STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BROWARD COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) CASE NO. 90-3615
)
WAYNE N. BAILEY, )
)
Respondent. )
)
)
BETTY CASTOR, as Commissioner ) of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 90-6154
)
WAYNE N. BAILEY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in these consolidated cases on June 4, 5, and 6, 1991, in Fort Lauderdale, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:
APPEARANCES
For Petitioner: Charles T. Whitelock, Esquire, School Board Whitelock and Moldof
1311 Southeast Second Avenue Fort Lauderdale, Florida 33316
For Petitioner: Craig R. Wilson, Esquire Betty Castor Crystal Tree Office Centr
Suite 315
1201 U.S. Highway 1
North Palm Beach, Florida 33408-3581
For Respondent: J. David Holder, Esquire Wayne N. Bailey Suite 100
1408 North Piedmont Way Tallahassee, Florida 32312
STATEMENT OF THE ISSUES
The basic issues in these consolidated cases are whether the Respondent should be dismissed from his employment as a school teacher in the Broward County School District and whether his Florida teaching certificate should be disciplined based upon substantially similar charges filed by the respective Petitioners. Petitioners allege that the Respondent conducted himself improperly on three separate occasions with three different female students. The Petitioner School Board of Broward County seeks the Respondent's dismissal pursuant to Section 231.36, Florida Statutes, on the basis of allegations that the Respondent is guilty of: (a) immorality, (b) misconduct in office, and
moral turpitude. The Petitioner Betty Castor seeks to discipline the Respondent's Florida teaching certificate pursuant to Section 231.28, Florida Statutes, on the basis of allegations that the Respondent is guilty of: (a) gross immoral-ity or an act involving moral turpitude, (b) personal conduct which seriously reduces his effectiveness as an employee of the School Board, and (c) violations of the code of conduct for educators in the State of Florida. The Respondent denies any misconduct.
PRELIMINARY STATEMENT
At the hearing in this case the parties presented the testimony of numerous witnesses and offered documentary and demonstrative exhibits. Following the hearing, a transcript of the proceedings at hearing was prepared and filed on July 1, 1991, together with the stipulated late-filed depositions of witnesses Yolanda Hugley and William Gillespie. The parties' respective proposed recommended orders were originally due on July 16, 1991. By agreement of all parties, the deadline for proposed recommended orders was extended to August 7, 1991. Thereafter, all parties timely filed proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have all been carefully considered. Specific rulings on all proposed findings of fact submitted by all parties are contained in the Appendix to this Recommended Order.
FINDINGS OF FACT
Facts stipulated to by all parties
The Respondent, Wayne N. Bailey, holds Florida teaching certificate 478398, covering the areas of Science, Biology, and Physical Education, which is valid through June 30, 1995.
At all times pertinent to these consolidated cases, the Respondent was employed as a teacher and coach at South Plantation High School in the Broward County School District, and was so employed since 1980. The Respondent holds a continuing contract as a classroom teacher.
Virgil L. Morgan, is the Superintendent of Schools for Broward County, Florida.
Facts established at the hearing Facts regarding the student J.F. 1/
During the 1987-1988 school year, a female student named J.F. was a student in the fifth period Biology class taught by the Respondent. J.F. was a student in that class for the entire school year. During the first half of the school year she sat in the front of the classroom.
Sometime during the 1987-88 school year, J.F. reported to the school authorities that the Respondent had passed a note to her in class containing words to the effect that the Respondent thought she was a bright girl, that he wanted to get to know her better, and requesting her telephone number. The record in this case lacks persuasive evidence that the incident reported by J.F. actually occurred. 2/
Facts Regarding the Student C.P.C. 3/
During the first half of the 1987-88 school year, a female student named C.P.C. was a student in the second period Biology class taught by the Respondent. One evening after a football game at South Plantation High School,
C.P.C. was sent to get some ice from a locked concession stand. When she got to the concession stand, she saw the Respondent holding something that she believed contained beer. 4/ On several occasions thereafter, C.P.C. joked with the Respondent to the effect that she had seen him with beer in the concession stand.
Towards the end of the first semester of the 1987-88 school year, in conjunction with seeking a transfer out of the Respondent's class, C.P.C. reported that the Respondent had offered to provide her with beer and had invited her to drink beer with him at his house. The record in this case lacks persuasive evidence that the offer and invitation reported by C.P.C. actually occurred. 5/
Facts Regarding the Student L.H. 6/
During the 1989-1990 school year, a female student named L.H. was a student at South Plantation High School. During that school year, L.H. was in the twelfth grade. She was never a student in any class taught by the Respondent, and prior to the incident described below she had had very little contact with the Respondent.
During the 1989-90 school year, L.H. was a member of the girl's varsity basketball team. The incident described below occurred on an afternoon in early January (probably January 3) of 1990, prior to a home basketball game that was played on the campus of South Plantation High School. Because there was a basketball game later that day, on the day in question L.H. remained on the school grounds when classes were over at 2:35 p.m. Two other students stayed on the campus with her, D.G. 7/ and S.M. 8/
Sometime after 3:00 p.m., but before 4:00 p.m., L.H. wanted to go to the coaches' office inside the gymnasium in order to get some fruit from her gym bag. She and her two student companions went to the gymnasium and found that it was locked. The three students began to knock on the door. Shortly thereafter, the Respondent came to the door and asked why the students wanted to come into the gymnasium. After L.H. explained what she wanted, the Respondent allowed her to enter and then closed the gymnasium door, leaving the other two students outside the gymnasium door. Again, the gymnasium door was locked.
L.H. entered the coaches' office inside the gymnasium and proceeded to retrieve her gym bag. The Respondent followed her into the coaches' office and closed the door to the office behind him. Thereupon, the Respondent approached L.H., began trying to fondle her body, began kissing her, and while doing so succeeded in partially unbuttoning the top of L.H.'s jump suit and pulling it down over her shoulder. The Respondent then lifted L.H.'s bra, exposing her breast, whereupon he rubbed her breast with his hands and then placed his mouth on her breast and sucked hard and/or bit on her breast. During the course of this activity the Respondent also unzipped his pants, removed his penis from his pants, and then pushed one of L.H.'s hands until it was in contact with his penis. The Respondent also attempted to get L.H. to lie down on a desk in the coaches' office.
During the course of the activities described immediately above, the Respondent was speaking to L.H. encouraging her to consent to sexual intercourse, while she was asking him to stop and struggling to free herself from his clutches. Shortly after the commencement of the activities described above, the two students who had remained outside began to knock loudly on the locked gymnasium door. Shortly after the knocking began, the Respondent released L.H., zipped up his pants, sat down, and pretended to be talking on the telephone. He then said to L.H., "this will be our secret, just between me and you."
As soon as the Respondent released her, L.H. rearranged her clothes, left the coaches' office, and then left the gymnasium. When she met D.G. and
S.M. outside the gymnasium, L.H.'s hair was messed up and it appeared to both
D.G. and S.M. that something was bothering L.H. D.G. proceeded to ask L.H. several times what was bothering her. Because she was embarrassed, frightened, and confused, L.H. did not tell D.G. or S.M. what had happened until sometime later.
Later that same evening, L.H. called D.G. on the telephone and told him in detail what the Respondent had done to her in the coaches' office. L.H. did not report the Respondent's conduct to school authorities until February 28, 1990, during the course of an interview by her school guidance counsellor. Her delay in reporting the matter to school authorities was due to her embarrassment and to her concern that the school authorities might not believe her word over that of a teacher.
The Respondent's effectiveness as an employee of the Broward County School Board has been seriously diminished by the incident involving L.H.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to these consolidated cases. See Section 120.57, Florida Statutes.
In cases involving the proposed termination of a teacher's employment, the Florida courts have held that the Petitioner has the burden of proving its allegations by a preponderance of the evidence. See Dileo v. Sch. Bd. of Dade County, 15 FLW D2781 (Fla. 3d DCA 1990); Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986). In cases involving the proposed revocation of a teacher's teaching certificate, the Florida courts have held that the Petitioner has the burden of proving its allegations by the more stringent standard of clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Evans Packing Co. v. Dept. of Agriculture and Consumer Services, 550 So.2d 112 (Fla.
1st DCA 1989). The nature of clear and convincing evidence is discussed in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983), and in Smith v. Dept. of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988).
Section 231.36(4)(c), Florida Statutes, provides in part:
(c) Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal,
who is under continuing contract may be suspended or dismissed at any time during the school year, however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay; but, if the charges are not sustained, he shall be immediately reinstated, and his back salary shall
be paid. In cases of suspension by the school board or by the superintendent, the school board shall determine upon the evidence submitted whether the charges have been sustained and, if the charges are sustained, shall determine either to dismiss the employee or fix the terms under which he may be reinstated.
