STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5288

)

JOHN R. TENBROECK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 29 and 30, 1992, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Lane T. Burnett, Esquire

331 East Union Street Jacksonville, Florida 32202

For Respondent: Albert S. C. Millar, Jr., Esquire

4206 Herschel Street

Jacksonville, Florida 32210 STATEMENT OF THE ISSUES

The issue is whether respondent's teaching certificate should be disciplined for the reasons cited in the administrative complaint.

PRELIMINARY STATEMENT

This matter began on July 24, 1991, when petitioner, Betty Castor, as Commissioner of Education, issued an administrative complaint charging respondent, John R. Tenbroeck, a certified teacher, with having violated Subsections 231.28(1)(c), (f), and (h), Florida Statutes (1989), and various rules. More specifically, the complaint alleged that while employed as dean of students at Westside Skills Center and assistant principal at Raines Senior High School during school years 1989-1990 and 1990-1991, respectively, respondent engaged in a personal relationship with a fifteen-year old student and then married her in December 1990, when she was sixteen years old.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1991), to contest the proposed agency action. The matter was referred by petitioner to the Division of Administrative Hearings on August 22, 1991, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated September 13, 1991, a final hearing was scheduled on December 5, 1991, in Jacksonville,

Florida. At respondent's request, the matter was rescheduled to January 29, 1992, and then again to April 14 and 15, 1992. Petitioner's request for a continuance was granted and the matter was rescheduled to June 29 and 30, 1992, at the same location.

At final hearing, petitioner presented the testimony of Angela McKenzie Tenbroeck, Michael Williams, Kathryn Cook, Veronica Blanton, Alyn Airaghi, Nancy Newman, Victor Morris, Joseph Bullard and Charles Rutledge. Also, it offered petitioner's exhibits 1-4. All exhibits were received into evidence except exhibit 4 upon which a ruling was reserved. Exhibits 2, 3 and 4 are the depositions of Joseph W. Mitchell, Antwaunette Byrd, and Larry George Davis.

Respondent offered respondent's exhibits 1 and 2 which were received into evidence.

The transcript of hearing was filed on July 21, 1992. Proposed findings of fact and conclusions of law were filed by petitioner and respondent on August 5 and 10, 1992, respectively. A ruling on each proposed finding of fact is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. At all times relevant hereto, respondent, John R. Tenbroeck, held teaching certificate number 228148 issued by petitioner, Betty Castor, as Commissioner of Education. The certificate covers the areas of administration, bookkeeping, mathematics, physical education and biology and is valid through June 30, 1996. When the events herein occurred, respondent was employed as assistant principal at Westside Skills Center (Westside) in school year 1989- 1990 and as assistant principal at Raines Senior High School in school year 1990-1991. The schools are a part of the Duval County School District.

   
   

2. In school year 1989-90, Angela McKenzie, who was born on May 15, 1974, was a tenth-grade student during the morning hours at Westside and attended Edward White High School during the afternoon session. Angela's schedule called for her to arrive by bus each day at the Westside campus around 7:45 a.m. She remained on that campus until 11:00 a.m. when she rode a school bus to the other campus. During the same school year, respondent held the position of assistant principal at Westside and occupied an office in an area designated as the office of student services.

   
   

3. Angela first met respondent during school orientation in January 1990. Because of an impending divorce by her mother and stepfather, which ultimately became final in May 1990, Angela had occasion to speak with respondent, whose duties included counseling with students. Although Angela denied that their teacher-student relationship grew into a personal relationship, it is found that the two began seeing each other on a personal basis sometime during the spring of 1990. This finding is based on the findings below. She was then fifteen years old while respondent was forty-eight years of age.

   
   

4. During the spring of 1990, respondent and Angela were observed on numerous occasions talking with each other at the bus stop from around 7:45 a.m., when she first arrived on campus, until 7:55 a.m., when respondent's duty of monitoring buses ended. On several occasions during the same time period, she was observed visiting respondent's office and speaking with him behind closed doors. In addition, the two were seen leaving campus together in

   respondent's car several times either at mid-morning or during lunch hour, and several times they were seen arriving together by car early in the morning.

   Further, on several occasions Angela telephoned respondent at his office after she had left campus. Finally, one member of the Westside faculty recalled periodically seeing the two riding in respondent's automobile off-campus during the evening hours while another faculty member described seeing the two spending an "unusual" amount of time together. While some of the observations of the two being seen together may have been occasioned by respondent giving Angela a ride to the Edward White campus at lunch hour (if she missed her ride on the school bus), or giving her rides to karate practice in the evenings where he served as her trainer or coach, collectively these observations, coupled with the fact that the two were later married, support a finding that their relationship was more than that of a teacher-student. However, there is no competent, credible evidence that the two engaged in sexual activities prior to marriage or otherwise acted in a romantic or otherwise inappropriate fashion while on the campus or in the presence of other students and faculty.

