STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as )

Commissioner of Education )

)

Petitioner, )

vs. ) CASE NO. 89-3947

)

NICOLE D. ROKOS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings on November 9, 1989, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Carolyn LeBoeuf, Esquire

Brooks & LeBoeuf, P.A. 836 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Thomas W. Young, III, Esquire

FEA/United

208 West Pensacola Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

Whether Ms. Rokos' teaching certificate should be revoked or otherwise disciplined for gross immorality or moral turpitude in violation of Section 231.28(1)(c), and (f), Florida Statutes (1987), of Rule 6B-1.006(3)(a), (e), and (h), Florida Administrative Code, the Principles of Professional Conduct for the Education Profession in Florida, and Section 231.28(1)(h), Florida Statutes (1987).

PRELIMINARY STATEMENT

The Commissioner of Education filed an Administrative Complaint on June 19, 1989, which alleged that Ms. Rokos was guilty of gross immorality and moral turpitude. Ms. Rokos requested a hearing. Answers to Requests for Admissions established her licensure and employment. A transcript of the hearing was filed on November 22, 1989, and the parties filed proposed recommended orders on December 18, 1989. Rulings on proposed findings of fact are made in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Nicole D. Rokos holds Florida Teaching Certificate 542378, in the areas of mental retardation and specific learning disabilities. She is 35 years old and has taught at exceptional student education programs for 11 1/2 years. At the time of the incident involved, Ms. Rokos was employed as a special education teacher at Ely High School by the School Board of Broward County.

   
   

2. Ms. Rokos teaches students who are learning disabled, mentally handicapped, and emotionally disturbed. Learning-disabled students are typically of average or above average intelligence who do not learn in the same way as regular students, but require different teaching strategies and methods to succeed academically.

   
   

3. Ms. Rokos often had contact with her students in addition to her regular class periods. She attempted to involve students in activities relating to areas in which they were insecure in order to improve their self-concept.

   
   

4. As a teacher for 8 1/2 years at Ely High school, Ms. Rokos received very good evaluations of her performance which noted not only her teaching skills, but also her involvement in extra-curricular activities, see, e.g., the evaluations of December, 1982 and February, 1985. None of her evaluations contained any entries in the portion of the form used to describe areas needing improvement.

   
   

5. Other teachers at Ely High School regard Ms. Rokos as an excellent teacher. Former students also regard her as an inspiring teacher.

   
   

6. One of Ms. Rokos' students at Ely High School in 1988-89 school year was Earl Thomas Williams, Jr. He has learning disabilities in the areas of oral and written communication and mathematics and is of average intelligence.

   During December of 1988-89 school year he was 18 years of age, 6'3" tall and weighed 226 pounds.

   
   

7. During evenings Earl Williams often would call Ms. Rokos for help with homework. Earl's father has high regard for Ms. Rokos, and believes that due to her work with Earl, Earl has stayed in school, and now attends community college.

   
   

8. During the 1988-89 school year Marla Henderson, a cousin of Nicole Rokos by marriage, also attended Ely High School. She met Earl Williams through Ms. Rokos. Marla and Earl went out together from mid-September to mid-November, 1988. On December 3, 1988, at Earl's suggestion Ms. Rokos and another teacher accompanied Marla Henderson and Earl Williams to an Ely High School football game.

   
   

9. That night Ms. Rokos dressed in socks and sneakers, white jogging shorts, white sweatpants which said "Tigers" down the side in orange letters, white tank top under a gray T-shirt with "Ely" written in orange letters across the front and a green "Ely" windbreaker. Earl Williams wore a yellow shirt, white jeans, and under them black cotton shorts that reach to the mid- thigh, which are similar to spandex bicycle shorts, but which fit somewhat more loosely. Those shorts had large white lettering horizontally at the elastic waist, as well as large white lettering vertically on the outside thigh area.

10. After the game, at approximately 10:00 p.m., all four returned to the other teacher's home, where Ms. Rokos picked up her car, and left with Marla and Earl. Ms. Rokos' car has tinted windows. Marla was in the front seat and Earl in the back. Earl was sulking due to the recent break-up of his relationship with Marla. Ms. Rokos first dropped off Marla at approximately 11:00 p.m. Before returning to Earl's home, Earl ostensibly asked Ms. Rokos if they could go to a park and talk. Ms. Rokos drove to Kester Park in Pompano Beach, a park of approximately one square block. She pulled into the park between tall trees which line the perimeter of the park. The tree canopy obscured the light from near-by street lights in the car.

    
    

11. A home invasion robbery had been reported to the Pompano Beach Police Department at a home near the park at about 11:00 p.m. At approximately 11:30

    p.m. Officer William Weir of the Pompano Beach Police Department was in the area. He found Ms. Rokos' vehicle pulled between the trees at the park, which was then closed. Because the park was closed, and the car was partially concealed from view by the trees, he was alarmed, because the car could have been involved in the nearby robbery. Officer Weir was in a marked police car.

