STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner of ) EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1119

)

BOBBY LEON MURPHY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on June 9, 1987. The Division of Administrative Hearings received the transcript of proceedings on June 26, 1987. Respondent filed a proposed recommended order on July 8, 1987. Petitioner filed petitioner's proposed recommended order on July 21, 1987. The proposed recommended orders were considered in preparation of the findings of fact, although neither party filed separately numbered proposed findings of fact.

The parties are represented by counsel:

For Petitioner: William E. Williams, Esquire

Fuller & Johnson, P.A.

111 North Calhoun Street Tallahassee, Florida 32302

For Respondent: James D. Swearingen, Esquire

Harrell, Wiltshire, Stone and Swearingen

201 East Government Street Pensacola, Florida 32598

By amended administrative complaint dated June 5, 1987, as further amended at hearing on petitioner's ore tenus motion for leave to amend, in order to plead, in paragraph 12, a violation of Rule 6B-1.06(5)(c), Florida Administrative Code, petitioner alleged that respondent, "[a]t all times material has held teacher's certificate number 170876 . . . [and been] employed as Aquatic Coordinator by the Escambia County School District"; that "[o]n or about April 14, 1968, Respondent was arrested by the Pensacola Police Department for assault with hands . . . but that [o]n or about July 27, 1973, Respondent completed an application for a teacher`s certificate, and . . . indicated that he had never been arrested . . . [and thereby] made a fraudulent statement and failed to disclose a material fact in his application for a professional position" in "violation of s. 231.28(1)(h), Fla. Stat., and Rule 6B-1.06(5)(h), Fla. Admin. Code . . . [and Section] 231.28(1)(a), Fla. Stat., in that Respondent obtained his teaching certificate by fraudulent means; that respondent, in "violation of s. 231.28(1)(h), Fla. Stat., in that Respondent has been guilty of gross immorality or an act involving moral turpitude," "hugged

female swimming instructors. . . . made sexual comments to and about female swimming instructors . . . made sexual comments to female swimming instructors about female students; and . . . made sexual comments in an attempt to encourage female colleagues to have sexual relations with him," all also in "violation of s. 231.28(1)(h), Fla. Stat., and Rules 6B-1.06(4)(c) and 6B- 1.06(5)(c), Fla.

Admin. Code, in that Respondent used institutional privileges for personal gain or advantage, and interfered with a colleague's exercise of civil rights and responsibilities"; that "[f]rom 1982 through 1985, Respondent made disparaging and racial remarks about his superior to . colleagues, including . . . calling his principal `a big nigger' and stating that `He is just a nigger trying to be the big boss' . . . [in] violation of s. 231.28(1)(h), Fla. Stat., and Rule 6B- 1.06(5)(d), Fla. Admin. Code, in that Respondent intentionally made a false and malicious statement about a colleague"; that "[f]rom 1982 through 1985, Respondent terminated the employment of individuals without just cause and threatened to terminate the employment of individuals who made complaints to Respondent's supervisors about Respondent's actions . . . in violation of s. 231.28(1)(h), Fla. Stat., and Rule 6B-1.06(5)(m), Fla. Admin.

Code, in that Respondent sought reprisal against individuals who reported a violation of the Florida School Code or State Board of Education Rules"; and that "[d]uring the 1984-1985 school year, Respondent instructed his staff to aid in the campaign of a school superintendent on school board time . . . [in] violation of s. 231.28(1)(h), Fla. Stat., and Rule 6B-1.06(4)(c), Fla. Admin.

Code, in that Respondent used institutional privileges for personal gain or advantage."

At hearing, petitioner abandoned paragraph four of the amended administrative complaint. At that time, petitioner declined to abandon paragraphs 13 through 18 (Counts V, VI and VII), but conceded that evidence to prove Counts V, VI and VII was not adduced. On July 21, 1987, Petitioner filed a notice of voluntary dismissal with respect to paragraph four of Count I and with respect to Counts V, VI and VII of the amended administrative complaint, in their entirety.