   
   

5. After rumors concerning the two surfaced at Westside that spring, respondent met with the Westside vice-principal and principal on three occasions and was told that he must not engage in a personal relationship with a student. At those meetings, respondent steadfastly denied that such a relationship existed. Because school administrators had no evidence of wrongdoing, no action was taken against respondent. In school year 1990-91, respondent was transferred to Raines High School where he served as assistant principal until he was suspended in January 1991. It should be noted that after the last warning was given by the principal at the close of school year 1989-90, there is no evidence that the two were seen together in public until after their marriage.

   
   

6. On December 18, 1990, respondent and Angela were married in Nassau County, Florida. Because of Angela's age (she was then sixteen), it was necessary for her natural father to give his permission for her to marry. Following the marriage, Angela withdrew from school. However, at the time of hearing, Angela had resumed her education. The two are still married and Angela now uses respondent's last name. Although Angela simply said they got married because "it was the appropriate thing to do", and denied that they were involved in a personal relationship before that time, this assertion is not deemed to be credible. On January 15, 1991, or after the marriage became publicly known, respondent resigned his position with the School Board. The resignation was subsequently rescinded by the School Board and he was then placed on administrative leave.

   
   

7. Testimony by a school administrator accepted as an expert in school administration established that by having a personal relationship with a minor student, which culminated in marriage and thereafter gained some notoriety in the community, respondent's effectiveness as a teacher was seriously impaired. However, the same administrator pointed out that there is no policy or rule which prohibits a teacher from marrying a student, and that by itself would not serve as the basis for taking disciplinary action against the teacher. Rather, the loss of effectiveness here arises as a result of respondent's personal relationship with a student.

   
   

8. In terms of respondent's performance as an administrator-teacher, his most recent evaluation reflects that he was "an excellent dean", he displayed "significant skills" in management competencies, and was "a perfect example of team work."

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1991).

   
   

10. Because respondent's teaching certificate is at risk, petitioner bears the burden of proving the allegations in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. The administrative complaint charges that respondent violated Subsections 231.28(1)(c), (f), and (h), Florida Statutes (1991). Those provisions authorize the Education Practices Commission to take disciplinary action if a teacher:

    
    

    * * *

    (c) Has been guilty of gross immorality or an act involving moral turpitude;

    * * *

    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.

    
    

    In addition, respondent is charged with violating Rules 6B-1.006(3)(a), (e), and (h), Florida Administrative Code. Those rules prescribe the principles of professional conduct for teachers and require respondent to adhere to the following standards:

    
    

    1. Obligation to the student requires that the individual:

       1. 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.

          * * *

    2. Obligation to the public requires that the individual:

    * * *

    (c) Shall not use institutional privileges for personal gain or advantage.

    
    

    In summary, the administrative complaint charges that respondent's conduct equates to gross immorality or an act involving moral turpitude. It also alleges that his personal conduct has seriously reduced his effectiveness as an

    employee. Finally, the complaint alleges that respondent violated the foregoing rules through his relationship with Angela.

    
    

12. As to the charge that subsection 231.28(1)(c) has been violated, petitioner suggests in its proposed order that respondent's conduct equates to an act involving moral turpitude. That term is not defined by statute but is defined in Rule 6B-4.009(6), Florida Administrative Code, as follows:

    
    

    (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 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.

    
    

    While at first blush the rule appears to require a teacher to commit a "crime" in order to violate its terms, a more reasonable construction is that conduct which falls within the broad definition or moral turpitude would constitute a violation. With this in mind, it is noted initially that it is respondent's personal relationship with a minor female student, and not the marriage, which forms the basis for the charge. 1/ The evidence shows, at least inferentially, that respondent was engaged in a personal relationship with a minor female student beginning in the spring of 1990 and continuing until their marriage in December 1990. Since a personal relationship between an adult teacher and a minor student is something contrary "to the accepted standards of the time a man owes to his or her fellow man or to society in general", a violation of subsection 231.28(1)(c) has been established.

    
    

13. The evidence also shows clearly and convincingly that respondent's effectiveness as a teacher has been seriously reduced by virtue of having had a personal relationship with a minor female student. Therefore, it is concluded that a violation of subsection 231.28(1)(f) has been shown.

