vs. ) CASE NO. 76-1197
RONALD R. BARNETT, )
Respondent. )
A hearing was held in the above-captioned matter, after due notice to the parties, at Fort Lauderdale, Florida, on August 2, 1976, before the undersigned Hearing Officer.
For Respondent: Ronald G. Meyer, Esquire
Respondent's alleged immorality and misconduct in office on March 29, April 5, 6, 8 & 13, 1976, under Section 231.36(6), Florida Statutes, as set forth in letter to Respondent from James E. Maurer, dated June 18, 1976.
During the academic year 1975-1976, Respondent was a classroom instructor in science at the Coconut Creek High School, Broward County, Florida. In the fall of 1975, Marcia Vulpis, a 14 year-old student at the school, was assigned to his class. He noticed during the ensuing months that she stared at him frequently which made him somewhat uncomfortable. About December, he spoke to Pamela Quianthy, Attendance Clerk at the school, about Marcia's behavior. Quianthy, who had observed Marcia on several occasions because of her presence in the office as a student aide, agreed that she was a rather strange girl and that she, Quianthy, also felt uncomfortable in her presence. In March, 1976, Marcia came into another class that Respondent was teaching and somewhat hysterically told him that she needed to see him right away. Respondent sensed the urgency in her request and was pleased that she had sought him out since she had seemed somewhat hostile during prior months. They thereafter had a long discussion at his office during which she informed him that a young man who lived next door to her had raped her and that she was bleeding inside. At this
time, she also expressed past and present suicidal ideations and thoughts of murdering certain persons. She said that she had not told her mother or the police about the rape and did not wish to do so. He urged her to see a physician about her condition and determined that she was willing to have her 21 year-old aunt take her for such purpose. Respondent asked Quianthy to talk to her concerning the matter and she did so. During this conversation, Marcia told her that she had been raped and had not told anyone about it. Quianthy recommended that she inform her parents and also advised her to see a doctor.
The next day the aunt came to the school to take Marcia to a doctor and Respondent sent them to the school dean for necessary permission to leave the grounds. (Testimony of Respondent, Quianthy)
During the third week of March, 1976, Marcia, who sat at a desk directly in front of Respondent in his classroom, began writing notes to him during class in which she expressed love for him. On one occasion, after class, she told him that she wanted to go to bed with him. He reprimanded her for her statement. She pursued her request by subsequent notes and he penned some responses thereon advising her to come to his office to talk about it or to call him at home. He was concerned for her welfare and wished to help her. He did not refer her to the school counselor because she refused to talk to anyone else about her problems and he felt capable of providing necessary counseling because of his past experience as a Baptist minister and handling work experience programs in the school system. He made arrangements with Quianthy for her to phone him at his office during Marcia's visits in order that he would have an excuse to leave if necessary because he feared what the student might do on these occasions and wanted some means of leaving gracefully. The meetings in his office were held usually before afternoon classes commenced, and were at the request of Marcia. At one of these meetings, she told him that he was "driving her crazy" and attempted to kiss him. He pushed her away and cautioned her against such demonstrations. On another occasion, she remained after class and kissed him on the cheek, telling him that she loved him. He also admonished her at that time for her conduct. The above-mentioned incidents were the only times when there was physical contact between Respondent and the student. (Testimony of Respondent, Quianthy Petitioner's Exhibits 3-8)
Respondent showed Marcia's notes to his wife and they discussed them a number of times. He also showed the notes to Quianthy and Regina Howard, a friend. Mrs. Howard had previously sought out Respohdent to assist her daughter with adolescence problems because she knew of his background as a minister and youth counselor. He discussed Marcia's situation with her and was serious about his concern for the girl. He requested that Howard get in touch with Marcia. She tried to do so several times, but was unable to contact her. (Testimony of Respondent, Ruth Barnett, Howard)
During the school Easter vacation in April of 1976, Marcia called Respondent's home and his wife answered the telephone. Marcia asked to speak to "Ronnie" and during a subsequent conversation with Mrs. Barnett, learned that Respondent had shown her notes to his wife. Marcia was quite upset at learning this fact and said, "I'll show him." She also acknowledged to Mrs. Barnett that she had kissed the Respondent in his office and that she would assume the blame for that incident. Respondent attempted to speak with her at this time but she was too upset. The next day her aunt called him and said that Marcia had told her of certain sexual advances that had been made by Respondent. He informed her that this was not true and asked her to have Marcia call him. She did so and they agreed to meet at Fort Lauderdale Beach because she was staying with her father there. They subsequently met at a prearranged place where Respondent picked her up in his car and, after driving around a few minutes looking for a
parking space, parked in a vacant motel parking lot. Respondent explained to her that he had retained her notes against her wishes and shown them to others because he did not feel confident to counsel her concerning female problems.
