STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3661

)

JOSE L. HERNANDEZ, )

)

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 October 31, 1989, in Fort Myers, Florida, and on November 2, 1989, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Rex D. Ware, Esquire

HUEY GUILDAY KUERSTEINER & TUCKER, P.A.

Post Office Box 1794 Tallahassee, Florida 32302

For Respondent: Robert J. Coleman, Esquire

COLEMAN AND COLEMAN

Post Office Box 2089

Fort Myers, Florida 33902 STATEMENT OF THE ISSUES

Whether the Respondent's teaching certificate should be suspended, revoked, or otherwise disciplined based upon the allegations of Petitioner Castor's Administrative Complaint executed on June 7, 1989.

PRELIMINARY STATEMENT

Betty Castor, as Commissioner of Education, (hereinafter the Commissioner), filed an administrative complaint before the Education Practices Commission alleging that the Respondent, Jose L. Hernandez (hereinafter Hernandez), violated state law in the following manner: While employed as a high school band instructor, Respondent allowed a minor female student to rub his leg in a school bus during a return trip from a football game. Respondent then allegedly placed his hand upon the student's hand and either moved her hand to his erected penis or did not attempt to remove the hand when it was placed there by the student.

It is further alleged in the complaint that this conduct constituted gross immorality or an act involving moral turpitude; that Respondent was guilty of personal conduct which seriously reduced his effectiveness as an employee of the School Board, and that Respondent failed to make reasonable efforts to protect a student from conditions harmful to learning or health or safety.

The Respondent disputed the allegations of fact contained in the complaint, and has requested a formal administrative hearing.

During the hearing, Petitioner introduced one exhibit into evidence and presented the testimony of four witnesses. The Respondent introduced one exhibit and presented one witness whose testimony related to the allegations in the complaint. In addition, Respondent testified in his own behalf. Six more witnesses were called to attest to Respondent's professional competency and good character. The character witnesses were offered as evidence in mitigation of the penalties sought by the Commissioner.

A transcript of the proceeding was filed on November 16, 1989. Proposed Recommended Orders from the parties were received on November 27, 1989, and December 11, 1989, respectively. Rulings on the proposed findings of fact submitted by the parties are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. The Respondent holds Florida Teaching Certificate No. 559726.

   
   

2. During the first semester of the 1988-1989 school year, Respondent Hernandez was employed as a band director at Estero High School by the School Board of Lee County. The Respondent did not have continuing contract status within the school district as he had been employed by the local school board for only one full school year prior to the schools year in question.

   
   

3. On Friday, November 11, 1988, Respondent and the Estero High School Band traveled by bus to a football game at Okeechobee High School. The bus trip took place after regularly scheduled classroom hours. As part of his transport procedures, the Respondent had some parents of the band members aboard the bus. The parents were seated at various locations throughout the bus to assist in the chaperoning of the students.

   
   

4. During the trip, Respondent was seated by himself in the front right seat directly behind the stairwell. There were adult chaperones in the seats directly to his left, behind the bus driver. At least one adult was seated directly behind the Respondent on the right side of the bus.

   
   

5. The purpose of the trip to Okeechobee was for the band to acquire another live performance prior to the band competitions which were scheduled during the upcoming week.

   
   

6. The Respondent, who was then only twenty-seven years old, was proud of his band's exceptional accomplishments during his term as band director at Estero High. The parents and boosters of the band were also pleased with the students' accomplishments, and generally considered the Respondent to be a gifted and dedicated band director. His ability to relate to the students on a personal as well as professional level was lauded and encouraged by the parents. Respondent's own ideals of what his role ought to be in the lives of his students expanded during his employment at Estero High to include a role as

   chief confidant and provider of guidance to all students in need of assistance. The students readily accepted the additional attention and support from the Respondent.

   
   

7. As part of his expanded role in his relationship with the students, Respondent allowed the seventeen-year-old female flag twirler, S.S., to discuss a very personal matter with him on the trip to Okeechobee. The student approached the Respondent and discussed her personal concerns and feelings about her sister's decision to date a previous boyfriend of hers. The student sought personal advice as to why she should not pursue a relationship with this former boyfriend. The Respondent listened sympathetically, and advised that it would be improper for her to indulge in a relationship with the ex-boyfriend, an adult. The taboos against minor-adult relationships were alluded to in a generalized, impersonal way. At the end of the counseling session, the student returned to her chosen seat in the back of the bus, and the trip to Okeechobee proceeded without incident.

