STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF EDUCATION , ) EDUCATION PRACTICES COMMISSION, )
and Ralph D. Turlington, as ) Commissioner of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 84-0196
)
BRENDA MCDONALD HOLMES, )
)
Respondent. )
)
RECOMMENDED ORDER
This cause came on for formal hearing before P. Michael Ruff, Hearing Officer, on June 15, 1981 in Pensacola, Florida. The appearances were as follows:
APPEARANCES
For Petitioner: J. David Holder, Esquire
Post Office Box 1694 Tallahassee, Florida 32302
For Respondent: Philip J. Padovano, Esquire
Post Office Box 873 Tallahassee, Florida 32302
This cause commenced by the filing of an Administrative Complaint by Ralph
Turlington, Commissioner of Education, against the Respondent, Brenda McDonald Holmes, on December 19, 1983. In the Administrative Complaint the Petitioner alleges that during the month of April, 1982, Respondent served as a chaperone for the Pensacola High School senior class trip to Busch Gardens, Florida. It is alleged that during the trip, Respondent engaged in improper and unproffessional conduct, in that she held hands with a male student and hugged him in the presence of teachers and students. It is further alleged that while on the trip, Respondent permitted this male student to spend the night in her hotel room in Tampa, Florida, engaging in intimate sexual activities with him.
The Respondent, through counsel, filed an answer to the Administrative Complaint admitting the contents of paragraphs one, two and three, and denying the material allegatioms in paragraphs four through seven.
The Petitioner presented the testimony of three witnesses as well as the deposition testimony of Dean Barbara Rose and offered two exhibits which were received into evidence.
The Respondent presented two character witnesses as well as testifying on her own behalf and offered one exhibit which was received into evidence.
At the conclusion of the proceeding the parties requested the opportunity to file proposed findings of fact and conclusions of law and requested a transcript of the proceedings which was filed with the undersigned. These proposed findings and conclusions were timely filed.
All proposed findings of fact, conclusions of law, and supporting arguments have been considered. To the extent that they are in accordance with the findings, conclusions and views stated herein, they are accepted. To the extent that the proposed findings, conclusions and arguments asserted are inconsistent herewith, they are rejected. Certain proposed findings and conclusions are omitted as not relevant nor as necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings herein, it is not credited. See, Sonny's Italian Restaurant v. Department of Business Regulation, L124 So.2d, 1156, 1157 (Fla. 3rd DCA 1982); Sierra Club v. Orlando Utilities Commission, L36 So.2d 383 (Fla. 5th DCA 1983).
The issue to be resolved in this proceeding concerns whether the conduct alleged in the factual portion of the Administrative Complaint was perpetrated by the Respondent, and if so, whether that conduct constitutes gross immorality or an act involving moral turpitude.
FINDINGS OF FACT
The Respondent holds Florida Teaching Certificate 431123 issued by the Florida Department of Education including the subject areas of business education, mathematics and vocational education. During the 1981-82 school year involved in this proceeding, the Respondent was employed as a teacher at Brownsville Middle School in the Escambia County School District. The Petitioner is an agency of the State of Florida charged with licensing and enforcing the licensure standards embodied in its organic statute and rules and with regulating and enforcing the standards of professional practice of teachers licensed in the State of Florida, including the institution of disciplinary proceedings against teachers for alleged violation of those standards.
During the month of April, 1982, the Respondent served as one of eight chaperones for the Pensacola High School senior class trip to various points of interest in the State of Florida, including Busch Gardens in Tampa. Transportation for the trip was provided by four busses with two chaperones assigned to each bus. While on the trip the group took a brief cruise off the east coast of Florida, visited the Kennedy Space Center on Saturday and returned to Tampa on Saturday afternoon. The group had dinner at the Kapok Tree Inn Restaurant on Saturday evening and then visited Busch Gardens on Sunday. The class then returned to Pensacola directly from Busch Gardens without staying overnight Sunday. They arrived back in Pensacola in the early hours of Monday morning. There were eight chaperones, three of whom were male.
Senior student Joe Blake was among the students on the senior class trip. The Respondent knew Joe Blake prior to the senior class trip because she served as a substitute teacher during the Spring of 1979 for a class at Pensacola High School in which Joe Blake was enrolled.
Deborah Greene is a learning disabilities teacher at Pensacola High School. She also served as a chaperone for the senior class trip and shared a hotel room with the Respondent. Prior to accompanying the seniors on their trip in April, 1982, Ms. Greene had never met the Respondent. Joe Blake rode the same bus that Ms. Greene and Ms. Holmes rode on the trip, and on which they served as chaperones.