In promulgating Rule 6B-4.09, Florida Administrative Code, the State Board of Education defined all of the aforementioned charges for the purposes of Section 231.36(4)(c), Florida Statutes. Pertinent to this case, Rule 6B-4.09, Florida Administrative Code, provides:
The basis for charges upon which dismissal action against instructional personnel may be pursued
are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:
Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the indi-vidual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession
as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.
(6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or
her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
Section 231.28(1), Florida Statutes, provides in pertinent part:
(1) The Education Practices Commission shall have authority to suspend the teaching certificate of any person as defined in s.228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return
to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time
not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law, provided it can be shown that such person:
(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.
Rule 6B-1.006, Florida Administrative Code, reads as follows, in pertinent part:
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual teacher's certificate, or the other penalties as provided by law.
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.
(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
(h) Shall not exploit a professional relationship with a student for personal gain or advantage.
For reasons noted in the foregoing findings of fact and in the appendix to this Recommended Order, the evidence in this case is insufficient to prove the allegations regarding the Respondent's conduct during the 1987-88 school year. Therefore, all charges against the Respondent based on those allegations should be dismissed in both of these cases.
The factual allegations regarding the Respondent's conduct with L.H. during the 1989-90 school year have been proved by clear and convincing evidence. With regard to the charges brought by the Broward County School Board, the Respondent's conduct with L.H. constitutes "immorality" and "misconduct in office" within the meaning of Section 231.36(4)(c), Florida Statutes, as those terms are defined in Rule 6B-4.09, Florida Administrative Code. 9/
With regard to the charges brought by the Commissioner of Education, the Respondent's conduct with L.H. constitutes "gross immorality or an act involving moral turpitude" and is conduct "which seriously reduces that person's effectiveness as an employee of the school board," within the meaning of Section 231.28(1)(c) and (f), Florida Statutes. It is also conduct which violates the provisions of paragraphs (a) and (e) of subsection (3) of Rule 6B-1.006, Florida Administrative Code, within the meaning of Section 231.28(1)(h), Florida Statutes. 10/
Based on all of the foregoing, it is RECOMMENDED that final orders to the following effect be entered in these cases:
In Case No. 90-3615, a final order should be entered concluding that the Respondent is guilty of "immorality" and "misconduct in office" within the meaning of Section 231.36(4)(c), Florida Statutes, and terminating the Respondent's employment with the Broward County School Board.
In Case No. 90-6154, a final order should be entered concluding that the Respondent is guilty of "gross immorality or an act involving moral turpitude," of conduct "which seriously reduces that person's effectiveness as an employee of the school board," and of conduct violating paragraphs (a) and
(e) of subsection (3) of Rule 6B-1.006, Florida Administrative Code, within the meaning of Section 231.28(1)(c), (f), and (h), Florida Statutes, and permanently revoking the Respondent's teaching certificate.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of December 1991.
MICHAEL M. PARRISH
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 3rd day of December 1991.
ENDNOTES
1/ All witnesses and other individuals who were students at the time of any events pertinent to these cases will be identified only by their initials. For those who may need to know, references will be provided to transcript pages containing the full name of the witness or individual identified by initials.
The hearing testimony of J.F. begins at 276 of the transcript.
2/ J.F.'s testimony about the incident she reported was simply not persuasive. In addition to concerns about her motives, her credibility is impaired by certain unlikely and implausible details in her testimony, as well as by certain details she did not remember.
3/ The hearing testimony of C.P.C. begins at page 320 of the transcript.
4/ There is no evidence at all that the Respondent was drinking beer in the concession stand, as alleged in the Commissioner of Education's Administrative Complaint. There is no persuasive evidence that the Respondent was in possession of any beer at that time.
5/ C.P.C.'s testimony was unpersuasive for substantially the same reasons as that of J.F. See Footnote 2.
6/ The hearing testimony of L.H. begins at page 158 of the transcript. 7/ D.G.'s hearing testimony begins at page 83 of the transcript.
8/ S.M.'s hearing testimony begins at page 256 of the transcript.
9/ The Respondent's conduct with L.H. is also an act involving "moral turpitude" within the meaning of Rule 6B-4.09(6), Florida Administrative Code. However, under Section 231.36(4)(c), Florida Statutes, acts involving moral turpitude are grounds for dismissal only upon "conviction of a crime involving moral turpitude." There is no evidence of such a conviction.
10/ It is not completely clear whether the Respondent's conduct with L.H. also constitutes a violation of paragraph (h) of subsection (3) of Rule 6B-1.006, Florida Administrative Code. In view of the other clear violations, resolution of this uncertainty is unnecessary because, however it might be resolved, the ultimate disposition of these cases would be the same.
APPENDIX RE RECOMMENDED ORDER IN CASE NOS. 90-3615 AND 90-6154
The following are my specific rulings on all proposed findings of fact submitted by all parties. To facilitate an understanding of the basis for the rulings which follow, it is first noted that there is conflicting evidence on every important fact regarding the allegations of misconduct against the Respondent. In resolving the conflicts in the evidence, for the most part, little weight has been given to the testimony of the two primary witnesses against the Respondent regarding the two episodes of misconduct alleged to have taken place during the 1987-88 school year. In addition to concerns about the motives of the two primary witnesses to those events, their credibility is also cast into doubt by certain implausible and unlikely details in their stories, as well as by vagueness and memory failures regarding some other details. Their stories are simply not persuasive. To the contrary, with regard to the misconduct alleged to have taken place during the 1987-88 school year, I have credited the Respondent's denials and the explanations put forth by the Respondent and other witnesses on his behalf.
With regard to the misconduct alleged to have taken place during the 1989-
90 school year, the conflicts in the evidence have been resolved otherwise. I have, for the most part, credited the testimony of the primary witness against the Respondent and have not been persuaded by the Respondent's denials. The primary witness against the Respondent was clear and convincing in her description of what occurred. Certain details of her testimony are persuasively corroborated by disinterested witnesses. The Respondent's denials were not persuasive. Similarly, the exculpatory evidence offered on behalf of the Respondent is not persuasive.
Findings proposed by the Broward County School Board:
Paragraphs A - G: The substance of all of these stipulated "facts" has been accepted, although all of them are not incorporated into the findings of fact in this Recommended Order because a number of them (such as addresses) are subordinate and unnecessary details and a number of them are conclusions of law rather than findings of fact.
Paragraph 1: Rejected as subordinate and unnecessary details. Paragraph 2: Accepted.
Paragraphs 3 - 5: Rejected as not supported by persuasive competent substantial evidence.
Paragraph 6: Accepted that J.F. did not immediately report any incident involving the Respondent to anyone and that she eventually told her mother and high school authorities that the Respondent gave her a note. (But it should be kept in mind that the record in this case lacks persuasive evidence that such a note ever existed.)
Paragraph 7: Rejected as irrelevant because of the vague reasons given by J.F.'s mother.
Paragraph 8: rejected as irrelevant in view of the lack of persuasive evidence that the incident occurred.
Paragraph 9: Accepted that the Respondent denied the incident testified to by J.F. The remainder of this paragraph is rejected as irrelevant.
Paragraph 10: Rejected as irrelevant. Paragraph 11: Accepted in substance.
Paragraphs 12 and 13: For the most part rejected as irrelevant.
Paragraphs 14, 15, and 16: Accepted in substance that C.P.C. observed the Respondent one evening after a football game with what she believed or suspected was beer, and that C.P.C. later made joking remarks to the Respondent about the incident. The remaining details are rejected as either irrelevant or as not supported by reliable evidence.
Paragraphs 17 - 19: Rejected as not supported by persuasive competent substantial evidence.
Paragraph 20: Rejected as irrelevant in view of the lack of persuasive competent substantial evidence of any misconduct by the Respondent involving C.P.C.
Paragraph 21: First sentence rejected as irrelevant in view of the lack of persuasive competent substantial evidence of any misconduct by the Respondent involving C.P.C. The remainder of this paragraph is rejected as not supported by competent substantial evidence.
Paragraph 22: Rejected as irrelevant in view of the lack of persuasive competent substantial evidence of any misconduct by the Respondent involving C.P.C.
Paragraph 23: Accepted.
Paragraph 24: Accepted that C.P.C. did not immediately report any incident to school authorities. The remainder of this paragraph is largely irrelevant.
Paragraph 25: This entire paragraph is rejected as irrelevant or as subordinate and unnecessary details. Further, the portion of the third sentence of this paragraph to the effect that Lucius Jenkens, III, "would give the Respondent a key to the subject concession stand" is rejected as completely opposite to the testimony of Mr. Jenkins. (See Transcript: page 612, lines 17- 20; page 613, lines 1-9; page 614, lines 13-15; page 615, lines 19-25.)
