STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2919

)

DAVID CUNNINGHAM, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled matter was held on November 13, 1987, in Orlando, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

APPEARANCES

For Petitioner: J. David Holder, Esquire

RIGSBY & HOLDER

325 John Knox Road Building C, Suite 135 Tallahassee, Florida 32303

For Respondent: No appearance

ISSUES

The substantive issue in this proceeding is whether the Respondents Florida teaching certificate should be suspended or revoked based upon the allegations of Petitioner's complaint dated June 4, 1987.

Respondent has raised various procedural issues in his written documents and in a telephone motion hearing held on November 10, 1987. Those issues include whether he has already surrendered his teaching certificate, whether the investigation was proper and whether the formal hearing was properly scheduled.

BACKGROUND AND PROCEDURAL MATTERS

On June 4, 1987, the Commissioner of Education filed her Administrative Complaint against David Martin Cunningham alleging that while an elementary school teacher in the Orange County School District, he engaged in homosexual acts with a minor male student, in violation of Sections 231.28(1)(c), (f) and (h), Florida Statutes, and State Board of Education Rules 6B-1.06(3)(a), (e), and (h), Florida Administrative Code.

Cunningham responded with a written statement disputing the allegations and arguing that his teaching certificate was invalid and had already been surrendered and that he was denied an opportunity for a conference and an opportunity to inspect material assembled after the investigation.

The case was referred to the Division of Administrative Hearings for a formal hearing.

In response to an Order by Hearing Officer Arnold H. Pollock, counsel for Petitioner requested venue in Orlando and scheduling during the week of September 14-18, 1987. Respondent filed no response to the Order.

The case was transferred to the undersigned for a hearing in Orlando and by notice dated August 4, 1987, the hearing was scheduled for November 13, 1987.

On August 5, 1987, a letter and accompanying audio tape were filed by Mr.

Cunningham, without copies to the Petitioner. The letter described obvious material facts and stated that the tape was an interview he conducted with the student involved. A Notice of Ex Parte Communication was filed informing Mr. Cunningham that neither the letter nor the tape would be considered.

On November 2, 1987, Respondent filed a motion to dismiss the complaint, alleging again that his certificate was not valid, that he was innocent of the charges and that the hearing scheduled for November 13 was improper because it was scheduled beyond the 90 days deadline addressed in Hearing Officer Pollock's Order dated July 21, 1987.

After some difficulty, a telephone hearing on the motion was scheduled for November 10, 1987. Mr. Cunningham was contacted by leaving a message with his mother at the address given for him on his election of rights form. I was informed that he had left that address, but that he would call. When he did call, he refused to disclose his whereabouts or current telephone number. He preferred, rather, to initiate the conference call himself. At the commencement of the conference call, Mr. Cunningham introduced an individual whom he identified as his attorney. The individual gave his name, Bill Keiler, but refused to divulge his address or telephone number and said that his participation was limited to making sure the hearing was done properly. Mr.

Cunningham made his arguments based on his motion to dismiss and David Holder, representing Petitioner, responded. For reasons more fully addressed in the following conclusions of law, the motion was denied.

At the close of the telephone conference, Mr. Cunningham was given the opportunity to request a continuance and to suggest a more convenient venue for the hearing. He declined, stating there was no sense in continuing something that should not be held.

Neither Mr. Cunningham nor any representative on his behalf appeared at the final hearing on November 13, 1987. Petitioner presented the testimony of Jerry

1. Whitmore, Dynell Herrell, Betty Jean Way, John Edwards and John Hawco. Six exhibits were admitted.

   
   

   After the preparation of a transcript, Petitioner submitted a Proposed Recommended Order on December 10, 1987. By telephone, Mr. Cunningham asked to be permitted to submit a proposed recommended order; he was given a deadline of December 28, 1987. Respondent's "Proposed Recommended Order and Response to Petitioner's Recommended Order" provides commentary and argument on the testimony presented at hearing; it includes statements of fact unsupported by

   the record; it includes general denials of guilt and argument that the process is flawed and a "witch hunt"; it also includes a handwritten "transcript" of the taped interview previously provided and other documents not previously made part of the record.

