vs. ) CASE NO. 84-4201
LARRY J. SPANN, )
Respondent. )
For Petitioner: Usher L. Brown, Esquire
For Respondent: John J. Chamblee, Jr., Esquire Tampa, Florida
A final hearing was held in this case on May 1 and 2, 1985, in Clearwater. The issue is whether Petitioner, School Board of Pinellas County (School Board), should dismiss respondent, Larry J. Spann (Spann), from his employment as a classroom teacher under section 231.36, Florida Statutes (Supp. 1984) and Rule 6B-4.09, Florida Administrative Code, for immorality and misconduct in office.
Charges have been filed alleging that Spann had homosexual contact with a student, made inappropriate remarks of a sexual nature to the student, and gave him cigarettes on the school campus. Spann denies the charges. During the final hearing, the School Board dropped its charge of misconduct in office and now relies exclusively on the charge of immorality.
During the 1983-1984 school year, Respondent, Larry J. Spann (Spann), was employed by Petitioner, School Board of Pinellas County (School Board), as a classroom teacher at 16th Street Middle School in Pinellas County. Darrin Young (Young), was a student in Spann's seventh period drama class for part of the school year.
Young, a 14 year-old at the time, generally was not motivated to learn and was a problem student during the school year. He was frequently absent from school (a total of 52 days during the school year), and often skipped classes even when he was at school. Young has serious emotional problems. He has relatively few friends at school and lacks self-confidence and self-esteem.
At the beginning of the 1984-1985 school year, Young was transferred to Lealman Comprehensive School, a school for non- motivated problem students. Spann continued to teach at 16th Street Middle School.
On October 22, 1984, one of Young's classes viewed the second of two films on rape and child molestation. Unlike the first film shown on October 18, the second film discussed the details of typical scenarios of rape and child molestation and discussed the problem that adults often refuse to believe or listen to the victim, especially in the case of child molestation. During a class discussion after the film, Young commented that a teacher who was no longer at school had tried something like that on him.
Young added that one scenario depicted in the film--in which a school principal continued to send school athletes requiring physicals to a doctor whom some of the students had accused of sexual abuse--would have upset him, too. He stated that that was how he felt when nothing was done about the sexual abuse done to him. However, it is undisputed that this was the first time Young had ever disclosed to anyone his allegation that he had been the victim of sexual abuse. It also is undisputed that Young had telephoned Spann at Spann's home on Sunday, October 14, 1984. At that time, Young thought of Spann as a friend. However, Spann ended that telephone conversation by hanging up on Young.
The next day Young's class viewed a videotape covering similar material. During the class discussion following the videotape on October 23, 1984, Young again repeated his general allegation. He again stated that he felt cheated and upset because nothing had been done about his victimization. Young continued to maintain that the alleged offender was no longer teaching. Young added that the alleged offender was a drama teacher.
After the class discussion on October 23, Young's teacher had a private discussion in which Young added that the alleged incident had occurred in the previous school year and that it had involved sexual touching in the back area of a classroom and at a park and that oral sex was involved.
Young's teacher promptly reported Young's statements to the proper school authority. The report made its way through school channels and came to the attention of Vicki Desmond the principal at 16th Street Middle School. Because the allegations involved Young's drama teacher, Desmond confronted Spann with the allegation. Spann's response and reaction neither absolved nor incriminated him. There are a number of possible explanations for Spann's ambiguous response, including the possibility that Desmond used the name "Darian" instead of "Darrin" and that Spann misunderstood which student Desmond was referring to. In any event, in view of the seriousness of the allegations, Spann was promptly suspended from his employment without pay.
At final hearing, Young could not recall why he had been under the impression on October 22 and 23 that Spann was no longer teaching. At first, he testified that the sexual abuse occurred sometime after the Christmas 1983 school break and before the end of the 1983-1984 school year in June, 1984. He was not able to be more specific at first. According to Young, he was walking past Spann's classroom one morning in January 1984 and said hello to a girl in Spann's class. Spann, whose drama class consisted of mostly girls, asked Young if he was interested in enrolling in Spann's drama class. Young said he was, and arrangements were made through proper channels for Young to add Spann's drama class seventh period. This first meeting took place around January 20, 1984.
The day after Spann's first meeting with Young, Spann again saw Young. The two exchanged greetings, and Spann commented to Young that Young would be enrolled in the drama class soon. Approximately one week later on January 30, 1984, Young attended his first drama class taught by Spann during seventh period of the school day.
