STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner of ) Education, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1085

)

)

ANTHONY BERNARD CHESTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on June 24, 1987, in Holly Hill, Florida.

APPEARANCES

For Petitioner: J. David Holder, Esquire

Post Office Box 1694 Tallahassee, Florida 32302

For Respondent: Ronald G. Meyer, Esquire

Meyer, Brooks and Cooper, P.A. 911 East Park Avenue

Post Office Box 1547 Tallahassee, Florida 32302

PROCEDURAL STATEMENT

The Petitioner, Betty Castor, as Commissioner of Education, filed an Administrative Complaint against the Respondent, Anthony Bernard Chester, on February 20, 1987. The Respondent requested an administrative hearing to contest the allegations contained in the Administrative Complaint in an Election of Rights.

At the final hearing the Petitioner presented the testimony of William A. Walden, Willie D. Brennon, Dwayne Busse, Marnie Hazen and Eve K. Booth. Ms.

Booth was accepted as an expert in the field of administration and supervision of educators in Florida. The Petitioner also offered three exhibits which were marked as "Petitioner's" exhibits and accepted into evidence.

The Respondent presented the testimony of Don Dungee and testified on his own behalf. The Respondent also offered one exhibit which was marked as "Respondent's exhibit 1." That exhibit is hereby rejected.

The parties have timely filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been

made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

ISSUE

Whether the Respondent's Florida teaching certificate should be suspended or revoked based upon the allegations of the Petitioner's Administrative Complaint dated February 20, 1987?

FINDINGS OF FACT

1. It is undisputed that the Respondent holds Florida teaching certificate 497382.

   
   

2. The Respondent has been a school teacher since the 1982-1983 school year. During the 1983-1984 and 1984-1985 school years the Respondent was employed as a teacher by the Volusia County School District (hereinafter referred to as the "School District").

   
   

3. During the 1984-1985 school year the Respondent was employed as a physical education teacher and the track coach at Silver Sands Junior High School (hereinafter referred to as "Silver Sands"), in the School District.

   
   

4. Kim Romano was a minor female student in the eighth grade at Silver Sands during the 1984-1985 school year. Ms. Romano served as one of three managers of the Silver Sands track team coached by the Respondent.

   
   

5. At some point during the 1984-1985 school year the Respondent became romantically attracted to Ms. Romano. The Respondent realized that he should not get involved with Ms. Romano and, therefore, he sought counsel from a former college professor, Mr. Don Dungee. Mr. Dungee advised the Respondent to handle the situation himself.

   
   

6. On the evening of March 20, 1985, the Silver Sands track team participated in a track meet at Ormond Junior High School.

   
   

7. Following the conclusion of the track meet the team, the Respondent and the track team managers had to wait for a bus to transport them back to Silver Sands. The bus was late.

   
   

8. One of the track team members asked where the telephone was so that he could call his mother and inform her that he would be late. The Respondent asked if anyone knew where the telephone was and Ms. Romano indicated that she did. The Respondent asked Ms. Romano to show him and the track team member who wanted to use the telephone where the telephone was located.

   
   

9. Ms. Romano, the Respondent and the track team member walked to the telephone which was located out of sight of where the team was waiting for the bus.

   
   

10. While the track team member used the phone, the Respondent and Ms. Romano began to walk back to where the team was waiting. On the way back the Respondent and Ms. Romano kissed.

    
    

11. The Respondent willingly participated in the kiss, which was a "french" kiss, based upon the following findings of fact:

    1. At the time of the kiss the Respondent was six feet, five inches tall and weighed approximately 230 pounds. Ms. Romano was approximately five feet, two inches tall and weighed approximately 115 pounds. Ms. Romano could not have forced the Respondent to participate in a "french" type kiss.

       
       

    2. On the way to the telephone, Ms. Romano appeared to be "fine." When Ms. Romano returned following the kiss she was "crying", "hysterical" and "jumping." Ms. Romano walked around the field in this state until the bus left and cried on the bus ride back to Silver Sands.

       
       

    3. After the bus picked up the track team and managers and had returned to Silver Sands, the Respondent said that "he didn't know how he got involved with Kim", that "he shouldn't be on the face of the earth" and that "he needed a drink."

       
       

    4. On April 8, 1985, the Respondent was interviewed by Willie D. Brennon, Principal of Silver Sands. William A. Walden, Assistant Principal at Silver Sands was present at the meeting. The Respondent admitted that a "french" style kiss took place between Ms. Romano and himself on March 20, 1985. The Respondent also indicated that Ms. Romano had initiated the kiss.

       
       

    5. On April 10, 1985, the Respondent met with Duane Busse. At that time Mr. Busse was the Employee Relations Officer of the School District. The Respondent again admitted that he had participated in a "french" type kiss with Ms. Romano on March 20, 1985, that he lacked judgment in allowing it to happen and offered to resign. The Respondent also indicated that his feelings for Ms. Romano were genuine and sincere and that she reminded him of a former girl friend.

