STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4071

)

RAYMOND M. DUNN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a final hearing in the above-styled case on December 17-19, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: Elizabeth J. du Fresne, Esquire

Steel Hector & Davis

4000 Southeast Financial Center

200 South Biscayne Boulevard Miami, Florida 33131-2398

STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

By administrative complaint dated May 23, 1991, petitioner charged that respondent, a certified teacher in the State of Florida, violated the provisions of Sections 231.28(1)(c), (f) and (h), Florida Statutes, and Rules 6B- 1.006(3)(a), (e) and (h), (4)(c), (d) and (e), and (5)(a), Florida Administrative Code. The gravamen of petitioner's charge is that respondent, while employed as a school teacher in the Dade County School System, did engage in inappropriate conduct toward Marcey Altman (Marcey), a female student, to wit: a long-term affair which included sexual intercourse. In reply, respondent, while admitting that he engaged in an extramarital affair with Marcey, averred that such affair did not commence until July 11, 1983, a date approximately one month after her graduation from high school and a date on which she was no longer a minor, and that at no time while she was a student in the Dade County School System did he engage in any inappropriate conduct toward

her. By letter of June 27, 1991, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called as witnesses: Marcey Altman; Richard Altman; Marcia Altman; Philip C. Boswell, an expert in psychology and sexual misconduct in fiduciary relationships; Kirsten Russell; Lana Stern, an expert in psychology and sexual abuse; and, Jennifer Goldstein. Respondent testified on his own behalf and called the following additional witnesses: Genie Dunn, Desmond Patrick Gray, Jr., Michael Nachwalter, Sarah Dowling, Jan Tucker, Martin Rubenstein, Roger Frese, Richard Savitt, William Brown, Patricia Hicks, Elizabeth Yoak, Freddy Pittman, and Judith Schild. Petitioner's exhibits 1-6 and respondent's exhibits 1-10 were received into evidence subject to the limitations noted of record.

The transcript of record was filed January 23, 1992, and the parties were granted leave until February 12, 1992, to file proposed findings of fact.

Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. The parties' proposals have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Raymond M. Dunn, date of birth January 29, 1951, currently holds Florida teaching certificate number 346978, covering the areas of social studies and administration and supervision, which is valid through June 30, 1996. Respondent is currently employed by the Dade County Public School System, and was so employed at all times pertinent to these proceedings.

   
   

2. During the school years of 1977 through 1984, respondent was employed as a social studies teacher at Palmetto Junior High School, and during such time met and cultivated an intimate affair with a student, Marcey Altman (Marcey), date of birth March 19, 1965. 1/

   
   

3. The relationship that was to develop between respondent and Marcey had its genesis during the 1978-79 school year, when Marcey was an eighth grade student at Palmetto Junior High School. 2/ During the first semester of that year, Marcey, then thirteen years of age, was assigned to respondent's social studies class. She likewise participated in student government over the course of that year which was sponsored by respondent, and spent much time after regular school hours working with respondent and other students in this endeavor. In Marcey's words, he was her "favorite teacher," and she shared the opinion of other minor coeds that respondent, then twenty-seven years of age, was a "real cute teacher."

   
   

4. During the course of her after school activities that school year, Marcey was introduced to respondent's wife Genie and his daughter Ginger, then one year old. As a consequence of these meetings, and the affection and maturity Marcey exhibited in caring for Ginger, she was ultimately invited to baby-sit Ginger, and accepted. This baby-sitting arrangement was to endure, with increasing degrees of frequency, during the course of her junior and high school career, as well as the intervening summers.

   
   

5. The 1979-80 school year found Marcey, then fourteen years old, in the ninth grade at Palmetto Junior High School. She continued to participate in student government, and was regularly in respondent's company after normal

   school hours with regard to such endeavors, and was assigned to respondent's social studies class during her second semester. As a consequence of such frequent contact, as well as her baby-sitting at respondent's household, she began to develop a familiar relationship with respondent and his family, which was reflected by a feeling of fondness and admiration for respondent.

   
   

6. As Marcey's relationship with respondent's family began to develop that year, respondent began, by word and deed, to express a more personal interest in her development. Respondent began paying special attention to Marcey at school, and commented on how pretty, well-endowed and what a nice figure she had. Such comments both flattered and made Marcey uncomfortable, considering the relationship existent with respondent and his family.

   
   

7. As the school year progressed, respondent continued to lavish personal attention on Marcey, and ultimately expressed his love for her. 3/ In turn, Marcey slowly became emotionally dependent upon respondent, and his physical contact with her slowly progressed from touching her face and hands to kissing her, and partially unbuttoning her shirt and touching her breast.

   
   

8. Throughout the ensuing summer, and the 1980-81 school year, which found Marcey, then 15 and in the tenth grade at Palmetto Senior High School, their intimate relationship continued to flourish. Marcey, although now in senior high school, continued to visit respondent almost daily in his classroom after the school day, and he often drove her home as he did when she finished baby- sitting for his daughter. 4/ During this period, and the following summer, their physical relationship evolved from the respondent routinely kissing Marcey and foundling her breasts and genital area to Marcey fondling the respondent, and ultimately Marcey performing oral sex upon the respondent in his automobile, as well as his classroom.