   
   

   On January 5, 1988, Petitioner filed its motion to strike the exhibits attached to Respondent's proposed recommended order. This motion is GRANTED.

   
   

   The facts proposed by Petitioner are substantially adopted.

   
   

   FINDINGS OF FACT

   
   

   Based upon a consideration of all evidence properly made part of the record in this proceeding, the following findings are made:

   
   

   1. David Cunningham is now, and was at all times relevant, certified as an elementary school teacher under State of Florida Certificate No. 468382. The certified copy received in evidence as Petitioner's Exhibit 1 reveals a date of issue of April 14, 1986 and an expiration date of June 30, 1990. No competent evidence was presented to support Respondent's allegation that the certificate was invalid or otherwise lawfully relinquished or revoked.

      
      

   2. David Cunningham was employed as an elementary teacher at Caley Elementary School in Orlando, Florida during school year 1983-84, until March 1984, when he was placed on leave without pay for the remainder of the school year.

      
      

   3. Dynell Harrell was a fifth grade student in Cunningham's reading class during the first semester of 1983-84 at Caley. Dynell was twelve years old at the time.

      
      

   4. During the second semester of 1983-84, Dynell transferred to another school, but began having contacts with Cunningham outside of the school setting. The two went to amusement parks and to restaurants. On only one occasion they were accompanied by Dynell's siblings. Dynell began spending weekends at Cunningham's house. Cunningham gave him presents of clothes, shoes, and money -

      - $20 or $30 at a time, for an eventual total of at least $500.

      
      

   5. On the occasion of the second weekend visit, Cunningham got in bed with Dynell. Later, during the night, he began touching and rubbing the youth and took his clothes off. In response to Dynell's question of what was going on, Cunningham responded with a reminder of their friendship and all the things he had done to benefit him. They engaged in oral sex at that time. After that, the sexual contact was routine on the weekend visits, once or twice a month. Cunningham engaged Dynell in oral and anal sex and gave him vodka and cigarettes. Dynell was afraid to tell anyone as he thought he would lose his friend. He also felt he owed Cunningham a favor.

      
      

   6. During this time, Dynell's mother noticed a withdrawal of her son from his close relationship with her. She was somewhat suspicious of Cunningham's interest but Dynell denied that Cunningham had ever asked him to do anything that he didn't want to do. She believed him because she felt he would be candid with her.

      
      

   7. At the beginning of the seventh grade, Dynell went to Illinois to live with his grandmother in Illinois. Cunningham called him on the phone, but his grandmother was suspicious and didn't let Dynell talk. On one occasion,

      Cunningham stopped at the grandmother's house on his way to North Dakota. The grandmother let Cunningham take Dynell out to eat, but only in the company of Dynell's cousin. Dynell also wanted his cousin to come along as he figured nothing could happen if they were not alone. Cunningham told Dynell he wanted to continue seeing him, but Dynell did not want that and responded that he would be in Chicago and would not be able to see Cunningham.

      
      

   8. Dynell has had no further contact with Cunningham, even after the youth's return to Florida in eighth grade.

      
      

   9. Dynell has received mental health counseling to help him deal with the relationship with Cunningham. Dynell has been reluctant to associate along with male students and adult males, and refused to participate in his church's Big Brother program unless one of his friends is able to accompany him.

      
      

   10. John Hawco, administrator of Employee Relations for the Orange County School Board, would not recommend that Cunningham ever be employed in any position in which he would be exposed to children. His effectiveness as a teacher has been seriously impaired by his conduct toward his former student. He exploited his professional relationship with that student in return for personal gain and advantage.

       
       

   11. By certified letters and through contacts with Cunningham's prior attorney Jerry Whitmore, consultant for the State Department of Education, provided notices to Cunningham regarding the complaint and investigation. Cunningham sent his original teaching certificate to the investigator, stating that he should not be investigated as his certificate was no longer valid.

