STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF PINELLAS COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 84-3687
)
TIMOTHY GRAY, )
)
Respondent. )
) DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 85-0625
)
TIMOTHY GRAY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a consolidated public hearing was held in the above- styled cases on April 18, 1985, at Clearwater, Florida.
APPEARANCES
For Petitioner: Usher L. Brown, Esquire
Post Office Box 6374 Clearwater, Florida 33518
For Respondent: Lawrence D. Black, Esquire
152 Eighth Avenue, Southwest Largo, Florida 33540
Upon recommendation of the Superintendent, the Pinellas County School Board, Petitioner in Case 84-3687, suspended Timothy M. Gray, Respondent, without pay from his duties as a teacher at Safety Harbor Middle School and seeks to dismiss him as an employee of the School Board. As grounds therefor it is alleged that during the 1984 school year Gray made unprofessional, sexually oriented remarks to boys and girls at Safety Harbor Middle School and such actions constitute immorality and misconduct in office.
By Administrative Complaint dated January 24, 1985, the Department of Education, Education Practices Commission, Petitioner in Case 85-0625, seeks to revoke, suspend or otherwise discipline the state teaching certificate of Timothy M. Gray as a result of the same allegations upon which the Pinellas County School Board suspended Gray.
Because both cases involve the same factual allegations of misconduct, the cases were consolidated for hearing; however, two separate recommended orders are submitted. This Recommended Order involves Case 84-3687.
At the hearing Petitioner called seven witnesses, the deposition of another witness was admitted as Exhibit 1, and Respondent called four witnesses, including himself.
Proposed findings submitted by the parties have been considered. To the extent those findings are incorporated herein they are adopted; otherwise, they are rejected as not supported by the evidence, immaterial, cumulative, mere recitation of the testimony of witnesses, or unnecessary to the conclusions reached.
FINDINGS OF FACT
Timothy M. Gray applied for an instructional position with the Pinellas County School Board in May 1984 and accepted an annual contract to teach at Safety Harbor Middle School for the school year starting in the fall of 1984.
He taught a course to eighth grade classes called Power and Transportation, which is predominantly a shop course. Gray was certificated to teach industrial arts in 1980.
The charges involved in these two cases stem from inappropriate remarks Gray allegedly made to various students in his class or in the school. Gray denies making the improper remarks attributed to him. Specifically, Respondent is alleged to have made inappropriate remarks of a sexual nature to Paul Bartolo and Mark Fulghum while driving them home from a school detention period that caused them to miss their bus. Respondent admits that he gave these 14- and 15- year-old boys a ride home after their detention. He lived in the same direction as the two boys and giving them a ride home was not out of his way. Both of these boys were discipline problems. During the school year Paul served about
15 detentions and was suspended twice. Both were in Respondent's Power and Transportation class and both had been placed on detention by Respondent.
During the ride home Paul was in the front seat of Respondent's car and Mark was in the rear seat. Both boys testified that during the ride home an extensive conversation ensued and that Respondent, after answering a question regarding his marital status in the negative, continued with he liked snatch. Respondent admits the conversation and his attempts to reach these boys to improve their attitudes toward school but denies ever using the word "snatch." During discussions with girls on the school bus and at school regarding Respondent and his comments, Paul and Mark told the girls that Respondent said he liked snatch.
At this time a lot of rumors were being circulated among the eighth graders in Respondent's classes about the way he looked at them and comments he had made they deemed inappropriate. The prime mover of this group was Dana Shaver, who testified only by deposition in these proceedings. Dana urged Paul and Mark to report Respondent's remarks to the principal.
In a deposition (Exhibit 1) Dana testified that Gray had seen her at the beach over the weekend and told her in class Monday that he had seen her at the beach in her bikini and that she did not have much of a tan for a beach girl. This embarrassed Dana and she hung her head and did not hear Respondent say she would look better without it (bikini) on. This was later reported to Dana by an anonymous girlfriend. Respondent admits he saw Dana and another girl at the beach but denies saying anything more to her than she did not have as good a tan as he did. Dana's parents requested she be moved from Respondent's
class in Power and Transportation (which she did not like) because of her being "embarrassed" by Respondent. Evidently, no embarrassment was involved discussing use of the word "snatch" with boys in her class.
Kera Lampman is a bright 13-year-old who was in Respondent's Power and Transportation class. She testified that Respondent told her she had a nice butt and that she could get straight A's in his class. Respondent denies ever using the word "butt" to Kera but does not deny the remarks about her grades as Kera is a straight-A student. Respondent also testified that he was trying to get Kera moved to a more challenging class when he was suspended.