On the Saturday afternoon bus trip from the Kennedy Space Center to Tampa, Florida, the Respondent hugged Joe Blake by placing her arm around him while they were both standing in the aisle of the bus. This action was done in a joking, lighthearted manner at a time when both Blake and Respondent were surrounded by other students. The Respondent also sat with Joe Blake near the rear of the bus on the ride from Kennedy Space Center to Tampa. They were observed with two of their arms intertwined and listening to a large radio which they were holding across their laps. Petitioner's Exhibit 2B in evidence, shows that the Respondent took a nap for part of the bus trip across the state, and was photographed with her head resting on Joe Blake's shoulder.
Upon arriving in Tampa on Saturday afternoon, the class and the chaperones had supper at the Kapok Tree Inn and thereafter returned to their hotel rooms. Both Ms. Greene and the Respondent spent a considerable amount of time that evening checking the student's rooms and monitoring the halls and ensuring that the students engaged in no misconduct, were not absent from their rooms and unaccounted for. Ms. Greene finally went to bed at approximately 2:30
a.m. Sunday morning and the Respondent went to bed sometime thereafter. On this evening Ms. Greene and the Respondent were sharing a hotel room. Respondent was not in the room when Ms. Greene went to bed.
Ms. Greene testified that she awoke sometime later to sounds of kissing, moaning and other indistinct noises and she heard the Respondent say "Joe, quit, be quiet, be quiet." According to Ms. Greene, the Respondent was lying in a recumbent position on the bed with the student named Joe Blake. Ms. Greene believed that she was awake for about an hour and that she heard noises of what she assumed to be sexual intercourse during that time, describing the Respondent's tone of voice as "passionate."
Ms. Greene awoke about 6:00 that morning and observed the Respondent leaving the room clad in her bathrobe. Joe Blake was asleep in the adjoining bed, unclothed from the waist up and covered otherwise. Ms. Greene went into the bathroom to get dressed and then stepped out into the hall, leaving the hotel room door partially open. Shortly thereafter Joe Blake got up and went to his room next door.
At approximately that time, the Respondent explained to Ms. Greene that Joe Blake had come to her room, knocked on the door and she let him in to watch television, and that he had fallen asleep on her bed. The Respondent told Ms. Greene that she didn't know what to do about that so she just left him there explaining that she slept in a chair. The hotel room was in a darkened condition at the time Ms. Greene perceived the Respondent and Joe Blake in the room. Ms. Greene did not report the incident to anyone until the Spring of 1983, approximately one year later and on the occasion of a proposal to include the Respondent as a chaperone for the 1983 senior trip. Thus, at that time she discussed the matter with another teacher named Peggy Hess and ultimately
reported the matter to Principal J. P. Cone, who obtained a written statement from Ms. Greene. Ms. Greene testified that she "really didn't know what to do about the situation." In any event, Ms. Greene was eventually questioned about the incident in September of 1983 by Pensacola High School Principal J. P. Cone. At that time she verbally related her observances to Mr. Cone and later provided him with a written Statement concerning the episode.
After arising on Sunday morning, the senior class and their chaperones, including the Respondent and Dean Barbara Rose, another chaperone, visited Busch Gardens in Tampa. While Dean Rose observed the Respondent walking hand-in-hand with Joe Blake on one occasion while the class was visiting Busch Gardens, she did not consider that unusual under the circumstances.
J. P. Cone, the Principal of Pensacola High School, received a report, concerning the incident involving the Respondent being observed holding hands with Blake at Busch Gardens, from Barbara Rose on September 13, 1983. Mr. Cone obtained a written statement from Debbie Greene concerning the incident in the hotel room on September 1, 1983. That written statement and the verbal statement made by Ms. Greene to Mr. Cone contained no reference to the fact that Ms. Greene allegedly heard sounds of sexual intercourse. An investigation was conducted by Mr. Cone and the Respondent ultimately was issued a reprimand. Mr. Cone also received a written report prepared by Margaret Hess, another chaperone on the trip which was introduced into evidence by Respondent. In that written statement, Ms. Hess acknowledged that she knew of the report made by Debbie Greene, but stated that she had observed nothing that would have indicated such an event had taken place based upon her observance of the Respondent and Joe Blake's conduct on the trip. Ms. Hess explained that she had seen the Respondent with Joe Blake and other students at Busch Gardens and observed them holding hands on one occasion but had not considered that in itself unusual.
