STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM J. LEARY, SUPERINTENDENT ) OF SCHOOLS, SCHOOL BOARD OF ) BROWARD COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 85-1780

)

McKINLEY D. HUDSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on December 2, 3, and 4, 1985, in Fort Lauderdale and in Pompano Beach, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing the parties were represented as follows:

For Petitioner: Charles Whitelock, Esquire

1244 Southwest Third Avenue Fort Lauderdale, Florida 33116

For Respondent: McKinley D. Hudson, pro se

Apartment 167

1981 Northwest 43rd Terrace Lauderhill, Florida 33313

BACKGROUND AND ISSUES

This is a case in which the Petitioner seeks the dismissal of the Respondent from his employment as an instructional employee of the School Board of Broward County. In an Amended Petition For Dismissal From Broward County School System, the Respondent is charged with ten counts of "acts of immorality or misconduct in office." The general nature of the charges is to the effect that Respondent fondled the buttocks and genital area of one female student, engaged in numerous instances of oral communications regarding the breasts and genitalia of female students, used vulgar language in the classroom, and engaged in oral communications which were demeaning and embarrassing to some students. The Respondent has denied all allegations of improper behavior.

At the commencement of the hearing, counsel for Respondent filed a motion to withdraw as counsel and moved for a continuance. Respondent stated that he did not object to the withdrawal of his counsel. Petitioner did not object to the withdrawal of counsel, but did object to the motion for continuance. Among the grounds for objection to the continuance were that the hearing had been previously continued at the request of the Respondent shortly before the previous hearing date in order to afford Respondent an opportunity to complete discovery, that Respondent had not conducted any discovery since the last continuance, that Petitioner had lost one of its witnesses since the date of the last continuance, that Petitioner had twice been put to the expense and inconvenience of arranging for the attendance at hearing of numerous students from several different schools, that the request for continuance was untimely, and that it would be a burden and hardship to the Petitioner if it were to be required to assemble its witnesses a third time.

In the absence of objection, the motion to withdraw as counsel was granted. Upon consideration of all the competing interests, the motion for continuance was denied.

Subsequent to the hearing, a transcript of the hearing was filed with the Hearing Officer on December 20, 1985. At the request of the parties, they were allowed until January 10, 1986, within which to submit their post-hearing written submissions to the Hearing Officer. In lieu of a proposed recommended order containing detailed proposed findings of fact and conclusions of law, the Petitioner filed a letter dated January 9, 1986, in which it summarizes its factual and legal arguments in support of its proposal to dismiss the Respondent. Similarly, the Respondent filed a document titled "Summary" in which he summarizes factual and legal arguments in support of his position that he should be reinstated to his former position of employment. To the extent the Petitioner's letter and the Respondent's summary contain proposed findings of fact, those proposed findings are specifically addressed in the Appendix to this Recommended Order which is attached hereto and incorporated herein.

FINDINGS OF FACT

1. Based on the stipulations of the parties and on the testimony of the witnesses at the hearing, I make the following finding of fact.

   STIPULATED FACTS

   
   

2. Petitioner, William J. Leary, is the appointed Superintendent of Schools of Broward County, Florida, and is legally authorized to recommend to the School Board of Broward County, pursuant to statutory authority, that any member of the instructional staff be dismissed from or with the Broward School System.

   
   

3. The Respondent, McKinley D. Hudson, is an instructional employee of the School Board of Broward County, Florida, holding a continuing contract of employment since 1979 as a classroom teacher and is assigned as a science teacher to Pompano Beach Middle School.

   
   

4. The address of the School Board of Broward County, Florida, is 1320 Southwest Fourth Street, Fort Lauderdale, Florida.

   
   

5. The last known address of the Respondent, McKinley D. Hudson, is 1981 Northwest 43rd Terrace, Lauderhill, Broward County, Florida.

   
   

6. The address of the Petitioner, William J. Leary, is 1320 Southwest Fourth Street, Fort Lauderdale, Florida.

   
   

   FINDINGS REGARDING COUNT 1

   
   

7. On or about April 29, 1985, the Respondent directed a female student to shelve some books in a room that was used primarily for storage of school supplies and materials. As the student was performing the task with only the Respondent in the room, the Respondent placed his hands on the student's buttocks and squeezed her buttocks and then moved his hands to her genital area. The student moved the respondent's hands from her body and asked him to stop immediately. The student then left the room without completing the task and reported what had happened to the school administrative personnel.

   Findings regarding Count II

   
   

8. There is no competent substantial evidence in the record to support the allegations in Count II of the Petition For Dismissal.

   
   

   Findings regarding Count III

   
   

9. On or about April 25, 1985, the Respondent said to a male student, during the course of a class, "Fuck you." The Respondent also said to the same male student that he would "beat

   the fuck" out of him. The first statement was heard by at least one female student in the class. When the female student mentioned to the Respondent that she had heard his comments to the male student, the Respondent replied, "I'll say it to you, too -- Fuck you."