There was no physical contact during this meeting. (Testimony of Respondent, Mrs. Barnett)
After Easter vacation was concluded, Marcia informed Respondent that her mother had found her diary and that he would have to be careful or she (Marcia) would "put a noose over his head." Her mother, after discovering the "diary" (consisting of several sheets of notebook paper) that contained matters concerning Respondent, took Marcia to their church, Jehovah's Witnesses, where she told the elders of the church about her association with Respondent. Her father, who was divorced from Marcia's mother, was present and heard Marcia relate her alleged experiences with Respondent. He thereafter reported the matter to the authorities at Coconut Creek High School, taking with him one or two pages of Marcia's diary which contained entries for the last week of March. These included references to several of her visits to Respondent's office during which he had purportedly kissed her and fondled her breasts. (Testimony of Respondent, John Vulpis, Petitioner's Exhibit 11)
A school investigation ensued during which Marcia initially declined to cooperate, but eventually made a written statement in which she,stated generally that she trusted and respected Respondent, that he was a good man and she did not wish anything to happen to him. Respondent was questioned by school security personnel and he related the two incidents when Marcia had kissed him on one occasion and had attempted to do so on the other. He also told them about the incident at the beach which had not been known to the investigators at the time, and he turned over Marcia's notes to them. Later, Marcia made another written statement in which she said that she and the Respondent had kissed each other three different times in his office and that on at least two occasions, he had put his hands on her breasts inside her blouse and kissed her breasts. Her statement also related that they had kissed one another during the beach incident and that he had kissed her breasts and had put his hands down her pants and that she had touched his "privates." In this statement she also said that he had made certain suggestive statements to her during classes earlier in the school year and that, although she had informed him of a sex experience with a "guy I loved," she had not told him she was raped. (Testimony of Respondent, Stearns, Patterson, Petitioner's Exhibits 9 & 10)
Marcia Vulpis testified at the hearing and her version of the relationship with Respondent and their meetings differs in material respects from that of Respondent which is set forth in the foregoing Findings of Fact. She testified that Respondent made several suggestive remarks to her during the school year. She admitted seeking him out to discuss the incident with the boy next door and that he had advised her to see a doctor. She stated that, although she had disliked Respondent at first, she later changed her views and began writing notes to him. She admitted asking him to go to bed with her, but testified that while discussing this request in his office on March 29, 1976, Respondent pulled her in the corner and kissed her. She also testified that during other visits to his office on April 5, 6 & 8, they kissed one another, and Respondent kissed her breasts and touched her on the vagina, and that she touched him on the penis through his trousers. She stated that similar acts occurred during their meeting on the beach in mid-April. After her mother discovered the diary and her father had reported the relationship with Respondent to school authorities, she asked the Respondent what they were going to do and he replied that they were in a lot of trouble. Although conceding that she was upset after discovering that Respondent had showed her notes to his
wife and others, she said that she did not tell anyone she would seek revenge for his disclosure. She also conceded that she had taken LSD and "pills" from nine to eleven years of age and had had a few "trips". She testified that she attempted to kill herself when she was ten years old with a needle when she was "freaked out." She further stated that she had thought about suicide a lot of times and that the last time she harbored these thoughts was in early March and that they were prompted by her failure to get along with her mother. Although she had loved Respondent, she decided after the investigation that she loved him no more. (Testimony of Marcia Vulpis)
School policy at Coconut Creek High School which is announced to all teachers at the beginning of each school year, is that an upset or disturbed child should be referred by an instructor to the school guidance staff, that included a full-time psychologist. This policy was also contained in a handbook issued to instructional personnel. (Testimony of Weatherred, Roesch, Larson)
Respondent is 45 years old and posseses a bachelor of arts degree in theology and linguistics and a masters degree in elementary education. He additionally has completed approximately 90 hours of post-graduate study. He served as a Baptist minister for five years in Lowell, Massachusetts and three years in another pastorate in Newton, New Hampshire. His prior experience includes service as an elementary school principal at Turner Falls, Massachusetts. He entered the teaching profession because of family obligations that required greater remuneration than received in the ministry. He has four children. He entered the Broward County school system in 1970 working with low- achievers at the Pines Middle School in a work experience program for two years. He served one year at Plantation doing the same type of work and in 1974 was transferred to the Coconut Creek High School where he set up a work experience program. He has done extensive work in counseling young people with their problems both as a minister and teacher. Respondent admitted that he had had marital conflicts with his wife in the past and that he had lived alone in Florida for a period of time, but that their marriage relationship was good at the present time. (Testimony of Respondent, Respondent's Exhibits 2, 3)
Although denied by Respondent on cross-examination, evidence was received that he had patted two female office employees of the Coconut Creek High School on their posteriors in a "friendly" manner while walking by them in the office, and that he had also ran his finger down the back of their dresses. (Testimony of Ivell, Herter)
Respondent was suspended without pay by Petitioner on June 18, 1976 pending final action on the charges involving Marcia Vulpis. (Exhibit l)
CONCLUSIONS OF LAW
Respondent is alleged to have taken sexual liberties with Marcia Vulpis in his office at Coconut Creek High School during school hours on March 29, April 5, 6 & 8, 1976 by kissing her on the lips, placing his lips on her breasts and his hands under her blouse, and touching and fondling her breasts. Additionally, he is alleged on April 13, 1976, to have kissed her upon the lips, placed his lips upon her breasts, placed his hands under her blouse touching and fondling her breasts and running his hands in her undergarments touching and fondling her vagina. Such acts are alleged to constitute immorality and misconduct in office pursuant to Section 231.36(6), Florida Statutes. That statute provides that any member of the instructional staff may be suspended or dismissed at any time during the school year after notice and hearing for, inter alia, immorality, or misconduct in office.