On motion of the School Board of Escambia County, and with the concurrence of all parties, the present case was consolidated for hearing with School Board of Escambia County v. Bobby Leon Murphy, Case No. 87-2487.

ISSUE

Whether the Education Practices Commission should take disciplinary action against respondent for the reasons alleged in the administrative complaint?

FINDINGS OF FACT

1. Respondent Bobby Leon Murphy holds a Florida teacher's certificate, No. 170876. He began his teaching career in Mobile, Alabama, at Satsuma High School, in 1958. Now 55 years old, he has served as aquatic coordinator for Escambia County and director of the Washington Aquatic Center since June 14, 1982, twelve days before he lost the eldest of his three sons in an automobile accident.

2. Sherman L. Robinson, the black principal of Washington High School, was among the first to learn of the tragedy, and came promptly to the family home to console his friend, "Bobby Lee," as he is known. It was Mr. Robinson to whom Coach Murphy referred, on some ten occasions, in conversations with another employee of Washington Aquatic Center, as a "big nigger" or simply as a "nigger." He once called his principal "just a big nigger trying to throw his weight around." T.102.

   
   

   Wife To Blame

   
   

3. Mr. and Mrs. Murphy were with friends at Rosie O'Grady's in Pensacola on April 14, 1968, when a dispute arose between respondent Murphy and another patron. The gentlemen decided to pursue the matter outside. Mr. Murphy landed the first and perhaps only blow before a policeman ended the altercation and placed him under arrest for "assault with hands." Eventually, Mr. Murphy paid a

   $50.00 fine on account of the incident, or so he testified at hearing.

   
   

4. On his application for extension of certificate dated March 24, 1987, after these proceedings began, Mr. Murphy reported that he had been fined

   $75.00. The application for extension was granted.

   
   

5. On three previous applications for teacher's certificates, dated November 16, 1971, July 27, 1973, and April 4, 1983, there was no mention of the arrest. In response to the question, "Have you ever been arrested or involved in a criminal offense other than a minor traffic violation?" the box in front of "No" had been checked on the 1971 and 1973 applications. On the 1983 application, "No" had been checked in response to the question "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" Petitioner's Exhibit No. 2.

   
   

6. Respondent testified that he had not meant to mislead anybody in submitting the applications he did after his arrest and before the present charges were laid. It was just that his wife had filled earlier applications out, he explained, while he himself had completed the most recent and only accurate application.

   
   

   Life at Poolside

   
   

7. Mr. Murphy has coached swimming for many years, and enjoys an interstate (Florida and Alabama) reputation as a good swimming coach. Since former Superintendent Stokes named him director of the Washington Aquatic Center, however, his principal duties have been administrative. The Center was built on the campus of Washington High School, but is used by junior and senior high students from other Escambia County schools as well.

   
   

8. The office Mr. Murphy occupied at the Center opens onto the pool deck, and the office door is mostly glass. Almost all of the office is visible from outside, but passersby cannot see the corner of the office into which he retreated one day in the summer of 1982, while addressing Susan Lynn Graham, then 18 years old, and the only other occupant of the office. He urged her to join him in the corner and rub her "boobs" against him, but she declined.

   
   

9. Ms. Graham was a pool attendant at the time. Mr. Robinson, the principal, had delegated to Mr. Murphy authority to hire and fire pool attendants, young people paid minimum wage to work as lifeguards, and to help with teaching, coaching and keeping the Center clean.

10. Coach Murphy regularly hugged the pool attendants and others, and Ms. Graham was no exception. A witness described these as lateral, as opposed to frontal, hugs. Standing beside the recipient, he placed an arm around his or her shoulders, and pulled, squeezing the near shoulder against the side of his chest. For the most part, these hugs were gestures of friendship, encouragement or commendation, but, in Ms. Graham's case, he whispered into her ear when he hugged her, "I'm going to make love to Sue Graham," or "I'm going to make love to Sue Graham before the summer's over," or "Don't you forget it, baby, or something of the kind. This happened repeatedly.

