STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2990

)

WILLIAM DALE TACKETT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held in this case in Jacksonville, Florida, on November 15, 1988, before Jose A. Diez-Arguelles, a hearing officer with the Division of Administrative Hearings

APPEARANCES

For Petitioner: Lane Burnett, Esquire

331 East Union Street Jacksonville, Florida 32202

For Respondent: Al Millar, Esquire

2721 Park Street

Jacksonville, Florida 32205 BACKGROUND

This proceeding was initiated on May 26, 1988, when Petitioner, Betty Castor, Commissioner of Education, issued an Administrative Complaint alleging that Respondent, William Dale Tackett, had violated sections of the Florida Statutes and State Board of Education Rules. On June 15, 1988, Respondent filed an Answer to Administrative Complaint. By letter dated June 15, 1988, the Education Practices commission forwarded the case to the Division of Administrative Hearings.

At the beginning of the hearing, Petitioner was allowed to amend paragraph 6(b) of the Administrative Complaint. At the hearing, Petitioner presented the testimony of Ms. Angela Marie Westerman, Mr. Joe Allen Seager, Mr. Owen Norman, Ms. Beverly Gale Beardsley and Mr. Raymond Bailey, and offered 22 exhibits which were received into evidence. Petitioner's Composite Exhibit 1 consists of xerox copies of handwritten documents numbered 1 through 44 at the bottom right-hand corner of each document. Petitioner's Exhibit 3 is a one page sheet titled "List of Exhibits" which lists nineteen items. The nineteen items listed on Exhibit 3 were also received into evidence and are identified as exhibits 3-A through 3-N, as noted in Exhibit 3.

Respondent testified on his own behalf and presented the testimony of Ms. Rachel Smith, Ms. Dorothy A. Mitchell, Mr. Richard C. Dowdy, Mr. Steven Davis,

Ms. Billie Jo Atkinson, Ms. Edwina Richards, Ms. Meredith Lee Richards, and Ms. Jennifer Jon Myers.

After the hearing both parties filed Proposed Recommended Orders containing findings of fact. The proposed findings of fact are addressed in the Appendix which is attached to this Recommended Order.

ISSUE

Whether Respondent committed the violations alleged in the Administrative Complaint?

FINDINGS OF FACT

1. Respondent holds teaching certificate number 394824, which was issued on July 1, 1982, and is valid until June 30, 1992.

   
   

2. At all times relevant, Respondent was an employee of the Duval County School Board. Respondent is an English teacher and also a coach for baseball, basketball and football teams.

   
   

3. During the 1986-1987 school year, Respondent taught English at Jeb Stuart Junior High School.

   
   

4. While at Jeb Stuart, Respondent befriended Ms. Westerman, a ninth grade student. The friendship resulted in Respondent and Ms. Westerman talking and exchanging handwritten notes often. The notes Respondent wrote to Ms. Westerman during this period appear to be a little too personal for a student-teacher relationship, but cannot be said to constitute inappropriate behavior.

   
   

5. When the 1986-87 school year ended, the relationship was interrupted by the summer break. Respondent thought he would not see Ms. Westerman again, since she would be going to a different school, Forrest Senior High School, for the 1987-88 school year.

   
   

6. Respondent, however, also transferred to Forrest Senior High School because he wanted to coach high school sports teams and an opportunity to do so presented itself.

   
   

7. At the beginning of the 1987-88 school year, Respondent and Ms. Westerman reestablished their relationship and started talking and exchanging notes.

   
   

8. Beginning in September, Respondent's notes to Ms. Westerman became more personal, containing statements such as:

   
   

   . . . do you love and appreciate me. . . you're the mayonnaise on my cheeseburger.!

   * * *

   I like to talk to you. My only problem is that I want to talk to you the way a man talks to a woman (nothing nasty) and I can't because of this student- teacher relationship.

   Petitioners Exhibit 1, pages 25 and 26.

