STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 79-902

)

MICHAEL S. PARK, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Fort Lauderdale, Florida, on June 4 and 6, 1979, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: W. George Allen, Esquire

116 Southeast Sixth Court Ft. Lauderdale, Florida

For Respondent: Richard H. Frank, Esquire

341 Plant Avenue Tampa, Florida 33606

ISSUE

Whether Respondent should be dismissed from employment in the Broward County School System for alleged violations of Section 231.36(6), Florida Statutes, as set forth in Petition for Dismissal, dated April 12, 1979.

During the course of the hearing, Petitioner withdrew Paragraphs II B, E, and J of its Petition for Dismissal.

FINDINGS OF FACT

1. Respondent has been employed by Petitioner in the Broward County School System as an instructor in art at Plantation High School since 1970. He is currently on continuing contract status. The course which he has taught in the past include design, drawing, craft, sculpture, and ceramics. (Testimony of Respondent)

   
   

2. During 1971, Respondent made a practice of having his students fill out a form questionnaire which contained personal information such as name, address, telephone, and date of birth. Additionally, the form included blocks concerning the student's grades, and prospective college attendance. It also asked if the student had any "hang ups" or police record, and if the student liked "rapp sessions" and why. School policy which was disseminated to teachers at faculty meetings required that any such forms had to be approved by the school

   principal, but Respondent had not sought such approval. When the matter came to the attention of the principal, he informed Respondent that he should discontinue use of the form and Respondent complied. (Testimony of Hanes, Saur, Petitioner's Exhibit 1)

   
   

3. In the fall of 1971, Jill Saur, n'ee Alexander, was a student in Respondent's ceramic and pottery class during her senior year. In October and November, 1971, she complained to school officials that she had received several early morning telephone calls from Respondent concerning his desire to come to her house and have sexual intercourse with her. These calls involved Respondent's use of obscene terms and caused the student to become apprehensive and frightened. Although she had recognized Respondent's voice over the telephone, school officials were unable to identify the caller from tape recordings that she had made of the calls at their suggestion. She testified at the hearing that she was too frightened to prefer charges against Respondent. She confronted Respondent on one occasion at the high school, but he denied making the calls. Although the school conducted an investigation, no official action was taken except that the principal told Respondent to leave the students alone. (Testimony of Saur, Tankovich, Hanes)

   
   

4. During the 1974-75 school year, Respondent asked a 13 year old ninth grade student, Darlene Wilcox, to stay after class and come into his office. He asked the student to sit down and then closed the door. He handed her an issue of the magazine "Psychology," opened it to an article which had the word "sex" in the title and asked her if she had ever read a magazine like that before. Although the student testified that Respondent locked the office door from within the room, the only way in which the door can be locked is by a key on the outside entrance to the room. There is a large inside window to the office from which persons in an adjoining classroom can observe activities within the office. After showing the article to the student, another student entered the adjoining classroom and Respondent left the office and told the girl that he would see her in class the next day. (Testimony of Wilcox, Van Vleet, Respondent's Exhibit 1)

   
   

5. In the fall of 1977, Kathy Weber, a 17 year old 12th grade student, was at a local establishment called the "Crown Bar" with student friends one evening. Although she was not one of Respondent's students, he joined her group at the bar and commenced conversing with her. During the course of the conversation, Respondent took the girl's wrist, stated that he could read her mind, and proceeded to tell her her birth date. On one occasion thereafter, Respondent phoned Kathy at her home, but she declined to converse with him. Also, he later saw her at school and told her that if she went to the Crown Bar again he would meet her there. He also asked her to go "bumming" with him sometime which he explained meant that he would like to go shopping with her.

   In late November or early December, he entered a class taught by Linda Whealin during a class session which was attended by Kathy. He asked permission from Mrs. Whealin to excuse Kathy when she finished her work in order that she could help in the office. The teacher agreed, but Kathy did not go because she was afraid of Respondent and felt that he took a "too personal attitude" toward her. This incident came to the attention of the school principal who, together with the assistant principal, discussed the matter with Respondent in early December. During these discussions, Respondent stated that he could read minds, that he did call Kathy at her house because she wanted to talk to him, and that he had asked for her to be excused from Mrs. Whealin's class because he wanted her to help him inventory a large art order. The school officials warned Respondent concerning his conduct and advised him to restrict any student contact to classroom situations. The matter was summarized in a memorandum prepared by the

   assistant principal, dated December 5, 1977, and Respondent signed the document acknowledging that he had read it. He also submitted a rebuttal stating his version of the circumstances involving the student. (Testimony of Weber, Whealin, Hanes, Laughton, Respondent, Petitioner's Exhibit 3)