Alissa Lanier, a 14-year-old student at Safety Harbor Middle School, testified that while walking from the bus drop to the entrance door immediately before classes started in the morning she heard someone say, "You've got a nice ass." When she turned around she saw Respondent some 20 feet away. She had never talked to Respondent, was not in his class, and testified Respondent was the only person on the ramp besides her. Respondent not only denies making such a remark but also testified that he frequently has bus ramp duty before school starts and he has never been in the area between the bus stop and school entrance doors shortly before school was due to start when the area was not crowded with students. The testimony that this area would be crowded immediately prior to school starting is deemed more credible. Respondent's denial that he made any comment to any girl he did not even know is more credible than is the testimony that this remark was heard from someone 20 feet distant in the bus ramp area immediately prior to school starting.
Shelly Evans, a 14-year-old girl in Respondent's class heard Respondent say he had seen Kera and Dana at the beach and they looked great in their bikinis. During the period when others were reporting Respondent's actions she too reported this comment to the principal.
One witness testified that Respondent looked at her in a strange way in class; that it appeared to her that he was staring. Such discussion and remarks including comments about bodies were being circulated among students at Safety Harbor Middle School and was brought to the attention of the principal who interrogated some of the students. The principal was told substantially what was testified to at these proceedings. During the investigation which followed Respondent denied using the words "snatch," "butt," or "ass," while talking to any of the students.
Respondent, before coming to Safety Harbor Middle School, had worked in a Y conservation program involving young men. This age group was doubtless older than the 13-15 year olds in the eighth grade class Respondent taught at Safety Harbor Middle School and were less impressionable than eighth grade students.
Hearing from one of her teachers that rumors were going around the school regarding Gray's language in the presence of students, Mrs. Raymond, Principal of Safety Harbor Middle School obtained the name of one or more students reported to be aware of such language and called them into her office. After obtaining statements from these students, who appeared as witnesses in these proceedings, Mrs. Raymond confronted Gray, who denied making inappropriate comments. Nevertheless, she recommended his immediate suspension with pay pending the next meeting of the School Board, who was authorized to suspend Gray without pay. Upon her recommendation, Gray was immediately suspended.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 231.36,(1)(a), Florida Statutes, provides:
Each person employed as a member of the instructional staff in any district school system shall be properly certificated and shall be entitled to and shall receive a written contract as specified in Chapter 230. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty,
or conviction of a crime involving moral turpitude.
Respondent is here charged with misconduct in office and immorality. Rule 6B-4.09, Florida Administrative Code, provides in pertinent 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 as adopted in Rule 6B-1.01, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule
6B-1.06, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.
Rule 6B-1.01, Florida Administrative Code, contains those philosophical concepts to which a teacher should conform but establishes no specific criteria applicable to the facts here presented. To comply with those concepts, the educator "strives to achieve and sustain the highest degree of ethical conduct."
Rule 6B-1.06, Florida Administrative Code, establishes specific principles the violation of which shall subject the individual holding a teaching certificate to those penalties provided by law. Those principles are contained in 6B-1.06(3)(a) through (i)[obligation to the student]; and 6B- 1.06(4)(a) through (e)[obligation to the public]; and in 6B-1.06(5)(a) through (o)[obligation to the profession]. Those obligations to the student that may be relevant here provide the certificate holder:
(a) Shall make reasonable effort to protect the student from conditions harmful to learning or health or safety.
* * *
(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
In administrative proceedings the burden is on the petitioner to prove the charges alleged. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). The quality of evidence required to sustain this burden has been variously described before and after the present Administrative Procedure Act was passed. Many of these cases involved license revocations which have been described by the courts as penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 1st DCA 1966). The standard of proof in those cases have vacillated between clear and convincing evidence to little more than a preponderance of the evidence. Where only the employment of the individual is at stake, the burden of proof is satisfied with a preponderance of the evidence. South Florida Water Management District v. Caluwe, 459 So.2d 930 (Fla. 4th DCA 1984); Department of Health and Rehabilitative Services v. The Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974). That a lesser degree of proof may authorize the dismissal of a tenured teacher from his or her position than would permit the revocation of a teaching certificate is a little difficult to comprehend--except as a matter of degree.
The United States Supreme Court has approached the burden of proof standards as a constitutional due process issue.
18. Addington v. Texas, 441 U.S. 426, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)
involved the standard of proof required to commit an individual involuntarily for an indefinite period to a state mental hospital. The court stated at p. 1808:
The function of standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact finding, is to 'instruct the factfinder concerning
the degree of confidence our society thinks it should have in the correctness of factual conclusions for a particular type of adjudication.' In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1076, 25 L.Ed.2d 368
(1970)(J. Harlan concurring). The standards serve to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.
Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since society has a minimum concern with the outcome of such private suits,
plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.
