STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 80-903

)

JOHN W. PAGE, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on July 29, 1980, in Jacksonville, Florida.

APPEARANCES

For Petitioner: L. Haldane Taylor, Esquire

1902 Independent Square

Jacksonville, Florida 32207

For Respondent: Frank C. Decker, Esquire

Post Office Box 5488 Jacksonville, Florida 32207

STATEMENT OF THE ISSUE

Whether Respondent's teaching certificate should be revoked, or otherwise disciplined, on grounds that he is guilty of engaging in grossly immoral conduct, as alleged.

CONCLUSION AND RECOMMENDATION

Respondent is guilty, as alleged, of engaging in grossly immoral conduct violative of Section 231.28(1), Florida Statutes (1979). His teacher's certificate should, therefore, be suspended for a two-year period.

PRELIMINARY STATEMENT

By "Petition for the Revocation of Teacher's Certificate," filed on March 24, 1980, Petitioner Professional Practices Council ("COUNCIL") accused Respondent John W. Page, Jr. ("PAGE") of performing a lewd, lascivious, immoral, and indecent act in violation of Sections 231.09 and 231.28, Florida Statutes (1979), and recommended that his teaching certificate be revoked or otherwise disciplined. On April 18, 1980, PAGE denied the COUNCIL's material allegation, and requested a hearing on the charges.

On May 1, 1980, the COUNCIL forwarded PAGE's request to the Division of Administrative Hearings for assignment of a hearing officer to conduct the

requested hearing. By notice dated May 22, 1980, final hearing was set for July 29, 1980.

The COUNCIL called as its witnesses: Michael Legan, a Morals Squad Officer with the Jacksonville Sheriff's Office; Gary Simmons, Director of Personnel Systems and Records, Duval County School System, and Johannah Murphy Sandberg, principal of Oceanway Elementary School, Duval County School System. The COUNCIL also offered into evidence Petitioner's Exhibits1 1 through 2, inclusive, each of which was received.

PAGE testified in his own behalf, and called as his witnesses: Dr. Floyd

1. Baker a teaching consultant and retired teacher; and Evelyn Jackson Page, his wife. He also offered Respondent's Exhibits 1/ 1 through 7, inclusive, each of which was received into evidence.

   
   

   Then parties jointly moved to correct the style of this case to reflect that Respondent is "John W. Page, Jr.," which motion was granted.

   
   

   At the conclusion of hearing, the parties requested and were granted the opportunity to file proposed findings of fact within 14 days after filing of the hearing transcript; they also agreed that the Recommended Order would be due within 30 days after their submittal of proposed findings. Subsequently, each party submitted post-hearing memoranda and proposed findings by September 26, 1980.

   
   

   FINDINGS OF FACT

   
   

   Based upon the evidence presented at hearing, the following facts are determined:

   
   

   1. The COUNCIL alleges that, on or about April 3, 1979, PAGE engaged in a lewd, lascivious, immoral, and indecent act in the men's restroom of the St. Johns Marina, Jacksonville, Florida, by touching Officer Michael Legan in an unnatural manner; PAGE denies it. (Pre-trial Stipulation, Petition for Revocation, Testimony of Page.)

      
      

   2. The men's bathroom where the alleged incident took place is adjacent to the St. Johns Marina. The marina is adjacent to the St. Johns River, and across the street from the Alexander Breast Planetarium. A park area nearby is used by groups of children and other visitors to the planetarium. Prior to the time of the incident in question, the Jacksonville Sheriff's Office had received complaints from people at the planetarium, and nearby park visitors, concerning indecent exposure-type incidents occurring in the Marina's bathroom and surrounding area. (Testimony of Legan.)

      
      

   3. On April 3, 1979, because of this history of reported indecent exposure incidents, Officer Michael Legan, attached to the Morals Squad of the Jacksonville Sheriff's Office, had the Marina's men's bathroom under surveillance for possible homosexual or indecent exposure-type criminal violations. He was accompanied by his partner, Detective Sam Durden, who remained outside the bathroom. At approximately 3:30 or 4:00 p.m., in the afternoon, Officer Legan was wearing civilian clothes and standing inside the bathroom, alongside the wall directly across from a partition which separates the toilets from the urinals. At the time, he was trying to determine whether an unidentified individual using the toilet was there "for a legitimate purpose or whether or not he was attempting to expose himself." (Tr.20) 2/

   4. Shortly thereafter, PAGE entered the bathroom and walked directly to the urinal closest to the door, located across from where Officer Legan was standing. At the same time, Officer Legan moved toward the door, and stopped alongside the wall almost directly behind PAGE. While standing at the urinal, PAGE made what appeared to be a rubbing motion with his hands in his genital area, and glanced over his shoulder in the direction of Officer Legan.