   
   

9. The 1981-82 school year again found Marcey at Palmetto Senior High School, and, at the age of sixteen, in the eleventh grade. During the course of that school year and the following summer, their intimacies continued, and progressed to the point of sexual intercourse. These intimacies occurred in numerous places, including the respondent's home, and continued through Marcey's senior year at Palmetto Senior High School, and into the following summer where, on July 11, 1983, while respondent's wife was hospitalized with the birth of his son, the respondent and Marcey again engaged in sexual intercourse at respondent's home.

   
   

10. In the fall of 1983, Marcey left Miami to attend Elan College in North Carolina, which she attended until the end of 1984, when she returned to Miami to again reside with her parents. During this period, respondent maintained contact with Marcey through a post office box he had rented to receive her letters, and through frequent telephone conversations. Additionally, during the year of 1984, respondent invited Marcey to join him in Tampa, Fernandina Beach and Washington, D.C., while he was involved in education-related activities, and there they continued their intimacies.

    
    

11. Following Marcey's return to Miami, respondent again invited her out of town while he was engaged in education-related activities. The first occurred in January 1985, when respondent again went to Washington, D.C., and the last occurred in February 1986, when respondent went to Orlando, Florida. Marcey joined respondent on both trips, and their sexual intimacies continued. Thereafter, Marcey, becoming emotionally stressed by the duplicity of their affair, terminated their physical relationship in the summer of 1986. She continued, however, to maintain contact with respondent and his family.

12. At the commencement of the 1986-87 school year, respondent was appointed assistant principal of North Miami Junior High School, and in the fall of that year informed Marcey of a position open at that school as a Project Hope Coordinator. In part, due to respondent's influence, Marcey was hired to fill such position.

    
    

13. While employed at North Miami Junior High School, respondent would question Marcey regarding her current relationships, discuss their prior relationship, and express his interest in reviving their relationship. Such pressures, coupled with the emotional stress occasioned by their long, enduring relationship, were apparently too debilitating for Marcey for in April 1987 she suffered a nervous breakdown, quit her employment and commenced long-term psychotherapy.

    
    

14. Concerning Marcey's psychotherapy, the proof demonstrates that she started psychotherapy on April 28, 1987, and that such treatment was both extensive and beneficial. As of the date of hearing she was well-functioning in the opinion of her psychotherapist, which is credited, although still somewhat dysfunctional and developmentally delayed as a consequence of her intimate relationship with respondent. Currently, Marcey is a full-time student at Barry University, and her visits to her psychotherapist have been reduced to once a month. Such improvement does not, however, diminish the impropriety of respondent's conduct or the devastating impact such systematic seduction and clandestine relationship had on Marcey's life.

    
    

15. In the opinion of Marcey's treating psychologist, which is credited, Marcey suffered from Dysthymia (depression) and Post Traumatic Stress Disorder as a consequence of the systematic seduction respondent perpetrated upon her while she was a student in the Dade County Public School System and the clandestine sexual relationship that ensured. Such actions on respondent's part breached the fiduciary relationship which existed between teacher and student in that he, as an educator, stood in loco parentis with the child, and was obligated to protect, educate and dedicate his best interest to the growth and development of the younger and more vulnerable person. Here, Marcey, considering the teacher-student relationship that existed, as well as the dichotomy in age, experience, knowledge, social power, credibility and prerogatives that existed between the two, could not have freely consented to the sexual relationship that developed between them any more than a child could with a parent or a patient could with a physician. In sum, respondent's act of seducing Marcey while she was a student in the public school system was a base and ignoble act.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 231.262(5), Florida Statutes.

    
    

17. Where, as here, petitioner seeks to revoke a professional license, it bears the burden of proving the charges set forth in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983), as follows:

    
    

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be

    credible; the facts to which the witnesses testify must be distinctly remem-bered; the testimony must be precise and explicit and the witness must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which quotes with approval the above-quoted language from Slomowitz, and adds at page 958, the following:

    
    

    "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

    
    

18. Pertinent to this case, petitioner charges that respondent's conduct violated the provisions of Section 231.28(1)(c), (f), and (h), Florida Statutes, and Rules 6B-1.006(3)(a) and (h), Florida Administrative Code. 5/ Section 231.28, Florida Statutes, provides:

    
    

    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;

       * * *

       1. 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.

          And, Rule 6B-1.006, Florida Administrative Code, provides:

          
          

          1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Professional in Florida and shall apply to any individual holding a valid Florida teacher's certificate.

          2. 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.

          3. Obligation to the student requires that the individual:

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

       * * *

       (h) Shall not exploit a professional relationship with a student for personal gain or advantage.

