STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 90-1398

)

WILLIAM PAUL BODIE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on June 12, 1990, in Miami, Florida.

APPEARANCES

For Petitioner: Craig R. Wilson, Esquire

1201 U.S. Highway 1, Suite 315 North Palm Beach, FL 33408-3585

For Respondent: Jacob A. Rose, Esquire

Haywood, Williams & Rose, P.A. Suite 510

500 South Australian Avenue West Palm Beach, FL 33401

STATEMENT OF THE ISSUE

The ultimate issue for determination at the formal hearing was whether Respondent's teaching certificate should be revoked for violating Subsection 231.28(1)(f), Florida Statutes, and Florida Administrative Code Rule 6B- 1.06(3)(a) and (e), as more fully described in the Administrative Complaint.

PRELIMINARY STATEMENT

An Administrative Complaint was filed by Commissioner of Education Betty Castor, against Respondent, William Paul Bodie, on December 20, 1989. The matter was referred to the Division of Administrative Hearings on February 22, 1990, for assignment of a hearing officer and assigned to the undersigned on March 5, 1990. A formal hearing was scheduled for June 12, 1990, pursuant to a Notice of Hearing dated April 5, 1990.

At the formal hearing, Petitioner presented the testimony of five witnesses and offered three exhibits for admission in evidence. One of Petitioner's witnesses was qualified as an expert in education and professional conduct.

Petitioner's Exhibits 1-3 were admitted in evidence without objection. Respondent testified in his own behalf and offered two exhibits for admission in

evidence. Respondent's Exhibit 1 was admitted in evidence without objection. Ruling on Respondent's Exhibit 2 was reserved for disposition in this Recommended Order.

A transcript was requested by Petitioner and filed with the undersigned on June 27, 1990. Petitioner timely filed its proposed findings of fact and conclusions of law on July 6, 1990. Respondent's Motion to File Proposed Recommended Order Out of Time was granted. Respondent timely filed his proposed findings of fact and conclusions of law on July 25, 1990. The parties' proposed findings of fact are addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent was licensed as a substitute teacher pursuant to certificate number 479861 from the State of Florida Department of Education. Respondent's teaching certificate expires on June 30, 1991.

   
   

2. Respondent had approximately 10 years experience as a substitute teacher in Dade and Broward counties. He never received an evaluation less than satisfactory and never received a written reprimand during his 10 years of employment as a substitute teacher. Respondent never achieved annual or continuing contract status with any school board in Florida.

   
   

3. Respondent was a permanent substitute teacher in physical education during the 1988-1989 school year. His teaching responsibilities were divided between Natural Bridge Elementary and Biscayne Gardens Elementary. Respondent also worked as an actor and had appeared in at least one episode of the television program "Miami Vice".

   
   

4. One of Respondent's students at Biscayne Elementary was Omar de Jesus. Omar was in the sixth grade at the time. Racquel de Jesus, Omar's younger sister, was in the fifth grade at Biscayne Elementary but was not one of Respondent's students. Judy Aulet is the mother of Omar and Racquel. Mrs. Aulet and her children lived approximately two blocks from Biscayne Elementary. They moved to Florida after the school year began. Omar and Racquel began attending Biscayne Elementary sometime in October, 1989. Neither Omar, Racquel, nor Mrs. Aulet knew that Respondent was an actor.

   
   

5. Respondent approached Omar approximately two to three weeks after Omar began attending school in October, 1989. Respondent told Omar that Respondent had noticed Omar's mother the first day Omar started school and that Omar's mother was very pretty. Respondent asked about Omar's mother during class on several subsequent occasions, asked Omar for his mother's telephone number and address so Respondent could talk to her, and generally engaged Omar in extended conversations about Omar's mother. On one occasion, Respondent told Omar that Respondent had obtained the address and telephone number of Omar's mother through the school records and was coming over for dinner that evening.

   
   

6. Omar was alarmed at Respondent's apparent preoccupation with his mother and was embarrassed by Respondent's repeated comments and inquiries. Omar disclosed the problem to his mother. When Respondent told Omar that he was coming over for dinner, Omar disclosed the situation to his mother. At that time, Omar discovered that Respondent had also been talking to Omar's sister, had given a picture of himself to Racquel, and had asked her to take the picture to her mother.

7. Racquel was first approached by Respondent during physical education class one day. Racquel accompanied two of her friends over to where Respondent was teaching another physical education class. After the two friends left, Respondent told Racquel that her mother was very pretty. The next Monday during Racquel's lunch break, Respondent asked Racquel if her mother was going out with anyone or if she had a husband. Approximately two to three days later after school, Respondent gave Racquel a picture of himself and told Racquel to give it to her mother.

   
   

8. Racquel did not want Respondent to go out with her mother and was concerned over the situation. Racquel was afraid that Respondent would get mad if Racquel told Respondent that her mother did not want to go out with him. Racquel was also afraid to tell her brother for fear her brother would get mad at Respondent. After Racquel disclosed the situation to her mother, Racquel was concerned enough to telephone her father in New York for advice. /1

   
   

9. One day during his physical education class, Omar accused Respondent of cheating in-favor of the girls' team when Respondent was refereeing a game between the boys and girls. Omar and Respondent began arguing. Omar told Respondent that he was going to get Respondent fired for confronting Omar and his sister about their mother and that a detective was coming to school to investigate the matter. Respondent grabbed Omar by the arm, shook him, called Omar a "motherfucker", and threatened Omar. Respondent told Omar that if he was fired over this he would "come after" Omar.