There can be no question that the acts attributed to the Respondent, if committed, could constitute immoral conduct of such a nature as to warrant dismissal. However, Petitioner did not establish that he committed such acts. This is a case where allegations of a sexual nature are raised by one party and denied by the other, with no independent witnesses to the alleged acts. Resolution of the charges therefore must be predicated upon the credibility of the involved parties, together with any other supporting evidence. The evidence depicts the complainant as an emotionally disturbed adolescent who is the product of a broken home, and who has had past experience with hallucinogenic drugs at an extremely early age. It further shows that she had a "crush" on her teacher, a sophisticated man of middle age, and pursued him by writing notes, impulsively kissing him, and making other sexual advances such as requesting that he "go to bed" with her. She noted their meetings in her datebook and in her "diary" that sets out her thoughts and references to romantic involvements with Respondent and other males. The time when such entries were actually made or their truthfulness as to the mentioned individuals was not shown at the hearing. On the other hand, Respondent's assertions that he was merely trying to counsel and assist the student in her troubled state of mind and that he resisted her advances is supported by the testimony of his wife and others to whom he showed Marcia's notes and from whom he sought assistance in counseling her. Although his credibility was lessened to a degree by his denial of flirtatious actions towards female office employees, it is determined that his version of the relationship with Marcia Vulpis is believable, considering his background and past experience as a minister and youth counselor.
The term "misconduct in office" is not defined in Chapter 231, Florida Statutes. Although Rule 6B-4.09(3), Florida Administrative Code, contains a definition of that term, as established by the Professional Practices Council, it limits such an offense to "a violation of the Code of Ethics of the Education Profession so serious as to impair the individual's effectiveness in the school system." Such rules are utilized primarily for the purpose of separate proceedings involving teacher certification and are not binding upon local school boards under Rule 6B-4.0l. It is considered that the aforesaid definition which embraces only the code of ethics of the education profession set forth in Chapter 6B-l is unduly narrow and is not an appropriate or sufficient standard in dismissal actions. Although there is a lack of judicial authority as to the meaning of this term, the Supreme Court of Florida in considering the term "misdemeanor in office" as a constitutional ground for impeachment of public officers under Section 29, Article 3 of the Florida Constitution held that that term is synomous with "misconduct in office" and is something which amounts to a breach of conditions tacitly annexed to the office, and includes any wrongful official act or omission to perform an official duty, but not necessarily implying corruption or criminal intent. In re: Investigation of a Circuit Judge of the Eleventh Judicial Circuit of Florida, 93 So.2d 601 (1957). It is considered that such a definition of "misconduct in office" can be carried over to the teaching profession and will be applied in the present context. Although it has been determined above that Respondent did not commit the alleged acts, there can be no question but that he exercised poor judgment in attempting to provide psychological counseling to a seriously disturbed female student under questionable circumstances and contrary to established school policy. It is believed that such conduct on Respondent's part, although not specifically alleged, is necessarily included within the more serious allegations and is a proper matter for determination in an administrative setting. Respondent acted sincerely in a desire to help the young lady in question, but he should have sought available qualified professional assistance through the school guidance facilities. His background
and experience were perhaps extensive in certain aspects of child counseling, but did not equip him to perform the type of assistance required in Marcia's case. His negligence exposed him to the risk of allegations of the very type that were lodged as a result of his abortive efforts. Although his involvement with the student came about as a result of his status as a teacher and took place for the most part on school premises, thus being official in nature, it is not considered, however, that his actions were "wrongful" or otherwise constituted misconduct in office.
That the School Board of Broward County, Florida reinstate Ronald R. Barnett as an instructor and restore all back pay and other benefits that have been withheld during the period of his suspension.
DONE and ENTERED this 13th day of August, 1976, in Tallahassee, Florida.
THOMAS C. OLDHAM
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1976.
