RALPH D. TURLINGTON, as )
vs. ) CASE NO. 82-235
Respondent. )
In a commendable effort to save time and expense, the parties stipulated that they would forego an evidentiary hearing and submit this case on an agreed record, vis., the record made in the cases of School Board of Dade County v.
Donald Wieber, number 81-1677, and School Board of Dade County v. Francis G. DeLaurier, number 81-1722. The parties are Presented by counsel:
For Petitioner: Craig R. Wilson, Esquire
For Respondent: Alan B. Oppenheimer, Esquire
By administrative complaint dated January 6, 1982, Petitioner alleged that Respondent Wieber "holds certificate number 192912 . . . valid through June 30, 1985;" that "during late September or early October, 1980, Donald Wieber, then Assistant Principal at Devon Aire Elementary School, knowingly participated in the showing of a film portraying nude bodies and explicit sexual activity at the office of the principal of Devon Aire Elementary School during school hours and while members of the staff were present;" and that he "was present at school with the odor of liquor on his breath" at unspecified time(s) during the 1979-80 and 1980-81 school years. Petitioner abandoned the allegations of count four of the administrative complaint. It was further alleged that these acts constituted failure to set a proper example for students and failure to practice the profession according to the highest ethical standards.
The issue presented is whether the Respondent committed any of the acts alleged in the administrative complaint and, if so, what sanction should be imposed under Section 231.28, Florida Statutes (1982).
At the final hearing, the following witnesses appeared on behalf of Petitioner: Sandra Block, Emma Mason, Rosalie Luis, Mary Ann Hanks, and
Katherine Buchan. Additionally, Petitioner's Exhibits 1 through 3 were received into evidence.
Respondent testified on his own behalf and called the following witnesses: Barbara Cotton, and Francis G. DeLaurier. Respondent's Exhibits 1, 2, 15 and 16 were offered and received into evidence. Other witnesses were called and exhibits presented, but these are the only ones relative to the charges against Respondent.
The parties have filed proposed statements of fact and replies to the proposed statements of fact, together with proposed recommended orders. These submissions have been very useful in preparation of the following findings of fact, and they were considered along with the full record as stipulated by the parties. Proposed findings have been adopted in substance, except where they have been deemed to be unsupported by the weight of the evidence, irrelevant, cumulative, or subordinate.
FINDINGS OF FACT I.
Donald Wieber holds certificate number 192912, Rank II, covering the areas of elementary education, junior college, administration, and supervision, which expires on June 30, 1985. Mr. Wieber, the Respondent, was employed by the Dade County School Board for thirteen years. He served as a teacher for seven years, a Community School Director for two years, an Administrative Assistant to the Principal for three years, and an Assistant Principal for one year.
II.
FILM AT DEVON AIRE
BLOCK AND MASON PRESENT IN OFFICE
In August 1980, Donald Wieber was appointed by the school board to serve as assistant principal at Devon Aire. When he began, Emma Mason was already serving as secretary and Sandra Block as librarian.
Sometime in late September or early October 1980, Francis G. DeLaurier, the principal, directed Librarian Block to videotape an educational television broadcast by Dr. Willamerle Marshall related to Individual Educational Plans (IEPs), so that it could be shown later to teachers who missed the broadcast. Shortly thereafter, Respondent, at DeLaurier's direction, asked Block if she had made a copy of the "Marshall" tape. Upon finding out that such a tape existed, Respondent then asked Block to set up a videotape machine in DeLaurier's office around noontime for showing the IEP tape. After the videotape machine had been delivered to DeLaurier's office, DeLaurier personally invited Block to see the film. Additionally, around this same time, DeLaurier invited Mason into his office to see the "Marshall" film.
WHOSE FILM WAS IT?
At approximately 11:00 a.m. on the morning that the film was shown, DeLaurier sent Respondent to investigate a problem with insects. Complaints had been received about children being stung by bees in the area of the portable
classroom buildings at Devon Aire. In looking for the bees, Respondent crawled under a portable classroom and found a paper bag. Inside the paper bag was a videotape cassette with no label. After completing the bee inspection, Respondent took the cassette in the bag to DeLaurier's office.
When Respondent entered with the bag, DeLaurier was talking on the telephone. He interrupted his call when Respondent showed him the videotape cassette. Respondent indicated where he had found the cassette and stated he did not know its contents. DeLaurier then directed Respondent, "Well, put it on the machine and [let's] see what's on it." DeLaurier then returned to his telephone conversation. As instructed, Respondent placed the tape on the videotape machine and turned it on.
SHOWING THE FILM
As Respondent was placing the unmarked videotape cassette into the machine, Block and Mason came into DeLaurier's office to fix their lunches and watch the "Marshall" tape. It is undisputed that the tape which Respondent found and which began to play while Mason and Block were watching the screen was a videotape displaying overt sexual activity between naked men and women. However, the tape admitted into evidence as Petitioner's Exhibit 1 is clearly not the videotape which was shown at Devon Aire, and any similarity between that exhibit and the film observed that day is only that--a similarity.
