STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4544

)

IVORY SCOTT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on June 1, 2 and 12, 1989, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Craig R. Wilson, Esquire

1201 U.S. Highway One Suite 315

North Palm Beach, Florida 33408-3581

For Respondent: Wilbur C. Smith, Esquire

SMITH & PORTER

1424 Dean Street Post Office Drawer 8

Fort Myers, Florida 33902-0008 STATEMENT OF THE ISSUES

Whether the Education Practices Commission should take disciplinary action against the Respondent's teaching certificate for the reasons set forth in the Administrative Complaint dated August 17, 1988.

PRELIMINARY STATEMENT

In a letter filed with the Education Practices Commission on September 6, 1988, the Respondent requested a formal administrative hearing to contest the allegations set forth in the Administrative Complaint dated August 17, 1988.

Essentially, the complaint charges that the Respondent is guilty of certain acts involving gross immorality in violation of Section 231.28(1)(c), Florida Statutes. It is alleged that he engaged in sexual intercourse with a minor female student on two separate occasions.

During the hearing, exhibits and testimony from a companion case were adopted by both parties for use in these proceedings. The same hearing officer heard the testimony in the companion case. Through the adoption of testimony and exhibits from the companion case, the Petitioner called seven witnesses and

submitted one exhibit. The Respondent presented twelve witnesses and testified in his own behalf. Thirteen exhibits were identified and marked by Respondent at hearing. Respondent's exhibits 6, 8 and 12 were not moved into evidence. All of the exhibits moved into evidence by the parties were admitted.

A transcript of the hearing was filed with the hearing officer on June 28, 1989. The parties were granted additional time beyond the filing of the transcript to determine if the posthearing deposition of an expert used in the companion case would be used in these proceedings. The transcript of the expert was not filed in these proceedings, but the proposed recommended orders to the companion case were due on the same date of August 15, 1989. The parties waived the filing requirements of Rule 28-5.902, Florida Administrative Code, and proposed findings of fact were submitted September 21, 1989. Rulings on the proposed findings are in the Appendix of the Recommended Order.

FINDINGS OF FACT

1. At all times material to these proceedings, the Respondent Ivory Scott, held Teaching Certificate Number 460227, issued by the Department of Education for the State of Florida. The Respondent was employed with the School Board of Lee County Florida, and was assigned to Mariner High School.

   
   

2. In addition to his duties as a health teacher and drivers' education instructor during the 1987-1988 school year, the Respondent coached the boy's varsity basketball team.

   
   

3. M. C., a fifteen-year old female minor student at Mariner High School, participated in after school sports activities as the head statistician for the boy's varsity basketball team and as a player for the girl's basketball team.

   
   

4. The Respondent first became acquainted with M.C. when she attended his health class during the first semester of the school year. Before the basketball season began, the student approached the Respondent and told him that she kept statistics for the boy's basketball team at her former high school the year before. The student volunteered to be one of the statisticians for the Respondent's team. She was interviewed by Respondent regarding her recordkeeping abilities and knowledge of the game. Based upon the interview and the student's display of knowledge, she was made the team's head statistician.

   
   

5. Prior to granting permission to allow M.C. to participate in the boy's basketball program as a student athletic assistant, her mother voiced concern to the Respondent about transportation problems which could occur when a family member was occasionally unable to meet the student at the school after a game. The Respondent solved this problem with an offer to provide the student with a ride home whenever the family was unable to pick up the student. This potential solution to the problem was accepted by the mother, and the Respondent did give the student a ride home after a few games during the basketball season.

   
   

6. On February 9, 1988, the student M.C. wanted to go home before she played in a basketball game at school at 4:00 p.m. The student asked the Respondent for a ride, and he agreed to give her a ride after school ended at 2:20 p.m. When the Respondent left the school grounds with the student, no one else was in the vehicle. The Respondent drove in a direction away from the student's home. Once an isolated area was located, the Respondent engaged in sexual intercourse with M.C. The Respondent then drove M.C. home, and told her not to tell anyone about the incident.