   
   

6. Susan Clement was a student of Respondent during the, 1977-78 school year. On different occasions, Respondent grabbed her neck with his hands, pinched her buttocks, and pushed up against her buttocks with his body from behind while she was washing her hands at a sink in the classroom. Once he told her that there were rumors that she was going to bars and meeting male teachers there. After one of these incidents, she complained to the school principal about Respondent's actions. During her school attendance, she smoked marijuana approximately three times a week and sometimes was under the influence of marijuana while attending classes. She testified, however, that it did not affect her memory or ability to concentrate in art class. (Testimony of Clement)

   
   

7. Sherry Larkin was a student of Respondent during the past two years. During her ninth grade, he complained to her mother that Sherry was wearing thin shirts to class which disrupted the other students. Her mother, another teacher at Plantation High School, told her not to wear "Indian" clothes or jeans to school in the future. The student had been observed by another art teacher wearing sheer blouses at school. (Testimony of Larkin, Van Vleet)

   
   

8. During the past school year, Respondent, while talking in class to a student, Lori Evans, pinched her above the breast for no apparent reason. At other times he pinched her on the buttocks during class, and slapped her on the buttocks with a ruler without giving any reasons for his actions. Lori also saw him slap another student, Angela Lash, with a ruler in the same manner. (Testimony of Evans)

   
   

9. During the past school year, Respondent asked to see a student, Theresa Jackson, after class because she had become upset with his comments concerning her art work. After class, he told her that he wanted to embarrass her because he didn't want other students to know that he favored her or gave her special attention. He told her she was the most beautiful student he had ever had and put his arm around her. He also inquired as to her job and family and told her that if she ever had any problems, he would be glad to talk to her and help her out if she was "up tight." In one instance during the school year, the student wore shorts to class and Respondent told her that he didn't care if she wore them, but that the boy sitting at her table might get excited. On another occasion, he told her she should not wear so much eye makeup because her eyes were pretty enough without it. The student dropped the art class at the end of the first semester because she feared going back to his class since he treated her "special." (Testimony of Jackson)

   
   

10. Tammy DeCarlo was a senior at Plantation High School during the 1978-

    79 school year, but not one of Respondent's students. In February, 1979, while Tammy was loudly conversing with another student in a school corridor, Respondent came up and joined the conversation. Tammy was the school yearbook editor and had been having problems in its publication. About a week later, she saw Respondent again at school and they discussed some of her problems with the yearbook. Several days later, another student told Tammy that Respondent wanted to see her. Tammy went to his room and he asked her to go to his office. On the way, he picked up a tissue paper flower and gave it to her. In the office, they discussed her yearbook deadline and he mentioned that he had "ESP." He gave her several examples of his ability in this regard. He told her not to

    tell anyone that he was talking to her in order that they would have a "better trust." Tammy later told her mother about her conversation and thereafter spoke to the assistant principal about Respondent. However, nothing materialized from this discussion. A few days later, Tammy received a note telling her that Respondent wanted to see her again. Again, he took her into his office. During their conversation, Respondent told her that she didn't trust him because she had been hurt by a boy friend. He told her to close her eyes and concentrate, and then told her that the boy just took her out so that she could make love with him and that he had tried to make her do something she didn't want to do.

    Tammy told him she didn't know what he was talking about and Respondent said "What is it, oral sex?" Respondent also asked her what kind of birth control she used and the student told him. He asked her to give him "something personal." Since she was afraid of him, she offered to let him have her necklace. He asked to take it off her neck and did so. A week or so later, she saw Respondent again and he asked her to come in to see him during her lunch hour but she declined. Later, she asked a friend to get her necklace back from Respondent.