   
   

8. The student's discussions with the Respondent and his advice was considered by both of the participants as part of their student-teacher relationship. The Respondent and student were each of the opinion that a strictly professional relationship had been maintained over their prior school year and current school year association with each other.

   
   

9. During the first two hours of the return trip home, many of the students were asleep. The band's performance took place after the game, and the students were tired. S.S. discovered that she was wide awake and generally bored during the return trip. She observed that the Respondent, who was seated up front, was also awake.

   
   

10. After awhile, the bus stopped at a McDonald's restaurant to allow the passengers to eat. When the students returned to the bus, S.S. asked to borrow the Respondent's jacket. The student was cold because she was wearing shorts and had not contemplated the cooler temperature. Upon receiving the jacket,

    S.S. returned to her designated seat in the back of the bus.

    
    

11. At one point, S.S. decided to visit with the Respondent. She went to the front of the bus and sat beside him. The student continued to use his jacket to cover her knees and lower legs. Between her knees and her shorts, her thighs were exposed.

    
    

12. During their conversation, the student covered her arms and legs with the jacket, leaned forward in the seat, and began to playfully poke at Respondent's knee. The Respondent did nothing about these antics, which went on for only a short period of time. The student then slid her hand to the Respondent's mid- thigh. The Respondent perceived that the touching had become improper. He immediately reached over and stopped her hand from sliding further up his thigh. He firmly held her hand to communicate his disapproval of her behavior. He did not verbally admonish the student because he did not want to embarrass her or himself on the bus. He also believed that his non-verbal communication would be effective.

    
    

13. Unfortunately, the student misinterpreted the squeezing of her hand and his release of it as an affectionate, "go ahead" signal. Upon the release of her hand by Respondent, she moved her hand to his genital area.

14. The Respondent was not immediately aware that the student had misinterpreted his signal of disinterest. To his embarrassment and in reinforcement of the student's perception of his communication, her hand quickly located an aroused area of his body.

    
    

15. Realizing he had completely lost control of the situation due to his involuntary biological response, the Respondent turned his entire body away from the student as another, stronger signal of disinterest. To his dismay, this movement allowed the student a surer grip on the area where her hand was located. The Respondent then shifted his body and crossed his legs in a fashion that required the student to remove her hand. The touching took place over a very short period of time that neither party could reliably estimate with any accuracy.

    
    

16. Further conversation did not take place, and the student remained in the seat during the rest of the trip, which lasted about one-half hour.

    
    

17. After thinking about the incident over the weekend, the Respondent spoke to the student the following Tuesday about disclosing the occurrence to a school official or her mother. The Respondent told the student that he would have to go to the school officials about the incident.

    
    

18. Prior to his meeting with the student, the Respondent had arranged for a female music teacher to be available for the student. He had told the teacher of the incident and his concern that the student was attempting to pursue a non- professional relationship with him. He was also concerned for the student's emotional well-being when he reported the incident.

    
    

19. Once the student realized that he was going to report the incident, she agreed to speak with the female music teacher while the Respondent made his report to an assistant principal on Tuesday afternoon.

    
    

20. After reporting the incident, the Respondent continued to cooperate with the school administration and the Lee County School District in their investigations of the incident.

    
    

21. During the incident which took place on the bus, the Respondent considered himself the victim of a seduction. In spite of this, he remained professionally concerned about the student and considered her welfare from the beginning of the incident until the close of the investigations.

    
    

22. The character witnesses presented by the Respondent testified that he is an excellent band instructor and is of good character with excellent morals. His ethics regarding his relationship with students consistently met the high standards required in his teaching position.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1) and Section 231.262(5), Florida Statutes.

    
    

24. In a proceeding to discipline a professional license, the Petitioner has the burden of proof, and must prove by clear and convincing evidence that the Respondent committed the violations set forth in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

25. Essentially, the charging document alleges that Respondent Hernandez violated state law when he allowed a minor female student to rub his leg and place her hand on his erected penis while they were seated next to each other on a school bus.