      
      

   5. This activity continued for about 30 seconds; then PAGE turned 90 degrees to his left, towards the toilet area and away from the bathroom door, held his penis in his hand and rubbed it with a masturbating-type motion. PAGE continued this activity for approximately 20 seconds, while he looked at Officer Legan, then looked down. While Officer Legan observed this activity at a distance of from seven to eight feet, no conversation took place. PAGE then replaced his penis in his pants, started to walk toward the door, and made a motion with his head which Officer Legan understood as a request to follow.

      
      

   6. In response to what he discerned as PAGE's nonverbal request, Officer Legan followed PAGE toward the door, with the intent to place him under arrest after exiting the bathroom, where Dective Durden would be available to provide assistance. There is a small alcove in the foyer of the bathroom, which separates an inner bathroom door from another bathroom door leading to the outside. As Officer Legan followed PAGE out of the inner bathroom door into the foyer area, PAGE stopped and said, "How are you doing?" Legan answered "Okay," and started to reach into his pocket for his badge. Simultaneously, PAGE grabbed and squeezed Legan in the groin area, and said, "It looks like you're okay." Officer Legan then identified himself as a police officer, placed PAGE under arrest, searched him, gave him the Miranda warnings, and took him to jail for booking.

      
      

   7. The findings indicated in paragraphs 4(a) through (c) above are, in the main, determined from the testimony of Officer Legan. Respondent PAGE denied, under oath, engaging in the activity described by Officer Legan. It is concluded that Officer Legan's testimony is more worthy of belief and should be accorded greater weight than the conflicting testimony of PAGE. Officer Legan testified with the detached, unbiased manner of a professional law enforcement officer; his narrative testimony was clear, positive, logical, and internally consistent. His prior testimony, by deposition, introduced into evidence by PAGE, is also consistent with and supports his testimony given at final hearing. No significant defects were shown in his capacity, ability, or opportunity to observe, remember, or recount the matters about which he testified.

      
      

   8. In comparison, PAGE is a teacher accused of grossly immoral conduct justifying suspension or revocation of his teacher's license. As the accused, he has an obvious bias and interest which affects his credibility. Officer Legan's lack of any discernible bias of interest, coupled with the failure to impeach him or discredit his testimony in any significant way, renders his testimony persuasive. (Testimony of PAGE, Legan; R.E. 3.)

      
      

   9. All Court and Sheriff's Office records pertaining to PAGE's arrest for the above-described conduct were expunged on August 28, 1979, by order of the County Court of Duval County, Florida. In order to qualify for such statutory expungent, the Court necessarily determined that PAGE had never been convicted of a criminal offense or municipal ordinance violation. The effect of expungent is to restore the accused, in the contemplation of the law, to the status he occupied before the arrest. (R.E. 1.)

      PAGE'S PERFORMANCE AS A TEACHER

      
      

   10. PAGE has been a competent and effective elementary school teacher in the Duval County School System since 1972. His area of particular expertise has been teaching disadvantaged children reading skills through structured, federally sponsored, reading programs. He has consistently been rated by his supervisors as a "satisfactory" teacher--the highest rating possible.

       Principals of the schools where he has taught have commended him for his knowledge and performance in teaching remedial reading, good rapport with students, and his ability to understand deficiencies of disadvantaged children and enhance their self-concept. Because of his skills, he was selected to operate the Hoffman Laboratory, a structured reading program for disadvantaged children, at Oceanway Elementary School, Jacksonville. Under his leadership, the Laboratory has been so effective that teachers from other counties have visited to observe and learn. (Testimony of Baker, Sandberg; R.E. 3,7.)

       
       

       PAGE'S CHARACTER

       
       

   11. PAGE, honorably discharged from the U.S. Marine Corps in 1960, has been an active and responsible ember of his community and the Baptist religion for many years. His church pastors know him as a moral, honest, and religious man, a person of flawless reputation and integrity. He has been married for 32 years, led a normal family life, and successfully raised three children. The charges against him are not in keeping with his wife's view of his character. (Testimony of Evelyn Page; R.E. 4,5.)

       
       

   12. The policy of the Duval County School Board is to ensure that teachers accused of sexual misconduct are not left in a position where they have contact with children. The Board perceives that such action, on its parts, is necessary in order to provide assurances to parents that their children will be safe. The ability of PAGE to effectively continue to teach at Oceanway Elementary School has been reduced, due to the expected reaction of parents and staff members to the charges against him. (Testimony of Gary Simmons, Sandberg.)