   
   

   Findings regarding Count IV

   
   

10. In March 1985 the Respondent asked a female student if she "was going to be the next girl at school to have a baby." The student denied she was pregnant or about to have a child.

    The Respondent then made some slang comments to her that referred to sexual intercourse. The Respondent also told the same female student that he had a pipe in his drawer and asked her if she wanted to "hit this pipe." The student replied in the negative.

    
    

    Findings regarding Count V

    
    

11. During the school term between September of 1984 through June of 1985, the Respondent repeatedly grabbed the buttocks of a female student. When doing so the Respondent would comment, "I want some of that," or words to that effect, which the student interpreted as an indication that Respondent desired to have sexual intercourse with her. On another occasion during this time period, the Respondent used slang language in class in the presence of other students to refer to the fact that the same female student had been raped by several young men.

    
    

12. The female student who was the subject of the actions and comments described in the immediately preceding paragraph was embarrassed by the Respondent's conduct and comments. On one occasion the female student told the Respondent that if he did not stop such conduct she would report his behavior to the school administration. In response to that statement the Respondent threatened the female student with a failing grade if she were to report any incident involving the Respondent.

    FINDINGS REGARDING COUNT VI

    
    

13. During the school term between September of 1984 through June of 1985, the Respondent repeatedly made disparaging remarks to a female student, which remarks included that "she had a little butt" and that "there was nothing to hold on to ." Further, the Respondent, while in the presence of other student, verbally speculated as to the size of the female student's vaginal orifice while physically indicating his approximation of the size with his hands. The female student was embarrassed by the Respondent's comments. The female student told the Respondent that his actions make her sick.

    FINDINGS REGARDING COUNT VII

    
    

14. During the school term between September of 1984 through June of 1985, the Respondent repeatedly used open profanity and vulgarity and suggestive and explicit sexual terms to and in the presence of his students. Once or twice a week the Respondent would use words like "damm", "fuck", or "shit". He used these words when he got mad at someone in class. When a female student would request permission to use the restroom, he would sometimes ask if it was "that time of the month". When a female student would return from the restroom, the Respondent would sometime make comments in class to the effect that "those girls set in the bathroom and stick those things up them." To at least on student he said, "Are you on the rag?" or "Are you a fag?" To another student he asked, "Have you had sex with one of your boyfriends?" To yet another he addressed the question, "Is your bra tight?" To a female student he said on one occasion in class, "You have a lot of hair on your chest."

    FINDINGS REGARDING COUNT VIII

    
    

15. There is insufficient competent substantial evidence to establish the allegations of Count VIII of the Petition For Dismissal.

    
    

    FINDINGS REGARDING COUNT IX

    
    

16. During the school term between September of 1984 through June of 1985, the Respondent made derogatory and disparaging comments to other students regarding a female student in his class. The Respondent would often engage in arguments with the female student in the classroom and the two of them would each make statements about how ugly each thought the other was. On one occasion the Respondent and another student were talking about the previously mentioned female student and the Respondent said words to the effect that the female student's picture should be put on a drug poster because drugs can make you as ugly as she is.

    
    

    FINDINGS REGARDING COUNT X

    
    

17. During the school term between September of 1984 through June of 1985, the Respondent, in response to a female student's request to use the bathroom facilities, suggested that the student use the class garbage can instead of the bathroom.

    On one occasion the Respondent then allowed the student to sit on the garbage can in the class room.

    CONCLUSIONS OF LAW

    
    

18. Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. See, generally, Section 120.57, Fla. Stat.

    
    

20. Section 231.36(4)(c), Florida Statutes, Provides, inter alia, that

    
    

    Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, conviction of a crime involving moral turpitude.

    
    

21. The Respondent in this case is charged with both "immorality" and "misconduct in office." The quoted statutory terms are defined as follows in subsections (2) and (3) of Rule 6B-4.09, Florida Administrative Code:

    
    

    1. Immorality is defined as conduct that is inconsistent with the standards if 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.

       
       

    2. 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.

22. Rule 6B-1.01, Florida Administrative Code, which is more a statement of philosophical principles than a code of disciplinary rules, reads as follows:

1. The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.

2. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.

3. Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

1. Rule 6B-1.06, Florida Administrative Code, contains more specific standards and reads as follows in pertinent part:

   
   

   1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.

   2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual teacher's certificate, or the other penalties as provided by law.

   3. Obligation to the student requires that the individual:

      1. Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.

      2. Shall not unreasonably restrain a student from independent action in pursuit of learning.

      3. Shall not unreasonably deny a student access to diverse points of view.

      4. Shall not intentionally suppress or distort subject matter relevant to a student's academic program.

      5. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

      6. Shall not intentionally violate or deny a student's legal rights.

      7. Shall not on the basis of race, color, religion, sex age, national or ethnic origin, political beliefs, marital status, handicapping condition if otherwise qualified, or social and family background exclude a student from participation in a program; deny a student benefits; or grant a student advantages.