   
   

9. While at Jeb Stuart, Respondent had given Ms. Westerman a metal bookmarker. During the period from approximately early October 1987 to December 16, 1987, Respondent gave Ms. Westerman the following items:

   
   

   1 pink Panasonic cassette player

   1 vase containing sixteen roses

   1. stuffed bear in karate suit

   2. tee shirts (1 blue and 1 white w/Minnie Mouse design)

   1 picture - fish

   3 cassette tapes

   1 Chinese Scent fan

   1. small straw basket

   2. bags of scented potpourri

   1 football jersey #55

   1. small bottle of scented Rose liquid

   2. pictures of Mr. Tackett

   1 blue plastic sun visor with "Moi Gata" written on it

   
   

   Also, Respondent would occasionally give or loan Ms. Westerman lunch money and money to buy sodas after school.

   
   

10. Sometime in October, Respondent realized that he was getting "feelings" for Ms. Westerman and that the relationship was becoming more than a teacher-student relationship. Respondent also became jealous of Ms. Westerman's male friends.

    
    

11. Ms. Westerman became concerned about the tone of some of Respondent's notes and statements.

    
    

12. In November 1987, Respondent and Ms. Westerman decided it would be best to end the relationship and attempted to do so.

    
    

13. However, the attempt was unsuccessful and Respondent and Ms. Westerman resumed exchanging notes and talking.

    
    

14. On December 15, 1987, Ms. Westerman's sixteenth birthday, Respondent gave her a note containing written instructions. The instructions directed Ms. Westerman to go to the Burger King near the school and ask for the manager.

    Upon doing so, the manager gave Ms. Westerman the vase containing sixteen roses. Ms. Westerman was accompanied by a friend and was embarrassed to receive the roses under such circumstances.

    
    

15. Respondent also gave Ms. Westerman the cassette player for her birthday. Respondent told Ms. Westerman to bring a black bag to school and leave it with him. When Ms. Westerman received the bag back, the cassette player was in it. The bag was needed to hide the cassette player, since it was against school rules to have a cassette player at the school.

    
    

16. On December 16, 1987, Ms. Westerman's mother discovered the notes and gifts. On the following day, Ms. Westerman's mother went to the school and met with the assistant principal regarding the notes and gifts.

17. After this meeting, the school began the investigation which led to this hearing.

    
    

18. The investigation was supposed to be confidential. However, when school began in 1988, after the Christmas break, it became known around the school that Mr. Tackett was being investigated and that Ms. Westerman was part of the investigation. Ms. Westerman was harassed by students who liked Mr. Tackett and believed Mr. Tackett's problems were Ms. Westerman's fault.

    
    

19. After her mother discovered the letters, Ms. Westerman began having nightmares, developed sleeping and eating problems and her grades deteriorated. These problems disappeared with time, but resumed as the time for this hearing drew near and Ms. Westerman received a subpoena to appear at the hearing.

    
    

20. Respondent never made oral, written or physical advances of a sexual nature toward Ms. Westerman.

    
    

21. Respondent has given gifts and lunch money to other students.

    However, he has never given 19 gifts to another student. In those instances where gifts to students were substantial, e.g., a radio or a television set, the gifts were rewards for good school work and not outright gifts as in Ms.

    Westerman's case.

    
    

22. Respondent is an excellent teacher who takes a great interest in his students and is able to inspire them to want to do better in school. On several occasions, Respondent has been directly responsible for bad or mediocre students being able to better their academic performance.

    
    

23. In September 1987, Respondent was 42 years old.

    
    

24. At the hearing, Respondent was not willing to recognize that what he had done was improper.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Sections 120.57 and 231.-262(5), Florida Statutes.

    
    

26. Chapter 231, Florida Statutes, sets forth the procedures for disciplining teachers in the State. Section 231.28, Florida statutes, grants the Education Practices Commission the authority to discipline a teacher, if it can be shown that the teacher committed certain acts. In this case, Respondent is charged with violating paragraphs (c), (f) and (h) of Section 231.28(1), Florida Statutes, which provide:

    
    

    (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 that person's effectiveness as

    an employee of the school board;

    * * *

    (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.