    
    

14. Finally, the evidence shows clearly and convincingly that respondent did not make a reasonable effort to protect a student from conditions harmful to learning, exploited a professional relationship with a student for personal gain, and used institutional privileges for personal gain or advantage in violation of rules 6B-1.006(3)(a), (h), and (4)(c). These rule violations in turn constitute a violation of subsection 231.28(1)(h). The charge that respondent intentionally exposed a student to unnecessary embarrassment or disparagement must fail.

    
    

15. In its proposed order, petitioner suggests that respondent's teaching certificate be suspended for two years, he be given a letter of reprimand, he give 500 hours of community service, and his license be placed on three years probation after the suspension ends. Since the law does not appear to authorize the imposition of community service, that portion of the penalty should not be assessed. In all other respects, the penalty appears to be appropriate. However, it is recommended that respondent's suspension begin running from January 15, 1991, the date on which he first resigned from his teaching position since he has been effectively suspended since that date.

    
    

16. Petitioner's exhibit 4 is received in evidence.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a Final Order finding respondent guilty

of violating Subsections 231.28(1)(c), (f), and (h), Florida Statutes, that his teaching certificate be suspended for two years, such suspension to begin on January 15, 1991, that respondent receive a letter of reprimand from the Education Practices Commission, and that he be placed on three years probation after the suspension is completed with quarterly reports given to the Commission by his immediate supervisor.

DONE and ENTERED this 12th day of August, 1992, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 12th day of August, 1992.

ENDNOTE

1/ This conclusion is based on the finding that a teacher-student marriage by itself is not prohibited by rule, statute or policy.

Petitioner:

APPENDIX Case No. 91-5288

50-56. Rejected as being contrary to the more persuasive evidence.

57-63. Partially accepted in finding of fact 7. Respondent:

Note- Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, not supported by the evidence, subordinate or a conclusion of law.

COPIES FURNISHED:

Karen Barr Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

Lane T. Burnett, Esquire

331 East Union Street Jacksonville, FL 32202

Albert S. C. Millar, Jr., Esquire 4206 Herschel Street

Jacksonville, FL 32210

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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.

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

AGENCY FINAL ORDER

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

BETTY CASTOR, as

Commissioner of Education,

Petitioner, EPC CASE NO. 91-134-RA DOAH CASE NO. 91-5288

vs. EPC INDEX NO. 93-005

JOHN R. TENBROECK,

Respondent.

/

FINAL ORDER

Respondent, JOHN R. TENBROECK, holds Florida educator's certificate no.

228148. 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 January 28, 1993 in Tampa Florida, to take final agency action. Petitioner was represented by Margaret O'Sullivan, Esquire. Respondent was present and represented by Albert

S. C. Millar, Jr., Esquire. The panel reviewed the entire record in the case.

The EPC having previously refused to consider Petitioner's first set of exceptions in that they had not been timely filed, extended the period for filing exceptions. Thereafter, the Petitioner's attorney filed an Amended Exceptions which without objection of the Respondent were considered and adjudicated by the EPC The EPC panel ruled a- follow on each of the amended exceptions offered by the Respondent;

Respondent's first amended exception was rejected in that there was competent substantial evidence in the record to support the recommended finding of fact which was the basis of the exception and said Finding of Fact was not misleading.

Respondent's second amended exception was rejected in that there was competent substantial evidence in the record to support the objected to Finding of Fact.

Respondent's third amended exception was rejected in that there was competent substantial evidence in the record to support the objected to Finding of Fact.

Respondent's fourth amended exception was rejected in that there was competent substantial evidence in the record to support the objected to Finding of Fact.

Respondent's fifth amended exception was rejected in that there was competent substantial evidence in the record to support the objected to Finding of Fact.

Respondent's sixth amended exception to the Recommended Conclusions of Law was rejected in that the panel found that there was competent substantial evidence to support a finding of guilt of violation of Section 231.28(1)(c), F. S.

Respondent's seventh exception to the Recommended Conclusions of Law was - rejected in that the panel found the Hearing Officer's legal reasoning in Recommended Conclusion of Law #5 correct and in that the evidence did clearly and convincingly support the conclusion that the Respondent's effectiveness as a teacher had been seriously reduced (in violation of Section 231.28(1)(f), F. S.).

Respondent's eighth exception to the Recommended Conclusions of Law was rejected insofar that the panel found that the evidence properly supported a finding of violation of Rule 6B-1.006(3)(a) and (h), F.A.C. The panel accepted Respondent's exception to a finding of guilt for violation of Rule 6B- 1.006(4)(c), F.A.C. in that such violation is not supported by the record.

