vs. ) CASE NO. 87-3908
Respondent. )
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 2, 1988, in Fort Lauderdale, Florida.
Petitioner Department of Education, Education Practices Commission, was represented by Chris H. Bentley, Esquire, Tallahassee, Florida; and Respondent James Feldmann appeared on his own behalf.
The issue is whether Respondent's teaching certificate should be suspended or permanently revoked based upon the allegations set forth in the Administrative Complaint filed by the Commissioner of Education on June 4, 1987.
Petitioner presented the testimony of two female students, T. B. and K. C.; Jacquelyn Box, and Ronald S. Wright. The Respondent testified on his own behalf. Additionally, Petitioner's Exhibits numbered 1-4 were admitted in evidence. Both parties submitted posthearing proposed findings of fact. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
At all times material hereto, Respondent has been a licensed teacher in the state of Florida, having been issued Florida Teacher's Certificate No. 415935 by the Department of Education.
In October, 1985, Respondent was a guidance counselor at the Larkdale Elementary School in Broward County, Florida.
On October 30, 1985, T B. was eleven years old and a fifth-grade student at Larkdale Elementary School.
On that date, while returning from the bathroom to her classroom T. B. encountered Respondent in the hallway.
Respondent asked T. B. to accompany him to his office for the ostensible purpose of performing some filing.
Upon arriving at Respondent's office, Respondent requested that T. B. fill up a candy jar.
While T. B. was bending over getting candy out of the bottom of the filing cabinet, Respondent placed his hands around her waist. Respondent then lifted up so that she was standing in front of Respondent.
Respondent placed his hand under her dress, then placed his hands inside her dress and fondled her breast.
T. B. began crying and asked Respondent's permission to return to her classroom.
At the time, Respondent was T. B.'s guidance counselor, and she talked to him about "everything."
In February, 1986, Respondent was still employed as a counselor at Larkdale Elementary School.
In February, 1986, K. C. was twelve years old and a fifth-grade student at Larkdale.
In February, 1986, K. C. and two other students were standing in a hallway outside a classroom when they were approached by Respondent.
Respondent placed his arms around K. C. and began talking to her. He then placed his hand on K. C.'s left breast.
K. C. slapped Respondent's hand and told Respondent she was going to inform her teacher of what had occurred.
On March 7, 1986 the Broward County Sheriff's Office filed a Probable Cause Affidavit against Respondent.
The Probable Cause Affidavit alleged that on October 30, 1985, Respondent had committed a lewd and lascivious assault on T. B., a child under the age of 16, contrary to section 800.04(1), Florida Statutes.
The Probable Cause Affidavit alleged:
The victim was doing secretarial work for the Defendant, and was sitting on the
floor in the Defendant's office sorting papers. The Defendant came up behind the victim, and put both his arms around her sliding one of his hands inside her shirt, and began to fondle her breast, the victim had forcibly [sic] get away from the Defendant.
Respondent was arrested and charged with lewd and lascivious assault upon T. B.
Subsequent to the filing of the Probable Cause Affidavit, the State Attorney's Office for the Seventeenth Judicial Circuit filed a one-count criminal information against Respondent (Case No. 86-4538CF) which charged
Respondent with committing a lewd and lascivious assault on a child (T. B.), in violation of section 800.04(1), Florida Statutes.
The State Attorney's Office for the Seventeenth Judicial Circuit also filed a one-count criminal information against Respondent (Case No. 86-4539CF) which charged Respondent with simple battery on a child K. C., in violation of section 784.03, Florida Statutes.
On June 5, 1986, Respondent entered a plea of guilty to the violation of section 800.04(1), Florida Statutes, a second degree felony, as alleged in the information filed by the State Attorney's Office in the matter of State of Florida v. James R. Feldman, Case No. 86-4538CF. Adjudication was withheld.
On June 5, 1986, Respondent entered a plea of guilty to, and was adjudicated guilty of, a violation of section 784.03, Florida Statutes, a first degree misdemeanor, as alleged in the information filed by the State Attorney's Office in the matter of State of Florida v. James R. Feldman, Case No. 4539CF.
Jacquelyn Box (f/k/a Jacquelyn Moore) was the Principal of Larkdale Elementary School during the 1985-86 school year.
