STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3633

)

JOSEPH TESTASECCA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. AYERS, held a hearing in the above-styled case on December 8, 1988, at Tampa, Florida. Since the material allegations are the same and identical parties are involved this case was consolidated with Department of Health and Rehabilitative Services v. J. T., DOAH Case No. 88- 3913C for hearing, but separate Recommended Orders are submitted.

APPEARANCES

For Petitioner: J. David Holder, Esquire

1408 North Piedmont Way, Suite 200

Tallahassee, Florida 32312

For Respondent: William H. Yanger, Jr., Esquire

600 North Florida Avenue, Suite 1625

Tampa, Florida 33602

By Administrative Complaint dated May 26, 1988, Betty Castor, as Commissioner of Education, Petitioner, seeks to revoke, suspend, or otherwise discipline the teaching certificate of Joseph Testasecca, Respondent. As grounds therefor it is alleged that Respondent engaged in inappropriate conduct with a minor male student by inappropriately touching the student on the leg; held the student's hand; took the student to his home and while there made sexual advances toward the student by pressing his body against the student's body, fondling the student's genitals and sitting on the student's lap; asked the student, "Don't you want me to cream in your ass?"; and permitted the student to consume alcoholic beverages at a luncheon.

At the hearing Petitioner called nine witnesses, Respondent called eleven witnesses, including Respondent, and nine exhibits were offered into evidence. Exhibits 1 and 2, which consisted of Investigative reports of the alleged incident, were admitted solely to show that such reports were submitted but not for the truth of the hearsay information contained herein. Objection to Exhibit 6, a report of polygraphic examination and Exhibit 7, a character reference letter for the student involved were sustained. All other Exhibits were admitted into evidence.

Proposed findings have been submitted by the parties. Treatment accorded proposed findings is contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. At all times relevant hereto Joseph Testasecca, Respondent, held a Florida Teaching Certificate and was employed as elementary art coordinator in the Hillsborough County School District. He has been employed by the Hillsborough County school Board for 25 years, having begun as the first full- time art instructor in the Hillsboro County School System.

   
   

2. Mr. Testasecca is 51 years old and has been married to his wife, Alicia, for 23 years. He is an active member of the Corpus Cristi Catholic Church in Temple Terrace, Florida.

   
   

3. In 1970, Respondent was selected as one of eight instructors from throughout the county to teach a newly formed gifted student program. Students qualified for the program by having an IQ of 132 or higher.

   
   

4. In 1973, the Hillsborough County School Board formed a Division of Performing Arts. Respondent applied for and was selected as coordinator of the Division, a position he holds to this date. His primary duties involve running an Arts in the schools' program throughout Hillsborough County and acting as liaison between the School Board and area art related organizations such as the Tampa Museum, the Tampa Bay Performing Arts Center, the University of South Florida and the Arts Council of Tampa. The majority of his time is spent outside the office working in the community.

   
   

5. Throughout his adult life, Respondent has maintained a strong interest in the arts. He is an accomplished painter and has, with his wife, assembled a prize art collection of some 200 pieces which he keeps in his home.

   
   

6. During the 1987-88 school year, Michael Bailey was a senior at Gaither High School and applied for enrollment in the executive internship program for the first semester. The internship program was designed to provide a means for seniors to gain practical working knowledge of the business world by serving as interns to various businesses in the community.

   
   

7. Bailey was interviewed by Respondent for one of the internship programs as were several other students. Respondent's first and second choices opted to go with another teacher and, at the request of the coordinator of the program who was having trouble placing Bailey, Respondent selected Bailey to serve as intern in the arts program. The work schedule was roughly 9:00 a.m. to 4:00

   p.m. each school day.

   
   

8. Bailey's duties involved constant travel with Respondent from one location to another within the school district. Respondent treated Bailey as an equal and Bailey was very favorably impressed with Respondent. In fact, Bailey became possessive of Respondent's time and company and insisted on accompanying Respondent on trips and to meetings at which Respondent preferred Bailey not to be present.