   
   

10. Omar had a disciplinary history involving failure to listen, inattentiveness, and "mouthing off" at teachers. Omar was sent to the principal's office many times by other teachers. Omar accused Respondent of cheating in favor of the girls team whenever Respondent refereed games between the girls and boys. Omar called Respondent a "cheat" to Respondent's face on more that one occasion. Respondent never sent Omar to the principal's office for discipline. Respondent awarded Omar a grade of B in physical education and a C in conduct.

    
    

11. The altercation between Omar and Respondent occurred approximately two to three weeks after Omar and Racquel had disclosed the situation to their mother. At the time of that disclosure, Mrs. Aulet had put Respondent's picture in a drawer and told her children she would report the matter to the school. She told her children not to confront Respondent with the issue. Mrs. Aulet did not know Respondent and had never communicated with him or met him.

    
    

12. Mrs. Aulet reported the incident to Dr. Jolivette, the school's principal, after the altercation between Omar and Respondent. Dr. Jolivette questioned Respondent and verbally reprimanded Respondent. Dr. Jolivette requested an investigation, and the matter was investigated by a detective. Respondent was suspended from his employment and remained suspended at the time of the formal hearing.

    
    

13. Respondent's actions subjected Omar and Racquel to unnecessary embarrassment. The conditions both children were subjected to were harmful to learning. Respondent demonstrated extremely poor judgment in his course of conduct. He used Omar and Racquel in an attempt to attain personal gain outside the scope of his employment. Respondent's actions and course of misconduct were serious in their nature.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes. /2

    
    

15. Petitioner has the burden of proof in this proceeding. Where an agency seeks to revoke a professional license, the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

16. Ruling on two objections by the parties was reserved for disposition in this Recommended Order. Petitioner objection to the admissibility of Respondent's composite Exhibit 2, consisting of letters of recommendation from Respondent's previous employers, is overruled. The letters are admissible hearsay within the meaning of Subsection 120.58(1)(a), Florida Statutes. Respondent's standing objection to testimony by Omar and Racquel concerning out of court conversations among themselves and their mother is overruled. All three persons testified at the formal hearing and the testimony of each concerning their out of court conversations is admissible hearsay within the meaning of Subsection 120.58(1)(a).

    
    

17. Subsection 231.28(1)(f) Florida Statutes, provides in relevant part that the Education Practices Commission may suspend or revoke the teaching certificate of any person when it is shown that such person is:

    
    

    ... guilty of personal conduct which seriously reduces that person's; effectiveness as an employee of the school board;

    
    

18. Florida Administrative Code Rule 6B-1.06(3)(a) and (e) provide in relevant part that a teacher's obligation to his or her student requires that the teacher:

    
    

    1. Shall make reasonable effort to protect the student from conditions harmful to learning or health or safety.

       * * *

       (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

       
       

19. Petitioner proved by clear and convincing evidence that Respondent violated Subsection 231.28(1)(f), Florida Statutes, and Florida Administrative Code Rule 6B-1.06(3)(a) and (e). Respondent failed to make a reasonable effort to protect either Omar or Racquel from conditions harmful to their learning, health, and safety. Respondent endangered Omar's health and safety by grabbing Omar by the arm, shaking him, yelling obscenities at Omar, and threatening further harm to Omar's health and safety if Respondent was fired. Respondent repeatedly exposed both Omar and Racquel to embarrassment and disparagement during Respondent's inquiries concerning their mother. Respondent's personal conduct seriously reduced Respondent's effectiveness as an employee of the Dade County School Board.

    
    

20. Suspension or revocation are the only authorized penalties for violations of either Subsection 231.28(1)(f), Florida Statutes, or Florida Administrative Code Rule 6B- 1.06(3)(a) or (e). Subsection 231.2(1)(f); Rule

6B-1.06(2) Subsection 231.28(1) authorizes suspension for up to three years, temporary revocation for up to 10 years, or permanent revocation. No other disciplinary guidelines have been cited to the undersigned or uncovered through independent research.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violating Subsection

231.28(1)(f), Florida Statutes, and Florida Administrative Code Rule 6B- 1.06(3)(a) and (e). It is further recommended that Respondent's teaching certificate be revoked for a period of three years from the date of the final order in this proceeding.

DONE and ENTERED this 4th of September 1990, in Tallahassee, Florida.

DANIEL MANRY

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 4th day of September 1990.

ENDNOTES

1/ The record does not disclose the substance of that advice.

2/ All references to chapters, sections, and subsections are to Florida Statutes (1989) unless otherwise provided.

APPENDIX

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1, 4 Accepted in finding 1-2

1. Accepted in finding 3

2. Rejected-as immaterial

5 Accepted in finding 4

1. Rejected: as immaterial

2. Accepted in finding 4

15-17 Accepted in finding 7

18-19 Accepted in finding 9

20-21 Accepted in finding 13

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

or not credible

21 Accepted in finding 11

22-23 Rejected as immaterial

COPIES FURNISHED:

Karen B. Wilde, Executive Director Education Practices Commission

325 West Gaines Street, #301 Tallahassee, Florida 32399

Craig Wilson, Esquire

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

Jacob A. Rose, Esquire Haygood, Williams & Rose, P.A.

500 South Australian Avenue, Suite 510 West Palm Beach, FL 33401

Hon. Betty Castor Commissioner of Education The Capitol

Tallahassee, FL 32399-0400

Docket for Case No: 90-001398

Orders for Case No: 90-001398