he communicated with people in their 20s and 30s, around his age.
Respondent credibly denied that he sent, to D.S., any of the photographs of penises that were stored on D.S.'s computer. He also credibly denied that those photographs were of him.
Respondent testified, credibly, that all of the photographs of his face that D.S. had stored on his phone and computer were photographs that he (Respondent) had posted on his Facebook page, so that they were available to be seen—and used—by anyone using the Facebook platform.
Respondent also credibly denied that any of the chat logs provided by Grindr in response to Munoz's subpoena involved, or consisted of, communications from him to others, and vice versa.
Respondent testified, credibly, that he never gave his address to students; never had invited students to his home; and never socialized with students outside of school.
Respondent testified, credibly, that when Munoz interviewed him in April 2016 as part of the District's investigation, Munoz requested to forensically examine Respondent's phone. At the time Munoz made the request, Respondent turned over his phone to Munoz; however, Munoz
wished to examine the phone the following day. Respondent did not leave his phone with Munoz and contacted his attorney, who advised against consenting to a search of his phone. Thus, Respondent's refusal to consent to an examination of his phone was specifically on the advice of his attorney.
With respect to D.S. having gone to Respondent's home, Respondent recalled that one day, a cookie with a note containing a phone number was left outside the door of his apartment. He assumed the cookie and note were left by a neighbor who appeared to be romantically interested in him, and threw the cookie and note away. He testified, credibly, that he did not call the phone number on the note.
Evidence Regarding Allegation that Respondent Engaged in Sexually- Explicit Communications on Grindr with Persons He Knew Were, or May Be, Younger than 18 Years Old
As discussed above, no competent evidence was presented showing that Respondent engaged in sexually-explicit communications with persons whom he knew were, or may be, younger than 18 years old.
With respect to D.S., the evidence overwhelmingly establishes that even if Respondent engaged in communications with D.S. on Grindr—and, as further discussed herein, the evidence does not clearly and convincing establish that Respondent engaged in such conduct—he did not know that he was communicating with D.S.; that he was communicating with a student; or that he was communicating with a person younger than 18 years old. To this point, D.S. admitted that not only had he lied about his age to open a Grindr profile, but that he also went to lengths to hide, from the Grindr user he assumed was Respondent, his age and the fact that he was a student. In short, even if it were shown that Respondent communicated with D.S., there is absolutely no evidence showing that Respondent knew the identity or age of the person with whom he was communicating.
Furthermore, to the extent that Petitioner attempts to rely on Grindr chat logs as evidence that Respondent knew he was communicating with
persons younger than 18 years old, that reliance is misplaced. As discussed above, the Grindr chat logs are hearsay evidence that does not fall within an exception to the hearsay rule, and there is no independent, competent substantial evidence establishing that any of the statements in the chat logs are true. Accordingly, any statements in the chat logs regarding the ages of those participating in the communications do not constitute competent substantial evidence, so are not afforded evidentiary weight in this proceeding.
Additionally, there is no competent substantial evidence linking Respondent to any Grindr user profile or profile number. To the extent Petitioner attempts to rely on the documents the District received from Grindr, those documents were not authenticated by a witness competent to testify that they constituted a fair and accurate representation of what they purport to be. Accordingly, they do not constitute competent substantial evidence.17
Evidence Regarding Allegation that Respondent "Knew or Should Have Known" that Underage Persons "Could Have Access" to the Grindr Application
Respondent acknowledged that he likely had sent sexually-explicit photographs to other users with whom he had communicated on Grindr. He testified, credibly, that he never sought out, or communicated with, underage persons or students on Grindr.
As discussed above, Petitioner did not present any competent or persuasive evidence showing that Respondent communicated with underage persons or students, including D.S., through Grindr, or any other internet platform or application.
17 Authentication is a component of evidentiary relevancy. Mullens v. State, 197 So. 3d 16, 42-43 (Fla. 2016)(concurring opinion). Competent substantial evidence is such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). Because unauthenticated evidence has not been shown to be what it purports to be, it is irrelevant, and, therefore, does not constitute competent substantial evidence.
Additionally, there was no competent substantial evidence presented showing that Respondent knew that underage persons "could have access" to the Grindr application. To the contrary, Respondent testified that when he created a Grindr profile and used the Grindr app, he knew that persons using the app had to be at least 18 years old. Absolutely no evidence was presented showing that Respondent knew that, notwithstanding the Grindr profile creation age requirement, persons younger than 18 lied, or would lie, about their age in order to use Grindr.
Moreover, to the extent Petitioner attempts to rely on the Grindr chat logs as establishing actual or imputed knowledge on Respondent's part of any Grindr users' ages, those chat logs constitute unauthenticated hearsay evidence that does not fall within any exception to the hearsay rule. As noted above and more fully discussed below, the chat logs do not constitute competent substantial evidence, and, thus, cannot be afforded evidentiary weight in this proceeding.
Petitioner also failed to present any competent or persuasive evidence showing that Respondent "should have known" that persons younger than 18 years old "could have access" to the Grindr app. Again, the evidence showed that Respondent—presumably just like every other Grindr user—reasonably relied on Grindr's age-screening process to ensure that minors would not use the app.
Further to this point, the competent, persuasive evidence established that Respondent never sought out, or communicated with, underage persons or students on Grindr, so he had no reason to know, or even suspect, that underage persons would lie about their age in order to use Grindr. Petitioner did not present any competent or persuasive evidence showing that Respondent "should have known" that underage persons used the Grindr app, notwithstanding the requirement that users be at least 18 years old.
