STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LYNNL GUETTLER, VICE CHAIRMAN ) OF THE EXECUTIVE COMMITTEE OF ) THE PROFESSIONAL PRACTICES ) COUNCIL, DEPARTMENT OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1852

)

ERNEST B. BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E Bradwell, held a public hearing in this case on May 24, 1978 in Tampa, Florida.

APPEARANCES

For Petitioner: Elise F. Judelle, Esquire

Post Office Box 128 Tallahassee, Flordia 32302

For Respondent: Morris W. Milton, Esquire

Post Office Box 13517

St. Petersburg, Florida 33733 ISSUE

The issue(s) posed for decision herein is whether or not the teaching certificate of Respondent, Ernest B. Brown, should be revoked or should he be otherwise disciplined for conduct which will be set forth hereinafter in detail allegedly violative of Chapters 231.28;231.09 Florida Statutes and Chapter 6A-

1. and 6B-1 through 5 of the rules of the State Board of Education.

   
   

   FINDINGS OF FACT

   
   

   Based on my obersvation of the witnesses and their demeanor while testifying, the arguments of counsel, and the briefs which were filed post- hearing, the following relevant facts are found.

   
   

   1. Ernest B. Brown is the holder of Post-Graduate Rank II Florida Teaching Certificate No. 167290, covering administration and supervision, elementary education and junior college which by its term is valid until June 30, 1985. Ernest Brown, Respondent, has been employed in the public schools of Pinellas County as fifth grade teacher at Gulf Beaches Elementary School since August, 1975, and was on continuing contract during the 1976-77 school year. He resigned effective May 31, 1977 after inquiries were raised concerning his

      personal conduct with a female fifth grade student (Michelle Stewart). Thereafter the Department of Education received a report from the Pinellas County School officials on or about June 1, 1977 indicating that Respondent had been charged with lewd and lascivious acts in the presence of a female child under the age of 14 and handling and fondling a female child under the age of 14 years. Pursuant thereto and following an inquiry by the staff of the Professional Practices Council, on July 18, 1977, said Council issued a report to the Executive Committee of the Professional Practices Council whereupon the Executive Committee recommended that the Commissioner of Education find that probable cause exist to believe that Respondent is guilty of acts which provide grounds for the revocation of his Florida teaching certificate. By letter dated July 27, 1977, the Commissioner found probable cause and directed the filing of the instant petition herein.

      
      

   2. Michelle Stewart, eleven years old and presently a fifth grade student at Gulf Beaches Elementary School, was a student of Respondent while she completed here third grade instruction. Ms. Stewart was approximately three weeks late reporting for classes during her third grade school year. After being in school for approximately two weeks, she sought assistance from Respondent regarding problems she was having with her math. At that time, there were approximately three or four other students also seeking assistance from the Respondent. Respondent asked Michelle to sit in a chair behind his desk where she waited until the other students had received their assistance. According to Ms. Stewart, Respondent asked to touch her pants in the crotch section. Ms. Steward was shocked but did not protest when the Respondent touched her in the seat of her pants for approximately one minute. On another occasion, Respondent was invited to attend a birthday party given at Michelle's house by her. Respondent was reluctant to attend inasmuch as he did not have a gift to give her. He reluctantly agreed to attend based on the enticement of Ms. Stewart, her mother, and several other students who attended the party. When persuaded to attend the party, Respondent agreed only to come if Ms. Stewarts mother permitted him to take Ms. Stewart shopping for some clothing within the next few days. As best as can be determined from the record, it appears that the birthday party was during the early part of May, 1977. Within a few days, Respondent arranged to take Ms. Stewart shopping by obtaining permission from her mother. However, as the facts were later brought out, it appears that Respondent obtained permission from Ms. Stewart's mother by telling her that he wanted Ms. Stewart to assist him in arranging some books on his book shelves, and Ms. Stewarts mother agreed with the condition that Ms. Stewart be brought back home before six oclock. Ms. Stewart testified that she was picked up by Respondent and taken to his home where they were alone. Immediately after entering Respondents house, he asked here if she was hungry and whether or not she would like to fix herself a sandwich and watched TV for a few minutes. Thereafter Respondent took some pictures of here with his Polaroid camera. Respondent later offered her some clothing and brought them out telling her that she could try the dresses on in his presence. Ms. Stewart undressed in Respondent's presence and when she finished trying on her dresses that he had purchased, Respondent went to the bathroom and undressed, entering his living room area with only his shirt on. During this time Ms. Stewart was undressed and Respondent asked her to lie down on the floor where he had placed a towel and had relocated an electric fan positioned so that it would blow down on them. She testified that he laid on top of her for approximately ten minutes stroking and kissing her. After this incident was over (approximately ten minutes) Respondent pleaded with Ms. Stewart to refrain from telling anyone about the incident to which she agreed. However she testified that she did tell some of her friends about the incident. Ms. Stewart testified that during the next school year she opted to be in another teacher's classroom and Respondent