In a criminal case, on the other hand, the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an
accused beyond a reasonable doubt. In re Winship, supra.
The intermediate standard, which usually employs some combination of the words 'clear,' 'cogent,' 'unequivocal,' and 'convincing,' is less commonly used but nonetheless is 'no stranger to the civil law.' Woodby v. INS., 385 U.S. 276, 285,
87 S.Ct. 483, 488, 17 L.Ed. 362 (1966). See
also McCormick, Evidence, Subsection 320 (1954); 9 J. Wigmore, Evidence, Subsection 2498 (3rd Ed. 1940). One typical use of the standard is in civil cases involving allega- tions of fraud or some other quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having reputation tarnished erroneously by increasing the
plaintiff's burden of proof. Similarly, this Court has used the 'clear, unequivocal and convincing' standard of proof to protect particularly important individual interests in various civil cases. See, e.g. Woodby v. INS. supra, at 285, 87 S.Ct. at 487 (deportation); Chaunt v. United States, 364 U.S. 350, 353, 81 S.Ct. 147, 149, 5 L.Ed. 2d
120 (1960) (denaturalization); Schneiderman v. United States, 320 U.S. 118, 125, 159, 63 S.Ct. 1333, 1336, 1357, 87 L.Ed. 1796 (1943) (denaturalization).
19. After noting the function of the legal process is to minimize the risk of erroneous decisions; that commitment for any purpose constitutes a significant deprivation that requires due process protection; that the state has a legitimate interest in providing care to its citizens unable because of emotional disorders to care for themselves; and that the state also has the authority under its police powers to protect the community from dangerous
tendencies of the mentally ill, the court in Addington v. Texas, supra, concluded the middle ground between preponderance of the evidence and beyond a reasonable doubt, viz., "clear and convincing" evidence was required to meet the due process guarantee. Similarly, in Williams v. Williams, 424 So.2d 159 (Fla. 1st DCA 1983) the court held the standard of proof in proceedings for noncriminal involuntary confinement is clear and convincing evidence.
20. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599
(1982) involved severing the rights of parents to their children upon a finding of permanent neglect. While holding that, before the state may sever completely and irrevocably rights of parents in their natural child, due process requires that the state support its allegation by at least clear and convincing evidence, the court stated at p. 1397:
The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be 'condemned to suffer grievous loss.' Goldberg v. Kelly,
397 U.S. 254, 262-263, quoting Joint
Anti-Facist Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817
(1951) (Frankfurter, J. concurring). Whether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the fact-finder turns on both the nature of the private interest threatened and the permanency of the threatened loss.
Although Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981) involved a license revocation proceeding, the court in Bowling recognized that all disciplinary actions are not equal when it stated at p. 171:
Although the APA does not in terms descend to such particulars, we have recognized the Act's implication that evidence "appropriate in form" may differ from one proceeding
to another depending on the "nature of the issues involved". Balino v. Dept. of Health & Rehab. Serv., 362 So.2d 21, 24 (Fla. 1st
DCA 1978), cert.den. 370 So.2d 458 (Fla. 1979). Now we recognize also that in both form and persuasiveness evidence may "substantially support some types of agency action, yet be wanting as a record foundation for critical findings in license revocation. Cf., Anheuser-Busch, Inc. v. Dept. of Business Reg. 393 So.2d 1177 (Fla. 1st DCA 1981)(monetary fine). So holding, we need not attempt to resurrect the pre-APA "clear and convincing proof" standard for license revocation proceedings. See, Reid v. Florida Real Estate Comm'n., 188 So.2d 846, 851 (Fla. 2d DCA 1966). Rather, we glean a requirement for more substantial evidence from the very nature of license discipline proceedings: when the conduct to be assessed is past,
beyond the actor's power to conform it to agency standards announced prospectively; and when the proceeding may result in the loss of a valuable business or professional license, the critical matter in issue must be shown by evidence which is indubitably as "substantial" as the consequences. As we said in McDonald quoting Mr. Justice Frankfurter in Universal Camera,
The substantiality of evidence must take into account whatever in the
record detracts from its weight. (Footnotes omitted.)
Before applying the evidence submitted to this standard, it is appropriate that Rule 6B-4.08, Florida Administrative Code, entitled Criteria for Dismissal Procedures be considered. That rule provides in part:
When an action or other matter appears to exist which may possibly result in the future dismissal of any employee, the immediate supervisor of the individual should take appropriate action to advise the employee of the matter and the potential consequence if not corrected.
Every possible helpful effort should be made by the immediate supervisor to aid the employees to correct the matter which could cause his or her dismissal if not corrected.
Except in extremely serious circumstances, the employee should be given sufficient time, following notification for improvement.