Paragraph 26: Rejected as contrary to the record; the Respondent also offered some explanations regarding the allegations by C.P.C.
Paragraph 27 - 37: Accepted in substance, with the omission of some unnecessary details.
Paragraphs 38 and 39: Rejected as subordinate and unnecessary details.
Paragraph 40: Rejected as irrelevant and as, in any event, insufficient to establish a "pattern."
Paragraphs 41 - 49: Rejected as irrelevant, primarily because none of the events described in these paragraphs were alleged in either of the charging documents. It is questionable whether the testimony upon which these proposed findings are based should have been received at all, and such testimony has been disregarded in the formulation of the findings of fact in this case.
Paragraph 50: Rejected as totally irrelevant.
Paragraph 51: Accepted that the Respondent's effectiveness as a school teacher has been seriously diminished by reason of his conduct involving L.H. The remainder of this paragraph is rejected as subordinate and unnecessary details and as conclusions of law.
Findings proposed by the Commissioner of Education:
Although there are at some places some differences in the paragraph numbering, the findings of fact proposed by the Commissioner of Education are for the most part substantially identical to those proposed by the School Board. To the extent that such findings are identical or substantially identical, they are disposed of in the same manner as the foregoing disposition of the corresponding paragraphs of the School Board's proposed findings. Immediately below are my specific rulings on the few proposed findings submitted by the Commissioner of Education that vary in some significant way from the proposals submitted by the School Board.
Paragraph 37: The last three lines of this paragraph are rejected as not supported by persuasive competent substantial evidence.
Paragraph 39: This paragraph is rejected as subordinate and unnecessary details.
Paragraphs 40 - 46: Rejected for the same reasons as the rejection of Paragraphs 41 - 49 of the findings proposed by the School Board.
Paragraph 47: Rejected as subordinate and unnecessary details.
Paragraph 49: Rejected as constituting a conclusion of law, rather than a finding of fact.
Paragraphs 50 and 51: Rejected as irrelevant.
Paragraph 52: Rejected as constituting a conclusion of law, rather than a finding of fact.
Findings proposed by the Respondent:
Paragraphs 1 - 5: The substance of all of these stipulated "facts" have been accepted, although all of them are not incorporated into the findings of fact in this Recommended Order because a number of them (such as addresses) are subordinate and unnecessary details and a number of them are conclusions of law rather than findings of fact.
Paragraph 6: Accepted.
Paragraph 7: First two sentences accepted. The remainder of this paragraph is rejected as subordinate and unnecessary details in view of the determination that J.F.'s testimony regarding any misconduct by Respondent was not persuasive.
Paragraphs 8 - 10: Accepted in substance.
Paragraphs 11 - 13: Rejected as subordinate and unnecessary details in view of the lack of persuasive evidence of any misconduct by the Respondent involving C.P.C.
Paragraphs 14 - 16: Rejected in part as argument regarding the weight of the evidence and in part as subordinate and unnecessary details in view of the lack of persuasive evidence of any misconduct by the Respondent involving C.P.C.
Paragraphs 17 - 22: Accepted in substance with some unnecessary details omitted.
Paragraph 23: Rejected as constituting argument about the credibility of witnesses, rather than proposed findings of fact.
Paragraphs 24 - 26: Rejected as subordinate and unnecessary details. (The testimony about all of these matters was carefully considered in resolving the credibility issues in this case, and L.H. was still found to be a credible witness.)
Paragraph 27: Rejected as subordinate and unnecessary details and as also not fully consistent with the greater weight of the evidence.
Paragraphs 28 - 47: Rejected as subordinate and unnecessary details.
Further, a few portions of these paragraphs are rejected as constituting argument, rather than proposed findings of fact, and a few other portions are rejected as not being fully supported by the evidence. The essence of most of these proposed findings is an effort by the Respondent to identify all of the inconsistent details in L.H.'s testimony. All of the inconsistent details were carefully considered in resolving the credibility issues in this case, and L.H. was still found to be a credible witness.
Paragraphs 48 - 55: Rejected as subordinate and unnecessary details. The essence of most of these proposed findings is to highlight the Respondent's reputation for being a person of good conduct and good character. All of these details were carefully considered in resolving the credibility issues in this case, which issues have been resolved against the Respondent regarding the incident involving L.H.
Paragraph 56: Rejected as constituting argument about the Respondent's credibility, rather than proposed findings of fact.
Paragraphs 57 - 62: The findings proposed in these paragraphs are rejected for several reasons. First, as a general matter, the testimony underlying these proposals was for the most part not persuasive because it appeared to consist primarily of witnesses reciting their recollection of what they "routinely" did during January of 1990, rather than their specific recollection of what they did on a specific day. Second, all of the testimony underlying these proposals deals with a day on which there was an "away" game, but the incident involving L.H. occurred on the day of a "home" game. Thus, the underlying testimony is largely irrelevant.
Paragraph 63: Rejected as subordinate and unnecessary details; because of the arguments between the Respondent and L.H.'s mother and sister had nothing to do with L.H.'s report of the Respondent's misconduct.
Paragraph 64: Rejected as contrary to the greater weight of the evidence. Paragraphs 65 - 67: Rejected as subordinate and unnecessary details.
Paragraphs 68 and 69: Rejected as, for the most part, consisting of subordinate and unnecessary details. Also rejected as based largely on implications not warranted by the greater weight of the evidence.
Paragraph 70: Rejected as based on inferences not warranted by the greater weight of the evidence. Further, the greater weight of the evidence is to the effect that L.H. did not know she was pregnant at the time she reported the Respondent's misconduct to Mr. Beasley.
COPIES FURNISHED:
David Holder, Esquire Suite 100
1408 North Piedmont Way Tallahassee, Florida 32312
Craig R. Wilson, Esquire
1201 U.S. Highway 1, Suite 315
North Palm Beach, Florida 33408-3585
Charles T. Whitelock, Esquire 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316
Robert J. Boyd, Esquire
352 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
Karen Barr Wilde Executive Director
Education Practices Commission
301 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
Jerry Moore, Administrator Professional Practices Services
352 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
Mr. Virgil L. Morgan, Superintendent Broward County School Board
1320 S.W. 4th Street
Fort Lauderdale, Florida 33312
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agencies that will issue the final orders in each of these cases concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agencies that will issue the final orders in these cases.
================================================================= AGENCY ORDER OF REMAND
=================================================================
BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA
BETTY CASTOR, as
Commissioner of Education,
Petitioner,
vs. CASE NO. 90-202-RT
DOAH CASE NO. 90-6154
WAYNE N. BAILEY,
Respondent.
/
ORDER
This matter came before a panel of the Education Practices Commission (EPC) on February 6, 1992 for consideration of action on a Recommended Order issued pursuant to Section 120.57(1), Florida Statutes, by a hearing officer of the Division of Administrative Hearings. The Petitioner was represented by Margaret O'Sullivan, Attorney at law. The Respondent was present and represented by J. David Holder, Attorney at law.
EXCEPTIONS
The panel ruled as follows on Respondent's Exceptions one through six to the Recommended Order which are attached hereto and incorporated herein by reference.
Exception one (1) was rejected by the panel based on counsel that the admitted evidence was relevant and its admission was within the proper discretion of the hearing officer.
Exception two (2) was rejected by the panel based on argument that the evidence admitted was admissible under the evidence code.
Exception three (3) was accepted on the basis of argument that the evidence in guest ion was beyond the scope of direct examination, and that it was improperly admitted character evidence of specific acts of Respondent.
Exception four (4) was accepted on the basis of counsel that the evidence in question was beyond the scope of direct examination.
Exception five (5) was accepted on the basis of argument that the evidence in question was beyond the scope of the charges in the administrative complaint and highly prejudicial to the Respondent.
Exception six (6) was accepted by the panel on the basis that the evidence in question was beyond the scope of the charges in the administrative complaint and prejudicial to the Respondent.
ORDER OF REMAND
Due to acceptance of Respondent's Exceptions to the Recommended Order three, four, five, and six, the panel rules that due process was substantially denied to the Respondent in the formal hearing of this case and that therefore this case is hereby remanded to the Division of Administrative Hearings for a re-hearing of this cause with a hearing officer assigned other than that hearing officer who previously heard this case and rendered a Recommended Order.
DONE AND ORDERED, this 17th day of April, 1992.
COPIES FURNISHED:
Jerry Moore, Program Director Professional Practices BRENDA WALLACE, Presiding Officer
Services
Daniel Bosanko, Attorney at I HEREBY CERTIFY that a copy of Law foregoing ORDER in the matter of
Attorney General's Office BC vs. Wayne N. Bailey was mailed
to J. David Holder, Attorney at Sydney McKenzie, III law, 1408 N. Piedmont Way, General Counsel 1408 Tallahassee, Florida 32312, this
28th day of April, 1992 by U.S.