The videotape began to play, and Block watched for approximately forty- five seconds. She then said to Mason, who was making a sandwich, "Are you sticking around for this?" Mason answered, "Yes, why not?" However, Mason had not yet looked up and observed the contents of the tape. Block then left DeLaurier's office. Approximately three minutes later, Mason left DeLaurier's office, and the two women went to a nearby office to finish their lunch.
After Block and Mason left, DeLaurier completed his telephone call and, for the first time, observed the screen of the videotape machine. It was then that he learned that the unidentified cassette contained such sexually explicit material. DeLaurier and Respondent watched the sexually explicit tape for approximately an additional six to seven minutes. At some point during that lunch hour, Respondent and DeLaurier were joined briefly by Rosalie Luis, who viewed a few seconds of the film and left.
At no time were children present in DeLaurier's office while the videotape was being viewed. In fact, the screen was not in a position to be viewed by anyone who did not come into the office and walk to a position where they could view the screen. Additionally, later during that lunch hour, the "Marshall" tape was actually played.
After viewing the tape for a few minutes, DeLaurier ordered Respondent to take the cassette and "get rid of it fast." Respondent complied and disposed of the tape by running it through a garbage chute behind the cafeteria. He handled disposal of the cassette in this manner in order to ensure that no child could come into possession of the cassette.
KNOWLEDGE AND INTENT
At the time the videotape was turned on, Respondent did not have any knowledge of its contents. The videotape machine had been set up to play the "Marshall" tape and, in fact, was used for that purpose. There is no evidence to indicate that Respondent intended to or did lure or trick Block or Mason into
seeing a sexually explicit film. After Respondent became aware of the contents of the tape, he and DeLaurier did watch it for approximately seven minutes and another staff person, Ms. Luis, did inadvertently observe a few seconds of the film. To this extent, Respondent did participate in the showing of a film portraying nude bodies and explicit sexual activities at his office at Devon Aire Elementary School during school hours and while members of the school staff were present.
THE AFTERMATH
After the September incident involving the videotape, Block, Mason and Luis continued to work at Devon Aire Elementary School. Respondent continued to perform his duties, and there was no evidence that the film incident had adversely affected his job performance or his relationship with the school staff and teachers. In fact, between September 1980 and January 1981, the only two persons who were offended by the film (Mason and Block) did not report or complain about the incident to any school authority. Luis was not overly concerned about her exposure to the film, and she continued to work well with Respondent.
In January 1981, Mason reported the incident to Renee Kachman, a person generally known to be critical of DeLaurier and who had, in the past, expressed an interest in and intention to get DeLaurier removed from Devon Aire Elementary School. Soon thereafter, the school board launched an investigation. The entire episode became a matter of public interest after a series of articles were published in the Miami Herald.
Even after reading the article in the May 2, 1981, issue of the Miami Herald, most of the staff members and teachers at Devon Aire Elementary School signed a petition requesting that Respondent be reinstated as assistant principal. Ultimately, however, the school board instituted dismissal proceedings.
III.
LIQUOR ON HIS BREATH
There is no credible or competent evidence that Respondent was ever present at school during working hours with the odor of liquor on his breath.
IV.
RESPONDENT'S WORK PERFORMANCE AND OTHER MITIGATING FACTORS
Prior to the alleged misconduct, Respondent had an outstanding, and even exemplary, record as both a teacher and administrator. No negative comment or complaint was ever made against him. His evaluations from his superiors, both as a teacher and as an administrator, were excellent, often the highest rating obtainable. In one evaluation, he was recognized as a "dedicated professional who always goes the 'extra mile.'"
Respondent was described as a phenomenal teacher by a member of the school board's South Central Area Office staff who had previously worked with him at Key Biscayne Community School. This testimony indicated that Respondent had the ability to motivate children to accomplish far more than they thought
they were capable of, and that parents wanted their children to be assigned to Respondent's classroom.
Respondent has earned the respect and friendship of many parents, teachers, and staff members. They petitioned and testified on his behalf and asked that he be reinstated.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Petitioner seeks to revoke, suspend, or take other appropriate disciplinary action against the certificate of Donald Wieber for failure to provide a proper example for students and for failure to practice his profession according to its highest ethical standards.
It is also argued by Petitioner that Respondent is charged with gross immorality, moral turpitude, misconduct in office, and incompetency. Although these charges are not clearly articulated in the Administrative Complaint, Respondent was aware that these charges were included and presented evidence and argument in regard to these charges.
Section 231.28(1), Florida Statutes (1981), provides in pertinent part for the authority of the Education Practices Commission to suspend or revoke the teaching certificate of any person who "has been guilty of gross immorality or an act involving moral turpitude . . ."
The school board sought to dismiss Respondent under the authority of Section 231.36(6), Florida Statutes (1981):
(6) Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, may be suspended or dismissed at any time during the school year; provided that the charges against him must be based on immorality, misconduct in office. . . Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay, but if charges are not sustained, he shall be immediately reinstated and his back salary shall be paid . . . . (Emphasis supplied.)
Although the terms "immorality" and "misconduct in office" are not statutorily defined, they have been given meaning by administrative rule and judicial decision. Chapter 6B-4.09, Florida Administrative Code, provides in relevant part:
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.