   
   

9. A luncheon birthday party for Theresa Solomon was held at Malio's Restaurant on October 22, 1987, sponsored by her supervisors which included Respondent. The luncheon was attended by Douglas Lerner, Respondent's assistant; Claudia Davidson, a music teacher; Solomon; Respondent and Bailey.

   Solomon had requested Respondent not invite Bailey because of the latter's tendency to monopolize conversation and his general boorishness. However, Bailey insisted that he be allowed to accompany Respondent to this luncheon.

   
   

10. At the luncheon one of the attendees ordered a bottle of sparkling wine which was poured into five glasses by the waitress. When asked about being old enough to drink the wine, Bailey replied that his parents allowed him to drink and yes, he will have a glass. Bailey also made comments about his twin brother being an alcoholic. Respondent did not stop Bailey from having the glass of wine. During the luncheon, Bailey drank about half of one glass of wine poured for him.

    
    

11. On October 23, 1987, a Friday, when interns attend regular classes, Respondent left a message with the secretary to advise Bailey on Monday morning, October 26, when he arrived at the office, to join Respondent at the Tampa Theatre. A superintendent of schools meeting was being held in Tampa, and Respondent was charged with taking some of these people on a tour that morning. The secretary was ill Monday, did not report to work, and Bailey did not get the message.

    
    

12. Two witnesses, Doug Lerner and Betty Clark, testified that Monday morning, October 26, 1987, Bailey was quite upset because "Joe left me again." He was pouting, morose and refused to participate in any other projects offered. Bailey was heard by one or two to say regarding Respondent, "He'll get his."

    
    

13. Respondent returned to the office just before noon and had to go to an elementary school that was being painted. He took Bailey with him at this time.

    
    

14. After visiting the elementary school Bailey asked Respondent to show him Respondent's art collection. Since Respondent had food left over from a party the evening before he decided then to go to his house for lunch.

    
    

15. While at Respondent's home, most of the incidents forming the basis of the charges here involved allegedly occurred. Bailey testified that Respondent approached him from the rear while he was standing in the living room and pressed his body against Bailey's body, than Respondent rubbed his shoulder and cheek and fondled Bailey's genitals. Shortly thereafter Respondent allegedly asked Bailey to sit on the couch along side him, but Bailey sat on a couch opposite and Respondent then sat on Bailey's lap and again stroked Bailey's face and/or shoulder. When little response was received from Bailey Respondent ceased and they departed. Respondent denies any such incidents occurred.

    
    

16. Both Respondent and Bailey agreed that they stopped at Respondent's home for lunch. In his testimony, Bailey did not disagree that after leaving the office around noon they first went to the elementary school and then drove another 15 minutes to Respondent's house; that a quick tour of the art collection was held; that they had lunch; and that they left in time for Respondent to make his two o'clock appointment. According to Respondent they could not have spent more than 25 minutes at his home and that included the art tour, lunch fixing and eating. Under that scenario there was little, if any, time for peccadillos.

    
    

17. Upon their return to the school that afternoon October 26, Bailey reported to Mrs. Dupereaux, the school board employee in charge of the intern program, that Respondent had made the improper sexual advances to which Bailey had testified. She cautioned him to be sure of his facts in view of the serious of the charge.

18. Upon his arrival home Bailey went to his sister's house and related the incident to her. He then went to his girlfriend's mother who is president of the Gaither High School PTA and related the events to her. Later that evening he told his parents.

    
    

19. While the fresh complaint lends more credence to the events as described by Bailey, on the other hand there is the reputation of Respondent who has taught in the Hillsborough County School System for some 25 years during which no similar incidents have ever been reported. No witness, other than Bailey, testified to any reason to suspect Respondent of ever having made homosexual advances to any other person.

