STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, EDUCATION ) PRACTICES COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2600

)

OLLICE DAVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard by R. L. Caleen, Jr., hearing officer with the Division of Administrative Hearings, on March 7, 1984, in Belle Glade, Florida.

APPEARANCES

For Petitioner: Craig R. Wilson, Esquire

Suite 204, 315 Third Street West Palm Beach, Florida 33401

For Respondent: William Holland, Esquire

605 Clematis Street

West Palm Beach, Florida 33402 ISSUE

Whether respondent's teaching certificate should be revoked, or otherwise disciplined, on charges that he engaged in acts constituting gross immorality, and engaged in a course of conduct which seriously reduced his effectiveness as an employee of the school board.

BACKGROUND

By administrative complaint dated July 12, 1983, Ralph D. Turlington, as Commissioner of Education charged Ollice Davis ("respondent") with four counts of professional misconduct violative of Section 231.28, Florida Statutes, and Rule 6B-1.06, Florida Administrative Code.

After respondent disputed the allegations and requested a formal hearing, this case was forwarded to the Division of Administrative Hearings for assignment of a hearing officer.

Hearing was set for November 23, 1983, then, on respondent's unopposed motion, continued and reset for March 7, 1984.

At hearing, the Department of Education, Education Practices Commission ("the Department") presented the testimony of Edward J. Foley, Jr., four female students -- C. D., C. C., and C. S., and T. E. 1/ -- Theresa Ellison and Jack

Kenneth Schrimsher. The Department's Exhibit No. 1 was received in evidence. Respondent testified in his own behalf and presented the testimony of Edward J. Foley, Jr., Jack Redding, Ray Buck, Lavenia Mann, Ellie Biggs, Harry Davis, Barbara Altman, Bennie Murvin and Constance Daniels. Respondent's Exhibit No. 1 was received in evidence.

The transcript of hearing was filed on April 4, 1984. The parties filed proposed findings of fact by May 14, 1984. Their proposed findings, insofar as they are included herein, are adopted; otherwise, they are specifically rejected as unsupported by the evidence or as irrelevant or unnecessary to resolution of the issue presented.

Based on the evidence adduced at hearing, the following facts are determined:

FINDINGS OF FACT

1. The Respondent

   
   

   1. Respondent holds Teaching Certificate No. 75756, covering the areas of physical education, health education and drivers education. The Certificate expires June 30, 1987.

      
      

   2. At all times material hereto, the School Board of Palm Beach County employed respondent as an assistant principal at Lake Shore Middle School in Belle Glade, Florida. Respondent was first hired by the School Board in 1956, as a physical education instructor at East Lake Junior High School, in Belle Glade. During the ensuing years, he served as athletic director, football coach, basketball coach, baseball coach and drivers' education teacher at three Belle Glade schools (East Lake Junior High, Lake Shore High School and Glade Central High School) until his transfer in 1971 to Lake Shore Middle School as Dean of Boys. In 1978 he was promoted to Assistant Principal.

      
      

   3. In 1982, the School Board suspended respondent on charges of "misconduct and immorality arising out of improper sexual advances made by [him] toward female students at Lake Shore Middle School during the 1981-82 school years." After an evidentiary hearing on October 25-26, 1982, the School Board, by mixed vote, found him guilty of the charges, cancelled his continuing contract (tenure), and terminated his employment.

      
      

   4. The Department seeks to revoke or otherwise discipline respondent's Teaching Certificate on charges substantially the same as those brought (and sustained) by the School Board.

      
      

   5. Prior to the complained of conduct, respondent had an unblemished school employment record. By all accounts he was gregarious and outgoing, a competent, caring, and dedicated teacher and administrator. He was popular with students, respected by faculty, relied on by school administrators, and generally considered a "pillar of the community." He had been raised in Belle Glade. Unlike most county school teachers in Belle Glade, who taught there but lived elsewhere, he considered Belle Glade his home.