    
    

26. The facts adduced at hearing demonstrates that the Respondent was not a willing participant in the seduction or dalliance imposed upon him by the student. Unfortunately, his non-verbal attempts to communicate his disinterest in the activity was thwarted by his aroused state.

    
    

27. Based upon the sequence of events, and the unintentional ambiguity of Respondent's actions that lent themselves to more than one interpretation, it was not unreasonable for the student to consider the Respondent a willing participant. However, this was not the case, and the Respondent should not be treated as a perpetrator when he was a victim. The Respondent's testimony was reasonable, factually consistent, and it fit together with all of the evidence presented involving his character and behavior before and after the incident. His testimony was given great weight regarding the activity on the bus on November 11, 1988.

    
    

28. To allow the student to poke his knee was an error in judgment by the Respondent. However, his inaction did not rise to the level of gross morality or an act involving moral turpitude as defined in Rule 6B-4.009(2), Florida Administrative Code. "Immorality", as it concerns a teacher, is defined as:

    
    

    ...conduct that is inconsistent with the standards of public conscience and 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.

    
    

29. The evidence presented at hearing demonstrated that Respondent made a reasonable attempt under the circumstances to quickly remove the student's hand from his genital area. The incongruity between the actual result of his actions and his expected result was unfortunate. The Respondent's biggest error in judgment was his personal belief that he had the ability to befriend students, learn their most personal concerns, counsel them on matters unrelated to school, and yet maintain a professional distance and stature. The Respondent's unwaivering belief in his own decision-making process and ability to deal with students, which was not well placed, has resulted in a situation that has caused embarrassment to the student involved in this incident. As stated previously, her interpretation of Respondent's actions were as reasonable, or more reasonable, than his attempted communications of disinterest. His physical arousal apparently confirmed for the student that the Respondent was a willing and active participant. While this young male Respondent cannot be blamed for his physical, biological reaction during this incident, he is at fault in failing to be more realistic regarding his inability to handle emotionally troubled students. The counseling of these students should be left to trained professionals.

    
    

30. In spite of the student's subsequent embarrassment, the Respondent did not willing or intentionally participate in the activities on the school bus which are alleged to be a violation of Section 231.28(1)(c), Florida Statutes. Accordingly, the Respondent should be found not guilty of Count I of the Administrative Complaint.

31. A full exploration of the facts demonstrates that the Respondent's personal conduct in the situation was proper. Because proper conduct should not reduce a teacher's effectiveness as a School Board employee, the Respondent should be found not guilty of Count II of the Administrative Complaint.

    
    

32. The Respondent proved at hearing that throughout the incident and the subsequent investigations, he made reasonable efforts to protect the student from conditions harmful to learning or to health or safety. This was demonstrated by his decision to not make a scene on the bus, his subsequent decision to inform the student that he was going to report the incident, and his determination that she would need another adult to support her during the investigation, such as the female music teacher. There were no credible facts presented at hearing to demonstrate that Respondent failed to make reasonable efforts to protect the student. As a result, the Respondent should be found not guilty of Count III of the Administrative Complaint.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

That the Administrative Complaint filed against the Respondent in Case No.

89-3661 be DISMISSED.

DONE and ENTERED this 29th day of December, 1989, in Tallahassee, Leon County, Florida.

VERONICA E. DONNELLY

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 29th day of December, 1989.

APPENDIX TO RECOMMENDED ORDER CASE NO. 89-3661

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

1. Rejected. See HO #17.

2. Accepted.

3. Accepted. See HO #9.

4. Rejected. The bus stairwell was lit in front of the Respondent.

5. Accepted. See HO #18.

6. Rejected. See HO #19.

7. Accepted. See HO #15.

8. Rejected. See HO #15.

9. Accepted the first sentence. See HO #19. The rest of the sentence is rejected as contrary to fact.

10. Rejected. Irrelevant.

11. Rejected. Irrelevant.

12. Rejected. Contrary to fact.

13. Accepted.

14. Rejected. See HO #12 - HO #15.

15. Rejected. Irrelevant.

16. Rejected. The basis of the opinion was found to be factually incorrect by the Hearing Officer.

17. Accepted. See HO #12.

18. Rejected. See HO #12 - HO #15.

19. Accepted.

20. Accepted.

21. Accepted.

    
    