    
    

20. The following day, Bailey accompanied Respondent to the University of Tampa Museum, and upon their return to the office, Bailey testified Respondent put his arm around Bailey's shoulder and asked "What's the matter? Don't you want me to cream in your ass?" Respondent not only denies any such comment was made but also denies that such language would be used by a person in Respondent's generation.

    
    

21. No further contact was made between Respondent and Bailey.

    
    

22. In other areas, on which Bailey testified, his credibility suffers from his recollection of events as opposed to the facts as related by others. For example, his account of his actions at Malio's Restaurant differs sharply from the account by others present. Similarly, his recollection of his grade point average at Gaither High School was considerably higher than his actual grade point average as shown by school records.

    
    

23. Bailey's behavior in attempting to monopolize Respondent's time and to intervene where he was not wanted is a factor somewhat equivocal in arriving at the ultimate fact regarding the alleged incident. Obviously, had Respondent been more forceful in maintaining the teacher-student relationship with the ultimate superiority in the teacher, Bailey would not have developed this possessiveness and feeling of equality which lead him to believe he had a right to accompany Respondent to all functions and to resent any rebuff.

    
    

24. Finally, the fact that Petitioner attempted to introduce the results of a polygraph examination which Petitioner was fully aware are, absent stipulation, inadmissible in judicial or quasi-judicial proceedings, cast further doubt on the merits of Petitioner's case. This attempt to improperly influence a fact finder by proffering the results of a polygraph examination should not be condoned and should lead the fact finder to insure no improper inferences are drawn from such information.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

26. Respondent is here charged with violations of Section 231.28(1)(c) and (h), which provide disciplinary action may be taken against the teaching certificate of any person provided it can be shown such person:

    (c) Has been guilty of gross immorality or an act involving moral turpitude.

    * * *

    (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. Rules alleged to have been violated by Respondent are Rule 6B- 1.006(3)(a), (e), and (h), Florida Administrative Code.

    
    

28. The allegation of misconduct, if proven, constitute violations of the statute and rule above noted.

    
    

29. Here the burden is on Petitioner to prove, by clear and convincing evidence, the allegations made. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). In Slomowitz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983) the court defined clear and convincing evidence as follows:

    
    

    ... clear and convincing evidence requires that the evidence must be found to be credible; the facts of which the witnesses testify must be distinctly remembered the testimony must be precise and explicit and the witness must be lacking in confusion

    as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trior of fact a firm

    belief or conviction without hesitancy, as to the truth of the allegations sought to be established.

    
    

30. Here we have two witnesses, both presumably credible, testifying diametrically opposite each other regarding the allegations. While Respondent certainly has a strong personal and financial interest in having his version of the incidents upheld, Bailey was also shown to be resentful of Respondent and threatened to punish him. Principally however, there is simply insufficient corroboration of the testimony of Bailey to meet the requirement that the allegations must be proved by clear and convincing evidence.

    
    

31. With respect to the allegation that Respondent allowed the student to consume an alcoholic beverage at lunch in a public restaurant, this appears to allege a violation of Rule 6B-1.006(3)(a), Florida Administrative Code, which requires a teacher to make reasonable efforts to protect the student from conditions harmful to learning, health and safety. It is interesting that Respondent was charged with this violation although it was another teacher who ordered the wine which was poured into five glasses by the waitress. Under these circumstances, it is difficult to appreciate that this action on the part of Respondent constitutes conduct for which an appropriate penalty is revocation of a teaching certificate. While such an action on the part of Respondent is certainly not condoned, it hardly rises to the degree of venality for which revocation is appropriate.

    
    

32. From the foregoing, it is concluded that Respondent is not guilty of gross immorality or acts involving moral turpitude as alleged in the

Administrative Complaint. However, as a teacher directly responsible for the student at the luncheon at Malio's, Respondent should have stopped the waitress from serving wine to the minor student. It is

RECOMMENDED that a Final Order be entered finding Respondent not guilty of violating Section 231.28(1)(c), Florida Statutes, but guilty of allowing a minor student to be served an alcoholic beverage at Malio's Restaurant. For this minor transgression Respondent should be issued a written reprimand.

