STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4505

)

EUGENE LAMAR MOORE, )

)

Respondent. )

) SCHOOL BOARD OF ESCAMBIA COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4906

)

EUGENE LAMAR MOORE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, these cases came on for hearing before P. Michael Ruff, duly designated Hearing Officer, on May 18, 1987, in Pensacola, Escambia County, Florida. The appearances were as follows:

APPEARANCES

For Petitioner William E. Williams, Esquire Betty Castor: FULLER & JOHNSON, P.A.

Post Office Box 1739 Tallahassee, Florida 32302

For Petitioner G. James Roark, III, Esquire School Board of HAMMONS, ROARK & WHITTAKER, P.A.

Escambia County: 17 West Cervantes Street

Pensacola, Florida 32501

For Respondent: Philip J. Padovano, Esquire

Post Office Box 873 Tallahassee, Florida 32302

This cause arose by an Administrative Complaint filed by Ralph D. Turlington, then Commissioner of Education (Commissioner Betty Castor now substituted by amendment to the petition), (Petitioner) (Department). The complaint alleges in essence that Respondent, Eugene Lamar Moore, a licensed teacher at times pertinent hereto, on or about May 28, 1985, confronted a female student during a change of classes and allegedly kissed her on the neck, making the comment, "See how gentle I am; I don't even give hickeys when I kiss." It is alleged that the female student became distraught, upset and embarrassed at this incident and reported it to her mother, who referred the matter to the principal of Washington High School, where the Respondent was a teacher. Additionally, it

was alleged that the Respondent had on other occasions made improper approaches to female students and had made or attempted to make improper physical contact with female students during the 1984-85 and 1985-86 school years. This behavior allegedly became well known to other students in the school. Additionally, it is charged in a general way that the Respondent received "administrative warnings" based upon allegedly improper conduct with female students in 1977.

According to the complaint, that incident involved an "allegation" that Respondent improperly placed his hand inside a female student's blouse, kissed a student in front of others, failed to follow proper school policy in reporting absences of female students and while a chaperone on a school trip made inappropriate comments in writing to female students, as well as becoming intoxicated during the trip.

The charges in the School Board's petition in consolidated Case No. 86-4906 are essentially identical. The School Board charges the Respondent with being guilty of acts of "misconduct in office" and "immorality" in violation of Section 231.36, Florida Statutes. The Department of Education charges a violation of Section 231.28(1)(f) in that the Respondent has allegedly been guilty of "personal conduct which seriously reduces his effectiveness as an employee of the School Board;" a violation of Section 231.28(1)(h), Florida Statutes, and Rule 6B- 1.06(3)(e) in that he has allegedly intentionally exposed a student to embarrassment or disparagement as well as being in violation of Section 231.28(1)(c), Florida Statutes, by allegedly being guilty of "gross immorality" or "an act involving moral turpitude."

The parties agreed prior to hearing that the causes should be consolidated, and an Order consolidating the cases was duly entered. After one agreed-upon continuance and other procedural delays, the cause came on for hearing as noticed on the above date. At the hearing the Petitioners presented five witnesses and one exhibit, a certified copy of the Respondent's teaching certificate. The Respondent, in addition to testifying on his own behalf, called seven witnesses. Subsequent to the hearing, the parties obtained a transcript of the proceedings and elected to file Proposed Findings of Fact and Conclusions of Law. Later the parties stipulated to an extended briefing schedule for submission of their Proposed Findings of Fact and Conclusions of Law in the form of Proposed Recommended Orders. Those Proposed Findings of Fact have been treated in this Recommended Order and are treated again in the Appendix attached hereto and incorporated by reference herein.

The issues to be resolved in this proceeding concern whether the Respondent is guilty of the misconduct alleged by the two prosecuting agencies in the respective petition and Administrative Complaint and if that guilt is established in whole or in part what, if any, penalty is warranted under the circumstances.