    
    

27. Also, Petitioner is charged with violating three provisions of Rule 6B-1.006(3), Florida Administrative Code, which provide that:

    
    

    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 and 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.

          
          

28. License revocation proceedings have been said to be penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). Also, strict procedural protections apply in disciplinary cases, and the prosecuting agency must prove its case by clear and convincing evidence. Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

29. The evidence presented in this case establishes that Respondent violated the provisions of Rule 6B-1.006(3)(a) and (e), Florida Administrative Code.

    
    

30. The relationship between Respondent and Ms. Westerman began as a normal teacher-student relationship. However, it is clear that the relationship, from Respondent's viewpoint, escalated to a point where it was no longer normal. Respondent recognized this, but was unable to stop the relationship and continued to write notes of an intimate nature and continued to give Ms. Westerman gifts which were excessive, both in number and quality, to be considered part of a normal student-teacher relationship.

    
    

31. Respondent also recognized that the notes he was writing were improper and requested that Ms. Westerman not show them to others.

    
    

32. Once the notes and gifts were discovered, Ms. Westerman suffered embarrassment and ridicule from her fellow students and was affected physically and emotionally. Respondent cannot now lay the blame for this result on the school board's inability to keep this matter secret. This result is a direct consequence of Petitioner's actions.

    
    

33. Also, the evidence establishes that Ms. Westerman was embarrassed by the event of December 15, 1987, when Petitioner directed her to go to the Burger King where, at his direction, she was given 16 roses for her birthday.

    
    

34. Respondent's actions, while improper, cannot be characterized as "gross immorality" or as acts involving "moral turpitude" as those terms are used in Section 231.28, Florida Statutes. See Rule 6B-4.009(2) and (6), Florida Administrative Code, and Castor v. Ferrell, 10 F.A.L.R. 4277 (DOE, June 18, 1988)

35. While Respondent is guilty of violations of the rules of conduct for a teacher, the actions to be taken against him should be mitigated by his record as a teacher. This record shows that Respondent is an excellent teacher and takes a great interest in students. Also, in some cases, Respondent has been responsible for turning students with unsatisfactory academic records into productive students.

    
    

36. This appears to be Respondent's first infraction of the rules of conduct. While the infraction is of a serious nature, it should not result in his being deprived of teaching or in depriving students of an otherwise excellent teacher. Therefore, Respondent should be allowed to continue teaching.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered placing Respondent on probation for two years during which Respondent's teaching activities are supervised and he receives counselling regarding what a proper teacher-student relationship should be.

DONE and ENTERED this 16th day of February, 1989, in Tallahassee, Leon County, Florida.

JOSE A. DIEZ-ARGUELLES

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1989.

APPENDIX CASE NO. 88-2990

Rulings on Petitioner's proposed findings of fact with exception of some proposed facts which are subordinate to facts found, the proposed findings of fact contained in paragraphs 1-25 are accepted. Paragraphs 26-30 are rejected as recitations of testimony.

Rulings on Respondent's proposed findings of fact 1-10. Accepted.

1. True for face-to-face conversations, but Respondent encouraged the relationship through his notes where he asked Ms. Westerman to respond and write back.

2. Accepted.

3. Accepted.

4. Rejected as recitation of testimony. 15-19. Subordinate to facts found.

20-22. Rejected as irrelevant.

23. Accepted.

COPIES FURNISHED:

Lane Burnett, Esquire

331 East Union Street Jacksonville, Florida 32202

Al Millar, Esquire 2721 Park Street

Jacksonville, Florida 32205

Karen B Wilde, Executive Director Education Practices Commission

125 Knott Building Tallahassee, Florida 32399

Sydney H. McKenzie, Esquire General Counsel

Department of Education The Capitol, PL08

Tallahassee, Florida 32399-0400

Docket for Case No: 88-002990

Orders for Case No: 88-002990