Thus, the evidence does not establish that, by his mere use of the Grindr app to communicate with non-student adults, Respondent failed to protect the health and safety of underage persons or students, including D.S.
Evidence Regarding Allegation that Respondent "Approached" Male Student B.M.
The Amended Complaint alleges that Respondent "approached" a 12th-grade student, B.M., who was 18 years old at the time, through the Grindr app. Notably, the Amended Complaint does not allege that Respondent engaged in any sexually-explicit or otherwise inappropriate communications with B.M., or that Respondent knew B.M. was a student.
In any event, Petitioner did not present any evidence showing that Respondent had any interaction whatsoever with B.M.—whether in person, through the Grindr app, or through any other social media platform or electronic medium.
Evidence Regarding Video Stored on Respondent's School Google Drive
The District uses the Google G Suite for Education software product. It consists of a set of tools and services specifically provided for education institutions. Among the tools and services provided through G Suite are Gmail electronic mail, calendar, video software, document software, and Google Drive, which is a cloud-based file storage service. Every employee of the District has a Google account, with access to all of the G Suite tools and services, including the Google Drive.
According to Richard Saturnini, an information technologist for the District, employees should not share their Google credentials or share the same email account. Saturnini explained that under the School Board's Acceptable Use of Technology policy, Policy No. 3.29, each employee must maintain the confidentiality of his or her Google account, so that he or she is the only person who has access to that account. To that end, each employee has his or her own password. That password is specific to that employee, so that only he or she can access his or her own Google account.
The only instances in which an employee's Google account can be accessed by anyone other than the employee is if he or she shares the account password, or if the account is accessed by the limited group of school administrators authorized to access employees' accounts through the Google Vault tool.18
In connection with the April 2016 investigation into whether Respondent engaged in inappropriate sexual relationships and communications with students, Michael Rakis, a senior technical analyst for the Palm Beach County School District, searched the Google Drive associated with Respondent's District Google account.
Rakis found stored on Respondent's Google Drive a video of a nude person masturbating. Rakis testified that the video appeared to have been downloaded onto Respondent's Google Drive in approximately April 2015.
There was no evidence presented that any students had access to, or accessed, Respondent's Google Drive, or that they saw, or could see, the video.
Respondent denied that he ever had seen the video. He testified that he did not know it was stored on his Google Drive, or how it came to be stored there.
Respondent testified, credibly, that when he was employed at Jupiter High School, he used his own personal computer to work from home, so that he had both work-related and personal items stored on his computer. He also used his personal computer to access social media sites.
When using his personal computer, Respondent accessed his school Google account, including his Google Drive, on which he stored lesson plans,
18 Google Vault is an email and document archiving system in G Suite used to access and download documents located in a Google user's account. A small number of school administrators are authorized to use the Google Vault for specific purposes, such as responding to public records requests or assisting in a school district investigation of an employee. This mode of third-party access only allows files to be downloaded from the employee's Google Drive; it does not allow a third party to upload files to an employee's Google Drive.
recordings of the band's ensembles, music to be handed out to students, and similar work-related items.
He credibly denied ever having downloaded pornography to his District Google Drive.
Keith Oswald, Deputy Superintendent for the Palm Beach County School District, testified regarding the video that was found stored on Respondent's Google Drive. He stated that there is no justification for a District employee to store anything of that nature on his or her Google Drive. He testified that under the circumstances, the District would not rehire Respondent.
As previously noted, William Miller testified on behalf of Respondent.19 Miller, who is employed as a paralegal by Respondent's counsel's law firm, has a 40-plus year career in conducting investigations, through having been employed as a detective by the Lake Worth Police Department; an investigator for the Palm Beach County Medical Examiner, the Palm Beach County Public Defender's Office, and the Federal Public Defender's Office; and a private investigator in his own investigation firm.
Among other things related to this proceeding, Miller determined and testified about how a file on a computer could inadvertently be stored to a Google Drive. Specifically, when a person has his or her Google Drive open and then uses another program or file without closing the Google Drive, the Google Drive becomes the default "save" location for all programs and files in use at the time, including non-Google files.
Miller also testified, credibly, that the Google Drive has a file-share process, through which a file sent to a Gmail account will automatically be saved to the Google Drive of the person to whom the email was sent. The only
19 Miller testified as a fact witness regarding the investigation that he personally performed to determine how various application programs and files could come to be stored on a Google Drive. He did not testify as an expert witness, and he did not render opinion testimony.
Rather, he testified about his own experience in investigating, and determining how, files could come to be stored on a Google Drive.
information that the Gmail user receives is a link to the file imbedded in the email. Importantly, it is not necessary to open the link in order for the file to automatically be saved to the Google Drive. Thus, by merely having received the email, the file automatically is saved to the Gmail recipient's Google Drive.
Miller verified this by emailing an innocuous photograph and video to a District employee's Gmail account. Miller testified, credibly, that even though the employee did not open the email containing the photograph and video, those files were downloaded to, and stored on, the employee's Google Drive.
Petitioner did not present any evidence to rebut Miller's credible, persuasive testimony.
Testimony Regarding Respondent's Effectiveness as a Teacher
As discussed above, the evidence showed that while Respondent was the band director at Jupiter High School, the band enjoyed unprecedented success.