Any charges or undesirable traits or practices should be bona fide, verifiable, and clearly stated to the employee in writing. Any employee thus charged should have a fair opportunity to explain or otherwise defend himself or herself, as provided in Section 231.36, Florida Statutes.
Fair dismissal procedures should be followed regardless of the race, creed, color, sex, or contractual status of the individual.
These procedures were not followed. When Mrs. Raymond learned of the rumors and interrogated students spreading those rumors, Gray was suspended.
Even if the rumors and all testimony presented at this hearing is true, this does not constitute "extremely serious circumstances" to justify immediate suspension and foreclose the opportunity to improve that the above-quoted rule requires a teacher be given.
Agencies are required to follow their own rules until they are amended or abrogated. Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977). These rules require a teacher be counseled regarding his conduct that needs improving before the teacher can be dismissed. If the inappropriate conduct continued after counseling, then further disciplinary action would be warranted.
Furthermore, assuming the inappropriate remarks attributed to Respondent were made to the students, this is not conduct sufficiently notorious to bring the teacher or the education profession into public disgrace and disrepute or impair the individual's serviced to the community. All testimony regarding Respondent's performance as a teacher is that he is a competent and effective teacher.
Nor does such conduct constitute misconduct in office as that term is defined in Rule 6B-3.09(3), Florida Administrative Code. Assuming the remarks attributed to Respondent were made, this does not constitute conduct which is "so serious as to impair the individual's effectiveness in the school system." While the rumors going around Safety Harbor Middle School could impair Respondent's effectiveness at that school whether the rumors were true or not, that one school is not the Pinellas County school system.
No finding can be made based solely on uncorroborated hearsay testimony. Section 120.58(1), Florida Statutes. Accordingly, no credible evidence was presented that Respondent made inappropriate comments--and certainly not comments demonstrating misconduct in office--to Dana Shaver as alleged. The testimony of Alissa Lanier that Respondent said "You've got a nice ass" is not credible in the light of her other testimony that the ramp was empty but for her and Respondent immediately prior to the opening bell for classes to start, that Respondent was some 20 feet away when she turned to see who had spoken, and that she had never talked to or heard Respondent talk before that time.
The remaining allegations for which there is credible evidence include the remarks made to Mark Fulghum and Paul Bartolo while riding in Respondent's car and the remark to Kera Lampman. While these remarks were inappropriate, they do not equate to immorality or misconduct in office sufficient to justify the punishment of dismissal. Bowling, supra.
From the foregoing it is concluded that Respondent is not guilty of immoral conduct or misconduct in office although his use of language to a certain few pupils at Safety Harbor Middle School was inappropriate and not consonant with the duties owed by a teacher to a student. If the procedures established by Rule 6B-4.08, Florida Administrative Code, had been followed, it is unlikely that charges similar to those here involved would ever have later been preferred against Respondent. Had Respondent been counseled regarding inappropriate comments to pupils and failed to heed the counseling, a different case would be presented. It is
RECOMMENDED that a Final Order be entered findings Timothy Gray not guilty of immorality and misconduct in office and that he be reinstated to his teaching position with the restoration of all income and benefits lost as a result of the suspension.
ENTERED this 28th day of June, 1985, at Tallahassee, Florida.
N. AYERS Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1985.
COPIES FURNISHED:
Usher L. Brown, Esquire Post Office Box 6374 1960 East Druid Road
Clearwater, Florida 33518
Lawrence D. Black, Esquire
152 Eighth Avenue, Southwest Largo, Florida 33540
Scott N. Rose, Ed.D. Superintendent of Schools Pinellas County
1960 East Druid Road Post Office Box 6374
Clearwater, Florida 33518
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF PINELLAS COUNTY, )
)
Petitioner, )
)
vs. )
) CASE NO. 84-3687
TIMOTHY GRAY, )
)
Respondent. )
) DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 85-0625
)
TIMOTHY GRAY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a consolidated public hearing was held in the above- styled cases on April 18, 1985, at Clearwater, Florida.
APPEARANCES
For Petitioner: Usher L. Brown, Esquire
Post Office Box 6374 Clearwater, Florida 33518
For Respondent: Lawrence D. Black, Esquire
152 Eighth Avenue, Southwest Largo, Florida 33540
By Administrative Complaint dated February 4, 1985, the Commissioner of Education, Petitioner in Case 85-0625, seeks to revoke, suspend, or otherwise discipline the certificate of Timothy M. Gray, Respondent. As grounds therefor it is alleged that in making inappropriate comments of a sexual nature to students Respondent has been guilty of acts of gross immorality or acts involving moral turpitude; has been guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board; has failed to make a reasonable effort to protect students frown conditions harmful to learning or to health or safety; has exhibited conduct that exposes students to unnecessary embarrassment or disparagement; and has exploited a professional relationship with a student for personal gain or advantage.