    
    

11. Once, when just the two of them were in his office, he told her he would eat her "pussy," then stuck his tongue out, emitted a "kind of laugh," (T.22) and shook his head. At this, she left the office, shocked and embarrassed, telling him not to say things like that. He seemed to her always to be leering: sometimes he raised his eyebrows. He offered to meet her "any time" at his condominium. (T.24) He once told her he liked watching her jump up and down on the diving board and seeing her bosom bounce.

    
    

12. Ms. Graham told co-workers that Mr. Murphy had made passes at her and asked them not to leave her alone with him. When she complained to Mike Haas, however, the Center's assistant director, he seemed to support Mr. Murphy. She decided against reporting Mr. Murphy's attentions to his superiors, and left her job in May of 1983. She "just decided that it was not worth the pressure [she] was under to continue to work there." (T.24)

    
    

13. Ann Cobb Palmer had known Mr. Murphy since she was eight years old, maybe even longer. He had been her swimming coach. Hired by respondent as a lifeguard at Washington Aquatic Center, she felt intimidated and degraded one day at work when, in her presence, he said to two young men, Messrs. Haas and Martin, "I wonder what she would be like in bed." (T.70) Eighteen years old at the time, she burst into tears and left his office crying a few days later when, again in her hearing, Coach Murphy told Mike Martin, "I would like to get in her pants." Id.

    
    

14. Teresa Hunter Murphy, no relation to the respondent, was a married college graduate when she began working as a swimming instructor at Washington Aquatic Center in the summer of 1982. In October of 1982, as she and Coach Murphy sat in his office, he "stared at [her] crotch and said, mmmmm, I think I could eat on that thing for a few days," (T.96) adding, "[B]aby, we'd have to send out for room service." (T.97) When she expressed dismay at his language and stood up to leave, he asked, "[D]on't you like it?" Id.

    
    

15. During the three years or so she worked under respondent's supervision, Ms. Murphy's first marriage deteriorated and eventually came to an end. Coach Murphy, who was aware of her marital problems, said to his assistant Mike Haas, "Mike, Teresa is not getting any, can you handle that[?]" (T.94) Another time, Coach Murphy asked her if she would "go for" dating or having sex with either of the "PE coaches" at Washington High School.

    
    

16. Looking at a picture of the Washington High School girls' swim team one day, Coach Murphy pointed out to Ms. Murphy that "several of the girls on the front row had shown through their bathing suits" (T.95) and said it "looked like they had been busted wide open . . . [meaning that they] were not virgins any longer." (T.96)

17. The pool attendants had no guarantee of continued employment and, at least one, Katherine Taylor, was dismissed by Mr. Haas, who said he and Coach Murphy had reached the decision together. At the time, the only explanation he offered was that it was for her benefit. (T.53) At hearing, however, he testified she was fired because she had been unwilling to clean a toilet.

    
    

    Keys to the Condo

    
    

18. Coach Murphy hired Julie Ann Halpern Schweitzer, 22 years old and unmarried, to work at the Washington Aquatic Center as a lifeguard in September of 1983. At school board expense, he sent her to a coaching convention in Orlando in the company of his assistant, Mike Haas, Teresa Murphy, and Mike Byrd, who did not work at the Center.