FINDINGS OF FACT

1. During times pertinent to this consolidated proceeding, the Respondent, Eugene Lamar Moore, has held teacher's certificate number 271828 issued by the State of Florida Department of Education for the subject areas of English and Bible studies. The Respondent was employed as a teacher by the Escambia County School District at Washington High School during times pertinent to the facts in this proceeding. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 231, Florida Statutes, as they relate to licensure of teachers and regulation - and enforcement of the practice standards which teachers are required to observe in the practice of that profession in the State of Florida. The Petitioner, Escambia County School

   Board, is a local government agency charged, as pertinent hereto, with regulating the practice and practice standards of teachers and professional conduct of teachers in its employ in the Escambia County school system.

   
   

2. The Respondent was employed at times pertinent hereto by the Escambia County school system as a teacher at the Washington High School. He began teaching in the County under an annual contract of employment in 1970. At the conclusion of the 1973-74 school year, the Respondent was awarded a continuing contract of employment by the County School Board and has been employed by Escambia County as a continuing contract teacher ever since.

   
   

3. On May 27, 1985, during a change of classes in his classroom, at a time when other students were present, the Respondent kissed student Rebecca Cleveland on the cheek. He had known her for approximately one year and eight months at the time the incident occurred. He felt he knew and understood her personality well enough to have no fear that lightheartedly kissing her on the cheek would embarrass her or offend her. It was not his intention to derive personal benefit or gratification by hugging or kissing Rebecca Cleveland on the cheek nor did he intend to offend, embarrass or expose her to disparagement in any way.

   
   

4. Rebecca Cleveland acknowledged that the Respondent had never attempted to kiss her before that day and also acknowledged that she did not really believe Respondent intended to hurt her or to intentionally embarrass her.

   
   

5. Michelle Clawson was another female student at Washington High School and contended in her testimony that the Respondent put his arm around her, attempted to kiss her and attempted to "french kiss" her. Indeed, the Respondent had put his arm around Michelle Clawson on a number of occasions for the purpose of generally encouraging her and encouraging her to take tests, but had not attempted to kiss her on any occasion.

   
   

6. Ms. Clawson additionally contended that Mr. Moore was trying to maintain a good personal relationship with her by giving her undeserved high grades and stated that she asked several boys in the class to stay with her in Mr. Moore's room after class on the day he allegedly attempted to kiss her (presumably for protection). She also stated that Mr. Moore requested that she go to a football game with him, presumably as his date. This testimony is not credited, however, for a number of reasons. Firstly, Ms. Clawson's claim that Respondent tried to "french kiss" her was a recent addition to previous and different versions of the alleged kissing incident related in her previous statements. Concerning her charge that he was giving her undeserved good grades, it was established unequivocally that indeed Mr. Moore had actually given her an "F" during the grading period in question. Concerning her staying in his class after others had left and asking several boys to remain with her, Ms. Clawson was unable to explain why she remained in Mr. Moore's room in the first place, especially after the "boys" supposedly informed her that they could not stay with her. Concerning the alleged "football game date," she conceded that the entire class was present when the conversation occurred. It is very implausible that Mr. Moore would have asked Ms. Clawson for a date, had he been inclined to do so at all, in the presence of any other students, especially not the entire class. If such an incident had occurred it seems likely that there would have been at least one other witness to verify the nature of the conversation in question. It was also established by independent, uncontradicted proof that the Respondent was in charge of arranging buses and other logistics for football game trips and other school trips and served as a chaperone on some occasions for such events. The Respondent's version of this

   conversation to the effect that, if it occurred, he was merely trying to determine if Michelle Clawson would be able to attend the football game and offering to obtain permission for her from her parents, is accepted over Ms. Clawson's version.

   
   

7. Ms. Georgette Floyd is another ninth grade English teacher at Washington High School, like Respondent. Michelle Clawson had been in Ms. Floyd's class the year previous to the one when the alleged incident supposedly occurred in the Respondent's class. Ms. Clawson did not pass Ms. Floyd's freshman English class and was required to repeat the course. She was thus assigned to repeat freshman English in the Respondent's class the year after she was in Ms. Floyd's class. Prior to the time Respondent had Michelle Clawson enter his class, Ms. Floyd warned him that Ms. Clawson might present some problems. Ms. Floyd had found that Ms. Clawson, on occasion, would attempt to provocatively expose parts of her body by sitting in a suggestive or provocative fashion and had been known to spread false comment about teachers, particularly Ms. Floyd.