    
    

12. Officer Weir drew near Ms. Rokos' car, and parked behind it so that the car could not back on to the street, nor go forward because of the trees and foliage in the park. He activated the spot lights on the top of his car, and could clearly identify a female figure inside the car. The driver side window was partially opened. As Officer Weir approached the car on foot, the driver attempted to back out, and although the car lurched back, its path was obstructed by the police car. As Office Weir reached the side of the car, a back-up officer arrived on the scene and also approached the vehicle. Officer Weir shined his police flashlight into the automobile where he could see Ms. Rokos and, for the first time, a man who was sitting in the passenger seat, who had not been visible before because the passenger seat was fully reclined. Officer Weir saw that Ms. Rokos was dressed only in a shirt, and was nude from the waist down. He could clearly see her thighs, pubic hair and genital area. Earl Williams was completely nude, and attempting to hide his genitals with the cloth of his yellow shirt. Officer Weir saw the student's penis protruding from beneath the material and his pubic hair. All facts taken together have led the Hearing Officer to infer that sexual contact between Ms. Rokos and the student had occurred or was imminent but interrupted by Officer Weir.

    
    

13. In order to investigate further, Officer Weir directed both Ms. Rokos and Earl Williams to dress and exit the vehicle. After seeing Ms. Rokos' clothing with the Ely High School logo and noting the youth of her passenger, he asked whether she was a teacher. Initially, she denied it but later admitted to Officer Weir that Earl Williams was one of her students. Earl Williams readily admitted he was a student at Ely and Ms. Rokos was his teacher. She asked the officer not to report the incident, and was obviously distraught. Officer Weir then determined that Earl Williams was not a minor, and then warned Respondent about her conduct and allowed both of them to leave. Although no arrests were made, Officer Weir did file a uniform offense report about his contact with Ms. Rokos and Earl Williams at the end of his shift.

    
    

14. Ms. Rokos testified that she was not nude, but had removed her socks, shoes, and sweatpants to be more comfortable, but was still wearing her shorts, and that Earl Williams had removed his shirt, which was in his lap, and had taken off his jeans, but he was not nude because he was wearing the black shorts.

15. The testimony of Officer Weir is more credible. He saw the student completely nude and Ms. Rokos nude from the waist down. His testimony was emphatic and specific. Moreover, it was quite cool during the early morning hours of the night of December 3-4, 1988. There is no reasonable explanation for a teacher to have been parked in a car in a closed city park late at night with a student who had, according to her testimony, removed both his shirt and jeans, and for her to have removed her running shoes, socks, and sweatpants. Moreover, due to the bold white lettering horizontally across the waistband of the student's black shorts, and the bold white lettering vertically down the outside thigh of the shorts, the police officer would not have mistaken the shorts for flesh, even though the student is black.

    
    

16. After receiving the incident report completed by Officer Weir, Lieutenant DeFuria of the Pompano Beach Police Department forwarded the report to the Director of Special Investigations at the School Board of Broward County, Howard J. Stearns. After reviewing the report on December 5, 1988, the first school day following the incident, Mr. Stearns had the administrators of Ely High School notify Ms. Rokos to meet with him at his office concerning the incident. At the interview, Ms. Rokos told Stearns that she was wearing underpants and the student was not nude. Having heard her denial, Mr. Stearns suggested that if she were being truthful, then Officer Weir must be lying, and the Pompano Beach Police Department should be requested to investigate the false report made by Officer Weir. Mr. Stearns began to dial the number of the Police Department, when Ms. Rokos relented and said that she did not think that any investigation of Officer Weir should be made. Ms. Rokos then broke into tears and asked to see her union representative. After meeting with that representative, Ms. Rokos resigned her position with the School Board of Broward County. One of the reasons she did so was to avoid the publicity incident to an investigation into the incident by the School Board.

    
    

17. As the result of being discovered in such a compromising situation with one of her own students, Ms. Rokos has lost her effectiveness as a teacher in Broward County and would not be reemployed by the School Board of Broward County as an educator.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1) Florida Statutes (1987).

    
    

19. The Education Practices Commission has the authority to suspend, revoke, or discipline the teaching certificate of an educator who is guilty of gross immorality or acts involving moral turpitude, or conduct which seriously reduces the educator's effectiveness as an employee of the school board. Section 231.28(1)(c), and (f), Florida Statutes (1987). Violation of the Principles of Professional Conduct for the Education Profession in Florida subjects an educator's teaching certificate to suspension or revocation. Section 231.28(1)(h), Florida Statutes (1987), Rule 6B-1.006(2), Florida Administrative Code. Educators are required to make reasonable efforts to protect students from conditions harmful to learning or to health or safety, Rule 6B-1.006(3)(a), Florida Administrative Code, not to intentionally expose a student to unnecessary embarrassment or disparagement, Rule 6B-1.006(3)(e),

    Florida Administrative Code, and not to exploit a professional relationship with a student for personal gain or advantage, Rule 6B-1.006(3)(h), Florida Administrative Code. Ms. Rokos has violated these rules by exploiting her professional relationship with Earl Williams for personal advantage (i.e., sexual gratification) and by the discovery of her relationship with him which

    exposed him to unnecessary embarrassment or disparagement or conditions harmful to his learning. Although the Commissioner also argued that Ms. Rokos violated Rule 6B-1.006(4)(c), Florida Administrative Code, by using institutional privileges for personal gain or advantage by using her position as an educator to engage in immoral conduct with a male student assigned to her classroom, that charge was not made in the Administrative Complaint.