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.
The term "gross" within the statutory term "gross immorality" is viewed as immorality involving acts which are serious rather than minor in nature and which involve a flagrant disregard of the standard of moral conduct embodied in this rule. See, Education Practices Commission v. Knox, DOAH Case No. 81-056 (Recommended Order, May 18, 1981; Final Order entered June 29, 1981). See also, Negrich v. Dade County Board of Public Instruction, 143 So.2d 489, 501 (Fla. 3rd DCA 1962).
"Moral turpitude" has been defined in State ex rel. Tullidge v. Hollingsworth, 146 So.2d 660, 661 (Fla. 1933):
Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or man to society. (Citations omitted.)
In incorporating this definition of moral turpitude, the court in Pearl v. Florida Board of Real Estate, 394 So.2d 189, 191 (Fla. 3rd DCA 1981), elaborated on its definition of "moral turpitude":
Moral turpitude is an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.
It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.
This concept of intent versus error in judgment has been carried to the present time from the definition of moral turpitude followed in Tullidge, supra. More recently, "moral turpitude" has been construed to include the element of the intent of the perpetrator to defraud or deceive another. See Weinstock v.
Immigration and Naturalization Service, 576 F.2d 234 (9th Cir. 1978). Additionally, in Florida Bar v. Davis, 361 So.2d 159 (Fla. 1978), the Supreme Court concluded that passing worthless bank checks by an attorney did not constitute an act so base and vile as to constitute moral turpitude, since no intent to defraud was shown.
The evidence adduced by Petitioner does not establish that the acts committed by Respondent came within the definitions of gross immorality or moral turpitude as set forth above. Specifically, there was insufficient evidence to establish that the Respondent had any previous knowledge of the tape showing
overt sexual activity, that he had any intent that the tape be observed by Mason, Block or Luis; or that his conduct was inconsistent with good morals, or constituted an act of baseness, vileness, or depravity. At worst, the action of Respondent could be construed as an error in judgment. There was, however, no showing of evil intent or depravity necessary to invoke the provisions of a penal statute. School Board of Pinellas County v. Noble, 384 So.2d 205 (Fla.
1st DCA 1980). The record in this case merely reflects that a sexually explicit videotape was unintentionally shown in the principal's office for a few minutes at a time and in a manner which posed no threat of potential exposure to any student.
Further, the evidence does not establish "misconduct" as defined by rule. Specifically, there was no showing of any violation so serious as to impair Respondent's effectiveness in the school system. To the contrary, the overwhelming evidence was that Respondent was an exemplary employee who would be welcomed back by the teachers, parents and staff members. Additionally, there was no showing that his effectiveness was reduced after the videotape was shown. In fact, his effectiveness and job performance remained high between the showing of the videotape and his removal from his duties at Devon Aire.
It is also concluded that no evidence was presented to establish incompetency or the failure to set a proper example for students. The evidence was that Respondent performed competently until his dismissal and that he set a good example for the students. If Respondent's effectiveness as a professional was jeopardized, it was only as a result of publicity surrounding these events.
In connection with these charges, because proceedings of this nature are penal and may result in the loss of a valuable professional license, such cases take on enhanced significance in terms of evidentiary requirements placed upon a Petitioner such as the Education Practices Commission under authority of decisions like Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). The proof must be commensurate with the potential penalty to be meted out. In the proposed order filed by counsel for the Education Practices Commission, it has been recommended that Respondent's certificate be permanently revoked. This is certainly an extremely serious statutory penalty. Therefore, the proof by the Petitioner must be "as serious-minded as the intended penalty is serious." See, Bowling, supra, at 172. See also, Smith v. Board of Leon County, 405 So.2d 183, 186 (Fla. 1st DCA 1981); Henderson Signs v. Department of Transportation, 397 So.2d 769, 773 (Fla. 1st DCA 1981). Although an isolated error in judgment has been established, it is concluded that the evidence did not establish that the acts proven would sustain this enhanced burden of proof.
Finally, it is concluded that permitting the videotape to run for approximately seven minutes under these circumstances was an error in judgment that fell below the highest ethical standards of the profession. In that regard, it is concluded that Respondent failed to practice his profession according to the highest ethical standards. However, it is further concluded that this violation was very minor in nature and resulted from an error in judgment and not from any intent, predisposition, or knowing misconduct.
It is also noteworthy, concerning the issue of penalty, that the Respondent has never been the subject of any previous disciplinary action in his long career in education. Indeed, he has maintained an exemplary record both as a teacher and as an administrator. Evidence was presented which supports a finding that the Respondent would be welcomed back at Devon Aire Elementary School by the faculty, staff, and parents. In light of these mitigating
circumstances, it is concluded that Respondent should be afforded a lesser penalty against his certificate.
Having considered the foregoing findings of fact, conclusions of law, and the evidence of record, as well as the pleadings and arguments of counsel, it is
That the Respondent's teaching certificate be reprimanded.
DONE and ENTERED this 11th day of May, 1984, in Tallahassee, Leon County, Florida.
DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1984.
Craig R. Wilson, Esquire
Alan B. Oppenheimer, Esquire