      rebelled by talking to her and here mother in an attempt to get her to change her mind. She refused to do so because she wanted to be in the class with a neighbor and her boyfriend.

      
      

   3. During the school year Ms. Stewart recalled that she and approximately two other students were taken to several extracurricular activities by Respondent after school hours, including the circus, lipizian stallions, and Holiday on Ice.

      
      

   4. Detective William Creekbaum presently employed as a real estate salesman, was formerly employed as a detective with the St. Petersburg Police Department was assigned to investigate complaints regarding incidents that the Respondent had allegedly been engaged with several minor students including Michelle Stewart. Detective Creekbaum was assigned to investigate the case on or about May 19, 1977 at which time, and during the course of his investigation, he interviewed approximately ten minor female students. On May 31, 1977, he decided that he should contact the Respondent and make certain inquiries of him, which he did at the school. He visited the school and asked the Respondent to come with him down to the police station for some questions. The Respondent drove his car down to police headquarters and a statement was given to Detective Creekbaum. Prior therto, Respondnent was apprised of his rights per Miranda. Detective Creekbaum explained to Respondent the necessity of his being truthful during his investigation, although he stressed the fact that he made no promises that the matter would be handled internally". He testified, and the statements bear out the fact that the Respondent was, in fact, advised that the investigation was criminal in nature. Initially, during the interview, Respondent denied the material allegations of the charges that he had fondled Michelle Stewart, however, upon repeated questioning by Detective Creekbaum, Respondent admitted that he had fondled Michelle Steward as charged. Although Respondent's position on this admission is that he only told Detective Creekbaum that he had fondled Michelle Stewart because he "thought that was what he wanted to hear and further he was led to believe that nothing would come of it". After the admissions by Respondent, Detective Creekbaum advised Respondent that he was under arrest where he was taken to the booking section of the police department. Immediately thereafter, Douglas McBriarty, an employee of the personnel department for the Pinellas County school system and charged with resolving teacher problems, visited Respondent at the jail where Respondent also admitted to the charge of fondling Michelle Stewart. Dr. McBriarty advised Respondent that it would be the Board's recommendation to immediately suspend him pending a decision on the merits and further action by the board to seek revocation of his (Respondent's) teaching certificate by the Professional Practices Council. Respondent asked if he had any options whereupon Dr. McBriarty told him that he could resign. At that point, the Respondent resigned effective May 31, 1977.

      
      

   5. The Respondent took the stand and testified that he was misled by Detective Creekbaum into thinking that nothing would come of the incident and that while he denied initially fondling Ms. Stewart, he only changed his story to an admission because he was of the opinion that that was what Detective Creekbaum wanted. He also testified that he was of the opinion that nothing would come of the incident as related by Detective Creekbaum. 1/

      
      

   6. Without question, the Respondent enjoys a good reputation in the community and by his fellow peers at the school. He is regarded as a very good instructor who goes over and above his call of duty with respect to his classroom duties. Witnesses Nancy H. Akins and Catherine Smith, both instuctors in the Pinellas County school system, testified of their familiarity with the Respondents professional life and both gave him high marks.

   7. As stated, the Respondent denied the material allegations of the charging allegations in this case. Presently he is project director for the Tampa sickle cell disease project. In addition to denying the allegations of the complaint herein he testified that he was "set up" by Detective Creekbaum. He voiced his opinion that he felt that if he were cooperative and stated what Detective Creekbaum wanted him to say that he would go free.