The credible, persuasive evidence establishes that Respondent was regularly evaluated by his supervisors at Jupiter High School, and that other than in his first year (when he received a "satisfactory" rating), he received a "highly effective" rating in each of the subsequent years he taught at Jupiter High School.
Former students and parents of students also testified regarding Respondent's effectiveness as a teacher.
S.W. was a student at Jupiter High School at the time of the alleged conduct giving rise to this proceeding. She was in the band, and Respondent was her band director in her freshman and sophomore years.
She heard rumors that Respondent had a dating app account and that a student, who was using a fake account and represented that he was older than he was, was communicating with Respondent through the dating app.
She testified that she believed that Respondent would not intentionally engage in inappropriate conduct with a student.
She testified that Respondent was a good, extremely dedicated teacher who worked very hard.
K.M. was a student at Jupiter High School at the time of the alleged conduct giving rise to this proceeding. She was in the band, and Respondent was her band director in her freshman and sophomore years.
She testified that she had heard rumors that a student in choir had "catfished" Respondent on an online dating site by lying about himself, and that Respondent did not know that he was communicating with a student.
She described Respondent as a wonderful teacher, and testified that "we were a very successful band under him and very much like a family."
She testified that becoming aware of the rumors and the information brought out in the course of this proceeding did not change her opinion of Respondent and that, in her view, he could still be a very effective teacher.
Debra Wasserman, the parent of a student formerly in the Jupiter High School band and in Respondent's class, testified on Respondent's behalf.
She characterized Respondent as "probably one of the greatest teachers my son has ever had and, as a band director, he was just as fantastic."
She testified that she had heard the rumor that a young man started an online relationship and that it ended once they found out they were at the same school.
She testified that when Respondent left Jupiter High School, the band students and the parents of band students were very distraught. She characterized the feeling as "general gloom and doom."
She testified that in her view, and the view held by other band parents, Respondent was a very effective teacher.
Sharon Warwick, also a parent of a student formerly in the Jupiter High School Band and in Respondent's classes, testified on Respondent's
behalf. Her son was in multiple ensembles with the band, and she volunteered on behalf of the band.
She characterized Respondent as "a wonderful teacher." She described him as "very inspiring to the kids. He commanded their respect as well as their participation. He inspired them to set goals. He's a very good teacher."
She testified that she heard rumors that Respondent had contacted, on social media, a child who was not a band student. She did not give credence to the rumors.
She stated that she would not have any concerns with Respondent teaching her son again, and that she believed that, notwithstanding the rumors, Respondent still could be an effective teacher.
Paul Destito, a retired band director previously employed with the Palm Beach County School District, also testified on Respondent's behalf.
When Respondent first started as the band director at Jupiter High School, Destito was the band director at Jupiter Middle School, and served as Respondent's mentor in getting him "off to a good start in Jupiter."
He described Respondent as a wonderful teacher and an "amazing" marching band director. According to Destito, Respondent's visual designs for the marching band were extraordinary and beautiful.
Destito testified that he heard rumors that Respondent had inappropriate contact with a minor, but that "nobody really knew much of ... really what happened." He characterized the adults with whom Respondent had worked as "shocked and upset because he was very well-loved and very well-liked in our district."
He characterized Respondent as a "phenomenal teacher, as far as I could see."
As noted above, Keith Oswald, Deputy Superintendent for the District, testified on behalf of Petitioner. He did not participate in the April 2016 investigation into the matters that gave rise to this proceeding.
Oswald testified that, in light of the video having been stored on Respondent's Google Drive, the District would consider Respondent's effectiveness as a teacher to be greatly diminished.
Oswald acknowledged that he never had evaluated Respondent's performance as a teacher; had not reviewed Respondent's performance evaluations; and had not spoken to Respondent's former students or their parents regarding Respondent's effectiveness as a teacher. His opinion regarding Respondent's diminished effectiveness was solely based on what he characterized as Respondent's "poor judgment" in having downloaded the video onto his District Google Drive.
Oswald's opinion regarding Respondent's "poor judgment" was based on his unsupported assumption that Respondent had intentionally downloaded the video and intentionally stored it on his District Google Drive. However, as discussed below, the clear and convincing evidence does not establish that Respondent did, in fact, intentionally download and store the video on his Google Drive.
Here, the evidence overwhelmingly established that Respondent was a very well-liked, well-respected, and highly effective teacher while he taught at Jupiter High School. The evidence does not clearly and convincingly establish that Respondent engaged in any conduct that would diminish his effectiveness as a teacher, or that his effectiveness as a teacher was, in fact, diminished.
III. Findings of Ultimate Fact
Whether charged conduct constitutes a violation of applicable statutes, rules, and policies is a question of ultimate fact to be determined by the trier of fact in the context of each violation. Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, or policies is a question of ultimate fact); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(whether
there was a deviation from a standard of conduct is not a conclusion of law, but, instead, is an ultimate fact).
Conduct Charged in Paragraph 3
Specifically, with respect to the conduct charged in paragraph 3 of the Amended Complaint, Petitioner did not present any evidence whatsoever to substantiate the charge that Respondent had sexual relations with a student or students in his office at Jupiter High School, or at his residence.
To the contrary, all of the evidence in the record regarding this charge showed that Respondent did not have sexual relations with students in his office at Jupiter High School, or at his residence.