Margaret O'Sullivan Mail. Attorney at law
Department of Education 1701, The Capitol KAREN B. WILDE, Clerk Tallahassee, Florida 32399
STATE OF FLORIDA EDUCATION PRACTICES COMMISSION
BETTY CASTOR, as
Commissioner of Education,
Petitioner,
vs.
WAYNE N. BAILEY,
Respondent.
/
DOAH CASE NO. 90-6154
RESPONDENT'S EXCEPTIONS TO RECOMMENDED ORDER
The Respondent, Wayne Bailey, files these exceptions to the Recommended Order entered by Hearing Officer Michael M. Parrish on December 3, 1991, pursuant to the authority of Section 120.57(1)(b)4., Florida Statutes, and respectfully alleges:
The proceedings on which the findings of fact were based did not comply with the essential requirements of law in that the Hearing Officer improperly admitted in evidence over the Respondent's timely objection a four page statement taken of the Respondent during the investigatory stage of the proceeding on or about March 6, 1990. (Transcript, pages 366-368)
The proceedings on which the findings of fact were based did not comply with the essential requirements of law in that the Hearing Officer improperly admitted in evidence over the Respondent's timely objection the testimony of Respondent given in criminal court proceedings. (Transcript, pages 387-39)
The proceedings on which the findings of fact were based did not comply with the essential requirements of law in that the Hearing Officer improperly permitted over the timely objection of the Respondent questions to be asked of the Respondent about a former student which were beyond the scope of direct examination, beyond the scope of the charges set forth in the administrative complaint filed in this proceeding and which were highly prejudicial to the Respondent. (Transcript, pages 823-831)
The proceedings on which the findings of fact were based did not comply with the essential requirements of law in that the Hearing Officer improperly permitted over the timely objection of the Respondent questions to be asked of the Respondent about alleged photographs of the Respondent with other coaches and students purporting to show students drinking alcoholic beverages, which line of questioning was beyond the scope of direct examination, beyond the scope of the charges set forth in the administrative complaint filed in this proceeding and which were highly prejudicial to the Respondent. (Transcript, pages 832-833)
The proceedings on which the findings of fact were based did not comply with the essential requirements of law in that the Hearing Officer improperly permitted over the timely objection off the Respondent the testimony of a former student concerning the Respondent's alleged presence in a tavern during which the former student alleged the Respondent consumed alcoholic beverages in the
presence of high school students and that high school students consumed alcoholic beverages in the presence of the Respondent. Said testimony was beyond the scope of any of the charges set forth in the administrative complaint and was highly prejudicial to the Respondent. (Transcript, pages 888-891)
The proceedings on which the findings of fact were based did not comply with the essential requirements of law in that the Hearing Officer improperly admitted over the timely objection of the Respondent the Petitioner's exhibit six, which exhibit had been earlier ruled to be inadmissible. Said exhibit when admitted was beyond the scope of direct examination, beyond the scope of any of the allegations set forth in the administrative complaint, admitted improperly during the Respondent's case in chief and highly prejudicial to the Respondent. (Transcript, pages 287-29; 851-854)
The proceedings on which the findings of fact were based did not comply with the essential requirements of law in that the Hearing Officer improperly failed to make an explicit ruling on each of the Respondent's proposed findings of fact as they are set forth in the Respondent's Proposed Recommended Order. The Respondent's Proposed Recommended Order is attached hereto and incorporated herein by reference.
The proceedings on which the findings of fact were based did not comply with the essential requirements of law in that the Hearing Officer made findings of fact which were significantly and substantially inconsistent with proposed findings of fact that the Hearing Officer accepted in his rulings on proposed findings. (See Respondent's proposed finding of fact number 22, and the Hearing Officer's ruling thereon in Appendix, page 19)
The adverse findings of fact made by the Hearing Officer are not based upon competent substantial evidence, in that the testimony of the accusatory student, L.H., when taken as a whole, fails to establish a substantial basis of fact from which the fact at issue can reasonably be inferred, or that a reasonable mind would accept as adequate to support a conclusion.
WHEREFORE, Respondent requests that this matter be remanded to the Division of Administrative Hearings for a new hearing or, alternatively, that the Hearing Officer's findings of fact which are adverse to the Respondent be set aside.
I HEREBY CERTIFY that a true and exact copy of the foregoing has been furnished by U. S. Mail to Robert J. Boyd, attorney for the Professional Practices Services, 352 Florida Education Center, 325 West Gaines Street, Tallahassee, Florida 32399-0400 on this 19th day of December, 1991.
J. David Holder Suite 100
1458 N. Piedmont Way Tallahassee, Florida 32312
(904) 386-5569
ATTORNEY FOR RESPONDENT
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DOAH ORDER DECLINING REMAND
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BETTY CASTOR, as Commissioner ) of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 90-6154
)
WAYNE N. BAILEY, )
)
Respondent. )
)
ORDER DECLINING REMAND
By letter dated May 6, 1992, the Executive Director of the Education Practices Commission forwarded to the Division of Administrative Hearings an order of the Education Practices Commission which purports to remand this case to the Division of Administrative Hearings for a new hearing before a new Hearing Officer. The subject remand order was signed on April 17, 1992, and appears to have been filed with the Clerk of the Education Practices Commission on April 28, 1992. The Commission's remand order raises fundamental issues about the relationship of the Division of Administrative Hearings to regulatory agencies, such as the Education Practices Commission, under the administrative adjudication scheme established by the Legislature in Chapter 120, Florida Statutes. For the reasons set forth at length below, the remand from the Education Practices Commission must be declined.
An understanding of the basis for declining the remand is facilitated by consideration of some of the events leading up to the issuance of the remand order. The subject remand order was issued by the Education Practices Commission ("EPC") following its consideration of a single Recommended Order in two consolidated cases, Case No. 90-3615, styled Broward County School Board v. Wayne N. Bailey, and Case No. 90-6154, styled Betty Castor, as Commissioner of Education v. Wayne N. Bailey. The issues in the two consolidated cases were described as follows at page 2 of the Recommended Order.
The basic issues in these consolidated cases are whether the Respondent should be dismissed from his employment as a school
teacher in the Broward County School District and whether his Florida teaching certificate should be disciplined based upon substantially similar charges filed by the respective Petitioners. Petitioners allege that the Respondent conducted himself improperly on three separate occasions with three different female students. The
Petitioner School Board of Broward County seeks the Respondent's dismissal pursuant to Section 231.36, Florida Statutes, on the basis of allegations that the Respondent is guilty of: (a) immorality, (b) misconduct in office, and (c) moral turpitude. The Petitioner Betty Castor seeks to discipline the Respondent's Florida teaching certificate pursuant to Section 231.28, Florida Statutes, on the basis of allegations that the Respondent is guilty of: (a) gross immorality or an act involving moral turpitude, (b) personal conduct which seriously reduces his effectiveness as an employee of the School Board, and (c) violations of the code of conduct for educators in the State of Florida. The Respondent denies any misconduct.
Following a three-day formal hearing during which all parties were afforded an opportunity to offer evidence and argument, 1/ the Hearing Officer issued a Recommended Order in which he found that the evidence was insufficient to prove two of the incidents of misconduct charged in the Administrative Complaints, but also found that the evidence was sufficient to prove the third incident of alleged misconduct. Based on the nature of the misconduct proved at the formal hearing, 2/ the Hearing Officer made the following recommendations in the subject Recommended Order:
Based on all of the foregoing, it is RECOMMENDED that final orders to the following effect be entered in these cases:
In Case No. 90-3615, a final order should be entered concluding that the Respondent is guilty of `immorality' and
`misconduct in office' within the meaning of Section 231.36(4)(c), Florida Statutes, and terminating the Respondent's employment with the Broward County School Board.
In Case No. 90-6154, a final order should be entered concluding that the Respondent is guilty of `gross immorality or an act involving moral turpitude,' of conduct
`which seriously reduces that person's effectiveness as an employee of the school board,' and of conduct violating paragraphs
(a) and (e) of subsection (3) of Rule 6B- 1.006, Florida Administrative Code, within the meaning of Section 231.28(1)(c), (f), and (h), Florida Statutes, and permanently revoking the Respondent's teaching certificate.
Following the issuance of the Recommended Order containing the foregoing recommendations, the Respondent filed exceptions to the Recommended Order with both the Broward County School Board and the Education Practices Commission.