7. During the following week, but before February 19, 1988, the Respondent again left the school grounds alone with the student M.C. They traveled to another isolated area and the Respondent again had sexual intercourse with the student. When the student was driven home, she was instructed not to tell anyone about the incident.

   
   

8. On February 19, 1988, the student M.C. was crying in an hysterical manner in the courtyard area of the school grounds. The child's schoolfriend, A.F., tried to comfort the child, but was unable to calm her. The assistant principal who observed the scene, took the girls to the guidance area so that they could deal with M.C.'s loss of control in a more private area. A female guidance counselor was asked to keep an eye on the students because of M.C.'s unusual behavior.

   
   

9. In an attempt to assist the student, the guidance counselor asked M.C. if she would like to go to the counselor's private office. The student accepted the offer, but did not discuss why she was upset.

   
   

10. On Monday, February 22, 1988, M.C. returned to the guidance counselor's office. She implied that her problem was of a sexual nature, but was unwilling to discuss the matter further. A few days later, the counselor gave the student the Abuse Counseling Center telephone number.

    
    

11. On Friday, February 26, 1988, the child M.C. contacted the guidance counselor and revealed that she had seen the man involved in her problems the evening before. The police officer on campus was contacted. The student revealed to the counselor and the officer that she was in a relationship with a man who was twenty-five years old, married, and the father of a child. Although the Respondent was married and had a child, he was older than twenty-five years of age.

    
    

12. The evening before the limited revelations to the counselor and officer occurred, M.C. had attended the school district's boy's basketball tournament. The Respondent was present at the tournament.

    
    

13. The following week, the counselor and the police officer urged M.C. to tell her parents about her relationship with the man. When the student did not tell her parents, the police officer called the student's mother and told her what the student had told him. The student was taken for a medical examination by her mother on March 3, 1988, and it was determined that her hymen was no longer intact.

    
    

14. The student would not tell her mother the name of the man involved, but she agreed to tell the guidance counselor on Friday, March 4, 1988.

    
    

15. On the appointed date, the student told the counselor the man involved was the Respondent, Ivory Scott.

    
    

16. The guidance counselor informed the assistant principal who brought the student into the guidance office on February 19, 1988, about the allegations. The assistant principal advised the principal.

    
    

17. When the principal was informed of the student's accusations, he sent for the Respondent immediately to prevent him from hearing the news from less reliable sources. After the principal notified the Respondent of the student's accusations, the Respondent admitted to having the student M.C. alone with him in his vehicle on several occasions. The Respondent denied that any sexual

    activity took place during these times, and he was unable to speculate why the child might be motivated to make the accusations against him.

    
    

18. During the hearing, the Respondent denied that the student M.C. had ever been alone in his vehicle with him, or that the events testified to by the student regarding sexual intercourse had ever occurred. It was his testimony that M.C. had once confided to him that her stepbrother had intercourse with her. The Respondent did not report this purported confidence to the authorities, and there was no evidence in the record to substantiate that the student had a stepbrother.

    
    

19. A number of students from the high school testified at hearing. Members of the basketball team and a student athletic assistant testified that on Thursday, February 25, 1988, M.C. was behaving in a flirtatious, sexually aggressive manner with a member of the boy's basketball team in the back of the bus. The basketball player and his mother testified as to M.C.'s persistent need to seek attention from the player.

    
    

20. A former boyfriend of M.C.'s testified that, contrary to her statements that she had not kissed with boys prior to the sexual incidents with Respondent, he had engaged in kissing activity with her. The former boyfriend also testified that M.C. told him that nothing has happened between her and the Respondent. She told him this after a newspaper article related her accusations and the Respondent's arrest. The former boyfriend had telephoned her to discuss the matter after his grandparents mentioned that they read about the accusations in the newspaper.

