STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAY COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 77-418

)

WILL H. MCRANEY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Panama City, Florida, on April 20, 1977, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II.

APPEARANCES

For Petitioner: Julian Bennett, Esquire

For Respondent: Richard A. Hixon assisted by

Joseph W. Levine and Gary Ruberti

By petition dated February 15, 1977, petitioner accused respondent of "unlawfully and with gross immorality exposing himself to [two] . . . minor female student(s)" on or about July 2, 1975; and of "unlawfully and immorally touch[ing] and handling] an 18 year old female student" on or about January 17, 1977. Petitioner put on eight witnesses and introduced three exhibits, in support of the allegations in the petition. Respondent called eleven witnesses, but, on the basis of a stipulation between the parties, refrained from examining one witness, and refrained from calling other witnesses whose testimony was to go solely to the question of penalty. Respondent introduced as exhibits one deposition and a portion of another, along with respondent's personal copy of "Aries 1974," the Rutherford High School annual. At the joint request of the parties, the hearing officer visited the Mosley High School swimming pool for a view, immediately after the hearing.

FINDINGS OF FACT

1. Respondent Will H. McRaney has been employed by petitioner Bay County School Board at Rutherford High School since 1965. In the past, he has worked as a coach and as a classroom teacher at Rutherford. During the current school year, respondent was job entry coordinator; in this capacity, he had responsibilities in connection with the vocational counseling of Rutherford seniors.

   
   

2. Darlene Ann Peeples is an eighteen year old senior at Rutherford High School. In her junior year, she had been a student in a class respondent taught. On January 17, 1977, when she arrived at her fourth period class, friends told her that respondent had come by looking for her and for another

   student, and wanted to see them in his office. Her friends also told her that the other student summoned by respondent had gone to lunch, so Ms. Peeples went to respondent's office by herself. When she arrived, respondent was seated behind a desk in his office, facing sideways. He invited her in, asked her to close the door behind her, and told her to take the empty seat beside him.

   
   

3. Respondent's office at Rutherford High School was small and windowless, except for a window in the door which was covered over from the inside. There were only two chairs in the office on January 17, 1977. The chair to which respondent directed Ms. Peeples was very near his; when she sat down one of her knees touched respondent. She asked why she had been sent for, and respondent mentioned some job possibilities. Conversation turned to the school's Christmas ball, at which Ms. Peeples had been chosen Christmas ball queen. Respondent allowed as how her selection did not surprise him, because she had a nice personality and a nice body. In the course of discussing Ms. Peeples' plans for the future, respondent learned that her family was slated to move to England and offered to let Ms. Peeples live with him in his home, when her family left. Respondent took one of Ms. Peeples' hands in his, and remarked on its warmth. Then he cupped one hand round the back of her head, and drew her head down to the vicinity of her knees, doubling her over. When she succeeded in sitting up straight again, respondent kissed her full on the mouth. Immediately afterwards, he said he was sorry, and he repeated the apology when the interview concluded. Within a half hour of their occurrence, Ms. Peeples gave tearful accounts of these events to her boy friend, and to her fifth period teacher, Mrs. Gail Fischer.

   
   

4. In 1975, respondent worked in petitioner's summer recreation program as a swimming instructor at the swimming pool at Mosley High School. Among the children he taught was Macy Ellis, who was born on October 7, 1965. There were from 10 to 25 children in Macy's swimming group. Some 40 other children in other groups and at least two other adults used the swimming pool at the same time respondent taught Macy's group.

   
   

5. On July 2, 1975, respondent was supervising an underwater swimming drill. Macy and the other children in her group stood in the water along the edge of the swimming pool; they took turns doing "fish dives" and swimming through respondent's spread legs, while he stood in the middle of the pool in about five feet of water. When Macy went underwater, she noticed that respondent's swimming trunks, although fastened at the waist, were unzipped, and she saw respondent's penis. As she swam face down between respondent's legs, respondent placed his hands on her back to steady her. Otherwise, there was no physical contact between them. Respondent did not intend that any of the children see his genitalia, and it was only by accident that they happened to be visible to Macy Ellis. Statement Required By Stuckey's of Eastman, Georgia v Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976)

   
   

6. The first paragraph of petitioner's proposed fact findings has been adopted, in substance.

   
   

7. The second paragraph of petitioner's proposed fact findings has been rejected because the only witness whose testimony tended to establish the occurrence, Debbie Holt, was not worthy of belief, in the hearing officer's opinion. She was adamant about such details as the color of respondent's bathing suit, even though her testimony contradicted that of the other witnesses. She and Macy Ellis were playmates who confided in one another and, according to Macy Ellis, it was when Debbie learned what Macy had seen that

   Debbie made her accusations against respondent. Finally, testimony was adduced to the effect that Debbie Holt's reputation for truth and veracity is not good.

   
   

8. The substance of the third paragraph of petitioner's proposed fact findings has been largely adopted, except that the proof failed to establish any intent on respondent's part, and except for the date, which is immaterial. The number of people in the pool area, the size of the pool, the fact that other children were lined up waiting their turns, the fact that Macy told her father that she saw respondent tuck his penis back in his swimming trunks, all persuaded the hearing officer that the incident was accidental.

   
   

   CONCLUSIONS OF LAW

   
   

9. Respondent's kissing Ms. Peeples constituted "misconduct in office," within the meaning of Section 231.36(6), Florida Statutes (1975).

   
   

10. Among the things Section 120.57(1)(6)(8), Florida Statutes (1975) requires to be included in a hearing officer's recommended order is a "recommended penalty, if applicable." At the final hearing, petitioner moved ore tenus that any recommended penalty not be included in the hearing officer's recommended order, and this motion was taken under advisement. Before the motion was acted on, the parties stipulated that they would forego putting on evidence as to penalty at the hearing, but would instead save it for presentation to the full school board, if it became necessary to reach the penalty question. On the basis of this stipulation, and in the absence of evidence going to the question of penalty, no recommendation as to penalty has been made a part of this recommended order.

DONE and ENTERED this 4th day of May, 1977, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Julian Bennett, Esquire Post Office Box 70

Panama City, Florida 32401

Richard Hixon, Esquire

Florida Education Association/United

208 West Pensacola Street Tallahassee, Florida 32304

Pete Holman, Superintendent Bay County School Board Office Post Office Drawer 820

Panama City, Florida 32401

Will H. McRaney

Rutherford Senior High School 1000 School Avenue

Panama City, Florida 32401

Docket for Case No: 77-000418

Orders for Case No: 77-000418