       
       

   13. To the extent that proposed findings of fact submitted by the parties have not been incorporated herein, they are rejected as being irrelevant to the decision reached, or unsupported by the evidence.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearing has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes (1979).

       
       

   15. It is the burden of the COUNCIL to prove its allegations against PAGE by a preponderance of the evidence. See Fla. Jur. 2d, Section 81, Administrative Law, pp. 658-659 (1977).

       
       

   16. Here, the COUNCIL contends that PAGE's alleged conduct in touching Officer Legan in an unnatural manner violated Sections 231.09 and 231.28, Florida Statutes (1979). Section 231.09 lists the various duties of teachers in the public school systems; violation of one or more of these duties does not provide an independent basis for suspension or revocation of a teacher's certificate under Section 231.28. The COUNCIL's reliance upon Section 231.09 is, therefore, unfounded.

   17. Section 231.28 is the operative provision which authorizes the Department of Education3 to suspend or revoke a teacher's certificate. Among other grounds enumerated, a teacher's certificate may be disciplined if he "has been guilty of gross immorality . . ." Section 231.28(1), Florida Statutes (1979).

       
       

   18. Immoral conduct has been defined as conduct which offends the morals of the community and is inconsistent with moral rectitude. Negrich v. Dade County Board of Public Instruction, 143 So.2d 498, 501 (Fla. 3rd DCA 1962). In Pyle v. Washington County School Board, 238 So.2d 121, 123 (Fla. 1st DCA 1970), the court found that testimony that a teacher made unbecoming and unnecessary risque remarks to a class of mixed teenage boys and girls was sufficient to sustain a charge of immorality. In Moser v. State Board of Education, 101 Cal.Rptr. 86 (Cal.App. 3rd 1978), the court affirmed a lower court's finding that a teacher's masturbation of his exposed penis and touching the private parts of another male person constitute immoral conduct.

       
       

   19. School teachers are held to high standards of conduct because of the nature of their profession:

       
       

       A school teacher holds a position of great trust. We entrust the custody of our children to the teacher. We look to the teacher to educate and prepare our children for adult lives. To fulfill this trust, the teacher must be of good moral character; to require less would jeopardize the future lives of our children. Tomerlin v. Dade County School Board, 318 So.2d 159, 160 (Fla.

       1st DCA 1975).

       
       

       . . .the teacher is entrusted with the custody of children and their high preparation for useful life. His habits, his speech, his good name, his cleanliness, the wisdom and propriety of his unofficial utterances, his associations, all are involved. His ability to inspire children to govern them, his power as a teacher, and the character for which he stands are matters of major concern in a teacher's selection and retention. Moser, supra, at 88.

       
       

   20. Although immoral conduct is done during off-duty hours and outside the school environment, it may indirectly relate to a teacher's job performance:

       
       

       . . . His conduct is an incident of a perverse personality which makes him a danger to school children and unfit to teach them.

       Mothers and fathers would question the safety of their children; children would discuss . .

       . [his] conduct and morals. All of these relate to . . .[his] job performance.

       Tomerlin, supra, at 160.

       
       

   21. Based on the evidence presented, it is concluded that PAGE, by his complained-of conduct, is guilty of gross immorality violative of Section

       231.28(1) Florida Statutes (1979). His public masturbation prior to touching Officer Legan and the statement which accompanied the touching, render his conduct grossly offensive to the morals of the community and inconsistent with the standard of moral rectitude to which teachers are held.

       
       

   22. PAGE's misconduct indirectly reduces his effectiveness as a teacher. However, in determining the appropriate disciplinary action, his record as a competent teacher and responsible member of his community must be seriously considered; also, it should be noted that the misconduct occurred during his off-duty hours and outside the school environment. The COUNCIL, by its petition, initially sought revocation of PAGE's teacher's certificate; however, it now asks that his certificate be suspended for two years. See Petitioner's Proposed Findings of Fact, Conclusions of Law, and Recommended Order, p. 4. Such suspension is a reasonable disciplinary sanction which is warranted by the evidence.

RECOMMENDATION

Accordingly, based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That Respondent's teacher's Certificate No. 137251, be SUSPENDED for two

(2) years commencing upon entry of the Final Order in this case.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of October, 1980.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1980.

ENDNOTES

1/ Petitioner's and Respondent's Exhibits will be abbreviated as "P.E. " and R.E. ", respectively.

2/ References to pages in the Transcript of hearing will be referred to as "Tr.

".