    He returned it, together with a picture. During their initial conversation, Respondent referred to Tammy's journalism instructor as a "male chauvinist pig" when Tammy complained that the instructor was taking all the credit for publication of the yearbook. Tammy's parents made a written complaint to school authorities concerning Respondent's conduct. (Testimony of DeCarlo, Hanes)

    
    

11. Several of Respondent's former students testified that they had never seen him act improperly in class or inquire into the personal lives of students. They considered him to be a warm, friendly teacher who occasionally would pat a student on the back or put his arm around a student's shoulders. Other students testified that he often placed his arm around the shoulders of various students. Respondent's ability as an art instructor has never been questioned and one of his colleagues considers him to be the best ceramics instructor in the county. During the period 1971-1979, Respondent's principal at Plantation High School warned him concerning various incidents involving female students approximately four or five times. (Testimony of Graff, Landers, Cirille, Wilcox, Larkin, Evans, Jackson, DeCarlo, Hanes, Van Vleet)

    
    

12. Respondent testified as a witness and denied ever making improper phone calls to Jill Alexander Saur or showing a magazine article to Darlene Wilcox. He denied pinching Lori Evans above the breast or on the buttocks or slapping her on the buttocks with a ruler. He stated that she was a pour student and unreliable when given a student task. Another teacher corroborated his testimony as to the student's unreliability.

    
    

13. Respondent denied pushing against Susan Clement at the classroom sink or pinching her buttocks, but conceded that he might have grabbed her neck when she did not "clean up her mess" in the classroom. Respondent testified that after he notified Sherry Larkin's mother about the thin blouses she was wearing, her personality changed and she became angry and frustrated at him frequently. Prior to that incident, she had confided in him concerning spending a weekend with her boyfriend and giving him personal information concerning the fact that her sister was living with her boyfriend and that he dealt in drugs. He admitted that he had told a student, Nancy Brown, that she should wear better bra support on one occasion when she was wearing a knit top that was "very revealing."

    
    

14. Respondent stated that the reason he had visited the Crown Bar was to join students whom he was teaching at night at Broward Community College. On the occasion when he introduced himself to Kathy Weber there, he discerned from her conversation that she had a "problem" with her boyfriend and that he later

    asked her to go to a shopping center in order that they could talk about her problem without being accused of doing something improper. He believed that she was probably drinking because of her problem and that he wanted to gain her confidence and then try to counsel her not to drink.

    
    

15. In regard to the allegations involving Tammy DeCarlo, Respondent testified she seemed upset when he first saw her in a school corridor and that he had recently been advised by the assistant principal that students and parents were complaining that he was not being "consoling enough to my students." Therefore, even though he had been warned at the end of the prior academic year not to become personally involved with the students, he decided to talk to Tammy and was able to calm her. He admitted giving her paper flowers in his office and testified that they talked about ESP because she had said that her mother had studied the subject. He admitted making the statements relating to birth control and oral sex to Tammy because it seemed that she was having trouble with one of her boy friends and that she had said her sexual relationship with the boy was "old hat." In that regard, he testified in part as follows:

    
    

    When we were talking about her boy friend and her intercourse with her boy friend,

    I believe I made the statement, "Do you play it safe?" She said, "Yes." She said that

    she used the foams and he used condoms. Here again, I stated, Well, this is your thing, or that is your life.

    
    

    I think that she made the statement that

    he wanted to try something different. I may have said, do you mean oral sex, you know, kind of in a shocking manner. She said, I believe at the time, she agreed at the time, that this is what he wanted to do. She said something about, she wasn't quite sure about it. I

    said well, that is your life, your decision.

    
    

16. Respondent conceded that he had been counseled concerning his relationship with female students by the principal about four times. He is of the opinion that school guidance counselors have too much paper work and could not see students on a personal basis. Therefore, he felt that if anyone had a problem they could come and talk to him because he could "listen well." He stated that he had "straightened out" a number of students and they and their parents had complemented him in the past. He denied any ability to read minds or that he had told the assistant principal that he could do so.

    
    

17. It is found that Respondent's testimony wherein he denied the incident involving student Wilcox, and denied the physical actions involving students Evans and Clement is not credible. His testimony denying the telephone conversations with Jill Saur is not considered credible, but her testimony was received in evidence solely for the purpose of showing a motive, intent, or design regarding Respondent's relationships with other students. (Testimony Of Respondent, P. Park)

    
    

    CONCLUSIONS OF LAW

    
    

18. Petitioner seeks to dismiss Respondent from employment as a member of the instructional staff in the Broward County School System pursuant to Section

    231.36(6), Florida Statutes, for "immorality and/or misconduct in office, and/or gross insubordination." Although the stated grounds for dismissal are not defined in Chapter 231, the Professional Practices Council of the State Department of Education has promulgated rules in Chapter 6B-4.09, which define each of the grounds for disciplinary action set forth in Section 231.36. They read pertinently as follow:

    
    

    1. Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

    2. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession so serious as to

       impair the individual's effectiveness in the school system.