    
    

21. Diane Goldberg, a licensed clinical social worker who was accepted as an expert in the area of child sexual abuse counseling, opined that M.C.'s behavior after the alleged incidents of sexual intercourse with the Respondent was congruent, and consistent with behavioral indicators which reflect that sexual molestation has occurred.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

23. Section 231.28(1), Florida Statutes, authorizes the Education Practices Commission to take disciplinary action, including suspension or revocation of a teaching certificate upon a showing that the teacher:

    
    

    (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.

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

    
    

25. In a license revocation proceeding, the Petitioner must prove the material allegations set forth in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

26. In this case, the two main witnesses testified directly opposite to each other. The student M.C. testified that sexual intercourse occurred between her and the Respondent on two separate occasions. The Respondent steadfastly denied that the events ever happened. In order to reconcile the disparity, the testimony of corroboration witnesses for both sides was reviewed to determine if the testimony of the main witnesses was internally congruous. The student's and the Respondent's post incident behavior during the period of time surrounding the alleged sexual interaction was also reviewed to determine if their testimony was consistent with these external factors based upon observations made by other witnesses.

    
    

27. Except for the student's alleged behavior on the school bus after a tournament, her later retraction of her accusations to a former boyfriend, and her denial of any kissing involvement prior to the incidents, the student's testimony and post incident behavior is sufficiently reliable and congruous to prove that the incidents occurred. The student's drastic change in behavior at home and school after the incidents, as well as the medical evidence, support by clear and convincing evidence that sexual intercourse occurred between her and the Respondent, Ivory Scott.

    
    

28. On the other hand, the external and internal factors surrounding the Respondent's testimony did not withstand scrutiny for consistency. To believe the Respondent, the hearing officer would have to disbelieve large portions of testimony from the guidance counselor, school and school board administrators, and the Respondent's prior admission against interest to the principal regarding his opportunity to be in his private vehicles alone with the student M.C. on at least two occasions.

    
    

29. Once the determination is made that the student's testimony is more credible than Respondent's testimony and is supported by other evidence, it is clear that Petitioner has sustained its evidentiary burden that Respondent is guilty of gross immorality, in violation of Section 231.28(1)(c), Florida Statutes. Rule 6B-4.09(2), Florida Administrative Code, which sets forth the criteria for suspension and dismissal of instructional personnel, defines "immorality" as follows:

    
    

    ... conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

    
    

30. The Respondent's conduct in engaging in sexual intercourse with a female, fifteen year-old student on two occasions is clearly within the definition of immorality as set forth in the rules of the State Board of Education.

31. The Administrative Complaint further alleged that the commission of these acts by Respondent seriously reduced his effectiveness as an employee of the School Board of Lee County. As the Respondent resigned immediately after the incident, there was no evidence presented to demonstrate that the acts seriously reduced his effectiveness as a teacher, as required by Section 231.28(1)(f), Florida Statutes. Accordingly, the allegation that Respondent violated Section 231.28(1)(f), Florida Statutes, should be dismissed.

    
    

32. Rule 6B-1.006(2), Florida Administrative Code, provides that a violation of any of the principles set forth in the Principles of Professional Conduct for the Education Profession in Florida shall subject the individual's teaching certificate to suspension or revocation. Rule 6B-1.006(3)(a), Florida Administrative Code, obligates any individual holding a valid Florida teacher's certificate to "...make reasonable effort to protect the student from conditions harmful to learning or to health or safety." Respondent violated this rule by exposing M.C. to conditions reasonably interpreted to be harmful to her health and safety.

    
    

33. Rule 6B-1.006(3) (e), Florida Administrative Code, requires the teacher to "...not intentionally expose a student to unnecessary embarrassment." Petitioner failed to prove that the Respondent intentionally exposed the student to unnecessary embarrassment. The facts presented demonstrate that Respondent attempted to keep the sexual relationship a secret, and admonished the student not to tell anyone on at least two occasions.