The exceptions material to the EPC's remand order read as follows: 3/
The proceedings on which the findings of fact were based did not comply with the essential requirements of law in that the Hearing Officer improperly permitted over the timely objection of the Respondent questions to be asked of the Respondent about a former student which were beyond the scope of direct examination, beyond the scope of the charges set forth in the administrative complaint filed in this proceeding and which were highly prejudicial to the Respondent. (Transcript, pages 823-831)
The proceedings on which the findings of fact were based did not comply with the essential requirements of law in that the Hearing Officer improperly permitted over the timely objection of the Respondent questions to be asked of the Respondent about alleged photographs of the Respondent with other coaches and students purporting to show students drinking alcoholic beverages, which line of questioning was beyond the scope of direct examination, beyond the scope of the charges set forth in the administrative complaint filed in this proceeding and which were highly prejudicial to the Respondent. (Transcript, pages 832-833)
The proceedings on which the findings of fact were based did not comply with the essential requirements of law in that the Hearing Officer improperly permitted over the timely objection of the Respondent the testimony of a former student concerning the Respondent's alleged presence in a tavern during which the former student alleged the Respondent consumed alcoholic beverages in the presence of high school students and that high school students consumed alcoholic beverages in the presence of the Respondent. Said testimony was beyond the scope of any of the charges set forth in the administrative complaint and was highly prejudicial to the Respondent. (Transcript, pages 888-891)
The proceedings on which the findings of fact were based did not comply with the essential requirements of law in that the Hearing Officer improperly admitted over the timely objection of the Respondent the Petitioner's exhibit six, which exhibit had been earlier ruled to be inadmissible. Said exhibit when admitted was beyond the scope of direct examination, beyond the scope of any of the allegations set forth in the administrative complaint, admitted improperly during the Respondent's case in chief and highly prejudicial to the Respondent. (Transcript, pages 287-290; 851-854)
The Education Practices Commission resolved the issues raised in the above- quoted exceptions by issuing the subject remand order. Because of the unusual nature of the order, the body of the subject order is set forth below in its entirety.
ORDER
This matter came before a panel of the Education Practices Commission (EPC) on February 6, 1992 for consideration of action on a Recommended Order issued pursuant to Section 120.57(1), Florida Statutes, by a hearing officer of the Division of Administrative Hearings. The Petitioner was represented by Margaret O'Sullivan, Attorney at law. The Respondent was present and represented by J. David Holder, Attorney at law.
EXCEPTIONS
The panel ruled as follows on Respondent's Exceptions one through six to the Recommended Order which are attached hereto and incorporated herein by reference.
Exception one (1) was rejected by the panel based on counsel that the admitted evidence was relevant and its admission was within the proper discretion of the hearing officer.
Exception two (2) was rejected by the panel based on argument that the evidence admitted was admissible under the evidence code.
Exception three (3) was accepted on the basis of argument that the evidence in question was beyond the scope of direct examination, and that it was improperly admitted character evidence of specific acts of Respondent.
Exception four (4) was accepted on the basis of counsel that the evidence in question was beyond the scope of direct examination.
Exception five (5) was accepted on the basis of argument that the evidence in question was beyond the scope of the charges in the administrative complaint and highly prejudicial to the Respondent.
Exception six (6) was accepted by the panel on the basis that the evidence in question was beyond the scope of the charges in the administrative complaint and prejudicial to the Respondent.
ORDER OF REMAND
Due to the acceptance of Respondent's Exceptions to the Recommended Order three, four, five, and six, the panel rules that due process was substantially denied to the
Respondent in the formal hearing of this case and that therefore this case is hereby remanded to the Division of Administrative Hearings for a re-hearing of this cause with a hearing officer assigned other than that hearing officer who previously heard this case and rendered a Recommended Order.
DONE AND ORDERED, this 17 day of April, 1992.
Reduced to its simplest terms, what the Education Practices Commission purports to do in the foregoing remand order is overrule the Hearing Officer on several issues regarding the admissibility of evidence, disqualify the original Hearing Officer from further participation in the case, and dictate the future course of the proceeding. For the reasons which follow, the agency has deviated from its proper role in the administrative adjudication scheme established by Chapter 120, Florida Statutes. Simply stated, the Education Practices commission is not statutorily empowered to overrule Hearing Officer rulings on the admissibility of evidence, is not empowered to disqualify Hearing Officers, and is not empowered to compel the Division of Administrative Hearings to conduct a second de novo hearing. To impute to the Education Practices Commission, or to any agency that refers cases to the Division of Administrative Hearings, the power to do the things itemized immediately above would be to jeopardize the level playing field guaranteed by the legislative checks and balances included in Chapter 120, Florida Statutes. If regulatory agencies are allowed to do what the Education Practices Commission purports to have done in this case--albeit for what facially appears in this case to be the most noble and benevolent of reasons 4/ --the public's confidence in the integrity of the entire 120.57(1) formal adjudication process will be diminished. 5/
The subject remand order is not the first attempt by an agency to expand its power to control the hearing process. In addressing a similar attempt by the Board of Medicine, Hearing Officer Dorsey wrote, in Dept. of Professional Regulation, Bd. of Medicine v. Melvin Wise, M.D., 12 FALR 2866 (1989), at 2869, footnote 2:
The Legislature did not contemplate agency remands on evidentiary rulings, for the `any evidence' standard adopted in Section 120.58(1)(a), Florida Statutes, should have obviated such remands. The 1984 amendment to Section 120.57(1)(b)3., Florida Statutes, prohibited an agency which referred a case to the Division from taking any `further action with respect to the formal proceeding, except as a party litigant.' This prevents an agency from ruling on interlocutory orders of hearing officers on matters pertaining to discovery or evidence, as the District Court of Appeal had required in Department of Professional Regulation v. Smith, 451 So.2d 872 (Fla. 1st DCA 1984). Allowing the prosecuting agency to reverse evidentiary rulings when reviewing a recommended order tilts the proceeding in favor of the agency, which can, in effect, sustain its own objections made at the final hearing. The
case law suggests that the appropriate action would have been for the Department to have filed a petition for review of non-final agency action addressed to the recommended order. See. e.g. Charter Medical-Jacksonville
v. Community Psychiatric Centers, 482 So.2d
437 and n.1 (Fla. 1st DCA 1985) and especially, Florida Department of Law Enforcement v. Dukes, 484 So.2d 645, 647 (Fla. 4th DCA 1986); see also, Cushing v. Department of Professional Regulation, 416 So.2d 1197 (Fla. 3rd DCA 1982) at 1198 and Rules 9.100(c) and 9.130(a)(1), Florida Rules of Appellate Procedure.
Similar conclusions have been expressed by an uninvolved commentator on the Wise case. After summarizing the agency arguments in the Wise case, Professor Johnny C. Burris commented, in Administrative Law: 1991 Survey of Florida Law, Nova Law Review, Vol. 16, No. 1 (Fall 1991), at page 101:
However, the position of Professional Regulation on this issue was not sound for three reasons. First, the hearing officers are generally the triers of fact, and if anybody in the APA administrative process has expertise on admissibility questions, it would be the hearing officers who deal with these issues on a day-to-day basis, not the administrative agencies performing their review function prior to issuing final orders. See Fla. Stat. s. 120.65(4)(1989) (requiring hearing officers to be experienced members of the Florida Bar); Fla. Stat. s.
120.58 (1989)(hearing shall be conducted by the presiding officer, in most cases a hearing officer). Second, if administrative agencies do have the authority to overrule the decisions of hearing officers on admissibility questions, then their role as the initial finders of fact would be substantially undermined, and potentially, the APA preference for using initial fact finders who are independent of the administrative agencies would be functionally destroyed. See Fla. Stat. s. 120.57(1)(a) (1989). Third, it would become another device for administrative agencies to use in attempting to avoid the limited scope of their discretion to reject the factual findings of hearing officers. Fla. Stat. s. 120.57(1)(b)(10)(1989).
Hearing Officer Ruff has also written at length on this subject in declining a remand from the Department of Health and Rehabilitative Services. In Department of Health and Rehabilitative Services v. Roger R. Newton and Jack Taylor, DOAH Case Nos. 86-0922 and 86-1528 (Order Declining Remand issued October 25, 1989), Hearing Officer Ruff addressed the issue as follows:
There is clearly no authority in the Administrative Procedure Act, Chapter 120, Florida Statutes, authorizing an agency to overturn an evidentiary ruling, remand the case to the hearing officer and direct him to admit the evidence and then to re-weigh evidence as a result of the agency's `ruling on admissibility.' Florida Department of Law Enforcement v. Dukes, 484 So.2d 645, 647 (Fla. 4th DCA 1986). The unassailable, bedrock philosophy underlying the Legislature's enactment of Chapter 120, and its establishment of hearing officers as presiding officers in conducting hearings pursuant to that Chapter is that all litigants in formal disputes involving state agencies before hearing officers must be able to litigate on an equal footing, a level playing field. See Section 120.57(1)(b)3; Dore, Access to Florida Administrative Proceedings, 13 F.S.U. Law Review 965, at 1079 (1986).