Because both of these cases involve the same factual allegations of misconduct, the cases were consolidated for hearing; however, two separate Recommended Orders are submitted.
At the hearing Petitioner called seven witnesses, the deposition of another witness was admitted as Exhibit 1, and Respondent called four witnesses, including himself.
Proposed findings have been submitted by the parties. To the extent those proposed findings are included herein they are adopted; otherwise, they are rejected as not supported by the evidence immaterial, cumulative, mere recitation of the testimony of witnesses, or are unnecessary to the conclusions reached.
FINDINGS OF FACT
Timothy M. Gray applied for an instructional position with the Pinellas County School Board in May 1984 and accepted an annual contract to teach at Safety Harbor Middle School for the school year starting in the fall of 1984.
He taught a course to eighth grade classes called Power and Transportation, which is predominantly a shop course. Gray was certificated to teach industrial arts in 1980.
The charges involved in these two cases stem from inappropriate remarks Gray allegedly made to various students in his class or in the school. Gray denies making the improper remarks attributed to him. Specifically, Respondent is alleged to have made inappropriate remarks of a sexual nature to Paul Bartolo and Mark Fulghum while driving them home from a school detention period that caused them to miss their bus. Respondent admits that he gave these 14- and 15- year-old boys a ride home after their detention. He lived in the same direction as the two boys and giving them a ride home was not out of his way. Both of these boys were discipline problems. During the school year Paul served about
15 detentions and was suspended twice. Both were in Respondent's Power and Transportation class and both had been placed on detention by Respondent.
During the ride home Paul was in the front seat of Respondent's car and Mark was in the rear seat. Both boys testified that during the ride home an extensive conversation ensued and that Respondent, after answering a question regarding his marital status in the negative, continued with he liked snatch. Respondent admits the conversation and his attempts to reach these boys to improve their attitudes toward school but denies ever using the word "snatch." During discussions with girls on the school bus and at school regarding Respondent and his comments, Paul and Mark told the girls that Respondent said he liked snatch.
At this time a lot of rumors were being circulated among the eighth graders in Respondent's classes about the way he looked at them and comments he had made they deemed inappropriate. The prime mover of this group was Dana Shaver, who testified only by deposition in these proceedings. Dana urged Paul and Mark to report Respondent's remarks to the principal.
In a deposition (Exhibit 1) Dana testified that Gray had seen her at the beach over the weekend and told her in class Monday that he had seen her at the beach in her bikini and that she did not have much of a tan for a beach girl. This embarrassed Dana and she hung her head and did not hear Respondent say she would look better without it (bikini) on. This was later reported to Dana by an anonymous girlfriend. Respondent admits he saw Dana and another girl at the beach but denies saying anything more to her than she did not have as good a tan as he did. Dana's parents requested she be moved from Respondent's class in Power and Transportation (which she did not like) because of her being "embarrassed" by Respondent. Evidently, no embarrassment was involved discussing use of the word "snatch" with boys in her class.
Kera Lampman is a bright 13-year-old who was in Respondent's Power and Transportation class. She testified that Respondent told her she had a nice butt and that she could get straight A's in his class. Respondent denies ever using the word "butt" to Kera but does not deny the remarks about her grades as Kera is a straight A student. Respondent also testified that he was trying to get Kera moved to a more challenging class when he was suspended.
Alissa Lanier, a 14-year-old student at Safety Harbor Middle School, testified that while walking from the bus drop to the entrance door immediately before classes started in the morning she heard someone say, "You've got a nice ass." When she turned around she saw Respondent some 20 feet away. She had never talked to Respondent, was not in his class, and testified Respondent was the only person on the ramp besides her. Respondent not only denies making such a remark but also testified that he frequently has bus ramp duty before school starts and he has never been in the area between the bus stop and school entrance doors shortly before school was due to start when the area was not crowded with students. The testimony that this area would be crowded
immediately prior to school starting is deemed more credible. Respondent's denial that he made any comment to any girl he did not even know is more credible than is the testimony that this remark was heard from someone 20 feet distant in the bus ramp area immediately prior to school starting.
Shelly Evans, a 14-year-old girl in Respondent's class heard Respondent say he had seen Kera and Dana at the beach and they looked great in their bikinis. During the period when others were reporting Respondent's actions she too reported this comment to the principal.
One witness testified that Respondent looked at her in a strange way in class; that it appeared to her that he was staring. Such discussion and remarks including comments about bodies were being circulated among students at Safety Harbor Middle School and was brought to the attention of the principal who interrogated some of the students. The principal was told substantially what was testified to at these proceedings. During the investigation which followed Respondent denied using the words "snatch," "butt," or "ass," while talking to any of the students.