Additionally, as discussed above and further addressed below, the competent substantial evidence establishes that Respondent did not have an online relationship with student D.S., through the Grindr app or any other electronic medium.
Accordingly, Petitioner did not prove, by clear and convincing evidence, that Respondent engaged in the conduct alleged in paragraph 3 of the Amended Complaint.
Therefore, it is found, as a matter of ultimate fact, that Respondent did not violate the statutes, rules, and School Board policies, as charged in paragraph 3 of the Amended Complaint.
Conduct Charged in Paragraph 4
As discussed above, Petitioner did not present any evidence to substantiate the charge that Respondent approached student B.M. on Grindr in March 2015.
Accordingly, Petitioner did not prove, by clear and convincing evidence, that Respondent engaged in the conduct alleged in paragraph 4 of the Amended Complaint.
Therefore, it is found, as a matter of ultimate fact, that Respondent did not violate the statutes, rules, and School Board policies, as charged in paragraph 4 of the Amended Complaint.
Conduct Charged in Paragraph 5
The competent substantial evidence does not clearly and convincingly establish that Respondent sent sexually graphic messages and nude photographs to student D.S., as charged in paragraph 5 of the Amended Complaint.
As discussed above, to substantiate the allegations in paragraph 5, Petitioner presented screenshots of photographs stored on D.S.'s computer and phone, consisting of a Grindr app profile photograph of a user having the profile name "Grindr Guy, 28"; screenshots of text messages alleged to be communications between D.S. and Respondent; and photographs of Respondent's face, an unclothed male torso, and penises that D.S. claims were sent to him by Grindr Guy, 28.
As discussed above, D.S. assumed that he was communicating with Respondent because the person with whom he was communicating sent him photographs of Respondent's face; the proximity, on one occasion, of the person with whom he was communicating; and his supposition that Respondent was 28 years old.
However, as discussed above, Petitioner did not present definitive or persuasive evidence establishing that Respondent was Grindr Guy, 28.
To this point, D.S. acknowledged that Grindr Guy, 28 never told, or otherwise indicated, to him that he was Respondent. Moreover, the evidence showed, and D.S. acknowledged, that because Respondent's face photographs were posted on the internet, they could have been sent to him by "anyone."
D.S. also acknowledged that he could not identify Grindr Guy, 28 based on that Grindr user's proximity. To that point, D.S. was not sure that he was at Jupiter High School when he detected Grindr Guy, 28 in close proximity to him, and there is no evidence establishing the date, time, or location of Grindr Guy, 28 when D.S. detected him nearby. Moreover, even if
D.S. had been at school when he detected Grindr Guy, 28 nearby, there was no evidence whatsoever showing that Respondent used the Grindr app while
at school. In fact, D.S. acknowledged that Grindr Guy, 28 could have been anyone on the Jupiter High School campus that day who used the Grindr app.
Additionally, as discussed above, none the photographs of the penises or the unclothed male torso depicted Respondent's face, nor did they contain any other information showing them to be photographs of Respondent, or photographs sent by Respondent to D.S.
Likewise, none of the screenshots of text messages between D.S. and Grindr Guy, 28 contained any information showing that Respondent engaged in those communications, or that he sent them to D.S.
Petitioner also presented documents obtained from Grindr, consisting of chat logs and Grindr profile information, to show that Respondent sent sexually graphic messages to D.S., as charged in paragraph 5 of the Amended Complaint. However, the documents obtained from Grindr are not competent substantial evidence, so cannot be afforded weight in this proceeding.
Specifically, the documents do not meet the self-authentication requirements in section 90.902, Florida Statutes. They do not contain any indicia or information whatsoever showing them to be documents that were prepared by Grindr—much less that they are what they purport to be, i.e., records of Respondent's Grindr profile. The documents also were not accompanied by any certification or declaration from Grindr's records custodian or other qualified person establishing any of the predicates set forth in section 90.902(11) for self-authentication.
Additionally, Petitioner did not authenticate the documents through a witness having personal knowledge regarding the manner of creation or preparation of the documents sufficient to show that the documents are what they purport to be. See Wells Fargo Bank, N.A. v. Balkissoon, 183 So. 3d 1272, 1275 (Fla. 4th DCA 2016). Petitioner presented the testimony of Munoz, who testified that he received the documents in response to a subpoena sent to Grindr. However, Munoz was not qualified to testify—and,
indeed, did not testify—regarding the creation or preparation of the documents, or that the documents were what they purported to be.
Unauthenticated records do not constitute competent substantial evidence. See Berkowitz v. Delaire Country Club, Inc., 126 So. 3d 1215, 1219 (Fla. 4th DCA 2012). Because the documents provided by Grindr were not authenticated, they do not constitute competent substantial evidence on which findings of fact can be based.
Additionally, the documents purported to have been provided by Grindr were presented by Petitioner to prove the truth of the matters asserted in them, such as the profile number of the Grindr profile alleged to belong to Respondent, and the ages of the persons stated in the chat logs. Therefore, they are hearsay.
The documents were created by Grindr. Thus, to the extent they may be "business records" under section 90.803(6), they were business records of Grindr—not of Petitioner, the Educational Practices Commission, the District, or any other entity.
Petitioner, as the party seeking to have evidence admitted pursuant to a hearsay exception, bears the burden of establishing a proper foundation to show that the evidence falls within that exception. See Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008).