The Respondent is a 35-year old woman with two teen age sons. She took the stand in her own defense and stated that she had no contact of a romantic nature with Joe Blake, explaining that she considered such conduct ridiculous since she was approximately 17 years his senior. Ms. Holmes described Joe Blake as banging on the door of her hotel room and creating a disturbance on the night in question. When she opened it he appeared to be intoxicated. She maintains that although he made an advance and attempted to kiss her or hug her, including pulling her down beside him on the bed, that this was at his behest and not hers and that she resisted and discouraged his conduct immediately. Thereafter Blake fell asleep for the remainder of the night, and she stated that she spent the remainder of the night sleeping in a chair. She told the other chaperones the next morning that Blake was asleep in her room so that they would not be concerned about his whereabouts.
Charles Franklin Beall is a minister at Trinity Presbyterian Church in Pensacola, Florida. The Respondent has been his parishioner for approximately twelve and one-half years and she has a good reputation in the community for truthfulness. Lucy Mitchell, an Occupation Placement Specialist at Pensacola High School has known the Respondent for approximately seven years and considers her to be "highly respected." Aside from the disciplinary measure of a reprimand imposed by Principal Cone, concerning this incident, the Respondent was not shown to have ever been subjected to disciplinary action in the past.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to these proceedings. Section 120.57(1), Florida Statutes. Section 231.28(1)(c), Florida Statutes provides that an individual's teaching certificate may be suspended, revoked or otherwise disciplined if it can be shown that he or she has been guilty of gross immorality or an act involving moral turpitude.
The terms "gross immorality" and "act involving moral turpitude" are not defined in Chapter 231, Florida Statutes. The term "gross immorality" has been referred to in case law to consist of acts which are serious rather than minor in nature and which involve a flagrant disregard for socially accepted standards of moral conduct, that is, conduct which is inconsistent with standards of public conscience and good morals and sufficiently notorious to bring the individual concerned into public disgrace or disrespect. See Rule 6B-
.09(2), Florida Administrative Code. See also, Education Practices Commission
v. David Michael Knox, D.O.A.H. Case Number 81-056 (May, 1981, Final Order entered June 29, 1981) and Negrich v. Dade County Board of Public Instruction, 13 So.2d L98 (Fla. 3rd DCA 1982).
The case of State ex rel Tullidge v. Hollingsworth, 18 So.660 (Fla. 1933) defines "moral turpitude" as follows:
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). 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 uninten tionally committed through error of judgment when wrong was not contem plated. Id at 661.
The Hearing Officer has not been convinced that Joe Blake and the Respondent engaged in an act of sexual intercourse on the occasion with which the allegations in the Administrative Complaint are concerned. That being the case, it is concluded that no act of moral turpitude nor guilt of "gross immorality" has been established. For one thing, the Petitioner's case in this regard, rests upon the testimony of Ms. Deborah Greene. While Ms. Greene was shown to have no motive for lying, inasmuch as she had only recently become acquainted with the Respondent prior to the trip at issue, the problem in accepting Ms. Greene's testimony lies in the conditions under which she believes she perceived sexual intercourse occurring between the Respondent and Blake.
Ms. Greene had been sound asleep until she heard the noises in the hotel room she shared with the Respondent, which she described as sounds which in effect convinced her that intimate relations were occurring between the Respondent and Blake. Since she was asleep when Blake entered the room and only awoke when she heard the sounds from the adjoining bed, or at least from that side of the room, her testimony cannot contradict the testimony of the Respondent to the effect that Blake had pounded on the door, created a disturbance and appeared to be drunk nor can it rebut the Respondent's testimony that Blake, in an intoxicated state had initiated the personal advance (hugging and kissing), that the Respondent had resisted it and when she resisted, Blake acceded to her wishes.
Furthermore, uncontradicted testimony establishes that the room was in a darkened condition, the lights were out with the bathroom light being on but the bathroom door being practically closed. Moreover, Ms. Greene was unable to testify that the Respondent and Blake were not dressed at the time she claimed to have heard the suspicious sounds from the adjoining bed. Additionally, it must be borne in mind that Ms. Greene waited for more than a year to report her perceptions regarding what she believed she overheard in a darkened room, late at night between unspecified time periods of sleep, all of which render her testimony tinged with some uncertainty as to what she actually perceived or thought she perceived on the night in question. The Respondent's version of events in the hotel room is equally and possibly more reasonable than that of Ms. Greene. Especially given the great disparity in ages between Blake and the Respondent and the fact that Blake had been drinking on the night in question.
Accordingly, the testimony of Ms. Greene cannot be said to be as substantial as the consequences to be meted out against the Respondent should that testimony be accepted as proof of the allegations of the Administrative Complaint. Bowling
v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).