Respondent, before coming to Safety Harbor Middle School, had worked in a Y conservation program involving young men. This age group was doubtless older than the 13-15 year olds in the eighth grade class Respondent taught at Safety Harbor Middle School and were less impressionable than eighth grade students.
Hearing from one of her teachers that rumors were going around the school regarding Gray's language in the presence of students, Mrs. Raymond, Principal of Safety Harbor Middle school obtained the name of one or more students reported to be aware of such language and called them into her office. After obtaining statements from these students, who appeared as witnesses in these proceedings, Mrs. Raymond confronted Gray, who denied making inappropriate comments. Nevertheless, she recommended his immediate suspension with pay pending the next meeting of the School Board, who was authorized to suspend Gray without pay. Upon her recommendation, Gray was immediately suspended.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 231.28(1), Florida Statutes, provides the Education Practices Commission may suspend, revoke, or otherwise discipline the teaching certificate upon a finding that such person:
(c) Has been guilty of gross immorality or an act involving moral turpitude;
* * *
(f) Has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board.
* * *
(h) Has otherwise violated . . . rules of the State Board of Education, the penalty for which is revocation of the teaching certificate.
Those rules alleged to have been violated by Respondent are Rules 6B- 1.06(3)(a) and (h), Florida Administrative Code, which provide the individual shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety and shall not exploit a professional relationship with a student for personal gain or advantage.
Rule 6B-4.09, Florida Administrative Code, provides in pertinent 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 disrupt and impair the individual's service in the community.
Black's Law Dictionary, Revised Fourth Edition, 1968, defines "gross" as: Great; culpable. General. Absolute. Thus, gross immorality is nearly synonymous with moral turpitude. In State ex rel. Tullidge v. Hollingsworth,
146 So. 660 (Fla. 1933) the court stated:
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. It may also be defined as anything done contrary to justice, honesty, principle or good morals, though it often involves a question of intent.
The allegations here made against Respondent involve neither gross immorality nor moral turpitude.
In administrative proceedings the burden is on the petitioner to prove the charges alleged. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). The quality of evidence required to sustain this burden has been variously described before and after the present Administrative Procedure Act was passed. Many of these cases involve license revocations which are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 188 So. 2d 846 (Fla. 2d DCA 1966). The quality of proof in those cases has ranged from clear and convincing evidence to little more than a preponderance of the evidence. However, where the punishment involves the revocation of a license, the quality of evidence required is higher than loss of other important property rights such as employment.
The United States Supreme Court has approached the burden of proof standards as a constitutional due process issue.
19. Addington v. Texas, 441 U.S. 4 26, 99 S.Ct. 1804, 60 L.Ed.2d 323
(1979) involved the standard of proof required to commit an individual involuntarily for an indefinite period to a state mental hospital. The court stated at p. 1808:
The function of standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to 'instruct the factfinder concerning the degree of confidence our society thinks it should
have in the correctness of factual conclusions for a particular type of adjudication.' In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068,
1076, 25 L.Ed.2d 368 (1970) (J. Harlan
concurring). The standards serve to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.
Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties.
Since society has a minimum concern with the outcome of such private suits, plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.
In a criminal case, on the other hand, the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof
designed to exclude as nearly as possible the likelihood of an erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, supra.
The intermediate standard, which usually employs some combination of the words 'clear,' 'cogent,' 'unequivocal,' and 'convincing,' is less commonly used but nonetheless is 'no stranger to the civil law.' Woodby v. INS., 385 U.S. 276, 285, 87 S.Ct. 483, 488, 17
Ed. 362 (1966). See also McCormick,
Evidence, s. 320 (1954); 9 J. Wigmore, Evidence, s. 2498 (3rd Ed. 1940). One typical use of the standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant.
The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having reputation tarnished erroneously by increasing the plaintiff's burden of proof. Similarly, this Court has used the 'clear unequivocal and convincing' standard of proof to protect particularly important individual interests in
various civil cases. See, e.g., Woodby v. INS.,
supra, at 285, 87 S.Ct. at 487 (deportation);
Chaunt v. United States, 364 U.S. 350, 353, 81
S.Ct. 147, 149, 5 L.Ed. 2d 120 (1960)
(denaturalization); Schneiderman v. United States, 320 U.S. 118, 125, 159, 63 S.Ct. 1333,
1336, 1357, 87 L.Ed. 1796 (1943)
(denaturalization).