       
       

   12. The investigation continued, again with notice to Cunningham. He declined to participate in an informal conference and refused to indicate on the Election of Rights form provided to him which option he chose in response to the complaint: voluntary surrender for permanent revocation, admission of allegations and request for informal hearing, or dispute of allegations and request for a formal hearing by the Division of Administrative Hearings. Instead, he appended a separate statement to the form disputing the allegations and arguing that he was not a valid certificate holder as his certificate was based on a correspondence course.

       
       

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding pursuant to Section 120.57(1), Florida Statutes.

       
       

   14. The Education Practices Commission has the authority to suspend, revoke or permanently revoke the teaching certificate of an individual found guilty of gross immorality or an act involving moral turpitude, found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board, or has otherwise violated rules of the State Board of Education. Subsections 231.28(1)(c), (f), and (h), Florida Statutes.

       
       

   15. The rules which Cunningham is charged with violating require reasonable efforts to protect the student from conditions harmful to learning or to health or safety, forbid intentional exposure of a student to unnecessary embarrassment or disparagement, and prohibit the exploitation of a professional relationship with a student for personal gain or advantage. Rules 6B- 1.006(3)(a), (e) and (h), Florida Administrative Code,

   16. From the outset, Cunningham has attempted to manipulate these proceedings to suit his own interest. He ambiguously provided a statement disputing the allegations, but also feigned "surrender" of his certificate. He provided evidence, but through ex parte communications. He refused to appear at the hearing to present the evidence under oath and subject to cross-examination. He participated with an attorney in a telephone conference hearing, but the attorney refused to reveal his telephone number or address.

       
       

   17. He has argued, among other things, that the proceeding is totally flawed because the hearing was not held within 90 days and was not held in Tallahassee. He relies on these provisions of the Order entered in this case by Hearing Officer Arnold H. Pollock, on July 21, 1987:

       
       

       * * *

       3. The parties shall have ten days from the date of this Order to confer and inform the Hearing Officer in writing as to the following:

       * * *

       (c) several suggested mutually

       acceptable dates for scheduling the final hearing herein, which dates shall, absent a showing of good cause, be within 90 days from the date of this Order;

       * * *

       (e). . . Additionally, failure to respond will be deemed a waiver of venue rights, and the final hearing will be scheduled in Tallahassee, Florida.

       
       

   18. Counsel for Petitioner did respond to this order, suggesting dates within the 90-day time period. (See Petitioner's Response to Order of July 21, 1987, filed on July 31, 1987) Those dates were not available on my calendar. Petitioner also requested venue in Orlando, the area where most witnesses were located. Respondent never suggested alternate dates nor his preferred venue.

       
       

   19. Cunningham's attempted "surrender" of his teaching certificate is ineffectual in divesting the Education Practices Commission of jurisdiction in this case. His surrender was not unconditional but rather was based on his unproven assertion that it was already "invalid." Further, the surrender was unequivocally rejected when the Department chose to proceed with the investigation and complaint. Couch v. Turlington, 465 So.2d 557 (Fla. 1st DCA 1985). The Department did not have to physically return the certificate; in contrast to Cunningham's, its position in the proceeding was clear and unambiguous.

       
       

   20. Through the direct evidence of the victims and corroborating witnesses, Petitioner has provided prima facie evidence of the allegations of the complaint. No competent evidence has been produced to controvert those allegations or to support a recommendation for penalty less than the Department revocation urged by Petitioner.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that David Martin Cunningham's Florida teaching certificate be permanently revoked.

DONE AND ORDERED this 26th day of January, 1988, in Tallahassee, Leon County, Florida.

MARY CLARK

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 26th day of January, 1988.

COPIES FURNISHED:

J. David Holder, Esquire RIGS BY & HOLDER

325 John Knox Road Building C, Suite 135 Tallahassee, Florida 32303

Mr. David Cunningham 8775 20th Street, #921

Vero Beach, Florida 32960

Karen Barr Wilde Executive Director

Education Practices Commission Knott Building

Tallahassee, Florida 32399

Martin B. Schapp Administrator

Professional Practices Services

319 West Madison Street Room 3

Tallahassee, Florida 32399

Docket for Case No: 87-002919

Orders for Case No: 87-002919