       
       

19. Rule 6B-4.009(2), Florida Administrative Code, defines immorality as follows:

    
    

    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 individ-ual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

    
    

    Moreover, the term "gross" in conjunction with "immorality" has heretofore been found to mean "immorality which involves an act of misconduct that is serious, rather than in minor nature, and which constitutes a flagrant disregard of proper moral standards." Education Practice Commission v. Knox, 3 FALR 1373-A (DOE 1981). Accord, State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (1933), wherein the court concluded:

    
    

    Moral turpitude [or synonymously, "gross immorality" as that term is also used in the subject statute] involves the idea of inher-ent baseness or depravity in the private social relations or duties owed by man to man or by man to society . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.

    
    

20. The moral standard to be upheld must be viewed in context with the profession at issue. See Adams v. Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981). Teachers, "charged by Sections 231.09 and 231.28(1) with providing leadership and maintaining effectiveness as teachers . . . are traditionally held to a high moral standard in the community." Adams, supra, at page 1172. Accord, Tomerlin v. Dade County School Board, 318 So.2d 159 (Fla. 1st DCA 1975), wherein the court observed at page 160:

    
    

    A school teacher holds a position of great trust. We entrust the custody of our children to the teacher. We

    look to the teacher to educate and to prepare our children for their adult lives. To fulfill this trust, the teacher must be of good moral character; to require less would jeopardize the future lives of our children.

    
    

21. Applying the foregoing standards to the facts of this case demonstrates, clearly and convincingly, that respondent's conduct violated the provisions of Sections 23.128(1)(c), (f), and (h), Florida Statutes, and Rules 6B-1.006(3)(a) and (h), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be rendered which permanently revokes respondent's teaching certificate.

RECOMMENDED in Tallahassee, Leon County, Florida, this 17th day of March 1992.

WILLIAM J. KENDRICK

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 17th day of March 1992.

ENDNOTES

1/ In reaching the conclusion that respondent cultivated an intimate relationship with Marcey while she was a student in the Dade County Public School System, the respondent's testimony that the first occasion he ever had any sexual contact with Marcey was July 11, 1983 (a date approximately one month after her graduation from high school), and that he had never prior to such time kissed, touched, or thought of her in a sexual manner, has not been overlooked. Such testimony is not, however, credited. Rather, the persuasive proof demonstrates that respondent, over the years, through a series of more progressive, more intimate and seductive actions, verbal and physical, cultivated Marcey's love and affection, and seduced her into engaging in oral and sexual intercourse with him, while she was still a student in the Dade County Public School System.

2/ Respondent and Marcey were actually first introduced during the spring of 1978, her seventh grade year, but beyond that chance encounter nothing significant occurred.

3/ The attention respondent lavished on Marcey was not lost to the other students. Rather, it was commonly rumored that something was happening between the two.

4/ Palmetto Senior High School is located in close proximity to Palmetto Junior High School. Marcey routinely walked from the high school to the junior high school after class each day to be with the respondent.

5/ Petitioner has also contended that respondent's conduct violated the provisions of Rules 6B-1.006(3)(e), 4(c), (d) and (e) and (5)(a), Florida Administrative Code. Such provisions are, however, inapposite or superfluous to the facts of this case.

APPENDIX TO RECOMMENDED ORDER CASE NO. 91-4071

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

1. Adopted in paragraph 1.

2. Adopted in paragraph 2.

3. Adopted in footnote 2.

4-9. Addressed in paragraphs 3 and 4, otherwise rejected as subordinate to the findings reached.

10-25. Addressed in paragraphs 4, and 5-7, otherwise rejected as subordinate to the findings reached.

26-31. Addressed in paragraphs 4, 8, and footnote 4, otherwise rejected as subordinate to the findings reached.

32-42. Addressed in paragraph 9, otherwise rejected as subordinate to the findings reached.

43-47. Addressed in paragraphs 10 and 11, otherwise rejected as subordinate to the findings reached.

48 & 49. Addressed in paragraphs 12 and 13.

50-59. Not relevant or necessary to the result reached.

60-76. Addressed in paragraphs 14 and 15, otherwise rejected as subordinate to the findings reached.

77-79 Rejected as argument or comment on the evidence, and not a finding of fact.

Respondent's proposed findings of fact consist of eight unnumbered paragraphs, and are addressed in such sequence as follows:

1. Adopted in paragraph 1.

2. Not relevant or necessary to the result reached. Notably, the facts as found in this case were not shown to have been known to the School Board when respondent's performance was evaluated.

3. Not relevant.

4. Not relevant.

5. Not relevant.

6 & 7. Rejected as not a finding of fact, but addressed in paragraphs 2-13.

8. Rejected as contrary to the credible proof.

COPIES FURNISHED:

Robert J. Boyd, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Elizabeth J. du Fresne, Esquire Steel Hector & Davis

4000 Southeast Financial Center

200 South Biscayne Boulevard Miami, Florida 33131-2398

Karen Barr Wilde Executive Director

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

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

Tallahassee, Florida 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

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 agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-004071

Orders for Case No: 91-004071