It is well settled that a disciplinary proceeding to suspend or dismiss a public school teacher (or other licensee) is a proceeding "penal in nature." School Board of Pinellas County v. Noble, 35L So.2d 205 (Fla. 1st DCA 1980). In such proceedings the standard of proof is elevated above that which is necessary in other types of administrative cases. Bowling, supra.
It is important to note that this case is predicated on a statute limiting the grounds for disciplinary action. To revoke the Respondent's certificate in this proceeding under Section 231.28, Florida Statutes, a finding is necessary that the Respondent committed an act of "gross immorality or an act of moral turpitude." Additionally, the Petitioner has alleged and must establish that the Respondent was guilty of a violation of Rule 6B-1.06(3)(h), Florida Administrative Code, also cited in the Administrative Complaint. That rule requires proof that the Respondent "exploited a professional relationship with the student for personal gain or advantage." There is clearly no evidence of record to support a finding that the Respondent entered into any relationship or dealings with Joe Blake for any sort of personal gain or advantage and thus, no violation of the subject rule has been established.
With regard to the allegations related to Section 231.28, although undoubtedly some form of physical contact between the Respondent and the subject student occurred during the course of the senior trip, such as an impromptu hug, hand- holding and hugging and/or kissing in the hotel room, which last acts occurred at Joe Blake's volition only, and even if indeed some infatuation between the two was developing over the course of the several days involved, it was not established that these acts occurred in the context of a romantic or sexual involvement. Here, as in the case of Braddock v. School Board of Nassau County, So.2d , 9 F.L.W. 1355 (Fla. 1st DCA 1984), the credible evidence demonstrates no more than the fact that the Respondent was present with the student involved, late at night, under circumstances creating the opportunity for misconduct, but there was no showing that misconduct of the type charged in the above-mentioned statute occurred. While without doubt the conduct of the Respondent in this case in allowing a student into her room under these conditions, constitutes extremely poor judgment, as the court noted in Braddock at 9 F.L.W. 1355, it does not necessarily constitute gross immorality or an act of moral turpitude.
The testimony of Deborah Greene would serve, if accepted entirely, to distinguish this case from the Braddock case. That is, if her testimony concerning her belief that she heard sounds of sexual intercourse occurring were accepted as establishing the fact that sexual relations occurred, then that is sufficient evidence to establish an act of moral turpitude or gross immorality given the higher standard of trust to which teachers are held. See Tomerlin v. Dade County School Board, 315 So.2d 159 (Fla. 1st DCA 1975). Ms. Greene's testimony is too problematic however, to form the basis for a finding of guilt against the Respondent and the revocation of her teaching certificate for the reasons delineated above. The certainty of Ms. Greene's conviction that she heard sexual intercourse occurring also must be questioned since she waited approximately a year to report the incident and only did so then because the opportunity arose for another senior class trip upon which Respondent was proposed to be a chaperone. It certainly Suggests that Ms. Greene may not have been entirely certain of what she had perceived and observed on the night in question. It is also of some concern, regarding the reliability and accuracy of Ms. Greene's testimony, that the statement that she made at the final hearing in this matter, to wit that she heard the sounds of. sexual intercourse occurring, was the first time she had made such a statement. When she originally reported the incident to her principal, a substantial period of time after it allegedly occurred, she never mentioned hearing sounds of sexual intercourse nor did she in her deposition testimony. She admitted that the first time she had ever raised that possibility was during her testimony at final hearing, nearly two years after the supposed events occurred.
The improbability of Ms. Greene's conclusion based on what she thought she perceived that night and reported much later is highlighted by the fact that no other party on the trip observed any truly questionable conduct between Ms. Holmes and and Joe Blake. Dean Rose and Ms. Margaret Hess observed the two holding hands briefly at Busch Gardens but Ms. Hess did not consider such conduct "in itself unusual." Dean Rose did not see the Respondent do anything "unusual" on the trip. Thus, the observances of other people on the trip regarding the relationship between the Respondent and Joe Blake could just as easily be ascribed to goodnatured, innocent horseplay, plain poor judgment on the Respondent's part, or even the beginnings of some type of infatuation. None of these reasons can constitute gross immorality or an act of moral turpitude unless the Respondent went so far as to actually engage in illicit sexual relations or otherwise exhibit a willingness to, which has not been proven.