      
      

2. Improper Sexual Remarks or Sexual Advances Toward Female Students

   
   

   1. Count I: Advances toward T. E.

      1. T. E. was 14 years old and a student at Lake Shore Middle School, where respondent was Assistant Principal. On May 17, 1982, she entered his office and asked for a lunch ticket. He could not find an extra lunch ticket in this office so he told her to accompany him to the data processing office where lunch tickets were kept. She complied and they walked together to data processing.

         He unlocked the door, turned on the lights, and they went in.

         
         

      2. They both looked around the office, but could not find the lunch tickets. Respondent then told her to return with him to his office and he would give her a temporary lunch pass. As they reached the door of the data processing office, he turned off the lights, put his arm around her shoulder, and asked her for a kiss. She refused. He asked her again, and she again refused. During this exchange he reached down and touched her breast. She felt his touch and was afraid; he was not restraining her though, and she did not think he would try to hold her against her will.

         
         

      3. They then left data processing. He returned to his office and she began walking to her class. He came back out of his office and told her not to tell anyone about the incident. She agreed. A little later, he found a lunch ticket and gave it to her.

         
         

      4. Enroute to her class, she began to cry. A student friend asked her what was wrong. T. E. wrote her a note, explaining what had happened. The friend told a teacher, who--along with others--told her to tell her parents.

         
         

      5. When T. E. arrived home that afternoon, respondent was talking to her grandmother. She heard him say that T. E. had misunderstood something he had done, or said.

         
         

      6. At 8:15 a.m. the next morning, May 18, 1982, respondent reported to Principal Edward Foley's office for his routine duties. As they were conducting an inspection, respondent asked to see him when they returned to the office, stating he had a "serious problem" to discuss with him. He then told Principal Foley that he (respondent) was being "accused of feeling on a young female student," (Petitioner's Exhibit No. 1), and explained his version of the incident. He did not tell the principal that he had twice asked the student for a kiss, and had touched her breast. He said that he had put his arm around her shoulder as they left date processing.

         
         

      7. Later that day, a conference on the incident was held in the principal's office. The principal, an assistant principal, respondent, T. E.,

         T. E.'s mother and grandmother, and several teachers were present. Shortly after the conference convened, respondent asked for and was given permission to talk to T. E.'s mother and grandmother in a separate office. Once there, respondent told T. E.'s mother that he thought he had done something to upset T. E.; that he was sorry; and that he could understand how the mother felt because he would feel the same if T. E. was his child. He then asked T. E.'s mother to have her daughter say that she made a mistake and that it was simply a misunderstanding. The mother refused. During this short discussion, T. E.'s mother asked him if he had asked T. E. for a kiss: he said, "yes." When asked, "Did you touch her breast?", he replied, "I might have. But . . . I'm sorry, I didn't hurt your daughter." (TR-112) 2/

         
         

         1. Count II: Improper Sexual Remarks to C. D.

            
            

      8. C. D. was a 14 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year,

         respondent approached her (during school hours) when she was walking to the school cafeteria. He told her she "had big breasts and he wanted to feel one." (TR-33)

         
         

         1. Count III: Sexual Advances toward C. C.

            
            

      9. C. C. was a 15 year old female student at Lake Shore Middle School during the 1981-82 school year. On one occasion during that school year, as she was leaving the campus (though still on school grounds) at the end of the school day, respondent, who was walking with her, put his arms around her and asked her for a kiss.

         
         

         1. Count IV: Improper Sexual Remarks to C. S.

            
            

      10. C. S. was a 14 or 15 year old female student at Lake Shore Middle School during the 1981-82 school year, when respondent approached her as she was leaving the gym. He remarked, "You have some big breasts." (TR-57) She kept walking.

          
          

      11. Earlier that year, respondent asked her, "Do you wish things wasn't (sic) the way they are." This remark had, and was intended to have, sexual connotations. (TR-56)

          
          

      12. Later that school year, respondent, while on campus and during school hours, approached C. S. and asked her "to come in his office and give him a kiss." (TR-57) She left, without complying with his request.