Respondent's second "amended exception 8" which was general in nature was considered and rejected by the panel by adopting the Recommended Findings of Fact and Conclusions of law with the exception of the violation of Rule 6B- 1.006(4)(c), F.A.C. in that the evidence supported the charges in accordance with law.

The panel adopted the penalty recommended by the Hearing Officer with the additional penalty that Respondent's teaching certificate be restricted for a period of two years to prohibit him from holding a position requiring an education -administration certification. This additional penalty was based on the finding of the panel that the fact that the violations occurred while the Respondent was a school administrator (see paragraphs 1, 2, 3 and 4 of the Findings of Fact of the Recommended Order). The seriousness of the violations were enhanced because of high duty of responsibility of an educational administrator.

Wherefore, the Respondent is found guilty of violating Sections 231.28(1)(c), (f) and (h), Florida Statutes and Rule 6B-1.006(3)(a), F.A.C. and, it is ORDERED that 1) Respondent's teaching certificate be suspended for two years commencing January 15, 1991, 2) Respondent be Reprimanded by the EPC for said violations and, 3) that he serve a period of three years probation during his employment as a Florida educator following the date of the ORDER. The sole condition of probation shall be that he arrange for his quarterly performance reports to be submitted to the EPC by his immediate supervisor.

Furthermore, the Respondent's Florida educator's certificate shall be restricted for a period of two years from the effective date of this ORDER to prohibit the Respondent from serving as a Florida educational administrator.

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 19th day of February, 1993.

JAMES GATLIN, Presiding Officer

COPIES FURNISHED TO:

Jerry Moore, Program Director Professional Practices Services

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

BC vs. John R. Tenbroeck was mailed Sydney McKenzie, III to Albert Millar, Jr., Esquire, 4206 General Counsel Herschel Street, Jacksonville,

Florida 32210, this 24th day of Florida Admin. Law Reports February, 1993, by U. S. Mail.

Dr. Larry Zenke, Supt. Duval County Schools

1701 Prudential Drive Jacksonville, Florida 32207 KAREN B. WILDE, Clerk

Dr. James Ragans, Asst. Supt. Personnel

Duval County Schools

Donald R. Alexander Margaret O'Sullivan, Esquire

Hearing Officer Department of Education Division of Admin. Hearings 1701, The Capitol

The DeSoto Building Tallahassee, Florida 32399 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

================================================================= DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

JOHN TENBROECK, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 93-771

DOAH CASE NO. 91-5288

BETTY CASTOR, as

Commissioner of Education,

Appellee.

/ Opinion filed July 29, 1994.

An appeal from an order of the Education Practices Commission. Albert S.C. Millar, Jr., Jacksonville, for Appellant.

Sydney H. McKenzie, III and Gregory A. Chaires, Tallahassee, for Appellee.

PER CURIAM.

Appellant appeals a final order of the Education Practices Commission (EPC) taking disciplinary action against his teaching certificate. We reverse.

During the school year of 1989-90, appellant served as assistant principal at Westside Skills Center. He was 48 years old. Attending the school was a 15 year-old tenth grade student, Angela McKenzie. According to Angela, she first met appellant during school orientation in January 1990. Because she was experiencing a divorce in her family, she began talking with appellant, whose duties included counseling students. Thereafter, the two were seen together both on and off campus, and in the Spring school personnel began to suspect that they were maintaining an inappropriate relationship. At one point, the principal called appellant into his office. The principal, who remarked that appellant was an honest employee, testified that appellant assured him that he was not maintaining an inappropriate relationship with Angela. Nevertheless, suspicions continued. On the last day of school, the principal talked to appellant again and was assured that nothing improper was going on.

For unrelated reasons, appellant was transferred to another high school for the school year 1990-91. On December 18, 1990, appellant and Angela, who was then 16 and had received her father's permission to marry, were married. After the principal's warning at the end of the 1989-90 school year, there is no evidence that the two were seen together in public until after their marriage.

On January 15, 1991, appellant resigned his position with the school board; however, this resignation was subsequently rescinded by the school board, and appellant was placed on administrative leave. 1/ Then, in July 1991, Betty Castor, as Commissioner of Education, filed an administrative complaint against appellant charging that he had engaged in a personal relationship with Angela McKenzie, a student, during the school year 1989-90 and 1990-91. The complaint stated that these allegations of misconduct constituted violations of: (1) section 231.28(1)(c), Florida Statutes, in that appellant was guilty of gross immorality or an act involving moral turpitude; (2) section 231.28(1)(f), Florida Statutes, in that appellant was guilty of personal conduct which seriously reduced his effectiveness as an employee of the school board; (3) section 231.28(1)(h), Florida Statutes, in that appellant had violated the provisions of law or rules of the State Board of Education, the penalty for which was revocation of his teaching certificate; (4) Rule 6B-1.006(3)(a), Florida Administrative Code, in that appellant failed to make a reasonable effort to protect students from conditions harmful to learning or to health or safety; (5) Rule 1.006(3)(e), Florida Administrative Code, in that appellant intentionally exposed a student to unnecessary embarrassment or disparagement; and (6) Rule 6B-1.006(3)(h), Florida Administrative Code, in that appellant exploited a professional relationship with a student for personal gain or advantage. Tenbroeck disputed the allegations and requested an administrative hearing.