DONE and ENTERED this 6th day of February, 1989, in Tallahassee, Leon County, Florida.

K. N. AYERS 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 6th day of February, 1989.

APPENDIX

Treatment accorded Petitioner's Proposed Findings 1-2. Included in Hearing Officer's Finding #1.

1. Included in Hearing Officer's Finding #2.

2. Accepted.

5, 6 & 7. Included in Hearing Officer's Finding #7. 8-9. Included in Hearing Officer's Finding #8.

1. Rejected.

2. First two sentences while true are irrelevant. Balance of proposed finding is rejected as unsupported by credible evidence.

12-16. Rejected as unsupported by credible evidence.

1. Included in Hearing Officer's Finding #17.

2. Included in Hearing Officer's Finding #18.

3. The date of the alleged incident is undisputed.

20-21. Accepted only insofar as included in Hearing Officer's Finding #20.

1. Included in Hearing Officer's Finding #21.

2. Accepted only insofar as included in Hearing Officer's Findings 9 and 10.

3. First sentence accepted. Balance rejected. 25-33. Rejected only as irrelevant to the issues.

1. Rejected as irrelevant and incompetent evidence.

2. Rejected as contrary to Michael's testimony.

3. Rejected as irrelevant.

4. Accepted as irrelevant. At best Bailey has been tentatively accepted into the Navy.

Treatment accorded Respondent's Proposed Findings

1. Included in Hearing Officer's Finding #:2.

2. Included in Hearing Officer's Finding #1.

3. Included in Hearing Officer's Finding #3.

4. Included in Hearing Officer's Finding #4.

5. Included in Hearing Officer's Finding #5. 6-7. Rejected as immaterial.

8-9. Accepted.

1. Included in Hearing Officer's Finding #6.

2. Included in Hearing Officer's Finding #10.

12-14. Accepted insofar as included in Hearing Officer's Finding #22.

15-18. Accepted insofar as relevant to Bailey's version of the allegations in the Administrative Complaint.

1. Accepted as testimony of witnesses.

2. Rejected as argument.

3. These factors were considered in finding the credibility of the witnesses.

4. Rejected as conclusion.

23-24. Included in Hearing Officer's Findings #3,6 and 7.

25. Accepted.

26-27. Included in Hearing Officer's Finding #7.

1. Included in Hearing Officer's Finding #8.

2. Accepted as testimony of witness

3. Included in Hearing Officer's Findings #8.

31-43. Included in Hearing Officer's Findings #9 and 10.

1. Included in Hearing Officer's Finding #11.

2. Accepted.

46-49. Included in Hearing Officer's Finding #11. 50-51. Included in Hearing Officer's Finding #12. 52-56. Accepted as testimony of witness.

57-60. Included in Hearing Officer's Findings #13 and 14. 61-64. Included in Hearing Officer's Finding #16.

1. Rejected as evidence insufficient to support this conclusion.

2. Included in Hearing Officer's Finding #20.

3. Included in Hearing Officer's Finding #16.

4. Included in Hearing Officer's Finding #12.

5. Accepted as testimony of witness

6. Included in Hearing Officer's Finding #20.

7. Accepted but irrelevant to the charges.

COPIES FURNISHED:

J. David Holder, Esquire Suite 200

1408 North Pedimont Way Tallahassee, Florida 32312

William H. Yanger, Jr., Esquire Suite 1625

600 North Florida Avenue Tampa, Florida 33602

Karen B. Wilde Executive Director

Education Practices Commission

125 Knott Building Tallahassee, Florida 32399

Martin Schaap, Administrator Professional Practices Services

319 W. Madison Street, Room 3 Tallahassee, Florida 32303

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

AGENCY FINAL ORDER

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

Before the Education Practices Commission of the State of Florida

BETTY CASTOR, as

Commissioner of Education,

Petitioner,

vs. Final Order

JOSEPH TESTASECCA,

Respondents. EPC CASE N0. 88-0950-RA

/ DOAH CASE No. 88-3633

Respondent, JOSEPH TESTASECCA, holds Florida teaching certificate no.