    
    

34. Rule 6B-1.006(3)(h), Florida Administrative Code, provides that the teacher "shall not exploit a professional relationship with a student for personal gain or advantage." Respondent violated this rule by exploiting his student/teacher relationship with M.C. in order to engage in sexual activity under unilateral terms and conditions.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

1. That Respondent's Florida teaching certificate be revoked for violating Section 231.28(1)(c) and (h), Florida Statutes and Rule 6B-1.006(3)(a) and (h), Florida Administrative Code, of the State Board of Education.

   
   

2. That the allegation that Respondent violated Section 231.28(1)(f), Florida Statutes, and Rule 6B-1.006(3)(e), Florida Administrative Code, be dismissed.

DONE and ENTERED this 4th day of October, 1989, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4544

Petitioner's proposed findings of fact are addressed as follows:

1. Accepted. See HO #1 and #2.

2. Accepted. See HO #3.

3. Rejected as to the finding that the student relied on Respondent for rides home after her basketball practices prior to the alleged incidents. Accept that she occasionally relied on Respondent for rides home after games. See HO #5.

4. Accepted. See HO #6.

5. Accepted. See HO #6.

6. Reject as to two week time period. See HO #7.

7. Rejected. Irrelevant.

8. Rejected. Irrelevant.

9. Accepted. See HO #7.

10. Accepted. See HO #7.

11. Accepted. See HO #8.

12. Accepted. See HO #8.

13. Accepted. See HO #8.

14. Accepted. See HO #8.

15. Accepted. See HO #9.

16. Accepted. See HO #10.

17. Accepted. See HO #11.

18. Accepted. See HO #15.

19. Accepted. See HO #16.

20. Accepted. See HO #17.

21. Accepted.

22. Accepted. See HO #17.

23. Accepted.

24. Accepted.

25. Accepted.

26. Accepted.

27. Accepted.

28. Accepted.

29. Accepted.

30. Accepted. See HO #17.

31. Rejected. Witness incompetent to render legal conclusion.

32. Rejected. Improper summary,

33. Accepted. See HO #21.

Respondent's proposed findings of fact are addressed as follows:

1. Accepted. See HO #2.

2. Accepted. See HO #8-#10, #11, #13 and #15.

1. Reject the first sentence. Contrary to fact. M.C. referred only to rides home, not rides home after games.

   See HO #6 and #7. Reject the second sentence as contrary to fact. See HO #6 and #7. The rest of paragraph 3 is rejected as

   contrary to fact. See HO #6 and #7.

2. Accept first sentence. See HO #6. All but the last sentence in the first paragraph are accepted as facts presented. Although probative, these facts were not determinative. See Conclusions of Law. The last sentence is rejected as contrary to fact. See HO #6 and #7. The first two sentences in the second paragraph of proposed finding of fact number 4 is accepted. See HO #6 and #7. The third sentence is accepted as testimony. The finding of fact based on the evidence is found in HO #7. The last paragraph in proposed finding of fact number 4 is rejected as it is argument as opposed to a proposed factual finding. See Conclusions of Law.

3. Rejected. Improper summary. See HO #19 and Conclusions of Law.

4. Accept the first paragraph of proposed finding of fact number 6. See HO #14 and #15. The second paragraph is rejected as it is argument as opposed to a proposed finding of fact. See Conclusions of Law.

5. Accept the first sentence. See HO #13 and #15. The rest of proposed finding of fact number 7 is rejected as irrelevant to these proceedings.

6. Rejected. Dr. Seitz's testimony was not filed in Case NO. 88-4544.

COPIES FURNISHED:

Wilbur C. Smith, III, Esquire Post Office Drawer 8

Fort Myers, Florida 33902-0008

Craig R. Wilson, Esquire

1201 U.S. Highway One, Suite 315 North Palm Beach, Florida 33408-3581

Karen B. Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Martin B. Schapp, Administrator Professional Practices Services

319 West Madison Street, Room 3 Tallahassee, Florida 32399

Docket for Case No: 88-004544

Orders for Case No: 88-004544