To do so, Petitioner was required to present the testimony of a witness competent to testify that the records were made at or near the time of the event recorded; that the record was made by, or from, information transmitted by a person having knowledge of the recorded event; and that it was the regular practice of the entity keeping the records to make such a record. Id.
Here, Petitioner did not present a witness who testified to any of the predicate requirements in section 90.803(6) necessary to establish that the documents purportedly received from Grindr fell within the business records exception to the hearsay rule. Accordingly, the documents cannot be used as
the sole evidentiary basis for any finding of fact with respect to the matters asserted therein, such as Respondent's Grindr profile number, or the ages of the persons communicating in the chat logs. Further, because there is no independent competent substantial evidence linking Respondent to a specific Grindr profile number or to any of the chat logs, the documents received from Grindr cannot be assigned any weight in this proceeding.
Based on the foregoing, it is determined that Petitioner did not prove, by clear and convincing evidence, that Respondent engaged in the conduct charged in paragraph 5 of the Amended Complaint.
Therefore, it is found, as a matter of ultimate fact, that Respondent did not violate the statutes, rules, and School Board policies, as charged in paragraph 5 of the Amended Complaint.
Conduct Charged in Paragraph 6
Paragraph 6 of the Amended Complaint charges Respondent with having engaged in sexually-explicit communications on Grindr with persons he knew, or should have known, were under 18 years of age.
Petitioner relies on the chat logs obtained from Grindr as evidence to substantiate those charges. However, for the reasons discussed above, the chat logs do not constitute competent substantial evidence. Therefore, they cannot be used as the sole basis for finding that Respondent engaged in the conduct charged in paragraph 6.
Further, because there is no independent competent substantial evidence in the record substantiating the allegations that Respondent engaged in the conduct charged in paragraph 6, the chat logs received from Grindr cannot be assigned weight in this proceeding.
Accordingly, it is found, as a matter of ultimate fact, that Petitioner did not prove, by clear and convincing evidence, that Respondent engaged in the conduct charged in paragraph 6 of the Amended Complaint.
Conduct Charged in Paragraph 7 of the Amended Complaint
Paragraph 7 of the Amended Complaint charges Respondent with having engaged in sexually-explicit communications on Grindr with a person who claimed to be an 11th-grade student, and having sent photographs of himself and D.S. to this Grindr user.
Again, Petitioner relies exclusively on the chat logs obtained from Grindr as evidence to substantiate those charges. However, for the reasons discussed above, the chat logs do not constitute competent substantial evidence, and, thus, cannot be used as the sole basis for findings that Respondent engaged in the conduct charged in paragraph 7.
Additionally, because there is no other competent substantial evidence in the record substantiating the allegations that Respondent engaged in the conduct charged in paragraph 7, the chat logs received from Grindr cannot be used to supplement or explain such evidence, and, thus, cannot be afforded any weight in this proceeding.
Accordingly, it is determined that Petitioner did not prove, by clear and convincing evidence, that Respondent engaged in the conduct charged in paragraph 7 of the Amended Complaint.
Therefore, it is found, as a matter of ultimate fact, that Respondent did not violate the statutes, rules, and School Board policies, as charged in paragraph 7 of the Amended Complaint.
Conduct Charged in Paragraph 8
As discussed above, Petitioner did not present any competent or persuasive evidence showing that Respondent communicated with underage persons or students, including D.S., through Grindr, or any other internet application.
Additionally, as discussed above, there was no competent substantial evidence presented showing that Respondent knew that underage persons "could have access" to the Grindr application. To the contrary, the competent, persuasive evidence showed that Respondent knew that persons using the
app had to be at least 18 years old. No evidence whatsoever was presented showing that Respondent knew that, notwithstanding the Grindr age restriction, persons younger than 18 years of age would access and use Grindr.
As discussed above, to the extent Petitioner attempts to rely on the Grindr chat logs to show actual or imputed knowledge on Respondent's part of any Grindr users' ages, those chat logs constitute unauthenticated hearsay
evidence that does not fall within any exception to the hearsay rule, and, therefore, do not constitute competent substantial evidence.
There is no competent or persuasive evidence showing that Respondent "should have known" that persons younger than 18 years old "could have access" to the Grindr app. Again, the evidence showed that Respondent reasonably relied on Grindr's age-screening process to ensure that minors would not use the app.
Furthermore, in any event, no statute, rule, or Palm Beach County School Board policy per se prohibits District employees from using social media dating applications. To the extent employees use such social media platforms, they must adhere to the standards of conduct established in applicable statutes, rules, and policies. As found above, in using the Grindr dating app, Respondent did not engage in any conduct that violated any statutes, rules, or District policies.
Accordingly, it is determined that Petitioner did not prove, by clear and convincing evidence, that Respondent engaged in the conduct charged in paragraph 8 of the Amended Complaint.
Therefore, it is found, as a matter of ultimate fact, that Respondent did not violate the statutes, rules, and School Board policies, as charged in paragraph 8 of the Amended Complaint.
Conduct Charged in Paragraph 9
Paragraph 9 of the Amended Complaint alleges that Respondent stored a sexually-explicit video on the Google Drive cloud storage feature of
his District Google account, and that the video violates school board policy because it had no educational purpose and was "stored on the premises accessible to students."
First, as discussed above, there was absolutely no evidence presented showing that the video was accessed or viewed by students.