      8. Shall not exploit a professional relationship with a student for personal gain or advantage.

      9. Shall keep in confidence personally identifiable information obtained in the course of professional service unless disclosure serves professional purposes or is required by law.

         teacher's certificate, or the other penalties as provided by law.

2. The quality of evidence which is necessary to sustain charges of misconduct in a case of this nature is that which was described in Bowling v. Department of Insurance, 394 So.2d 165 (Fla, 1st DCA 1981), where the court held that "the critical matters in issue must be shown by evidence which is indubitably as 'substantial' as the consequences." See Sherburne v. School Bd. Of Suwannee County, 455 So.2nd 1057 (Fla. 1st DCA 1984), in which the court applied the Bowling standards to a teacher discharge case. Upon consideration of the facts in this case, it is clear that there is sufficient competent substantial evidence to establish that the Respondent's conduct constitutes both "immorality" and "misconduct in office" as those terms are used in Section 231.36(4)(c), Florida Statutes, and defined in the rule provisions quoted above.

   
   

3. Turning first to the charge of "immorality," it is clear that the conduct of Respondent described in paragraphs 6 and 10 of the Findings of Fact, above, constitutes conduct that is "inconsistent with the standards of public conscience and good morals." It is also conduct which is sufficiently notorious to bring the individual concerned into public disgrace and

   disrespect in the community. Accordingly, the Respondent is guilty of "immorality" within the meaning of Section 231.35(4)(c), Florida Statutes.

   
   

4. With regard to the charge of "misconduct in office," the Respondent's conduct described in the Findings of Fact, above violates several of the provisions of both Rule 6B-1.01 and 6B- 1.06, Florida Administrative Code, and clearly does so in a manner "which is so serious as to impair the individual's effectiveness in the school system." The Respondent's conduct is inconsistent with at least the following provisions of the Code of Ethics embodied in Rule 6B-1.01:

   
   

   The educator values the worth and dignity of every person. . .

   The educator's primary professional concern will always be for the student. . .

   [T]he educator strives to achieve and sustain the highest degree of ethical conduct.

   
   

5. The Respondent's conduct set forth in the foregoing Findings of Fact also violates at least the following obligations placed upon teachers by the Principles of Professional Conduct embodied in Rule 6B-1.06:

   
   

   Shall make reasonable effort to protect the student from conditions harmful to learning .

   . . .

   
   

   Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Shall not intentionally violate or deny a student's legal rights.

   Shall not exploit a professional relationship with a student for personal gain or advantage.

   
   

6. In view of the multiple violations summarized above, dismissal from employment would appear to be the only appropriate penalty to impose in this case.

RECOMMENDATION

For all of the foregoing reasons it is recommended that the School Board of Broward County issue a final order in this case finding that the Respondent is guilty of "immorality" and of "misconduct in office" within the meaning of Section 231.36(4)(c), Florida Statutes, and concluding that the Respondent should be dismissed from his employment as a classroom teacher.

DONE AND ORDERED this 28th day of April, 1986, at Tallahassee, Florida.

MICHAEL M. PARRISH, 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 April, 1986.

COPIES FURNISHED:

Mr. McKinley Hudson Apartment 167

1981 Northwest 43rd Terrace Lauderhill, Florida 33313

Charles Whitelock, Esquire 1244 Southwest Third Avenue

Fort Lauderdale, Florida 33116

Superintendent William J. Leary Broward County Schools

1320 Southwest 4th Street

Fort Lauderdale, Florida 32412

APPENDIX

The following are my specific rulings on the proposed findings of fact submitted by the parties to this case in their post-hearing submissions to the Hearing Officer.

Rulings on findings proposed by Petitioner

I have accepted and have included in the findings of fact the substance of all of the Petitioner's proposed findings regarding each of the ten counts of the Petition For Dismissal, with the exceptions of the proposed findings regarding Count Two and Count Eight. Proposed findings regarding those two counts are rejected as not supported by persuasive competent substantial evidence of the quality required by Bowling, supra.

Rulings on findings proposed by Respondent

Paragraphs 1, 2, 3, 4, 5, and 6 of the Respondent's proposed facts are rejected as immaterial and irrelevant procedural details which are subsumed by the operative facts in the case.

Paragraphs 7, 8, and 9 of the Respondent's proposed facts are rejected as for the most part consisting of argument rather than proposed facts and as including factual assertions which are not supported by persuasive competent substantial evidence.

Paragraph 10 of the Respondent's proposed facts is rejected primarily on the grounds that it consists of irrelevant and immaterial information in view of the substantial evidence of Respondent's misconduct and is rejected partially on the grounds that it is not all supported by persuasive competent substantial evidence.

Docket for Case No: 85-001780

Orders for Case No: 85-001780