20. After noting the function of the legal process is to minimize the risk of erroneous decisions; that commitment for any purpose constitutes a significant deprivation that requires due process protection; that the state has a legitimate interest in providing care to its citizens unable because of emotional disorders to care for themselves; and that the state also has the authority under its police powers to protect the community from dangerous tendencies of the mentally ill, the court in Addington v. Texas, supra, concluded the middle ground between preponderance of the evidence and beyond a reasonable doubt, viz., "clear and convincing" evidence was required to meet the due process guarantee. Similarly, in Williams v. Williams, 424 So.2d 159 (Fla. 1st DCA 1983) the court held the standard of proof in proceedings for noncriminal involuntary confinement is clear and convincing evidence.
21. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599
(1982) involved severing the rights of parents to their children upon a finding of permanent neglect. While holding that, before the state may sever completely and irrevocably rights of parents in their natural child, due process requires that the state support its allegation by at least clear and convincing evidence, the court stated at p. 1397:
The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be 'condemned to suffer grievous loss.' Goldberg v. Kelly,
397 U.S. 254, 262-263, quoting Joint Anti- Facist Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 646, 95 L.Ed. 817 (1951) (Frankfurter, J. concurring). Whether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the fact-finder turns on both the nature of the private interest threatened and the permanency of the threatened loss.
Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981) involved a proceeding to revoke a license to sell insurance. In recognizing all disciplinary actions are not equal, the court stated at p. 171:
Although the APA does not in terms descend to such particulars, we have recognized the Act's implication that evidence "appropriate in form" may differ from one proceeding to another depending on the "nature of the issues involved". Balino v. Dept. of Health & Rehab. Serv., 362 So.2d 21, 24 (Fla. 1st DCA 1978),
cert. den., 370 So.2d 458 (Fla. 1979). Now we recognize also that in both form and persuasiveness evidence may "substantially
support some types of agency action, yet be wanting as a record foundation for critical findings in license revocation. Cf., Anheuser- Busch, Inc. v. Dept. of Business Reg., 393 So.2d 1177 (Fla. 1st DCA 1981) (monetary fine). So holding, we need not attempt to resurrect the pre-APA "clear and convincing proof" standard for license revocation proceedings.
See Reid v. Florida Real Estate Comm'n., 188 So.2d 846, 851 (Fla. 2d DCA 1966). Rather, we glean a requirement for more substantial evidence from the very nature of license discipline proceedings: when the conduct to be assessed is past, beyond the actor's
power to conform it to agency standards announced prospectively; and when the proceedings may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as "substantial" as the consequences. As we said in McDonald, quoting Mr. Justice Frankfurter in Universal Camera,
The substantiality of evidence must take into account whatever in the record detracts from its weight.
(Footnotes omitted.)
Although Bowling declined to adopt the clear and convincing standard for license revocation procedures, it certainly requires more than a preponderance of the evidence to revoke a valuable business or professional license. Applying the risk analogies used in Addington, supra, it is clear that Respondent has a very significant interest in his teaching certificate which merits protection from an erroneous judgment. Not only is his certification required to allow him to pursue his chosen profession, but also it is necessary if he merely desires to earn a living in this profession. The interests of Respondent at stake here are considerably more substantial than a mere loss of money.
Applying these standards to the evidence presented on the allegations that Respondent has been guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board, the evidence fails to support this charge. Rumors, even if blatantly false, could destroy a teacher's effectiveness in a particular school without materially affecting the teacher's effectiveness at another school in the district.
No findings can be made based solely on uncorroborated hearsay testimony objectionable in civil trials. Section 120.58(1), Florida Statutes. Accordingly, no credible evidence was presented that Respondent made inappropriate comments--and certainly not comments harmful to learning or safety--to Dana Shaver as alleged. The testimony of Alissa Lanier that Respondent said "You've got a nice ass" is not credible in the light of her
other testimony that the ramp was empty but for her and Respondent immediately prior to the opening bell for school to start, that Respondent was some 20 feet away when she turned to see who had spoken, and that she had never talked to or heard Respondent speak before that time.
The remaining allegation for which there is credible evidence includes remarks made to Mark Fulghum and Paul Bartolo while riding in Respondent's car, and the remarks to Kera Lampman. While these remarks are inappropriate, they do not equate to gross immorality, moral turpitude, or are likely to be harmful to learning, health, or safety of the students. No evidence was submitted that Respondent exploited or attempted to exploit his position as a teacher for personal gain. The testimony that Respondent was told by one of the two boys in his car that the boy had an older sister in Europe constitutes no evidence to support this allegation.