With regard to T. B., Ms. Box received a report from a teacher that Respondent had been touching the student inappropriately. She discussed the matter with the student and informed the student's mother. Ms. Box also reported the incident to the school system's Internal Affairs Department.
With regard to K. C., Ms. Box became aware of the incident after the student's mother confronted Respondent.
Upon being informed of the incident by her daughter, the student's mother came to the school to confront Respondent. During the confrontation, the student's mother struck Respondent.
Upon being notified of the confrontation, Ms. Box contacted the Police Department and the school system's Internal Affairs Department.
Both the staff and the students of Larkdale Elementary School were aware of the sexual improprieties committed by Respondent with regard to each of the female students. Certain students discussed the allegations with the Principal. Approximately 40-50% of the 4th and 5th grade students were aware of the allegations.
The Principal was contacted by the parents of students in that school who were concerned about the incidents.
Students and staff must have trust and confidence in a guidance counselor for the counselor to be effective. At times, a guidance counselor has to engage in one-on-one counseling with a student. One of the areas a guidance counselor works in with the students is human sexuality. A guidance counselor cannot be effective if the students do not trust him.
The disclosure of the foregoing incidents had a negative impact upon Respondent's effectiveness as a teacher, substantially reducing that effectiveness. The students did not trust Respondent following the disclosure and would not trust Respondent if he returned to the school as a guidance counselor.
Respondent's actions in fondling the two female students and the subsequent disclosure of Respondent's actions rendered Respondent totally ineffective as a guidance counselor. Respondent's actions in conjunction with the disclosure destroyed the bond of trust necessary for a guidance counselor to be effective.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
Section 231.28(1), Florida Statutes, provides that Petitioner has the authority to take disciplinary action against a licensee if it has been shown that that person:
(c) Has been guilty of gross immorality or an act involving moral turpitude;
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Has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation;
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Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;
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(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.
Rule 6B-1.006, Florida Administrative Code, provides, in pertinent part, as follows:
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.
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.
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(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
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(h) Shall not exploit a professional relationship with a student for personal gain or advantage.
Respondent is guilty of gross immorality and of acts involving moral turpitude in that Respondent inappropriately touched and fondled two young female students. With regard to each separate incident, the Petitioner established by clear and convincing evidence separate violations of section 231.28(1)(c), Florida Statutes. Respondent has also violated section 231.18(e), Florida Statutes, by being convicted of a first degree misdemeanor in the case of State of Florida v. James R. Feldman, Case No. 86-4539C, wherein he plead guilty and was adjudicated guilty of violating section 784.03(2), Florida Statutes.
Respondent violated Rule 6B-1.006(3)(h), Florida Administrative Code, and, therefore, section 231.28(1)(h), Florida Statutes, in that in each separate instance Respondent exploited his professional relationship with the student for personal gain or advantage. Further, Respondent violated Rule 6B-1.006(3)(e), Florida Administrative Code, and, therefore, section 231.28(1)(h), Florida Statutes, in that in each separate instance, Respondent intentionally exposed the student to unnecessary embarrassment or disparagement. Lastly, Respondent violated Rule 6B-1.006(3)(a), Florida Administrative Code, and, therefore, section 231.28(1)(h), Florida Statutes, in that in each separate instance, Respondent failed to make reasonable efforts to protect the student from conditions harmful to learning or to health or safety.
Subsequent to the incidents, the nature of Respondent's misconduct was disclosed to the students, parents and staff of Larkdale Elementary School. Respondent's misconduct had an adverse effect on all three groups. Petitioner established by clear and convincing evidence that Respondent's effectiveness as a teacher has been seriously reduced and that Respondent is, therefore, guilty of violating section 231.28(1)(f), Florida Statutes.
Respondent breached his moral obligations and betrayed his special trust when he exploited his professional relationship with each student. Respondent's conduct is morally reprehensible. Each violation, standing alone, justifies the permanent revocation of Respondent's teaching certificate.
RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking Respondent's teaching certificate.
DONE and RECOMMENDED this 12th day of April, 1988, at Tallahassee, Florida.
LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1988.
APPENDIX TO RECOMMENDED ORDER D0AH Case No. 87-3908
Karen B. Wilde, Executive Director Education Practices Commission
Chris H. Bentley, Esquire 2544 Blairstone Pines Drive Tallahassee, Florida 32301
James R. Feldmann
Martin B. Schapp, Administrator Professional Practices Services