Moreover, the competent, credible evidence established that the only way (apart from hacking) for the video to have been accessible to students is for Respondent to have shared his Google account log-in credentials such that his log-in information was obtained by students.20 Respondent credibly testified that he did not share his log-in information with anyone else, and Petitioner did not present any countervailing evidence showing that Respondent had, in fact, done so.
Thus, the evidence does not clearly and convincingly establish that any students ever accessed the video, or that it ever was accessible to any students by virtue of it having been stored on the Google Drive of Respondent's Google account.
As discussed above, the competent, credible evidence established that (apart from Respondent's Google account having been hacked) there were three ways for the video to have come to be stored on the Google Drive of his account: (1) Respondent purposely downloaded it and saved it on the Google Drive; (2) the file was inadvertently saved to Respondent's Google Drive while he had both his Google Drive and other programs or files open on his personal computer; or (3) the video file was sent to Respondent's Gmail account, which automatically saves imbedded files in emails to the Google Drive associated with that Gmail account.
As discussed above, Respondent testified, credibly, that he had not ever seen the video before the commencement of this proceeding, and that he did not download the video or save it to the Google Drive associated with his
20 As noted above, there was no evidence presented that Respondent's Google account was hacked.
District Google account. Petitioner did not present any evidence directly countering Respondent's claim that he did not download and store the video to his Google Drive.
As discussed in detail above, the credible, persuasive evidence established that there are two other plausible means by which the video could have come to be stored on Respondent's Google Drive: either he inadvertently saved it from another application onto his open Google Drive; or else he received it via email, and the video was automatically saved to his Google Drive, without him actively opening the link and downloading and saving the video to his Google Drive, or even being aware that he had received the email with an imbedded link to the video.
Petitioner bears the burden of proof in this proceeding, which is penal in nature, to show that Respondent engaged in culpable conduct in downloading and storing the video on his District Google Drive such that he violated School Board policy. Petitioner did not meet its evidentiary burden.
Based on the foregoing, it is found, as a matter of ultimate fact, that the video stored on Respondent's Google Drive was neither accessed by, nor accessible to, students, in violation of School Board policy.
Based on the foregoing, it is also found, as a matter of ultimate fact, that Respondent did not download and store the video on his District Google Drive in violation of School Board policy.
Furthermore, the evidence does not clearly and convincingly establish that Respondent engaged in any conduct with respect to the video that constitutes gross immorality or moral turpitude. In fact, the credible, persuasive evidence establishes that he did not take any action, or engage in any conduct whatsoever, to store it on his Google Drive.
Therefore, it is found, as a matter of ultimate fact, that Respondent did not violate the statutes, rules, and School Board policies, as charged in the Amended Complaint.
Accordingly, it is found, as a matter of ultimate fact, that Respondent's effectiveness as a teacher was not diminished.
CONCLUSIONS OF LAW
Jurisdiction, Burden, and Standard of Proof
DOAH has jurisdiction over the subject matter of, and the parties to, this proceeding, pursuant to sections 120.569 and 120.57(1).
This is a proceeding to impose disciplinary sanctions on Respondent's educator certificate. Because disciplinary proceedings are penal in nature, Petitioner is required to prove the allegations in the Amended Complaint by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997).
Although the clear and convincing evidentiary standard may be met where there is conflicting evidence, it precludes evidence that is ambiguous. Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 986, 988 (Fla. 1st DCA 1991).
The Florida Supreme Court has stated:
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 lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
Furthermore, it is well-established that statutes and rules that are penal in nature must be strictly construed. McClung v. Criminal Justice Standards and Training Comm'n, 458 So. 2d 887, 888 (Fla. 5th DCA 1984). To this point, if violation of a statute or rule would result in imposition of a penalty, any ambiguity or doubt as to the meaning of the statute or rule must be resolved in favor of strict construction, so that those to whom the statute or rule apply have clear notice of what conduct is proscribed. See City of Miami Beach v. Galbut, 626 So. 2d 192, 193 (Fla. 1993). Stated another way, a penal statute or rule must define with particularity the conduct which would constitute a violation. See City of St. Petersburg v. Pinellas Cty. Police Benevolent Ass'n, 414 So. 2d 293, 294 (Fla. 2d DCA 1982).
Applicable Statutes and Rules
The Amended Complaint charges Respondent with having violated section 1012.795(1)(d), (1)(g), and (1)(j).
Section 1012.795(1)21 states, in pertinent part:
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
21 Refer to note 1, above.
certificate, upon an order of the court or notice by the Department of Revenue relating to the payment of child support; or may impose any other penalty provided by law, if the person:
* * *
(d) Has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education.
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(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.
The Amended Complaint also charges Respondent with having violated Florida Administrative Code Rules 6A-10.081(2)(a)1., (2)(a)5., and (2)(a)8.
Rule 6A-10.081 was initially adopted on January 11, 2013, and subsequently was amended, effective March 23, 2016.
The version of rule 6A-10.081 adopted in 2013 was in effect at the time of the charged violations involving alleged inappropriate conduct with students and minors in 2015, and, therefore, applies to the charges stated in paragraphs 3 through 8 of the Amended Complaint.
The version of rule 6A-10.081 adopted in March 2016 was in effect when the video that is the subject of the violation alleged in paragraph 9 of the Amended Complaint was found, and, therefore, applies to the conduct alleged in that paragraph.
Here, the Amended Complaint incorrectly cites to only the version of rule 6A-10.081, which went into effect in March 2016, and does not cite to the
2013 version of the rule with respect to the conduct alleged in paragraphs 3 through 8 of the Amended Complaint.