Finally, it is noted that the procedures established in Rule 6B-4.08, Florida Administrative Code, were not followed. These procedures require a teacher be counseled on actions which may possibly result in future dismissal and be given an opportunity to correct those actions before dismissal occurs. Agencies are required to follow their own rules until they are amended or abrogated. Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977). Here, as soon as the principal, Mrs. Raymond, talked to the students who testified in these proceedings and confronted Respondent with those allegations, which he denied, she recommended Respondent's immediate suspension. Both the letter and the spirit of Rule 6B-4.08, Florida Administrative Code, were thrown to the winds, all the rumors were given instant credibility, and Respondent's effectiveness in Safety Harbor Middle School was, to say the least, reduced.
From the foregoing, it is concluded that Respondent was indiscreet in some of the language he used in the presence of middle grade students, but that he is not guilty of all charges alleged. It is
RECOMMENDED that all charges against Timothy M. Gray be dismissed and this case closed.
ENTERED this 28th day of June, 1985, at Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1985.
COPIES FURNISHED:
Usher L. Brown, Esquire Post Office Box 6374 Clearwater, Florida 33518
Lawrence D. Black, Esquire
152 Eighth Avenue, Southwest Largo, Florida 33540
Ms. Karen Barr Wilde Executive Director
Education Practices Commission Department of Education
Knott Building Tallahassee, Florida 32301
Honorable Ralph D. Turlington Commissioner of Education The Capitol
Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA
RALPH D. TURLINGTON, as
Commissioner of Education, Petitioner,
vs. DOAH CASE NO. 84-3687
TIMOTHY M. GRAY,
Respondent.
/
FINAL ORDER
Respondent, TIMOTHY M. GRAY, holds Florida Teaching Certificate Number 488035. 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 August 15, 1985, in Tampa, Florida, to take final agency action. The Petitioner was represented by Usher L. Brown, Esquire. The Respondent was represented by Marsha Cohen, Esquire. The panel has reviewed the entire record in the case.
The panel adopts the Findings of Fact of the Recommended Order. The panel adopts exceptions 1, 2, 3, 4, and 7 of Petitioner's Exceptions to the Hearing Officer's Recommended Order and denies exceptions 5 and 6. The panel adopts the Conclusions of Law of the Recommended Order with the exception of those Conclusions to which the panel adopted Petitioner's Exceptions. The panel specifically rejects the hearing officer's Conclusions of Law regarding Section 231.28(1)(h), F.S. and Rules 6B-1.06(3)(a)(e), F.A.C., Section 231.28(1)(f),
F.S. and Rule 6B-4.08, F.A.C. The panel specifically concludes that Respondent violated Rules 6B-1.06(3)(a)(e) and Section 231.28(1)(h), F.S. and Section 231.28(1)(f), F.S. The panel specifically concludes that Respondent's use of vulgar language with students reduced his credibility and effectiveness as a teacher and affected the mental health of the students.
The panel specifically rejects the hearing officer's Recommendation and recommends, based upon the above Findings and Conclusions, that the Penalty be increased. Respondent shall be reprimanded, and placed on probation for one year effective upon his return to teaching. During the probation period, quarterly reports from Respondent's supervisors shall be forwarded to the Commission office for review. This Order takes effect upon filing.
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 30th day of August, 1985.
RICHARD RICH, Presiding Officer
I HEREBY CERTIFY that a copy of the foregoing Final Order in the matter of RDT v. Timothy M. Gray has been furnished to Lawrence D. Slack, Esquire, 152 Eighth Avenue, Southwest, Largo, Florida 33540 by
U.S. Hail, this 5th day of September, 1985.
KAREN B. WILDE, Clerk
COPIES FURNISHED TO:
Marlene Greenfield, Administrator Professional Practices Services
Susan Tully, Esquire Attorney General's Office
Judith Brechner, general Counsel Donald L. Griesheimer
Office of Certification
Florida Administrative Law Reports
Usher L. Brown, Esquire Dr. Scott Rose, Supt.
Pinellas County Schools
Marsha Cohen, Esquire
152 Eighth Avenue, S.W. Largo, Florida 33540
| Issue Date | Proceedings |
|---|---|
| Dec. 04, 1990 | Final Order filed. |
| Jun. 28, 1985 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 30, 1985 | Agency Final Order | |
| Jun. 28, 1985 | Recommended Order | Respondent is found to be not guilty of immorality. Full reinstatement is recommended. |
PINELLAS COUNTY SCHOOL BOARD vs FREDDIE R. CRAYTON, 84-003687 (1984)
GERARD ROBINSON, AS COMMISSIONER OF EDUCATION vs PRINCESS SUEANNA EDWARDS, 84-003687 (1984)
HOWARD J. GREER vs. PINELLAS COUNTY SCHOOL BOARD, 84-003687 (1984)
PINELLAS COUNTY SCHOOL BOARD vs. CLARENCE DAVIS, 84-003687 (1984)
BROWARD COUNTY SCHOOL BOARD vs SCOTT DAVIS, 84-003687 (1984)