After Young was reminded of the details of earlier deposition testimony, Young testified that the next time he skipped his seventh period physical education (P.E.) class, he stopped by Spann's classroom. Several other students were there when he arrived, including Spann's student aide, Tom Hurst, but they left for their classes when the bell rang. According to Young, Spann entered into a conversation on sex and later walked behind a partition located in the northeast corner of Spann's classroom and started masturbating. Young testified that he just watched for a short time and then left.
Young testified that the second time he skipped P.E. class was on a Friday, but that he did not recall whether any sexual conversation or conduct took place at that time. However, Young testified that he saw a repeat of the first incident several times.
Later, on a weekend during the school year, Young testified that he had an unplanned meeting with Spann at an area park, the North Shore Swimming Pool and Park, a reputed hangout for homosexuals. Young said Spann signaled for him to get into his car, a red car with louvers which Young says he had seen at school before. Young says Spann drove to an isolated parking space where both masturbated and Spann touched Young's stomach.
Young testified that he was in school on the Monday following the incident at North Shore Swimming Pool and did not skip P.E. on Monday or Tuesday of that week. Originally, Young testified that he did not skip on Wednesday either, but his deposition transcript refreshed his memory that he did skip P.E. on Wednesday of that week and, on that occasion, engaged in oral sex with Spann behind the partition in Spann's classroom during sixth period. Young testified that he did not want to engage in oral sex, but that Spann raised his voice, saying words to the effect, "Come on, you can do it."
Young testified at final hearing that he was afraid Spann would turn him in for skipping if he did not do as Spann requested. But, as already noted, Young was frequently absent, and Young previously had testified on deposition that he was not in fact concerned about being caught for skipping P.E.
Young testified on his deposition that incidents involving masturbation occurred in Spann's classroom during sixth period fifty to seventy- five times, and that incidents that included oral sex occurred twenty to thirty times. He estimated that incidents occurred three times a week. At final hearing, Young testified that he did not know exactly how many times the alleged incidents occurred, but that he did not think there were as many as he testified on deposition. Young also testified that he had skipped P.E. approximately fifty times. This estimate was close to accurate, according to his P.E. teacher's attendance record, but approximately half of those absences were days on which Young did not attend school at all.
Young also testified to an incident that occurred at Lake Maggiore on one occasion when Spann drove Young home, again in the red car with louvers. At first, Young did not remember when this incident occurred, but his deposition
transcript refreshed his memory that it allegedly occurred on one of the last days of school. Young said that on this occasion Spann parked the car and watched Young masturbate and again touched his stomach.
The best available techniques for testing the validity of testimony like Young's indicate that Young's testimony approximately fits the pattern of facts normally associated with child sexual abuse. However, one notable variance is the unusually rapid progression from first meeting to first sexually oriented encounter according to Young's testimony. Another notable departure from normally valid testimony of this kind is Young's lack of memory from any reasonably precise time reference when the incidents he related to the School Board's expert witness allegedly occurred or how often they occurred. Young's well below average facility for mathematics and other skills would not wholly explain his apparent lack of memory for reasonable details of this kind. Besides, as recited above, Young's deposition testimony frequently included more detail of this nature than he was able to relate to the School Board's expert witness on validation techniques or, as reflected above, than he initially was able to offer in direct testimony at final hearing.
It is true that generally children who relate incidents of child sexual abuse are telling the truth. But as a result of the discrepancies from normally valid testimony referred to in paragraph 16 above, and because of other questions in Young's testimony as reflected in these Findings Of Fact, it cannot be assumed that Young's testimony is truthful. Young is old enough to be able to fabricate a story such as he related about Spann. Although no apparent logical reason to fabricate such a story was established at final hearing, the evidence suggested the possibility of a motive to do so--the desire for sympathetic attention may be the motivation. On the other hand, there may not be any logical motivation in this case in light of Young's emotional instability and troubles. Therefore, although it is true that emotionally unstable and troubled children often are targets of child molesters, the emotional instability and troubles of the alleged victim is not especially probative of the existence of child molestation.
Young claims that Spann's sixth period student aide, Tom Hurst, was present and then left with other students when the sixth period bell rang on the day of his first sexually oriented encounter with Spann. He also testified that Hurst returned to Spann's classroom twenty minutes after the first and only incident of oral sex which Young specifically remembered occurring in Spann's classroom during sixth period. But Hurst testified that he only saw Young in Spann's classroom at all during sixth period one to three times and that he never returned to Spann's classroom from an errand during sixth period to find Young there. And of the twenty-five or so days on which Young was at school but absent from sixth period P.E., Hurst was absent only three times. Hurst also reports that he never returned to Spann's class from an errand during sixth period to find the classroom locked.