   
   

8. In summary, it is concluded that Michelle Clawson's testimony is not credible and is not credited herein. Her version of the events is simply not plausible in the face of the Respondent's and Ms. Floyd's testimony; further, she was shown to have a motive for giving an untruthful version of the events in question, to wit, her poor academic performance and failing grades in Respondent's and Ms. Floyd's classes. Ms. Floyd's testimony that Ms. Clawson had previously made a false accusation against her was uncontradicted. 1/

   
   

9. Concerning the charges about the Respondent's alleged loss of effectiveness in the school system, Mr. Sherman Robinson, the principal of Washington High School testified that he did not believe Mr. Moore was any longer an effective teacher at Washington High School. Mr. Robinson based this opinion on his belief that the Respondent's effectiveness was diminished as a result of the Rebecca Cleveland incident of May 1985. He conceded, however, that the Respondent had taught school at Washington High School for the entire following 1985-86 school year and indeed for a portion of the 1986-87 school year.

   
   

10. The Respondent's formal teaching evaluation for the 1985-86 school year was prepared after the incident became known concerning Rebecca Cleveland. That evaluation covers areas involving professional responsibility (encompassing the types of conduct in question) as well as academic performance. The Respondent's evaluation for the 1984-85 school year demonstrates that he received the highest possible score in four out of five sub-categories. He received the next highest score in the remaining sub-categories. No part of that evaluation was unsatisfactory. The Respondent's formal teaching evaluation for the 1985-86 school year was prepared after the incident concerning Rebecca Cleveland became known. The Respondent's 1985-86 evaluation demonstrated that he received the highest possible score on that part of the evaluation that deals with professionalism or professional responsibility. All of the Respondent's teaching, after the Rebecca Cleveland incident occurred, was at Washington High School, and he received all satisfactory or higher evaluations on each category for that period of time after the Rebecca Cleveland incident.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has juris- diction of the subject matter of and the parties to these proceedings. Section 120.57(1), Florida Statutes (1985).

12. The issue in this case concerns whether the Education Practices Commission, pursuant to the Commissioner's and Department's complaint, should impose disciplinary sanctions against the Respondent's teaching certificate and whether the Escambia County School Board should terminate the Respondent from his position of employment as a continuing contract teacher. Such charges are clearly penal in nature. School Board of Pinellas County vs. Noble, 384 So.2d

    285 (Fla. 1st DCA 1980). In such penal disciplinary proceedings, the charges must be proved by clear and convincing evidence. Reid vs. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2nd DCA 1966); Ferris vs. Turlington, So.2d

    (Fla. 1987), (Case No. 69,561; Fla. Sup. Ct. 7/16/87).

    
    

13. Section 231.28, Florida Statutes (1985), provides in pertinent part that the Education Practices Commission has the authority to revoke, suspend or impose other penalties enumerated therein against the teaching certificate of a teacher if it is established that the teacher:

    
    

    (c) has been guilty of gross immorality or an act involving moral turpitude;

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

    reduces the person's effectiveness as an employee of the school board; or

    * * *

    (h) has otherwise violated the provisions of law or rules of the State Board of

    Education, the penalty for which is the revocation of the teaching certificate.

    
    

14. The evidence of record as reflected in the above Findings of Fact does not establish that the Respondent committed any acts of "immorality" as defined in Rule 6B-4.09, Florida Administrative Code. In that rule "immorality" was defined as follows:

    
    

    (2) Immorality is defined as conduct that is inconsistent with the standard 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."