    
    

19. Upon their return, Coach Murphy summoned Ms. Halpern, as she then was, to his office. When she arrived, Mike Haas was already there. Coach Murphy asked if anything had happened on the trip, "insinuating hanky-panky and asked Mike Haas if he made a pass at [Ms. Halpern]. Mike Haas said he had tried. But the truth was, he never had tried." (T.42) After more banter in "almost a sick joking manner," Id., Coach Murphy handed some keys to Ms. Halpern, saying, "Julie, these are the keys to my condo. I want you and Mike to go out there and finish your business." (T.43)

    
    

20. Mike Haas drove Ms. Halpern to the condominium and, after she declined his invitation to go inside, to Cordova Mall where they bought a birthday card for a boy they worked with, before returning to Washington Aquatic Center. This excursion took place "on Aquatic Center time." (T.47)

    
    

21. After it was over, Coach Murphy called them into his office and asked what had happened. When Ms. Halpern told him they had not even gone inside the condominium, "he was upset very . . .silent." (T.45) "[H]e was silent for two days straight. For that whole week, we didn't get much out of him. We had to walk on eggshells." (T.47) This lack of communication made him less effective as an administrator.

    
    

22. Many of the young women working under Coach Murphy's supervision avoided him, even though they needed to communicate with him regularly to do their jobs as well as possible. His behavior toward young women impaired his effectiveness as an administrator. New employees were sometimes told to avoid him.

    
    

    Electioneering

    
    

23. Ann Cobb Palmer, a pool attendant named Daniel, Katherine Taylor, Teresa Murphy, Mike Haas, Michael T. Martin all were directed by respondent to display signs or make telephone calls on behalf of Charles Stokes, the former superintendent of schools who sought reelection, and did so, many of them on school time, during the fall of 1984. Respondent gave Renee Branum permission to make telephone calls on behalf of the Stokes candidacy on school phones during her working hours. (T.305)

    
    

    Students Not Involved

    
    

24. As far as the evidence showed, respondent never propositioned any student or discussed any sexual topic with a student. He testified without contradiction, "I don't even have sex, and I haven't for the past three or four years." (T.295)

    CONCLUSIONS OF LAW

    
    

25. The Education Practices Commission, within petitioner Department of Education, is authorized to suspend, revoke, or revoke permanently teaching certificates "or to impose any other penalty provided by law," Section 231.28(1), Florida Statutes (1985), upon proof that the holder of the certificate "[h]as been guilty of gross immorality or an act involving moral turpitude," Section 231.28(1)(c), Florida Statutes (1985), or upon proof that a teacher has violated "rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate. Section 231.28(1)(h), Florida Statutes (1985). Among the rules for which a certificate may be revoked are those requiring that teachers "[s]hall not use institutional privileges for personal gain or advantage," Rule 6B-1.006(4)(c), Florida Administrative Code; "[s]hall not interfere with a colleague's exercise of political or civil rights and responsibilities," Rule 6B-1.006(5)(c), Florida Administrative Code; "[s]hall not intentionally make . . . malicious statements about a colleague, Rule 6B-1.006(5)(d), Florida Administrative Code; and "shall not make any fraudulent statement or fail to disclose a material fact in one's own . . . application for a professional position." Rule 6B-1.006(5)(h), Florida Administrative Code.

    
    

26. License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487,

    491 (Fla. 1973); Kozerowtiz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980). Strict procedural protections apply, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris v. Turlington, No. 69,561 (Fla.; July 16, 1987. See Addington v. Texas, 441 U.S. 426 (1979); Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker v. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2d DCA 1966). A licensee's breach of duty justifies revocation only if the duty has a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981) in the evidence, unless applicable statutes and rules create a clear duty, which the evidence shows has been breached.

    
    

27. The administrative complaint does not allege that respondent "has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board," Section 231.28(1)(f), Florida Statutes (1985), or that, in directing employees to campaign for a particular candidate, he "interfere[d] with a colleague's exercise of political or civil rights," Rule 6B-1.006(5), Florida Administrative Code, nor does the administrative complaint plead a violation of Rule 6B-1.006(5)(g), Florida Administrative Code.

    
    

28. Petitioner did not prove that respondent ever terminated an employee without just cause, or that he ever took or threatened to take reprisals against anybody for reporting violations of the Florida School Code or State Board of Education Rules.