However, case law holds that when an agency's incorrect citation to legal authority does not prejudice the non-agency party, that citation should be treated as a scrivener's error rather than an outright failure to charge the non-agency party under the applicable law. See Ag. for Health Care Admin. v. Royce, Case No. 91-2811 (Fla. DOAH Jan. 18, 1995; Fla. AHCA May 12, 1995); Youngker v. State, 215 So. 2d 318, 322 (Fla. 4th DCA 1968), superseded by statute on other grounds, Weaver v. State, 981 So. 2d 508 (Fla. 4th DCA 1981)(erroneous citation is not fatal to the charge of an offense if the erroneous citation does not prejudice or mislead the Respondent). See also Seminole Cty. Bd. of Cty. Comm'rs v. Long, 422 So. 2d 938, 940 (Fla. 5th DCA 1982)(an administrative complaint filed by an administrative agency is not required to fulfill the technical niceties of a pleading filed in a court of law, but must be specific enough to inform the accused with reasonable certainty of the nature of the charge brought against him or her). Here, the 2016 version of the rule's substantive language under which Respondent is charged did not substantially change from the 2013 version. Therefore, even though the incorrect version of the rule was cited with respect to the charges in paragraphs 3 through 8, Respondent was not prejudiced or misled by the incorrect citation in the Amended Complaint. To this point, as found above, Respondent mounted a vigorous, and ultimately successful, defense to the charges involving the conduct alleged in the paragraphs (i.e., paragraphs 3 through 8) of the Amended Complaint, to which the 2013 version of the rule applies.
The 2016 version of rule 6A-10.081 states, in pertinent part:
Florida educators shall comply with the following disciplinary principles. 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:
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.
* * *
5. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
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8. Shall not exploit a relationship with a student for personal gain or advantage.
The 2013 version of rule 6A-10.081 states, in pertinent part:
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.
Conclusions of Law Regarding Paragraphs 3 through 8 of the Amended Complaint
As found above, the competent substantial evidence does not clearly and convincingly establish that Respondent engaged in any of the conduct charged in paragraphs 3 through 8 of the Amended Complaint.
Therefore, it is concluded that Respondent did not violate the provisions of section 1012.795(1)(d), (g), or (j), or rule 6A-10.081, as charged in paragraphs 3 through 8 and Counts 1 through 6 of the Amended Complaint.
Conclusions of Law Regarding Paragraph 9 of the Amended Complaint
255. As found above, the competent substantial evidence does not clearly and convincingly establish that any students accessed the video stored on Respondent's District Google Drive, nor did the competent substantial evidence clearly and convincingly establish that the video stored on Respondent's Google Drive was stored such that it was accessible to students.
The competent substantial evidence also does not clearly and convincingly establish that Respondent purposely downloaded and stored the video to his District Google Drive. Rather, as discussed above, the credible, persuasive evidence establishes that there were other plausible ways for the video to have come to be stored on the Google Drive.
Furthermore, pursuant to the plain language of section 1012.795, rule 6A-10.081, and Policy 3.29, it is determined that the mere presence of the video on Respondent's Google Drive, without Respondent having taken action to store it there, does not violate these statutory or rule provisions.
Section 1012.795(1)(d) authorizes disciplinary sanctions on an educator certificate if the person has been found guilty of gross immorality or an act involving moral turpitude, as defined by rule of the State Board of Education.
The State Board of Education has adopted Florida Administrative Code Rule 6A-5.056, which states, 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.
* * *
“Crimes involving moral turpitude” means offenses listed in Section 1012.315, F.S., and the following crimes:
Section 775.085, F.S., relating to evidencing prejudice while committing offense, if reclassified as a felony.
Section 782.051, F.S., relating to attempted felony murder.
Section 782.09(1), F.S., relating to killing of unborn quick child by injury to mother.
Section 787.06, F.S., relating to human trafficking.
Section 790.166, F.S., relating to weapons of mass destruction.
Section 838.015, F.S., relating to bribery.
Section 847.0135, F.S., relating to computer pornography and/or traveling to meet a minor.
Section 859.01, F.S., relating to poisoning of food or water.
Section 876.32, F.S., relating to treason.
An out-of-state offense, federal offense or an offense in another nation, which, if committed in this state, constitutes an offense prohibited under Section 1012.315(6), F.S.
The evidence does not clearly and convincingly establish that, with respect to the video, Respondent took any action, or is engaged in any conduct, that constitutes immorality or an act of moral turpitude. To this point, as discussed above, the evidence did not clearly and convincingly prove that the video came to be stored on Respondent's Google Drive through any intentional act or conduct by Respondent.
Further, and importantly, nothing in the plain language of section 1012.795(1)(d), (g), or (j) can be read to conclude that Respondent engaged in conduct constituting immorality or acts constituting gross moral turpitude by the mere existence of the video on his District Google Drive. Rather, the plain language makes clear that for these provisions to be violated, the person must engage in conduct or acts. Here, as previously discussed, the evidence did not prove that the video came to be stored on Respondent's Google Drive through any act or conduct by Respondent.
Accordingly, it is concluded that Respondent did not violate section 1012.795(1)(d), (g), or (j), as charged in the Amended Complaint.