151303. Petitioner filed an Administrative complaint seeking suspension, revocation, permanent 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 March 23, 1989, in Tallahassee, Florida, to take final agency action. The Petitioner was represented by J. David Holder, Esquire. The Respondent was represented by William Yanger, Esquire. The panel reviewed the entire record in the case.

The panel adopts the Findings of Fact and Conclusions of Law and Recommendation of the Recommended Order. Petitioner's Exceptions 2,3,4, and 7 were rejected, Petitioner's Exception #1 was accepted; the panel makes an additional finding of fact that: Near the end of the first week of the student's internship under the Respondent, the Respondent began to place his hand on the student's leg while traveling in the Respondent's automobile. As time went on, the Respondent progressed from placing his hand on the student's knee to rubbing the student on the inner thigh while traveling in the

Respondent's automobile. Petitioner's exceptions 5 and 8 were accepted; paragraph 24 of the hearing officer's findings of fact was modified to reflect that: "The hearing officer ruled that while neither the results of the polygraph examination not the student's state of mind prior to the examination were admissible, whether the student was offered the polygraph examination and whether he took it was admissible. An additional finding of fact was made to reflect that Michael Bailey was offered the polygraph examination and took the examination. The hearing officer's findings of fact were adopted as amended. Paragraph 6 of the conclusions of law was modified to reflect that as a matter of law, a minor victim's testimony is not required to be corroborated. The hearing officer's conclusions of law were adopted as amended.

With regard to the hearing officer's recommendation, the panel specifically rejects the conclusion that Respondent is not guilty of a violation of Section 231.28(1)(c), F.S., and specifically finds, based on its additional finding of fact expressed in Petitioner's first exception, that Respondent is guilty of having violated Section 231.28(1)(c), F.S. The panel adopts the hearing officer's conclusion that Respondent violated Section 231.28(1)(f) by having allowed a minor student to have consumed alcohol while at lunch.

With regard to the penalty, the panel specifically rejects the hearing officer's recommended penalty of a reprimand as too lenient for the violations and increases the penalty to a reprimand and one year probation during which time Respondent shall ensure that his immediate supervisor submit quarterly reports concerning his professional activities to the Education Practices Commission for its review. As reasons for its increase, the panel relies upon the record which supports violations of both Section 231.28(1)(c) and (f) and its belief that a reprimand alone is insufficient penalty for both violations. 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.

D0NE AND ORDERED, this 10th day of April, 1989.

COPIES FURNISHED TO:

Martin Schaap, Administrator Professional Practices Services ABRAHAM COLLINSWORTH,

Presiding officer

Susan Tully Proctor, Esquire I HEREBY CERTIFY that a copy Attorney General's Office of the foregoing order in the

matter of BC vs. Joseph Testasecca was mailed

Sydney McKenzie, III to William H. Yanger, Esquire,

General Counsel 600 North Florida Ave., Suite 1625 Tampa, Florida 33602, this 13th day of April 1989,

Florida Admin. Law Reports by U. S. Mail

Raymond O. Shelton, Supt. Hillsborough County Schools 901 E. Kennedy Blvd.

Post office Box 3408

Tampa, Florida 33601-3408

KAREN B. WILDE, Clerk

Beth Shields

Assistant Supt. Personnel Hillsborough County Schools

1. David Holder, Esquire 1408 North Piedmont Way Suite 200

   Tallahassee, Florida 32312

   
   

2. N. Ayers, Hearing officer Division of Admin. Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Docket for Case No: 88-003633

Orders for Case No: 88-003633