          
          

          1. Conflicts Resolved Against Respondent

          
          

      13. Respondent denied having made these improper verbal remarks to, or physical sexual advances toward the four female students. The students' testimony, although containing minor discrepancies, is accepted as more credible than respondent's denial, and conflicts in the testimony are resolved against him. The students showed no hostility toward respondent and, unlike him, had not motive to falsify.

          
          

3. Reduced Effectiveness

1. The allegations against respondent, involving these four female students, received widespread notoriety in the area. As a result, his effectiveness as an employee of the School Board has been seriously reduced.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes (1983).

   
   

3. Section 231.28(1), Florida Statutes, in relevant part, authorizes the Education Practices Commission to suspend, revoke, or otherwise discipline a teacher's teaching certificate if it is shown that such person:

   
   

   (c) Has been guilty of gross immorality or an act involving moral turpitude; [or]

   * * *

   (f) Upon investigation, has been found guilty of personal conduct which seriously

   reduces his effectiveness as an employee of the school board.

   
   

4. In license revocation proceedings, such as this, the critical matters in dispute must be shown by evidence which is "indubitably as substantial as the consequences." Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).

   
   

5. In the instant case, the Department has sustained its evidentiary burden and established that, on four separate occasions, respondent violated Section 231.28(1)(c) and (f).

   
   

6. Teachers are held to rigorous moral standards because of their role in educating our children:

   
   

   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). Acts which may be morally permissible in some quarters may be considered immoral when committed by a teacher. See, e.g. Adams v. State Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981). A teacher breaches his moral obligations and betrays the special trust placed in him when, for his own gain, he exploits his professional relationship with a student. Such conduct is recognized as morally reprehensible. The many teachers who testified, including those who were called by respondent, recognized the impropriety of such conduct. Respondent, in seeking to conceal it, recognized it. And so did the students.

   3/ Respondent's actions violated the "rules of right conduct, . . . conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence." Zemour, Inc. v. State of Florida, Division of Beverages, 347 So.2d 1102 (Fla. 1st DCA 1977).

   
   

7. It has also been shown that respondent's misconduct seriously reduced his effectiveness as an employee of the school board, within the meaning of Section 231.28(1)(f).

   
   

8. The Department also charged respondent with violating Rule 6B-1.06, the Principles of Professional Conduct for the Education Profession in Florida. Those charges cannot be sustained because the rule was adopted on July 6, 1982, after the complained of conduct occurred, and cannot be retroactively applied.

   
   

9. Penalty. Respondent's misconduct occurred several times, and involved four female students. Except for these incidents, he has an unblemished record of more than 20 years with the Palm Beach County school system. Nevertheless, he abused his position and sought to take advantage of these students. His conduct embarrassed and offended them. He has demonstrated his unfitness to serve as a teacher in Florida. His effectiveness has been seriously reduced. Consequently, his teaching certificate should be revoked. But, in recognition of his many years of capable service, the revocation should not be declared permanent. He should be declared ineligible for reapplication for three years. See, Section 231.28(1), (4), Florida Statutes (1984).

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that respondent's teaching certificate be revoked, and that he be declared ineligible for reapplication for three years following revocation.

DONE AND ENTERED this 6th day of August 1984 in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of August 1984.

ENDNOTES

1/ These female students are fully identified in the record but, in this Recommended Order they will be referred to by their initials.

2/ Pages in the transcript of hearing will be referred to as "TR- ."

3/ As C. S. testified, the kind of vulgar sexual comments made by respondent were frequently made to her by men on the street, as she walks home from school. But she could not understand such language coming from her teacher, and it obviously offended her. (Tr-61-62)

COPIES FURNISHED:

Craig R. Wilson, Esquire Suite 204, 315 Third Street

West Palm Beach, Florida 33401

William Holland, Esquire 605 Clematis Street

West Palm Beach, Florida 33402

Ralph D. Turlington Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32301

Donald L. Griesheimer, Executive Director

Department of Education Education Practices Commission Knott Building

Tallahassee, Florida 32301

Docket for Case No: 83-002600

Orders for Case No: 83-002600