3/ Effective October 1, 1980, Section 2, Chapter 80-190, Laws of Florida (1980), granted the newly created Education Practices Commission the authority to suspend or revoke teachers' certificates pursuant to Section 231.28, Florida Statutes (1979). Section 1 provides for transferal of cases pending before the Professional Practices Council to the Commission.

COPIES FURNISHED:

L. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32207

Frank C. Decker, Esquire Post Office Box 5488 Jacksonville, Florida 32207

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

=================================================================

DEPARTMENT OF EDUCATION PROFESSIONAL PRACTICES COMMISSION

PROFESSIONAL PRACTICES COUNCIL,

Petitioner,

vs. CASE NO. 80-903

JOHN W. PAGE, JR.,

Respondent.

/

FINAL ORDER

Respondent John W. Page, Jr., holds Florida teaching certificate number 137251 Post Graduate, Rank II. On March 24, 1980, an Administrative Complaint was filed against Respondent seeking the suspension or revocation of his certificate. A hearing was held before R.L. Caleen Jr., a hearing officer of the Division of Administrative Hearings on July 29, 1980. A Recommended Order was forwarded to the Education Practices Commission, newly created and empowered under Section 231.261 and 231.262 F.S., to take final agency action in disciplinary matters involving the certificate of educators. See 80-190(1), Laws of Florida.

A duly constituted panel of the Commission met on January 19, 1981 and considered the Recommended Order and the Exceptions filed by Respondent. The petitioner was represented by L. Haldane Taylor, Esquire, and the Respondent by Frank C. Decker, Esquire.

The teacher Panel of the Commission adopts the FINDINGS OF FACT of the Recommended Order as follows:

FINDINGS OF FACT

1. The COUNCIL alleges that, on or about April 13, 1979, PAGE engaged in a lewd, lascivious, immoral, and indecent act in the men's restroom of the St. Johns Marina, Jacksonville, Florida, by touching Officer Michael Legan in an unnatural manner; PAGE denies it. (Pre-trial Stipulation, Petition of Revocation, Testimony of Page.)

   
   

2. The men's bathroom where the alleged incident took place is adjacent to the St. John's Marina. The marina is adjacent to the St. Johns River, and across the street from the Alexander Breast Planetarium. A park area nearby is used by groups of children and other visitors to the planetarium. Prior to the time of the incident in question, the Jacksonville Sheriff's Office had received complaints from people at the planetarium, and nearby park visitors, concerning indecent exposure-type incidents occurring in the Marina's bathroom and surrounding area. (Testimony of Legan.)

   
   

3. On April 3, 1979, because of this history of reported indecent exposure incidents, Officer Michael Legan, attached to the Morals Spad of the Jacksonville Sheriff's Office, had the Marina's men's bathroom under surveillance for possible homosexual or indecent exposure-type criminal violations. He was accompanied by his partner, Detective Sam Durden, who remained outside the bathroom. At approximately 3:30 or 4:00 p.m., in the afternoon, Officer Legan was wearing civilian clothes and standing inside the bathroom, alongside the wall directly across from a partition which separates the toilets from the urinals. At the time, he was trying to determine whether an unidentified individual using the toilet was there "for a legitimate purpose or whether or not he was attempting to expose himself." (Tr.20) 1/ (Testimony of Legan; P.E.2.)

4(a) Shortly thereafter, PAGE entered the bathroom and walked directly to the urinal closest to the door, located across from where Officer Legan was standing. At the same time, Officer Legan moved toward the door, and stopped alongside the wall almost directly behind PAGE. While standing at the urinal, PAGE made what appeared to be a rubbing motion with his hands in his genital area, and glanced over his shoulder in the direction of Officer Legan.

4(b) This activity continued for about 30 seconds; then PAGE turned 90 degrees to his left, towards the toilet area and away from the bathroom door, held his penis in his hand and rubbed it with a masturbating-type motion. PAGE continued this activity at a distance of from seven to eight feet, no conversation took place. PAGE then replaced his penis in his pants, started to walk toward the door, and made a motion with his head which Officer Legan understood as a request to follow.

1. In response to what he discerned as PAGE's non-verbal request, Officer Legan followed PAGE toward the door, with the intent to place him under arrest after exiting the bathroom, where Detective Durden would be available to provide assistance. There is a small alcove in the foyer of the bathroom, where Detective Durden would be available to provide assistance. There is a small alcove in the foyer of the bathroom, which separates an inner bathroom door into the foyer area, PAGE stopped and said, "How are you doing?" Legan answered, "Okay," and started to reach into his pocket for his badge. Simultaneously, PAGE grab and squeezed Legan in the groin area, and said, "It looks like you're okay." Officer Legan then identified himself as a police officer, place PAGE under arrest, searched him, gave him the Miranda warnings, and took him to jail for booking.