    
    

15. The above Findings of Fact reveal that the circumstances surrounding the Respondent's conduct as a teacher as it relates to this case clearly do not rise to the level of immorality. Thus, it is impossible that he engaged in any act of "gross immorality." His conduct cannot be fairly described as "notorious." The above Findings of Fact establish that his conduct did not bring him into any public disgrace nor did his conduct in the particulars involved in this proceeding bring the education profession into public disgrace. There was certainly no evidence of public opprobrium directed to the Respondent either by members of the public generally, by Respondent's colleagues and co- professionals, or by students or parents (other than those who were witnesses or parents of witnesses against the Respondent). In fact, the Respondent was retained in his employ by the school board and received high ratings for his performance both academically and professionally after the alleged events are supposed to have occurred. The Findings of Fact and the evidence of record

    simply did not support the conclusion that the Respondent engaged in any conduct sufficiently notorious to bring him or his education profession into public disgrace or disrespect or impair his service to the community in the capacity of a teacher in the Escambia County School District.

    
    

16. Concerning the issue of moral turpitude raised by the complaint, a prototypical case involving the definition of that concept, State ex rel. Tullidge vs. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933), provides an apt definition of that concept:

    
    

    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 by the Court.) 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 unintentionally committed through error of judgement when wrong was not contemplated.* (Emphasis supplied between *).

    
    

    See also Pearl vs. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3rd DCA 1981). The Respondent's acts involved in kissing a student on the cheek in a way not designed to further some personal advantage in his relationship with that student clearly were innocent and done in a friendly context. They certainly did not rise to the standard expressed in the above authority of inherent baseness, depravity or dishonesty in the Respondent's dealings between himself and other members of society in the person of the students. Respondent, at most, could be considered guilty of being overly friendly, or possibly using poor judgement, given the sensitive tenor of our times and the apparently changing mores of our society as they relate to matters involving adults touching minors over whom they have a custodial relationship. Certainly, however, there is no scintilla of evidence to establish that the Respondent's conduct amounted to immorality, gross immorality or an act of moral turpitude.

    
    

17. Likewise, the evidence of record and the Findings of Fact establish that Respondent has not committed misconduct which seriously reduces his effectiveness as an employee of the School Board. The evidence simply fails to establish a loss of effectiveness. Section 231.28(f), Florida Statutes, requires proof that the conduct at issue resulted in a loss of the teacher's effectiveness "as an employee of the school board." The testimony offered by Petitioner establishes nothing in this regard. Even if the Respondent may have lost his effectiveness as a teacher in the Washington High School itself, there is no evidence to establish the broader requirement that he engaged in conduct so serious that it reduced his effectiveness as an employee of the School Board. The Petitioner did not demonstrate that the Respondent would be ineffective in another high school or in another position of employment with the School Board. Indeed, the proof adduced, as reflected in the above Findings of Fact, does not even establish that he lost his effectiveness as a teacher at Washington High School. In point of fact, he continued to be employed after the incidents in question and earned high performance ratings both for professional conduct and academic parameters. There was no evidence that the students over whom he had charge nor their parents or other parents reacted to his continued employment at Washington High School in a way which could establish any loss of effectiveness as a teacher. This aspect of the charges of the Department's complaint has simply not been established either.

18. Finally, as to the Department's complaint, the Respondent has been charged under paragraph (h), quoted above, with violating the provisions of rules of the State Board of Education, the penalty for which is revocation of the teaching certificate. Specifically, the rule he is charged with violating is Rule 6B-1.06(3)(e), Florida Administrative Code, which proscribes the intentional exposure of a student to unnecessary embarrassment or disparagement. The evidence of record and the above Findings of Fact simply do not establish this to be the case. The embarrassment of the student in question who was kissed on the cheek has not been proven, given the circumstances and testimony concerning that incident and further the rule requires that the Respondent must intentionally expose a student to unnecessary embarrassment or disparagement for a violation of it to occur. There is certainly no evidence that the Respondent kissed the student with such intent. Thus, this final portion of the Department's charges has not been proven.