       
       

12. The same night that the kiss took place, March 20, 1985, the Respondent telephoned Mr. Dungee and told him that Ms. Romano had kissed him and that he had held her off when it happened. Mr. Dungee again advised the Respondent to handle the situation himself.

    
    

13. The incident was reported to Mr. Walden by Marnie Hazen, on April 8, 1985. Ms. Hazen was a friend of Ms. Romano. Ms. Hazen was on the track team and a student at Silver Sands.

    
    

14. Following the kissing incident, the Respondent wrote a two-page note which was given to Ms. Romano. The note was romantic in nature.

    
    

15. The note written by the Respondent was written by the Respondent on his own behalf based upon the following findings of fact:

    
    

    1. The Respondent admitted to Mr. Busse that he wrote the note to Ms. Romano on April 10, 1985.

    2. The complimentary closing of the note reads: Take care and Smile

       CLY

       
       

       The Respondent was unable to explain the significance of this closing and indicated that it did not mean anything. The Respondent maintained during the final hearing that he had written the note on behalf of Reginald Taylor, one of the managers of the track team. Mr. Taylor was supposed to rewrite the note in

       his own handwriting and give it to Ms. Romano according to the Respondent. This testimony is rejected as contrary to the weight of the evidence. It is reasonable to infer that the letters "CLY" were intended to represent "Coach Loves You" or "Chester Loves You" or words of similar meaning.

       
       

    3. The note took two days for the Respondent to write. It defies logic and common sense that the Respondent would spend two days writing a note on behalf of one of his students.

       
       

16. The Respondent offered to resign when confronted by Mr. Brennon in order to avoid harm to Silver Sands. His offer was not accepted.

    
    

17. The Respondent's position as a teacher was not terminated by the School District following the incidents. Instead, the Respondent was transferred to another work location for the remaining weeks of the 1984-1985 school year and his annual contract with the School District was not renewed following the conclusion of the 1984-1985 school year.

    
    

18. The evidence failed to prove that any other kissing incidents occurred or that the Respondent gave Ms. Romano any gifts, including a necklace.

    
    

19. The Respondent's conduct with Ms. Romano constitutes personal conduct which seriously reduced the Respondent's effectiveness as an employee of the School District. The Respondent's conduct with Ms. Romano reduced his effectiveness as an employee with the School District. The School District's ability to trust the Respondent with minor female students was substantially diminished as a result of his conduct. In light of the incidents, students under the Respondent's control and supervision would be "at risk."

    
    

20. Ms. Romano was served a subpoena compelling her attendance at the final hearing. Ms. Romano failed to appear, however.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1986 Supp.).

    
    

22. The Petitioner's Administrative Complaint against the Respondent alleged that during the school year 1984-1985, the Respondent was guilty of:

    1. conduct involving gross immorality and moral turpitude in violation of Section 231.28(1)(c), Florida Statutes; (2) personal conduct which seriously reduced his effectiveness as an employee of the school board in violation of Section 231.28(1)(f), Florida Statutes; and (3) otherwise violating the provisions of law or rules of the State Board of Education in violation of Section 231.28(1)(h), Florida Statutes.

       
       

23. In particular, the Petitioner alleged that during the 1984-1985 school year the Respondent on two occasions kissed a minor female school student, wrote a minor female school student one or more notes which were romantic in nature and gave the minor female school student a necklace. The weight of the evidence failed to prove that more than one kiss took place or that more than one note was written. The evidence also failed to prove that the Respondent gave a student a necklace.

    
    

24. This proceeding involves disciplinary action against the Respondent's teaching certificate. Therefore, the burden of proof to establish the facts

    upon which the Petitioner seeks to discipline the Respondent's certificate is on the Petitioner. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). The charges must be proved by the Petitioner through the introduction of clear and convincing evidence. Turlington v.

    Ferris, So.2d , Supreme Court of Florida, Case No. 69-561, July 16, 1987.

    
    

25. The evidence in this case supported a finding that the Respondent willingly participated in a kiss with a minor female student under the Respondent's control and supervision and that he wrote a note which was romantic in nature which was given to the minor female student. While the evidence presented at the hearing was in large part hearsay, the Respondent's admissions to Mr. Brennon, Mr. Walden, Mr. Busse and Ms. Hazen constitute admissions against interest which are admissible as an exception to the hearsay rule under Section 90.803(18), Florida Statutes. Some of his statements were also corroborated by other direct evidence. See Section 120.58(1)(a), Florida Statutes. Other hearsay testimony, including Ms. Romano's hearsay statement that a kiss took place, was also corroborated by other direct evidence. Id. Finally, Ms. Hazen's sworn statement, which was admitted as Petitioner's exhibit three, constitutes past recollection recorded, which is an exception to the hearsay rule. Section 90.803(5), Florida Statutes. Hearsay statements contained within Ms. Hazen's sworn statement which were not corroborated by direct evidence have not been relied upon, however, in making findings of fact.