2. The findings indicated in paragraphs 4(a) through (c) above are, in the main, determined from the testimony of Officer Legan. Respondent PAGE denied, under oath, engaging in the activity described by Officer Legan. It is concluded that Officer Legan's testimony is more worthy of belief and should be accorded grater weight than the conflicting testimony of PAGE. Officer Legan testified with the detached, unbiased manner of a professional law enforcement officer; his narrative testimony was clear, positive, logical, and internally consistent. His prior testimony, by deposition, introduced into evidence by PAGE, is also consistent with and supports his testimony given at final hearing. No significant defects were shown in his capacity, ability, or opportunity to observe, remember, or recount the matters about which he testified.

In comparison, PAGE is a teacher accused of grossly immoral conduct justifying suspension or revocation of his teacher's license. As the accused, he has an obvious bias and interest which affects his credibility. Officer Legan's lack of any discernible bias or interest, coupled with the failure to impeach him or discredit his testimony in any significant way, renders his testimony persuasive. (Testimony of Page, Legan; R.E. 3.)

1. All Court and Sheriff's Office records pertaining to PAGE's arrest for the above-described conduct were expunged on August 28, 1979, by order of the County Court of Duval County, Florida. In order to qualify for such statutory expungent, the Court necessarily determined that PAGE had never been convicted of a criminal offense or municipal ordinance violation. The effect of expungent is to restore the accused, in the contemplation of the law, to the status he occupied before the arrest. (R.E. 1.)

   
   

   PAGE'S PERFORMANCE AS A TEACHER

   
   

2. PAGE has been a competent and effective elementary school teacher in the Duval County School System since 1972. His area of particular expertise has been teaching disadvantaged children reading skills through structured, federally sponsored, reading programs. He has consistently been rated by his supervisors as a "satisfactory" teacher--the highest rating possible.

   Principals of the schools where he has taught have commended him for his knowledge and performance in teaching remedial reading, good rapport with students, and his ability to understand deficiencies of disadvantaged children and enhance their self-concept. Because of his skills, he was selected to operate the Hoffman Laboratory, a structured reading program for disadvantaged children, at Oceanway Elementary School, Jacksonville. Under his leadership, the Laboratory has been so effective that teachers from other counties have visited to observe and learn. (Testimony of Baker, Sandberg; R.E. 3,7.)

   
   

   (PAGE'S CHARACTER)

   
   

3. PAGE, honorably discharged from the U.S. Marine Corps in 1960, has been an active and responsible member of his community and the Baptist religion for many years. His church pastors know him as a moral, honest, and religious man, a person of flawless reputation and integrity. He has been married for 32 years, led a normal family life, and successfully raised three children. The charges against him are not in keeping with his wife's view of his character. (Testimony of Evelyn Pge; R.E. 4,5.)

   
   

4. The policy of the Duval County School Board is to ensure that teachers accused of sexual misconduct are not left in a position where they have contact with children. The Board perceives that such action, on its part, is necessary in order to provide assurances to parents that their children will be safe. The

   ability of PAGE to effectively continue to teach at Oceanway Elementary School has been reduced, due to the expected reaction of parents and staff members to the charges against him. (Testimony of Gary Simmons, Sandberg.)

   
   

5. To the extent that proposed findings of fact submitted by the parties have not been incorporated herein, they are rejected as being irrelevant to the decision reached, or unsupported by the evidence.

CONCLUSIONS OF LAW

The panel rejects the Respondent's Exceptions to the Recommended Order.

The panel concludes that the actions of the Respondent as found above constitute gross immorality under the terms of Section 231.28, F.S. The panel concludes that the actions of the Respondent also tend to some extent to reduce the Respondent's effectiveness as a school board employee under the terms of Section 231.28 F.S. However, because of the isolated nature of the incident and other evidence of good character some penalty less than permanent revocation would be appropriate.

Therefore, this teacher panel of the Education Practices Commission hereby ORDERS that the teaching certificate of the Respondent, John W. Page, Jr.,

is suspended for a period of eighteen months.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 31st day of January, 1981.

AARON BETHEL

Presiding Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed in the records of the Education Practices Commission and copies furnished to all parties this 2nd day of February, 1981.

Donald L. Griesheimer Clerk

ENDNOTE

1/ References to pages in the Transcript of hearing will be referred to as "Tr. ".

Docket for Case No: 80-000903

Orders for Case No: 80-000903