    
    

19. Section 231.36, Florida Statutes (1985), upon which the Superintendent of the Escambia County School Board's Petition for Dismissal is based states in effect that the School Board may suspend or dismiss a continuing contract teacher provided the charges demonstrate that the teacher is guilty of "immorality" or "misconduct" in office. The charges brought by the School Board and Superintendent cannot be sustained because the credible evidence of record, as reflected in the above Findings of Fact, does not establish the Respondent to be guilty of any immoral acts or acts which could be deemed to constitute misconduct in office. Since the evidence does not reflect that the School Board has adopted by rule special definitions of these statutory terms, the applicable definitions are deemed to be those set forth in the State Board of Education rules. See Smith vs. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981). As concluded above, concerning the Department's complaint, the evidence clearly does not establish that the Respondent is guilty of immorality for the reasons set forth in the Conclusions of Law concerning the Department's complaint. His conduct simply did not rise to the standard of "immorality" embodied in Rule 6B- 4.09, Florida Administrative Code, quoted above. Likewise, the evidence of record does not establish that the Respondent has committed misconduct in office for the reasons delineated in the above Findings of Fact and in the Conclusions of Law above related to the complaint of the Department concerning the same conduct and episodes.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that a Final Order be entered by the Education Practices Commission dismissing the complaint by the Department of Education against the Respondent, Eugene Lamar Moore, in its entirety. It is

Further RECOMMENDED that the Petition for Dismissal filed by the Superintendent of Schools for Escambia County should be denied and that the Respondent, Eugene Lamar Moore, should be reinstated to his position of employment as a continuing contract teacher with full back pay from the date of suspension.

DONE and ORDERED this 12th day of October, 1987, 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 12th day of October, 1987.

ENDNOTE

1/ The incident concerning Michelle Clawson, for the reasons stated above, has not been proven and there can be no finding of guilt on the part of the Respondent with regard to the supposed incident concerning that student. It is noted, however, that that incident is not the subject of any charges in the Administrative Complaint, at least not with any specificity. There are merely general charges that incidents similar to the incident involving Rebecca Cleveland had occurred during the 1984-85 and 1985-86 school years, but there is no mention in the Administrative Complaint of any incident involving Michelle Clawson, what the incident consisted of, when it occurred nor any of the other factual circumstances which should be alleged to afford one so charged with an adequate opportunity to prepare a defense against the charge. For purposes of this Recommended Order the failure to specifically and adequately provide notice of the charges concerning the "Michelle Clawson incident" is deemed moot because the alleged misconduct in question was not proven to have occurred.

APPENDIX TO RECOMMENDED ORDER CASE NO. 86-4505

Petitioner Department's Proposed Recommended Order:

1. Accepted.

2. Rejected as contrary to the greater weight of the evidence and subordinate to the Hearing Officer's findings.

3. Rejected as subordinate to the Hearing Officer's findings on this subject matter.

4-7. Rejected as contrary to the greater weight of the evidence and subordinate to the Hearing Officer's findings.

8. Rejected as contrary to the greater weight of the evidence and subordinate to the Hearing Officer's findings and irrelevant.

Petitioner School Board's Proposed Findings of Fact and Conclusions of Law:

1. Accepted.

2. Rejected as subordinate to Hearing Officer's findings

   on this subject matter.

3. Rejected as contrary to the greater weight of the evidence and subordinate to the Hearing Officer's findings.

4. Rejected as subordinate to Hearing Officer's findings on this subject matter.

5-6. Rejected as contrary to the greater weight of the evidence and subordinate to the Hearing Officer's findings.

1. Rejected as subordinate to Hearing Officer's findings on this subject matter.

2. Rejected as contrary to the greater weight of the evidence and subordinate to the Hearing Officer's findings.

3. Rejected as contrary to the greater weight of the evidence and subordinate to the Hearing Officer's findings and irrelevant.

Respondent's Proposed Recommended Order: 1-23. Accepted.

COPIES FURNISHED:

William E. Williams, Esquire FULLER & JOHNSON, P.A.

Post Office Box 1739 Tallahassee, Florida 32302

G. James Roark, III, Esquire HAMMONS, ROARK & WHITTAKER, P.A.

17 West Cervantes Street Pensacola, Florida 32501

Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Karen B. Wilde Executive Director

Education Practices Commission

215 Knott Building Tallahassee, Florida 32399

Docket for Case No: 86-004505

Orders for Case No: 86-004505