In summary, it is clear that the totality of the evidence and circumstances of this case does not suggest an improper, romantic or sexual teacher-Student relationship. What obviously occurred however, was a case of extreme poor judgment on the part of the Respondent, which renders quite just (in the Hearing Officer's opinion) the reprimand already meted out by the School Board. This prosecution and the time and expense occasioned all concerned by this prosecution is exactly the sort of eventuality that the Respondent should have expected by engaging in such irresponsible conduct as to allow a student in her room at night in the early hours of the morning and to be observed holding hands or otherwise having bodily contact with a student, even if it was entirely in a spirit of innocence. The Petitioner, however, has failed to clearly and convincingly demonstrate to the Hearing Officer that an act of immorality or moral turpitude, much less "gross immorality" occurred. Thus, the Respondent should not be divested of the valuable property right embodied in her teaching certificate based upon the facts of this case.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore
RECOMMENDED that the Administrative Complaint should be DISMISSED.
DONE and ENTERED this 20th day of December, 1984 in Tallahassee, Florida.
P. MICHAEL RUFF 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 20th day of December, 1984.
COPIES FURNISHED:
J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302
Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302
Donald Griesheimer, Executive Director
Education Practices Commission The Knott Building Tallahassee, Florida 32301
Honorable Ralph Turlington Commissioner of Education The Capitol
Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
EDUCATION PRACTICES COMMISSION STATE OF FLORIDA
RALPH D. TURLINGTON, as
Commissioner of Education, Petitioner,
vs. 84-0196
BRENDA McDONALD HOLMES,
Respondent.
/
FINAL ORDER
Respondent, BRENDA McDONALD HOLMES, holds Florida Teaching Certificate number 431123. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the certificate.
Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the panel pursuant to Section 120.57(1), F.S.; it is attached to and made a part of this Order.
A panel of the Education Practices Commission met on February 28, 1985, in Tallahassee, Florida, to take final agency action. The Petitioner was represented by J. David Holder, Esquire. The Respondent was represented by Phil Padovano, Esquire. The panel has reviewed the entire record in the case.
The panel adopts the Findings of Fact and Conclusions of Law of the Recommended Order with the exception of the Conclusion of Law regarding Rule 1.06(3)(h), F.A.C., which is rejected. The panel hereby concludes that Respondent violated Rule 6B-1.06(3)(h), F.A.C. and Section 231.28, F.S., for which the Commission may impose discipline pursuant to Section 231.262(6), F.S.
The panel rejects the Recommendation of the Recommended Order based upon its legal conclusions and the Findings in the record that: Respondent allowed the male student to remain in Respondent's hotel room overnight while student was intoxicated and also allowed the student to bathe in her (Respondent's) room. Also the panel finds that the physical contacts occurring between Respondent and the male student, including hugging, kissing, handholding, as contained within the record, support its conclusions and penalty.
Therefore, it is hereby ORDERED that Respondent be reprimanded and that upon Respondent's re-entry into the teaching profession that she be placed on probation for a period of three (3) years during which time she shall not act as a chaperone in school activities. During the probation period, Respondent's supervisor shall forward semester reports to the Commission regarding Respondent. Respondent is responsible for notifying the Commission when she returns to teaching.
This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within 30 days of the date of filing.
DONE AND ORDERED this 18th day of April, 1985.
RICHARD RICH, Presiding Officer
I hereby certify that a copy of the foregoing Final Order in the matter of RDT v. Brenda McDonald Holmes, has been furnished to Phil Padovano, Esquire, by U.S. Mail, this 24th day of April, 1985.
COPIES FURNISHED TO:
Marlene Greenfield, Administrator Professional Practices Services
Susan Tully, Esquire Attorney General's Office
Judith Brechner, General Counsel
J. David Holder, Esquire
Phil Padovano, Esquire 1020 East Lafayette Street Tallahassee, Florida 32302
P. Michael Ruff, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
Mr. Charles Stokes, Supt. Escambiap County Schools Post Office Box 1470 Pensacola, Florida 32597
| Issue Date | Proceedings |
|---|---|
| May 01, 1985 | Final Order filed. |
| Dec. 20, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 18, 1985 | Agency Final Order | |
| Dec. 20, 1984 | Recommended Order | Dismiss complaint allegeing grossly immoral conduct on the part of Respondent including crime of moral turpitude. |
VENUS TARA RODRIGUEZ vs. DADE COUNTY SCHOOL BOARD, 84-000196 (1984)
DR. ERIC J. SMITH, AS COMMISSIONER OF EDUCATION vs DOREEN MAYNARD, 84-000196 (1984)
TOM GALLAGHER, AS COMMISSIONER OF EDUCATION vs MOSES MWAURA, 84-000196 (1984)
PAM STEWART, AS COMMISSIONER OF EDUCATION vs AMANDA MATHIEU, 84-000196 (1984)
BROWARD COUNTY SCHOOL BOARD vs DOREEN MAYNARD, 84-000196 (1984)