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

    1.	Accepted.	See HO #1.
    2.	Accepted.	See HO #2.
    3.	Rejected.	Irrelevant.
    4.	Accepted.	See HO #3.
    5.	Accepted.	See HO #7.
    6.	Accepted.	See HO #7.
    7.	Accepted.	See HO #8.
    8.	Rejected.	Irrelevant.
    9.	Rejected.	Irrelevant.
    10.	Accepted.	See HO #4.
    11.	Rejected.	Irrelevant.
    12.	Accepted.	See HO #10 and HO #11.
    13.	Accepted.
    14.	Accepted.	See HO #12.
    15.	Rejected.	Irrelevant.
    16.	Accepted.	See HO #12.
    17.	Accepted.	See HO #12 and HO #13.
    18.	Accepted.	See HO #15.
    19.	Accepted.	See HO #15.
    20.	Accepted.	See HO #17.
    21.	Rejected.	Irrelevant.
    22.	Accepted.	See HO #20.
    24.	Rejected.	Improper conclusion.
    25.	Accepted.	See HO #20.
    26.	Rejected.	Irrelevant.
    27.	Rejected.	Irrelevant and contrary to fact.
    28.	Rejected.	Irrelevant and contrary to fact.
    29.	Accepted.
    30.	Accepted.
    31.	Accepted.

22. Accepted.

23. Accepted.

24. Accepted.

25. Accepted.

26. Accepted.

27. Accepted.

28. Accepted.

COPIES FURNISHED:

Rex D. Ware, Esquire HUEY GUILDAY KUERSTEINER

& TUCKER, P.A.

Post Office Box 1794 Tallahassee, Florida 32302

Robert J. Coleman, Esquire COLEMAN AND COLEMAN

Post Office Box 2089

Fort Myers, Florida 33902

Karen B. Wilde, Executive Director Education Practices Commission Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Martin B. Schapp, Administrator Professional Practices Commission Florida Education Center, Suite 352

325 West Gaines Street Tallahassee, Florida 32399-0400

Leslie Weaver Procedural Safeguards

Florida Education Center, Suite 614

325 West Gaines Street Tallahassee, Florida 32399-0400

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

AGENCY FINAL ORDER

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

Before the Education Practices Commission of the State of Florida

BETTY CASTOR, as

Commissioner of Education,

Petitioner,

vs.

JOSE' L. HERNANDEZ,

Respondent. EPC CASE NO. 89-076-RT DOAH CASE NO. 89-3661

/

FINAL ORDER

Respondent, JOSE' L. HERNANDEZ, holds Florida educator's certificate no.

559726. Petitioner filed an Administrative Complaint seeking suspension, revocation, permanent revocation or other disciplinary action against the certificate.

Respondent requested a formal hearing and such was held before a hearing officer of the Division of Administrative Hearings. A Recommended Order was forwarded to the Commission pursuant to Section 120.57(1), F.S., which is attached to and made a part of this Order.

A panel of the Education Practices Commission (EPC) met on June 19, 1990 in Naples, Florida to take final agency action. Petitioner was represented by Maureen Proctor, Esquire. Respondent was represented by Robert Coleman, Esquire. The panel reviewed the entire record in the case.

The panel considered the arguments of the parties and ruled on each corresponding paragraph of Petitioner's Exceptions to the Findings of Fact as follows:

1. Petitioner's first exception to the Hearing Officer's Finding of Fact is rejected, as said finding is supported by competent substantial evidence.

   
   

2. Petitioner's second exception to the Hearing Officer's rulings on Petitioner's proposed Findings of Fact is accepted in that there is competent substantial evidence in the record contrary to Petitioner's Proposed Finding of Fact number 14 and the Hearing Officer's rejection of that proposed Finding of Fact is contrary to his acceptance of Petitioner's proposed Finding of Fact number 29.

FINDINGS OF FACT

The Findings of Fact of the Recommended Order are adopted as the Findings of Fact in this case with the exception that it is found that, in accordance with Petitioner's Proposed Finding of Fact number 14 "the bus was darkened out and there was no visible lighting therein".