      
      

   8. The undersigned has examined the record to see whether or not any misrepresentations or other statements were made to prompt Respondent to admit to the fondling of Michelle Stewart and the record is barren in this regard. Based thereon, I shall recommend that the allegations contained in the petition filed herein be sustained.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

      
      

   10. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

       
       

   11. The authority of the Petitioner is derived from Chapter 231, Florida Statues, and Chapters 6A and B of the Rules of the State Board of Education.

       
       

   12. Competent and substantial evidence was offered to establish that the Respondent engaged in acts and/or conduct sufficient to warrant a finding that he engaged in violations of Sections 231.28 and 231.09 Florida Statutes and Sections 6A-4.37,6B-1 and 6B-5, rules of the State Board of Education.

RECOMMENDATION

Based on the foregoing Findings and Conclusions, it is hereby RECOMMENDED that the teaching certificate of Respondent, Ernest B. Brown, be suspended for a period of two years.

ENTERED this 20th day of September, 1978, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building

Mail: 530 Carlton Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTE

1/ In this regard, the undersigned concludes that based on the entire record compiled herein, the statements given to Detective Creekbaum by Respondent are indeed admissible. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2nd 694.

COPIES FURNISHED:

Morris W. Milton, Esquire Post Office Box 13517

St. Petersburg, Florida 33733

Elise F. Judelle, Esquire Post Office Box 128 Tallahassee, Florida 32302

High Ingram Administrator Department of Education

319 W. Madison Street (Room 3) Tallahassee, Florida 32304

Ms. Angela J. Peterson Department of Education Professional Practices Council

319 West Madison Street (Room 3) Tallahassee, Florida 32304

Lynnl Guettler Vice Chairman Executive Commitee

Professional Practices Council

319 West Madison Street (Room 3) Tallahassee, Florida 32304

================================================================= AGENCY FINAL ORDER

================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA

IN RE: ERNEST B BROWN CASE NO. 77-1852

/

ORDER

THIS CAUSE came on to be heard before the State Board of Education, duly assembled, upon the Petition of Lynnl Guettler, as Chairman of the Professional Practices Council, for the revocation of the teacher's certificate of the Respondent, ERNEST B. BROWN, Department of Education Certificate Number 167290.

This Board having reviewed the findings and the recommendations of the Division of Administrative Hearings Hearing Officer and further having reviewed the entire record; and

It appearing that the Respondent has been granted all procedural and other constitutional rights in the premises, and the Board having had due deliberation thereon, the Board makes the following findings of fact and conclusions of law:

The Respondent presently holds Florida Teacher's Certificate Number 167290 valid until the 30th day of June, 1985. The Board adopts the Recommended Order of the Hearing Officer as its own except for the penalty stated therein.

ORDERED AND ADJUDGED that the Findings of Fact and Conclusion's of Law within the Hearing Officer's Recommended Order are hereby adopted and that the teacher's certificate of the said ERNEST B. BROWN, Respondent, Department of Education Number 167290, be and the same is hereby revoked permanently commencing October 24, 1978, as provided in Section 231.28, Florida Statutes.

DONE at the State Board of Education meeting in open session at Tallahassee, Florida on the 24th day of October, 1978.

EXECUTED AND RENDERED on this 29th day of December, 1978.

Reubin O'Askew, Governor; Chairman

Jesse J. McCrary, Jr., Secretary of State

Robert L. Shevin, Attorney General

Gerald A. Lewis, Comptroller

Bill Gunter, Treasurer

Ralph D Turlington, Commissioner of Education; Secretary-Executive Officer

Doyle Conner,

Commissioner of Agriculture

As and constituting the State Board of Education of Florida as assembled for the purposes herein.

Duly recorded in the official records of the State Board of Education of Florida. I HEREBY CERTIFY that copies of the foregoing Order in the matter of Ernest B. Brown were mailed to Elise Judelle, Esquire, Morris Wilton, Esq , and Ernest B. Brown this 5th day of January, 1979, by U.S. Mail

Hugh Ingram, Administrator Professional Practices Council

Docket for Case No: 77-001852

Orders for Case No: 77-001852