    3. Gross insubordination . . . is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

       
       

19. It should be noted at the outset that there has been no showing that Respondent was grossly insubordinate to his principal, Mr. William Hanes, as alleged in Paragraph II K of the complaint which alleges that after being warned by Hanes on December 5, 1977 to conduct himself "in such a way as to avoid even the appearance of an impropriety with students," he nevertheless committed certain acts thereafter involving students as recited in other allegations of the complaint. Assuming that such a warning to refrain from the "appearance" of any improper future conduct involving students could be deemed sufficiently specific to constitute a direct order, the evidence failed to establish that any such purported order was given by the principal to the Respondent in those terms. In order to constitute gross insubordination, a directive or order must be sufficiently precise as to put the affected individual on notice of its requirements. Here, the only evidence of what might be construed as an order is "Conclusion 5" in the December 5, 1977, memorandum of the assistant principal (Petitioner's Exhibit 3) which states that "All student contact should pertain to his classroom or a classroom situation," which is not the subject of the allegation in Paragraph II K of the complaint. Accordingly, it is concluded that Petitioner has failed to show that Respondent was grossly insubordinate, as alleged.

    
    

20. Clear and convincing evidence shows that on a number of occasions since the 1974-75 school year, Respondent displayed a pattern of conduct that was inconsistent with the high standards expected and demanded of a teacher of young and impressionable students. It shows that he departed from the required professional relationship with students in such a manner and to such a degree that he exposed them to excessive embarrassment and even fear by his actions. Specifically, the incidents involving improper physical touching of female high school students Evans and Clement on the buttocks, as alleged in Paragraphs II G and H of the complaint, were clearly improper and immoral in nature. However, the evidence is considered insufficient to support the allegation in Count II I that Respondent pinched female students on the breasts. The circumstances under which Respondent showed student Wilcox a magazine article with the word "sex" in the title and his inquiry to her as to whether she had ever read such an

    article, as alleged in Paragraph II A, caused the student embarrassment and reflected an immoral design. His preoccupation in that regard is further emphasized by his comments to student Jackson concerning her clothing and makeup, and his concern over student Larkins' attire. Respondent's pursuit of student Weber by offers to go shopping with him, and telephoning her at home as alleged in Paragraph II C, ostensibly to assist her with a perceived problem in her personal life, exceeded the bounds of an appropriate teacher-student relationship. Respondent's self-appointed mission as an unofficial student counselor on personal matters was exemplified in a reprehensible manner by his contacts with student DeCarlo. His probing into her sexual activities under the guis of counseling was unconscionable and grossly immoral in character.

    
    

21. A number of the above cited incidents were reported by the students to their parents prompting complaints to the school administration. Respondent had been warned on numerous occasions by school officials concerning his relationship with female students, but he either was unwilling or unable to abide by such guidance. It is clear that his actions were inconsistent with the standards of public conscience and good morals and sufficiently notorious to bring himself and the education profession into public disrespect. His misconduct is considered to be so serious as to substantially impair his future effectiveness in the school system. Accordingly, it is concluded that grounds for dismissal exist under Section 231.36(6) , Florida Statutes, for immorality and misconduct in office.

    
    

22. Although Respondent's technical competence and qualifications as an instructor have not been questioned, the serious nature of the established charges fully warrant dismissal as a member of the instructional staff of the Broward County School System. No mitigating circumstances have been brought forward which would justify a less severe penalty.

RECOMMENDATION

That Respondent be dismissed from his employment as a member of the instructional staff of the Broward County School System, pursuant to Section 231.36(6), Florida Statutes.

DONE and ENTERED this 24th day of July, 1979, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

W. George Allen, Esquire

116 Southeast Sixth Court Ft. Lauderdale, Florida

Richard H. Frank, Esquire

341 Plant Avenue Tampa, Florida 33606

Broward County School Board Attn: Edward J. Marko, Esquire Post Office Box 4369

Ft. Lauderdale, Florida 33338

Docket for Case No: 79-000902

Orders for Case No: 79-000902