The clear legislative purpose underlying the enactment of Chapter 120 and the conduct of administrative proceedings before the Division of Administrative Hearings would be quickly frustrated if agencies, participating as parties before this forum, could, at the final order stage of such a proceeding, elect to overturn a hearing Officer's evidentiary rulings in order to achieve their desired purpose in litigating in the proceeding.
Lying at the very heart of the legislative purpose in enacting Chapter 120 is the mandate that there should be a fair, impartial, independent forum before which state agencies and private litigants can achieve a fair and just resolution of their disputes. State ex rel. Dept. of Gen. Serv. v. Willis, 344 So.2d 580, 591-92 (Fla. 1st DCA 1977); 3 England and Levinson, Florida Administrative Practice Manual, Reporter's Comments on Section 0120.10 of the Proposed Act, at page 22. This is why McDonald v.
Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977) and its numerous progeny, for example, dictate that a hearing officer makes binding findings of fact upon the material issues presented, which are unassailable by the agency at the final order stage in the process, unless those findings of fact are not supported by competent, substantial evidence in the record. This line of cases holds, in a corollary fashion, that the agency cannot re-weigh the evidence upon which the hearing officer based his
findings of fact. Here the agency is, in effect, circumventing that stricture by attempting to remand to the Hearing Officer, directing him to admit evidence which the agency wishes admitted, after the Hearing Officer ruled it inadmissible, and to force the Hearing Officer to re-weigh the evidence. This is clearly inappropriate. To do so would allow the agency, which must participate on an equal footing with any other party to such a proceeding while the case is before a hearing officer, to simply wait until the proceeding was before the agency for final order and elect to achieve its objective by deciding that the hearing officer made an erroneous evidentiary ruling and should re-weigh the evidence in light of the agency's (the erstwhile party litigant's) view that the hearing officer's evidentiary ruling was erroneous. Such would constitute a subterfuge and entirely circumvent the requirement in Section 120.57(1)(b)3 that agencies can only participate in proceedings before DOAH hearing officers in the same capacity as any other party litigant. Such a practice and result would render that provision meaningless and would engender the kind of endless litigation which the court in Florida Department of Transportation v.
J.W.C. Company, Inc., 396 So.2d 778 at 784 (Fla. 1st DCA 1982) held that the Administrative Procedure Act does not permit.
It is totally incongruous to believe that Chapter 120 contemplates that an agency, participating as a party litigant before a presiding officer, who is the tribunal charged with gathering the evidence, making rulings thereon, and making findings of fact on the competent, credible evidence, can so obviate the fundamental fairness of having to participate in this proceeding as a litigant by, in its final order role, overturning the hearing officer's rulings on evidence, directing the hearing officer to accept the agency's ruling on it, and re-weigh it accordingly. It is certainly appropriate at this juncture to note that rulings on the admissibility of evidence in a formal proceeding under Chapter 120 are not policy questions "infused with agency expertise" upon which agency heads are entitled to great credence. Hearing officers have been required by the Legislature to be experienced attorneys, with a minimum requirement of five years admission to the bar. The Legislature cannot have contemplated, in enacting Chapter 120, that the agency head should have
authority to look behind and overturn the evidentiary rulings made by the hearing officer during the course of the hearing.
The hearing officer is exclusively charged with the duty of fact finding. Fact finding, of course, must be based on the evidentiary record. Since the evidentiary record and resolution of questions regarding what pieces of evidence make up that record are the essential building blocks of fact finding, it follows that a law-trained hearing officer should make the evidentiary rulings which determine what evidence he or she can employ in finding facts. Correspondingly, review of any errors in such rulings is the proper province of law-trained judges who are neutral arbiters in the resolution of disputes. Certainly the agency, which is not a neutral arbiter, but rather a partisan litigant, has no business reviewing evidentiary rulings of the hearing officer, to whom it referred the proceeding for neutral fact finding and legal interpretation in the first place.
In brief summary, for the reasons set forth above, the agencies that refer cases to the Division of Administrative Hearings for neutral fact finding are without authority to regulate the fact-finding process, regardless of how disappointed an agency may be with the facts found in a particular case. But this is not to say that an agency is without remedy in those cases where it may sincerely believe that a Hearing Officer has made an egregious error in receiving or excluding evidence at the hearing. Like any other party, an agency that finds itself in such a position may seek judicial review, just as was done in Fla. Dept. of Law Enforcement, Criminal Justice Standards and Training Com'n., v. Dukes, 484 So.2d 645 (Fla. 4th DCA 1986). In Dukes, the agency took an appeal of a nonfinal recommended order of a hearing officer" in a case in which the Hearing Officer had excluded all of the agency's evidence and had filed a recommended order of dismissal for failure of proof. In its appeal of the non-final order the agency sought review of the Hearing Officer rulings excluding its evidence. The Dukes court concluded that the agency's appeal was appropriate because "review of the final agency decision would not provide an adequate remedy," and explained its ruling as follows, at page 647: 6/
As for petitioner's second contention, we agree that since it was not permitted to introduce the bulk of its evidence, it could not say that the findings of fact of the hearing officer were not based on competent substantial evidence (at least not without being reversed by this court). While an agency is permitted under section 120.57(1)(b)9 to reject a hearing officer's conclusion of law, petitioner points out that there is nothing in the Administrative Procedure Act (APA) authorizing it to remand the case to the hearing officer and directing him or her to admit the evidence in question.
Based on the above, we agree that petitioner has no adequate remedy on review of the final agency action.
A further complication in this case which underscores the need for agencies to seek judicial review of rulings on the admissibility of evidence rather than arrogating to themselves the power to change such rulings is the fact that, on the basis of the identical evidentiary record and the identical Recommended Order, the School Board of Broward County was satisfied that the proceedings complied with all requirements of law. Accordingly, the School Board of Broward County issued a Final Order based on the findings and conclusions in the identical Recommended Order and terminated the Respondent's employment. The School Board's Final Order is now pending on appeal before the Fourth District Court of Appeal. The District Court of Appeal, depending on how it views the Broward County School Board case, may do any number of things other than remand the case for a new hearing before a new Hearing Officer. 7/ The very real possibility that the District Court of Appeal may dispose of this case in a manner different from the disposition attempted by the Education Practices Commission illustrates the extent to which the EPC's remand order is out of kilter with the administrative adjudication scheme established by Chapter 120, Florida Statutes. It also illustrates the extent to which the EPC's purported action intrudes into matters which the statutes have reserved to the appellate courts. 8/
Although, for the reasons set forth at length above, agencies cannot reverse evidentiary rulings and order new Hearing Officers to conduct new hearings, there is authority for the position that agencies faced with what they believe to be evidence improperly received at the hearing may ask the Hearing Officer to "clarify" whether his findings of fact would be the same if the improper evidence had not been received. See the concurring opinion of Judge Ervin in Department of Professional Regulation v. Wise, M.D., 575 So.2d 713 (Fla. 1st DCA 1991), beginning at p. 717, and cases cited therein. The Education Practices Commission has not requested such clarification from the Hearing Officer in this case, but in the interest of avoiding an extra step in the disposition of this case, the following clarification is provided.
If all of the evidence addressed by the Respondent's exceptions 3, 4, 5, and 6 were to be excluded from the record in this case and treated as though never received, the Hearing Officer would still have made the same findings of fact regarding the Respondent's actions toward the female student L.H., specifically the findings that appear at paragraphs 8, 9, 10, 11, 12, 13, 14, and 15 of the Recommended Order. 9/ As specifically stated in the Recommended Order, I found the testimony of L.H., D.G., and S.M. to be persuasive, and I found the Respondent's denials and the exculpatory testimony of other witnesses called by the Respondent to be either non-persuasive 10/ or misdirected. 11/
Upon consideration of all of the foregoing, it is ORDERED:
That the Division of Administrative Hearings hereby declines the remand of this case, declines to conduct a new formal hearing, and declines to appoint a new Hearing Officer.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 28th day of July 1992.
MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1992.
ENDNOTES
1/ All parties called numerous witnesses at the formal hearing and also offered a number of exhibits. Following the hearing a transcript of the hearing was prepared and was available to all parties. Thereafter all parties were afforded a reasonable period of time within which to submit their respective proposed recommended orders. All parties submitted proposed recommended orders containing proposed findings of fact and conclusions of law. The Appendix to the Recommended Order contains specific rulings on all proposed findings of fact submitted by all parties.
2/ The misconduct proved at the hearing consisted of conduct by the Respondent that included exposing and touching the breast of a female student and exposing his penis to the student, while encouraging the student to consent to sexual intercourse with the Respondent.