CONCLUSIONS OF LAW

In a proceeding to discipline a professional license, the Petitioner has the burden of proof, and must prove by clear and convincing evidence that the Respondent committed the violations set forth in the Administrative Complaint. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

Essentially, the charging document alleges that Respondent Hernandez violated state law when he allowed a minor female student to rub his leg and place her hand on his erected penis while they were seated next to each other on a school bus.

Based on the Findings of Fact in this case, Respondent's conduct clearly constituted a violation of the rules governing teacher conduct. Section 231.28(1)(h). F. S., and Rule 6B-1.006(3)(a), F.A.C. allow the EPC to discipline a person's teacher's certificate if the person has failed to make reasonable efforts to protect a student from conditions harmful to learning or to health or safety.

Respondent violated subsection 231.28(1)(h), F.S., and Rule 6B-1.006(3)(a), F.A.C., in that he participated in the incident to the extent that he allowed a minor female student to place her hand on his knee and did not immediately remove her hand. He thereafter, when the student placed her hand further up his leg, failed to make a reasonable effort to stop her from doing so. Regardless of how the student's hand got to the various positions it did between Respondent's knee and his groin, his act of failing to take steps to promptly remove her hand or otherwise promptly remove himself from the situation, under the circumstances, indicate a violation of this provision.

Respondent's initial act of allowing a student to hold his knee, without any overt act on his part to immediately stop the incident, in combination with Respondent's failure to take additional steps on the unlit bus, when the incident escalated, cannot be condoned as proper conduct by a teacher.

Respondent has subjected the student to conditions which are harmful to her learning, health or safety.

Section 231.28(1)(f), F.S., allows the EPC to discipline a person's teacher's certificate if the person has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. Respondent's participation in the incident on the school bus with the minor female student and his lack of judgment in failing to halt the incident have seriously reduced his effectiveness as an employee of the school board. The elevated moral standards expected of teachers have been violated. The fact that Respondent did not initiate the contact should not excuse his behavior. The EPC must conclude Respondent's effectiveness has been reduced in violation of Section 231.28(f), F. S. The EPC has authority to discipline Respondent and his teaching certificate for said violations pursuant to Sections 231.262(6) and 231.28(1) F.S.

ORDER

Wherefore, based on the record in this case (see Recommended Order Findings of Fact, pages 6 and 7, paragraphs 12-15 and transcript of formal hearing pages 79, 80, and 91), which clearly and convincingly demonstrate Respondent's failure to take proper action to stop the incident which is the basis of this case, the Recommendation of the Hearing Officer in the Recommended Order is rejected, and it is ORDERED that Respondent be reprimanded and serve a three year period of probation. The conditions of such probation being that he notify the EPC immediately upon employment as an educator in any public or private school in the state of Florida, arrange for his immediate supervisor to submit performance reports to the EPC at least every three months, engage in counseling with a licensed psychologist, psychiatrist, or mental health counselor until discharged from treatment, arrange for such counselor or psychologist to send quarterly reports of participation in counseling to the EPC, and accomplish all terms of this probation at Respondent's own expense. 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.

DONE AND ORDERED, this 22nd day of July, 1990.

COPIES FURNISHED TO:

Martin Schaap, Administrator Professional Practices GEORGE BOWEN, Presiding Officer Services

Daniel Bosanko, Esquire I HEREBY CERTIFY that a copy of the Attorney General's Office foregoing order in the matter of

BC vs. Jose' L. Hernandez, was Sydney McKenzie, III mailed to Robert J.Coleman, Esquire General Counsel Post Office Box 2089, Fort Myers,

Florida 33902, this 25th day of Florida Admin. Law Reports July, 1990, by U. S. Mail.

James Adams, Superintendent Lee County Schools

2055 Central Avenue

Ft. Myers, Florida 33901

Thomas W. Benton, Director KAREN B. WILDE, Clerk Personnel Services

Lee County Schools

Veronica E. Donnelly Division of Admin. Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Maureen Proctor, Esquire

215 South Monroe Street Suite 510

Tallahassee, Florida 32301

Docket for Case No: 89-003661

Orders for Case No: 89-003661