Likewise, the evidence does not clearly and convincingly establish that through the mere presence of the video on the Google Drive—which was neither accessed nor accessible to students—Respondent failed to make reasonable effort to protect students from conditions harmful to learning and/or to the students' mental and/or physical health and/or safety, in violation of rule 6A-10.081. Again, the evidence did not prove that Respondent engaged in any conduct or took any action that resulted in the video coming to be stored on his District Google Drive.
Additionally, there was no evidence presented showing that, through the presence of the video on Respondent's District Google Drive, Respondent exploited a personal relationship with a student for personal advantage or gain, or that Respondent intentionally exposed a student or students to unnecessary embarrassment or disparagement, in violation of rule 6A-10.081.
Accordingly, it is concluded that Respondent did not violate rule 6A-10.081, as charged in paragraph 9 of the Amended Complaint.
Petitioner also cites Palm Beach County School Board Policy 3.29 as a basis for imposing discipline for the video having been located on Respondent's District Google Drive. Specifically, Petitioner contends that Policy 3.29 requires that anything stored in an employee's Google account must have an "educational purpose," and that absent such "educational purpose," the employee is subject to discipline under this policy.
The version of Policy 3.29 adopted on July 7, 2010, was in effect at the time of the alleged conduct, so applies to this proceeding. The current version of this policy, which was adopted on May 4, 2016, was not in effect at the time of the allegations giving rise to this proceeding, and there is nothing in the plain language of the policy that purports to give it retroactive effect. Accordingly, the 2016 version of Policy 3.29 does not apply to this proceeding. See Anglickis v. Dep't of Prof'l Reg., Div. of Real Est., 593 So. 2d 298, 299 (Fla. 2d DCA 1992)(rule not in effect at time of alleged conduct giving rise to disciplinary proceeding cannot have been violated); McCarthy v. Dep't of Ins. and Treas., 479 So. 2d 135, 136 (Fla. 2d DCA 1985)(a rule cannot be applied retroactively absent language in the rule expressing intent that it be applied retroactively).
In the Amended Complaint, Petitioner did not expressly charge Respondent with having violated Policy 3.29, nor did Petitioner cite to any specific provisions of the 2010 version of Policy 3.29 to support the position that, absent some intentional conduct or act on Respondent's part, the mere presence of the video on Respondent's Google Drive violates Policy 3.29.
To this point, the only mention of "educational purpose" in the 2010 version of Policy 3.29 is in section 3.a., which states, in pertinent part:
The consent form shall state and that employee shall acknowledge that there is only a limited expectation of privacy to the extent required by law for the employee related to his/her use of District
technology resources. The District may monitor an employee's use of District technology for good cause, such as for educational purposes "
Read in context, the language regarding "educational purpose" specifically addresses, and is limited to, describing the circumstances under which the District may monitor an employee's use of technology resources. Nowhere in Policy 3.29 is there any provision expressly imposing an "educational purpose" requirement for all content located in employees' Google accounts.
Nor is there any language in Policy 3.29 that expressly imposes penal sanctions for content located in employees' Google accounts that does not serve an "educational purpose." As previously discussed, conduct that is not particularly and clearly proscribed in the policy cannot be penalized. See Galbut, 626 So. 2d at 193 (Fla. 1993) (if violation of a statute or rule would result in imposition of a penalty, any ambiguity or doubt as to the meaning of the statute or rule must be resolved in favor of strict construction, so that those to whom the statute or rule apply have clear notice of what conduct is proscribed); Pinellas Cty. Police Benevolent Ass'n, 414 So. 2d at 294 (a penal statute or rule must define with particularity the conduct which would constitute a violation).22
Based on the foregoing, it is concluded that Respondent did not violate Policy 3.29.
In sum, it is concluded that Respondent did not engage in the conduct charged in paragraph 9 of the Amended Complaint. Therefore, it is concluded that he did not violate section 1012.795(1)(d), (g), or (j); rule 6A-10.081; or
22 It should be noted that, effective May 4, 2016, the Palm Beach County School District amended Policy 3.29 to expressly prohibit the use of District technology resources in a manner that would be "harmful to minors" or involve "obscene" materials, as defined in the policy. The undersigned does not make any finding or reach any conclusion whether the mere presence of the video on the District Google Drive would violate these newly-added standards.
any school board policies for conduct charged in paragraph 9 of the Amended Complaint.
Conclusion
For the reasons discussed above, the evidence does not clearly and convincingly establish that Respondent engaged in any of the conduct charged in the Amended Complaint.
Accordingly, it is concluded that Respondent did not violate section 1012.795(1)(d), (g), or (j); rule 6A-10.081; or school board policies, as charged in the Amended Complaint.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Amended Administrative Complaint filed in this proceeding on February 25, 2020, be dismissed.
DONE AND ENTERED this 11th day of October, 2021, in Tallahassee, Leon County, Florida.
S
CATHY M. SELLERS
Administrative Law Judge 1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Filed with the Clerk of the
Division of Administrative Hearings this 11th day of October, 2021.
COPIES FURNISHED:
Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Anastasios Kamoutsas, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 | Mark S. Wilensky, Esquire Dubiner & Wilensky, LLC 1200 Corporate Center Way, Suite 200 Wellington, Florida 33414-8594 Lisa M. Forbess, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Suite 316 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.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 11, 2021 | Recommended Order | Petitioner did not prove, by clear and convincing evidence, that Respondent engaged in the conduct, or violated the statute, rules, and school board policy, as charged in the Amended Administrative Complaint. Recommend dismissal of case. |