3/ The Respondent filed several other exceptions with the EPC. Two of the other exceptions were rejected by the EPC and three of the other exceptions do not appear to have been addressed by the EPC. The substance of these other exceptions has no bearing on the issue at hand, because they do not appear to have played any role in the EPC's decision to remand the case.
4/ The remand order in this case operates in favor of the licensee whose professional fate is in the hands of the agency. But if the agency has the power to advance the interests of the licensee in this manner, it also has the power to advance its own interests in the same manner. Under the adjudication process created by Chapter 120, Florida Statutes, it does not have the power to do either.
5/ That an adjudication process is, at heart, fundamentally fair is not enough; it must at the same time also appear to be fair. This is not a new idea.
Viscount Hewart wrote in Rex v. Sussex Justices, 9 Nov. 1923, Law Reports King's Bench Division (1924): "A long line of cases shows that it is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done." Agencies that arrogate unto themselves the power to reverse evidentiary rulings of Hearing Officers, to remove Hearing Officers, and to compel new hearings are hardly likely to be seen as doing justice.
6/ The Dukes court also granted the substantive relief sought by the agency and reversed Hearing Officer rulings on two items of evidence; thus demonstrating that agencies have a viable mechanism for addressing perceived Hearing Officer errors in rulings on evidence without improperly intruding into the hearing process.
7/ A few of the other things the Fourth District Court of Appeal might do include: (a) affirm without opinion, (b) affirm on the basis of harmless error,
reverse and remand for a new hearing before the same Hearing Officer, or (d) as was done in Department of Professional Regulation v. Wise, M.D., 575 So.2d 713 (Fla. 1st DCA 1991), reverse and remand for further consideration of the record by the same Hearing Officer.
8/ Had the Education Practices Commission taken an appeal from the non-final Recommended Order, as was done in Fla. Dept. of Law Enforcement, Criminal Justice Standards and Training Com'n., v. Dukes, 484 So.2d 645 (Fla. 4th DCA 1986), that appeal could have been consolidated with the appeal from the final order of the School Board of Broward County and all disputes regarding the sufficiency of the hearing could have been resolved by one appellate court decision. By arrogating unto itself powers more properly exercised by the courts, the Education Practices Commission has done more to confuse and complicate the disposition of this case than to fashion a disposition consistent with the administrative adjudication scheme established by Chapter 120, Florida Statutes.
9/ The Education Practices Commission did not return the transcript and exhibits with its remand order. Therefore, I am unable to embark upon a line by line discussion of the evidence at issue. Nevertheless, I can make this clarification with confidence based upon a vivid recollection of L.H.'s testimony. I continue to believe that L.H. was a truthful and reliable witness, based primarily upon her testimony and the testimony of D.G. and S.M., none of which testimony is the subject of the Respondent's exceptions 3, 4, 5, and 6.
Further, a substantial amount of the evidence addressed in Respondent's exceptions 3, 4, 5, and 6 was disposed of as follows in the Appendix to the Recommended Order, at page 17, in the course of rejecting paragraphs 41-49 of the findings proposed by the Petitioners:
Rejected as irrelevant, primarily because none of the events described in these paragraphs were alleged in either of the charging documents. It is questionable whether the testimony upon which these proposed findings are based should have been received at all, and such testimony has been disregarded in the formulation of the findings of fact in this case. (Emphasis added.)
10/ See page 16 of the Recommended Order in which it is noted, in the second paragraph of the Appendix, with regard to the allegations involving L.H.:
I have, for the most part, credited the testimony of the primary witness against the Respondent and have not been persuaded by the Respondent's denials. The primary witness against the Respondent was clear and convincing in her description of what occurred.
Certain details of her testimony are persuasively corroborated by disinterested witnesses. The Respondent's denials were not persuasive. Similarly, the exculpatory evidence offered on behalf of the Respondent is not persuasive.
11/ In the Appendix to the Recommended Order, at page 19, in addressing paragraphs 57-62 of the Respondent's proposed findings, it is noted:
The findings proposed in these paragraphs are rejected for several reasons. First, as a general matter, the testimony underlying these proposals was for the most part not persuasive because it appeared to consist primarily of witnesses reciting their recollection of what they "routinely" did during January of 1990, rather than their specific recollection of what they did on a specific day. Second, all of the testimony underlying these proposals deals with a day on which there was an "away" game, but the incident involving
L.H. occurred on the day of a "home" game. Thus, the underlying testimony is largely irrelevant.
COPIES FURNISHED:
David Holder, Esquire Suite 100
1408 North Piedmont Way Tallahassee, Florida 32312
Margaret O'Sullivan, Esquire
352 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
Karen Barr Wilde Executive Director
Education Practices Commission
301 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
Jerry Moore, Administrator Professional Practices Services
352 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
Betty Castor
Commissioner of Education The Capitol
Tallahassee, Florida 32399-0400
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AGENCY FINAL ORDER
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BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA
BETTY CASTOR, as
Commissioner of Education
Petitioner,
EPC CASE NO. 90-202-RT
vs. DOAH CASE NO. 90-6154
EPC INDEX NO. 92-068-FOF
WAYNE N. BAILEY,
Respondent.
/
FINAL ORDER
Respondent, WAYNE N. BAILEY, holds Florida educator's certificate no. 478398. 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 September 30, 1992, in Tampa Florida, to take final agency action. Petitioner was represented by John F. Gilroy, Attorney at Law; Respondent was represented by J. David Holder, Attorney at Law. The panel reviewed the entire record in the case. On February 6, 1992, the panel had ruled on Respondent's exceptions one through six as follows:
Exception one (1) was rejected by the panel based on counsel that the admitted evidence was relevant and its admission was within the proper discretion of the hearing officer.
Exception two (2) was rejected by the panel based on argument that the evidence admitted was admissible under the evidence code.
Exception three (3) was accepted on the basis of argument that the evidence in question was beyond the scope of direct examination, and that it was improperly admitted character evidence of specific acts of Respondent.
Exception four (4) was accepted on the basis of counsel that the evidence in question was beyond the scope of direct examination.
Exception five (5) was accepted on the basis of argument that the evidence in question was beyond the scope of the charges in the administrative complaint and highly prejudicial to the Respondent.
Exception six (6) was accepted by the panel on the basis that the evidence in question was beyond the scope of the charges in the administrative complaint and prejudicial to the Respondent.
Based on these rulings on exceptions the panel then ordered that this case be remanded to the Division of Administrative Hearings (D.O.A.H.) in that the cumulative effect of the errors which were found to be the basis of the panel's acceptance of exceptions 3, 4, 5, and 6 was to deny due process to the Respondent. On July 28, 1992, D.O.A.H. hearing officer assigned to this case issued an Order Declining Remand in which the hearing officer stated "If all of the evidence addressed by Respondent's exceptions 3, 4, 5, and 6 were to be excluded from the record in this and treated as though never received, the hearing officer would still have made the same findings of fact regarding the Respondent's actions toward female student L. H., specifically the findings that appear at paragraphs 8, 9, 10, 11, 12, 13, 14, and IS of the Recommended Order.
On September 30, 1992, the panel confirmed its previous decisions on exceptions one through six but based on the above clarification of the hearing officer in his "Order Declining Remand" the panel rejected the Conclusion in exceptions 3, 4, 5, and 6 that improperly admitted evidence was highly prejudicial to the Respondent and proceeded to adjudicate the case.
Respondent's exception number seven was rejected for reason that the hearing officer sufficiently ruled on Respondent's proposed findings and that any error was harmless.
Respondent's exception number eight was accepted in that it was recognized that the hearing officer did not reject the referenced contradictory evidence which related to a single finding of fact, but the hearing officer resolved the conflict by his finding in the recommended Findings of Fact.
Respondent's exception number nine was rejected in that the panel found that there was competent and substantial evidence in the record to support the Finding of the hearing officer.
Wherefore, the Findings of Fact of the Recommended Order were adopted as the Findings of Fact of this Order with the addition of the following footnote to Finding of Fact paragraph number nine (9) "The EPC recognizes that there was contradictory evidence presented at the formal hearing in relation to certain findings in paragraph nine of the Findings of Fact, but concludes that this Finding of Fact was the hearing officer's resolution of any conflict found and that such resolution is adopted as the Findings of Fact of the EPC".
The Conclusions of Law of the Recommended Order are adopted as the Conclusions of Law of the EPC in this Order.
The panel rejected the Recommended Penalty of the hearing officer and amended the penalty for reason that contradictory evidence offered in the case (e.g. that offered in regards to paragraph nine of the Findings of Fact) lessened the degree of proof of the charge, which although clear and convincing, did not justify "permanent" revocation.