The evidence did not suggest any cogent reason why Hurst would have given untruthful testimony. Therefore, the evidence suggests that Spann might have had a reasonable opportunity to engage in sexually-oriented encounters with Young on the one to three days Hurst saw Young in the classroom during sixth period and the three days on which Hurst was absent when Young skipped sixth period P.E.--March 9, March 30, and May 23, 1984. But Hurst was present the first twelve days Young skipped P.E. during sixth period, when at least the first of the alleged incidents were supposed to have occurred. These facts do not support Young's testimony.
Young also testified that the one and only incident of oral sex that allegedly occurred in Spann's classroom during sixth period occurred on a Wednesday on which Young skipped P.E. after having attended P.E. on the previous Monday and Tuesday. Young's P.E. teacher's attendance record indicates that such a sequence of attendance at P.E. never occurred.
Spann's classroom was rectangular in shape, not as deep as it was long. It was one of several classrooms on Wing 1 of the school building. Two doors at either end of the length of the south wall of the classroom opened onto an open-air walkway. Spann's teacher's desk was located near the east wall of the classroom, a little more than halfway into the depth of the classroom, facing west. The students' desks were in north-south rows facing south. Two large sets of jalousie-type windows were on the north side of the length of the classroom, looking out onto the open-air walkway of Wing 2 of the school building which is parallel to Wing 1. The windows are not obstructed with posters and the like; they are equipped with a dark film designed to reduce sunlight and glare. One can see through the windows from the Wing 2 walkway if the windows are open or, if the windows are shut, if the lights are on or the doors are open in Spann's classroom.
In the northeast corner of Spann's classroom was an L- shaped partition. The north-south length of the partition started at one of the two sets of windows approximately four and one-half to five feet west of the northeast corner of the classroom. The north-south length of the partition was about eight feet high and eight feet long to where it turned at a 90 degree angle and ran east almost to the east wall of the classroom. The east-west part of the partition was only four feet high.
Spann kept the west door of the classroom locked to control student access to the classroom. Spann normally kept the east door of the classroom unlocked. The east door is situated directly south of the partition. Approximately one and one-half feet of window was within the partitioned area. Therefore, one could see into the partitioned area through the window if the window was opened or, if closed, if the east door of the classroom was opened or the light in the classroom were on.
Spann used the partitioned area of the classroom to store things such as extra desks, boxes of materials, graded and ungraded tests, musical instruments, and furniture used as props in drama productions. The partitioned area remained fairly cluttered. There was only a triangle approximately four by three feet at the southwest corner of the partition which would not be visible from the east door of Spann's classroom. Spann had the partition dismantled in May, 1984 after it had served its useful purpose.
As previously mentioned, Young was absent from P.E. on days he had attended school twenty-four times: February 3, 13, and 27; March 9, 12 and 30; April 3-5, 10, 13 and 30; May 1, 2, 4, 8-10, 17, 18, 23 and 24; and June 4 and
Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the School Board of Pinellas County dismiss the charges against Respondent, Larry J. Spann, in this case.
RECOMMENDED this 8th day of July, 1985 in Tallahassee, Florida.
J. LAWRENCE JOHNSON Hearing Officer
FILED with the Clerk of the Division of Administrative Hearings this 8th day of July, 1985.
1/ Both parties submitted proposed findings of fact. The proposed findings of fact were reviewed, and the following Findings Of Fact attempt to rule, either directly or indirectly, on each proposed finding of fact. Proposed findings of fact which were approved and adopted are reflected in the following Findings Of Fact. Where proposed findings of fact are not reflected and no direct ruling rejecting them is apparent, the proposed findings of fact have been rejected as being subordinate, cumulative, immaterial or unnecessary.
After the conclusion of the final hearing and the closing of the evidentiary record in this case, a letter from a Keith Edward Green dated May 3, 1985 was received by the Hearing Officer and docketed in the official Division of Administrative Hearings' file on this matter. A copy of the letter was shown to have been served on each of the parties to this case. The letter has not been considered as evidence of any kind in this case and is not part of the evidentiary record on which any findings of fact can be based.
2/ Bowling seems to suggest an unworkable "sliding scale" under which the necessary "substantiality" changes depending on the seriousness of the action the agency ultimately takes. Bowling at 171-172.
Usher L. Brown, Esquire 1960 East Druid Road Post Office Box 6374
John J. Chamblee, Jr., Esquire Perry Gall Gruman, Esquire Chamblee & Miles
Scott N. Rose, Ed.D.
Pinellas County School Board 1960 E. Druid Road
Ralph D. Turlington Commissioner of Education The Capitol