    
    

20. To suspend or revoke a professional license, misconduct must be shown by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). To be found in a car partially nude with a student who is nude while parked late at night in a dark portion of a closed public park constitutes immoral conduct. Although there is no direct evidence of what Mr. Rokos and Earl Williams were doing in their state of undress in the car on a cold night, there is no credible, reasonable, innocent explanation for such behavior. The evidence has produced in the mind of the Hearing Officer an abiding conviction, without hesitancy, of the truth of the allegation made against Ms. Rokos. The evidence is clear and convincing. Slomowitz v. Walker, 429 So.2d 799 (Fla. 4th DCA 1983). See also, Benson v. State, 526 So.2d 948, 952-54 (Fla. 2d DCA), rev. den., 536 So.2d 243 (Fla. 1988), cert. denied, U.S. , 109 S.Ct. 1349 (1989); United States v. Fatico, 458 F. Supp. 388, 405 (E.D.N.Y. 1978)(discussing clear and convincing evidence), Ehrhardt, Florida Evidence, Section 301.1, fn.5 (2d Ed. 1984), McCormick on Evidence, Section 342, fn.4 (3d Ed. 1984); 1 Koch, Administrative Law and Practice, Section 6.54 at 498 and fn.4 (West 1985)(discussing inferences).

    
    

    Penalty

    
    

21. Ordinarily teachers found to have engaged in sexual involvement with students are penalized with the permanent revocation of their teaching certificates. Ms. Rokos is apparently a fine teacher, but her teaching ability cannot excuse her very serious misconduct with a student. The appropriate penalty is permanent revocation of her teaching certificate.

RECOMMENDATION

It is recommended that the teaching certificate of Nicole D. Rokos be permanently revoked.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of January, 1990.

WILLIAM R. DORSEY, JR.

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 12th day of January, 1990.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-3947

Rulings on findings proposed by the Commissioner of Education:

1. Considered in finding of fact 15.

2. Considered in finding of fact 16.

3. Considered in findings of fact 6 and 12. The remaining portions of the proposal are rejected as argument. It is true, however, that it would have been impossible for Earl Williams to have disrobed without Ms. Rokos being aware of it.

4. Discussed in finding of fact 15.

5. Rejected as unnecessary.

6. Discussed in finding of fact 16.

7. Rejected as unnecessary.

8. Rejected as unnecessary.

9. Discussed in finding of fact 17.

Rulings on findings proposed by Ms. Rokos:

1. Adopted in finding of fact 1.

2. Adopted in finding of fact 2.

3. Generally adopted in finding of fact 3.

4. To the extent appropriate, the evaluations are discussed in finding of fact 4.

5. To the extent appropriate, discussed in finding of fact 5.

6. Rejected as subordinate to the findings of fact made in findings 3-5.

7. Rejected as unnecessary.

8. To the extent appropriate, discussed in finding of fact 5.

9. Discussed in finding of fact 6.

10. Discussed in finding of fact 7.

11. To the extent appropriate, discussed in finding of fact 8.

12. Rejected as unnecessary.

13. Adopted as modified in finding of fact 8.

14. Discussed in finding of fact 9.

15. Discussed in finding of fact 10.

16. Rejected, see the findings made in finding of fact 10.

17. Rejected; even if Ms. Rokos and Earl Williams discussed any matters relating to school, such discussions were not the focus of their activities in the car. See, the final sentence of finding of fact 12.

18. Discussed in finding of fact 12.

19. Discussed in finding of fact 12. How far the window was open is not significant; the officer had an adequate view of the scene.

20. Adopted in finding of fact 12.

21. Rejected for the reasons stated in finding of fact 15.

22. Adopted in finding of fact 13.

23. Rejected as subordinate to finding of fact 13.

24. Rejected as unnecessary.

25 and 26. Discussed in finding of fact 16.

1. To the extent appropriate, discussed in finding of fact 16.

2. It is not clear whether Mr. Stearns said anything which would have led Ms. Rokos to believe than the school board would not report the matter to the Department of Education. The school board had no choice, and the matter was reported and investigated by the Department, which led to this proceeding.

COPIES FURNISHED:

Carolyn LeBoeuf, Esquire Brooks & LeBoeuf, P.A.

836 East Park Avenue Tallahassee, Florida 32301

Thomas W. Young, III, Esquire FEA/United

208 West Pensacola Street Tallahassee, Florida 32301

Karen Barr Wilde Executive Director Department of Education

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

Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08

Tallahassee, Florida 32399-0400

Docket for Case No: 89-003947

Orders for Case No: 89-003947