Wherefore, it is ORDERED that the Respondent's Florida educator's certificate be revoked for a period of three years, retroactive to May 15, 1990, the date of his suspension by the Broward County School Board based on the charges in this case. Thereafter, in the event of recertification and reemployment as a Florida educator, the Respondent shall serve a five-year period of probation during his service as a Florida educator following the period of revocation. The terms of probation shall be that upon employment in a position requiring a Florida educator's certificate, Respondent shall notify 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; submit true copies of all formal observation/evaluation forms within ten days of issuance; all costs incurred in fulfilling terms of probation will be borne by the Respondent. 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 6th day of November, 1992.
AARON WALLACE, Presiding Officer
I HEREBY CERTIFY that a copy of the foregoing Order in the matter of
BC vs. Wayne N. Bailey was mailed to J. David Holder, Esquire, 1408
N. Piedmont Way, Tallahassee, Florida 32312, this 12th day of November, 1992, by U.S. Mail.
KAREN B. WILDE, Clerk
COPIES FURNISHED:
Jerry Moore, Program Director Professional Practices Service
Daniel Bosanko, Esquire Attorney General's Office
Sydney McKenzie, III General Counsel
Florida Admin. Law Reports Virgil L. Morgan, Supt.
Broward County Schools
C. Wright Building
600 S. E. Third Ave, 10th Fl. Ft. Lauderdale, Florida 33301
Thomas P. Johnson, Assoc. Supt. Human Resource Management Broward County Schools
Michael M. Parrish, Hearing Officer Division of Admin. Hearings
The DeSoto Building 1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
John F. Gilroy, Esquire Department of Education 1701, The Capitol
Tallahassee, Florida 32399
| Issue Date | Proceedings |
|---|---|
| May 11, 1992 | Letter to D Nam from SLS sent out. (RE: Remand) |
| May 06, 1992 | (Final) Order filed. |
| Dec. 13, 1991 | Letter to V L Morgan from ELS sent out. (RE: Exhibits & Transcripts) |
| Dec. 03, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held 06/04-06/91. |
| Aug. 12, 1991 | Petitioner's Recommended Order filed. |
| Aug. 06, 1991 | Respondent's Proposed Recommended Order w/(unsigned) Recommendation filed. (From J. David Holder) |
| Aug. 05, 1991 | (Unsinged) Proposed Recommended Order filed. (From Craig R. Wilson) |
| Jul. 23, 1991 | Order Extending Time sent out. |
| Jul. 02, 1991 | Letter to Counsel of Record from MMP sent out. (Re: Transcript's anddue dates for proposed recommended orders). |
| Jul. 01, 1991 | Transcript (3 Vols) filed. |
| Jul. 01, 1991 | Deposition of Yolanda Hugley filed. |
| Jul. 01, 1991 | Deposition of William Gillespie filed. |
| Jun. 13, 1991 | Notice of Taking Deposition filed.(From J. David Holder) |
| Jun. 10, 1991 | Petitioners' Exhibit 10 & cover ltr filed. (From J. David Holder) |
| Jun. 04, 1991 | Final Hearing Held 6/4-6/91; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk's Office case file. |
| May 30, 1991 | Order sent out. (Re: Motion in Limine granted). |
| May 20, 1991 | (Respondent) Motion in Limine & cover ltr filed. (From J. David Holder) |
| May 06, 1991 | Notice of Substitution of Counsel and Notice of Appearance filed. (From J. David Holder) |
| Apr. 19, 1991 | Letter to WJK from Robert Boyd (re: status report) filed. |
| Mar. 28, 1991 | (Respondent) Status Report filed. |
| Mar. 28, 1991 | (respondent) Status Report filed. |
| Mar. 27, 1991 | Notice of Hearing sent out. (hearing set for 6/4-5/91; at 10:00am stday & 9:00am 2nd day; FtLaud) |
| Mar. 11, 1991 | (Petitioner) Request for Hearing filed. |
| Mar. 01, 1991 | Status Report filed. |
| Feb. 13, 1991 | Order Requiring Prehearing Stipulation (to be filed no later than 10 days after final hearing) sent out. |
| Feb. 11, 1991 | (respondent) Status Report filed. |
| Feb. 06, 1991 | (respondent) Notice of Substitution of Counsel filed. (from S. Gertz) |
| Jan. 30, 1991 | Petitioner's Answers to Interrogatories filed. (From Charles T. Whitelock) |
| Jan. 22, 1991 | Petitioner Morgan's Response to the Respondent's Motion For Continuance; Petitioner Morgan's Motion For Prehearing Order filed. (from Charles T. Whitelock) |
| Jan. 09, 1991 | Order Granting Continuance; Hearing scheduled for Feb. 7-8, 1991 is hereby continued sine die) sent out. |
| Dec. 20, 1990 | Respondent's Motion for Continuance filed. (From L. Holland) |
| Dec. 12, 1990 | Order Validating Subpoenas sent out. |
| Nov. 15, 1990 | Notice of Hearing sent out. (hearing set for Feb. 7-8, 1991: 9:00 am: Fort Lauderdale) |
| Nov. 09, 1990 | (Petitioner) Response to Order Granting Consolidation and Continuancefiled. (From Robert J. Boyd) |
| Nov. 09, 1990 | Notice of Appearance of Substitution of Counsel filed. (From Robert J. Boyd) |
| Nov. 08, 1990 | Order (Motion to Compel DENIED) sent out. |
| Oct. 25, 1990 | (Petitioner) Motion to Compel & Interrogatories filed. (From Charles T. Whitelock) |
| Oct. 23, 1990 | Order (Petitioners Motion to Compel Motion for Sanctions DENIED) sentout. |
| Oct. 23, 1990 | Respondent's Response in Opposition to Motion to Compel w/Amended Interrogatories filed. (From Leslie Holland) |
| Oct. 15, 1990 | (Petitioner) Motion to Compel Motion For Sanctions filed. (From Charles T. Whitelock) |
| Oct. 12, 1990 | Order (Respondents Motion to Compel DENIED) sent out. |
| Oct. 12, 1990 | Order Granting Consolidation and Continuing Hearing sent out. Consolidated case are: 90-3615 and 90-6154 |
| Oct. 05, 1990 | Respondent's Motion for Continuance and Motion For Consolidation filed. (From Leslie Holland) |
| Oct. 01, 1990 | Order(Ruling on Motions) sent out. |
| Sep. 28, 1990 | Respondent's Motion to Compel & Notice of Taking Telephone Depositionfiled. (From Leslie Holland) |
| Sep. 28, 1990 | (Petitioner) Motion For Protective Order filed. (from Charles T. Whitelock) |
| Sep. 24, 1990 | Respondent's Response in Opposition to Petitioner's Motion in Limine & Response in Opposition to Petitioner's Motion to Compel w/exhibits A&B + attachment filed. (From Leslie Holland) |
| Sep. 20, 1990 | Request to Produce & Notice of Service of Interrogatories filed. (From Leslie Holland) |
| Sep. 17, 1990 | Notice of Taking Deposition; Notice of Filing Interrogatories; Motionto Compel; Interrogatories & Petitioner's Motion in Limine filed. (From Charles T. Whitelock) |
| Sep. 17, 1990 | (respondent) Notice of Taking Deposition filed. |
| Sep. 13, 1990 | Notice of Taking Deposition filed. (from Leslie Holland) |
| Jul. 23, 1990 | Notice of Filing Interrogatories; Interrogatories filed. |
| Jul. 11, 1990 | Notice of Hearing sent out. (hearing set for 10/18-19/90;9:00AM;FT. Lauderdale) |
| Jun. 20, 1990 | Letter to MMP from Charles T. Whitelock (re: Initial Order) filed. |
| Jun. 11, 1990 | Referral Letter; Agenda Request Form; Emergency Suspension; Petition for Formal Proceedings filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 06, 1992 | Agency Final Order | |
| Apr. 17, 1992 | Agency Final Order | |
| Dec. 03, 1991 | Recommended Order | Evidence establishes teacher committed sexual battery on female high school student; discipline: termination of employment and revocation of teacher certification. |
PROFESSIONAL PRACTICES COUNCIL vs. ERNEST B. BROWN, 90-003615 (1990)
RICHARD CORCORAN, AS COMMISSIONER OF EDUCATION vs LASHON JENIECE MILLER, 90-003615 (1990)
FRANK T. BROGAN, AS COMMISSIONER OF EDUCATION vs RUBY LIGHTSEY, 90-003615 (1990)
DUVAL COUNTY SCHOOL BOARD vs EMORY TRAWICK, 90-003615 (1990)
RUSSELL JOHN DAVIS, JR. vs. EDUCATION PRACTICES COMMISSION, 90-003615 (1990)