    
    

29. Only respondent's applications for teaching certificates, not any application for any professional position, were offered in evidence. The evidence showed and respondent admitted that the statement on respondent's July 27, 1973 application for a teacher's certificate to the effect that he had never been arrested for an offense other than a minor traffic violation, was false;

    respondent's testimony that the statement was inadvertent has not been credited. Strictly speaking, however, the falsehood did not occur in an "application for a professional position." Rule 6B-1.006(5)(h), Florida Administrative Code.

    Compare Rule 6B-1.006(5)(g), Florida Administrative Code. The evidence does not establish a violation of Rule 6B-1.006(5)(h), Florida Administrative Code.

    
    

30. The amended administrative complaint also alleges that, by virtue of the misstatement in his application, respondent "obtained his teaching certificate by fraudulent means." But, inasmuch as his later application for extension was granted, despite disclosure of his arrest on assault charges, the evidence does not establish that the certificate he received in 1973 was "[o]btained . . . by fraudulent means." Section 231.28(1)(a), Florida Statutes (1985).

    
    

31. The evidence adduced in the present case clearly and convincingly establishes, however, that respondent Bobby Murphy was guilty of conduct which violated other state board rules, in violation of Section 231.28(1), Florida Statutes (1985).

It is, accordingly, RECOMMENDED:

That Petitioner revoke respondent's teaching certificate for two years. DONE and ENTERED this 11th day of August, 1987, at Tallahassee, Florida.

ROBERT T. BENTON, II

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 11th day of August, 1987.

COPIES FURNISHED:

Karen Barr Wilde, Executive Director Education Practices Commission

Room 418, Knott Building Tallahassee, Florida 32399

The Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

William E. Williams, Esquire Fuller & Johnson, P.A.

111 North Calhoun Street Tallahassee, Florida 32302

James D. Swearingen, Esquire

Harrell, Wiltshire, Stone and Swearingen

201 East Government Street Pensacola, Florida 32598

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

BETTY CASTOR, as

Commissioner of Education,

Petitioner, EPC CASE NO. 87-029-RT DOAH CASE NO. 87-1119

vs.

BOBBY LEE MURPHY,

Respondent.

/

FINAL ORDER

Respondent, BOBBY LEE MURPHY, holds Florida teaching certificate no. 170876. 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 Commission 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 October 22, 1987, in Tampa, Florida, to take final agency action. The Petitioner was represented by William E. Williams, Esquire. The Respondent was neither present nor represented. The panel has reviewed the entire record in the case.

The panel adopts the findings of fact of the Recommended Order. The panel adopts the conclusions of law contained in the Recommended Order with the exception of the conclusions regarding Rule 6B-1.006(5)(h), F.A.C., and Section 231.28(1)(a), F.S., on pages 13 and 14, respectively, of the Recommended Order.

With regard to Rule 6B-1.006(5)(h) and Section 231.28(1)(a), the panel specifically rejects the hearing officer's conclusions and concludes that Respondent violated both Rule 6B-1.006(5)(h), F.A.C., and Section 231.28(1)(a),

F.S. The panel adopts the recommended penalty of two (2) years revocation. 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 29th day of October, 1987.

LORETTA VACANTI, Presiding Officer

I HEREBY CERTIFY that a copy of the foregoing Order in the matter of

BC vs. Bobby Lee Murphy was mailed to James D. Swearingen Esq., 201 East Government Street, Pensacola, Florida, 32501 this 3rd day of November, 1987, by U.S. Mail.

KAREN B. WILDE, Clerk

COPIES FURNISHED TO:

Catherine L. Birdsong Professional Practices Services

Susan Tully Proctor, Esquire Attorney General's Office

Sydney McKenzie, III General Counsel

Florida Admin. Law Reports

Mike Holloway, Superintendent Escambia County Schools

Dr. Roger Mott, Asst. Supt. Personnel Services Escambia County Schools

Robert T. Benton, II, Esquire Hearing Officer

Division of Administrative Hearings William E. Williams, Esquire

Docket for Case No: 87-001119

Orders for Case No: 87-001119