    
    

26. Section 231.28(1)(c), Florida Statutes, provides that the Education Practices Commission has the authority to suspend a teaching certificate for a period of time not to exceed three years, or revoke a teaching certificate for a period of time not to exceed ten years or permanently if an individual is guilty of "gross immorality or an act involving moral turpitude." The terms "moral turpitude" are defined by Rule 6B-4.009(6), Florida Administrative Code, as follows:

    
    

    Moral turpitude is a crime that is

    evidenced by an act of baseness, vileness or depravity in the private and social duties which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

27. The terms have also been defined by the Supreme Court of Florida as follows:

    
    

    Moral turpitude involves the idea of

    inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. . . . 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 judgment when wrong was not contemplated.

    
    

    Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933).

    
    

28. Based upon the evidence in this case, it is concluded that the Respondent's conduct with Ms. Romano, a minor female student under his control

    and supervision, constituted acts involving moral turpitude. Although the Respondent maintained that the kiss which he admits took place between Ms. Romano and himself was instituted by Ms. Romano, the evidence supports a conclusion that the Respondent willingly participated in the kiss. Whether the Respondent or Ms. Romano instigated the kiss is irrelevant in light of this conclusion. The Respondent also wrote a note which was romantic in nature which was given to Ms. Romano.

    
    

29. Section 231.28(1)(f), Florida Statutes, provides that the Education Practices Commission also has the authority to suspend or revoke a teaching certificate if an individual is guilty of conduct which seriously reduces his effectiveness as an employee of the school board. The Respondent's conduct with Ms. Romano did reduce his effectiveness as an employee of the school board. The Respondent's conduct substantially diminished the School District's trust in the Respondent's ability to conduct himself in a professional manner with minor female students under his supervision and control. Because of the Respondent's conduct with Ms. Romano, students under the Respondent's control and supervision would be "at risk."

    
    

30. Finally, Section 231.28(1)(h), Florida Statutes, provides that the Education Practices Commission has the authority to suspend or revoke a teaching certificate if an individual violates the rules of the State Board of Education. Rule 6B-1.006(2), Florida Administrative Code, prohibits the violation of the Principles of Professional Conduct for the Education Profession in Florida. The penalty for such violation is suspension or revocation of an individual's teaching certificate.

    
    

31. In this case, the Petitioner has alleged that the Respondent has violated the following Principles of Professional Conduct:

    
    

    1. 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.

          * * *

          (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          * * *

          (h) Shall not exploit a professional relationship with a student for personal gain or advantage. Rule 6B-1.006(3), Florida Administrative Code.

          
          

32. The evidence in this case supports a conclusion that the Respondent's conduct with Ms. Romano violated his obligations pursuant to Rule 6B-1.006(3)(a) and (h), Florida Administrative Code. The evidence did not support a conclusion that the Respondent's conduct with Ms. Romano violated his obligation pursuant to Rule 6B-1.006(3)(e), Florida Administrative Code, however. The weight of the evidence did not support a finding that the Respondent's conduct intentionally exposed Ms. Romano to unnecessary embarrassment or disparagement.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions Of Law, it is

RECOMMENDED that the Respondent's Florida teaching certificate be suspended for a period of three years.

DONE and ENTERED this 5th day of August, 1987, in Tallahassee, Florida.

LARRY SARTIN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway

The Oakland Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1987.

APPENDIX

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 1.

2 2-3.

3 4.

4(a) 6.

(b) 7.

(c) 8.

(d) 9.

(e) 10.

(f) 10-11.

5 11.

5(a) 11a.

1. 11b.

2. 11c.

3. 11d and 16.

4. 11e.

5. 20. The second sentence is not a finding of fact. The last sentence is accepted only to the extent that Ms. Romano's statements corroborate evidence that a kiss occurred and that a note was written by the Respondent to Ms. Romano.

6. Irrelevant or cumulative.

7. Irrelevant.

6 14.

6(a) 15.

1. 15a.

2. The weight of the evidence did not prove that the Respondent wrote more than one note.

3. 15b.

4. 15c.

7 17.

8 19.

9 18.

The Respondent's Proposed Findings of Fact

the teacher-student relationship he had established." See 5.

7 Not supported by the weight of the evidence.

8 6.

9 8.

10-12 Not supported by the weight of the evidence.

13 12.

14 13.

15-16 11d.

1. Irrelevant.

2. 11e and 15a. The date of this meeting was April 10, 1985 and not April 11, 1985.

3. 15a. The Respondent did not tell Mr. Busse that he had written the note for Reginald Taylor.

4. Not supported by the weight of the evidence. Mr. Taylor approached Mr. Busse on his own and told Mr. Busse that the note had been written for him sometime after April 10, 1985.

5. Not supported by the weight of the evidence.

22 17.

23 20.

24 Hereby accepted.

25-26 Not supported by the weight of the evidence.

27-28 18.

29-33 Not supported by the weight of the evidence.

COPIES FURNISHED:

J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302

Ronald G. Meyer, Esquire Meyer, Brooks and Cooper, P.A. 911 East Park Avenue

Post Office Box 1547 Tallahassee, Florida 32302

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32999

Sydney McKenzie, General Counsel Department of Education

Knott Building Tallahassee, Florida 32399

Docket for Case No: 87-001085

Orders for Case No: 87-001085