At the subsequent hearing, Angela testified that she and appellant first became romantically involved the night they were married. She denied having premarital sex with him. Although some of her friends testified that she had told them a contrary story, this testimony was objected to on the grounds of hearsay. The hearing officer found there was no competent, credible evidence that the two engaged in sexual activities prior to marriage. Additionally, the hearing officer found no competent, credible evidence that the two acted in a romantic or otherwise inappropriate fashion while on the campus or in the presence of other students and faculty.

Nevertheless, the hearing officer found that the two had a "personal relationship," not just a "teacher/student" relationship, based upon the following evidence adduced from teachers and administrators at Westside Skills Center:

4. During the Spring of 1990, respondent and Angela were observed on numerous occasions talking with each other at the bus stop from around 7:45 AM, when she first arrived on campus, until 7:55 AM, when respondent's duty of monitoring buses ended. On several occasions during the same time period, she was observed visiting respondent's office and speaking with him behind closed doors. In addition, the two were seen leaving campus together in respondent's car several times either at midmorning or during lunch hour, and several times they were seen arriving together by car early in the morning. Further, on several occasions Angela telephoned respondent at his office after she had left campus. Finally, one member of the Westside faculty recalled periodically seeing the two riding in respondent's automobile off-campus during the

evening hours while another faculty member described seeing the two spending an "unusual" amount of time together. While some of the observations of the two being seen together may have been occasioned by respondent giving Angela a ride to the Edward White campus at lunch hour (if she missed her ride on the school bus), or giving her rides to Karate practice in the evenings where he served as her trainer or coach, collectively these observations, coupled with the fact that the two were later married, support a finding that their relationship was more than that of a teacher/student. . .

The hearing officer rejected Angela's testimony that the two were not involved in a personal relationship before they were married as not credible.

Nevertheless, the hearing officer acknowledged that school officials had taken no action against appellant at the conclusion of the 1989-90 school year because they had no evidence of wrongdoing.

The Commissioner introduced the testimony of a 30-year employee of the Duval County School Board accepted as an expert in school administration. After summarizing the facts which are quoted above, counsel representing the commissioner asked the expert whether these facts, if taken to be true, would make the person engaging in this conduct "guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board?" The expert answered "yes" and elaborated further:

This would be because of the working with the youngsters of that age group where it appears to be common knowledge and even into the community. Again, as school officials, we are expected to observe a certain standard in this (sic) -- and this we would not be doing it, and it would be somewhat less.

On the other hand, the expert acknowledged that appellant had received a very high evaluation for the 1989-90 school year. Specifically, he said: "I'm not aware of his doing an unsatisfactory job. All I'm aware of is that his supervisor speaks well of him."

In an important exchange with the hearing officer, the expert admitted that there is no policy or rule in Duval County which prohibits a teacher from marrying a student and that marriage by itself would not serve as a basis for taking disciplinary action against a teacher. The expert attempted to distinguish appellant's situation, commenting that there was public knowledge of the administrator seeing the student, "and the student's discussion of it, the parent's discussion of it." However, no student, parent, or teacher testified in the proceeding below that appellant's relationship with Angela (before the marriage) was public knowledge, was publicly discussed, or that his relationship hindered his effectiveness as an administrator or teacher in the classroom.

Rule 6B-4.009(2), Florida Administrative Code, defines immorality as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the

individual's service in the community. Rule 6B-4.009(6) defines moral turpitude as 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.

The hearing officer concluded that the evidence, "at least inferentially," showed that appellant was engaged in a "personal relationship" with Angela beginning in the Spring of 1990 and continuing until their marriage in December 1990. It was this personal relationship, concluded the hearing officer, that established a violation of section 231.28(1)(c), Florida Statutes. Similarly, by virtue of having this personal relationship, the hearing officer concluded that appellant's effectiveness as a teacher had been seriously reduced establishing a violation of section 231.28(1)(f), Florida Statutes. Without elaborating, the hearing officer also found violations of Rule 6B-1.006(3)(a), and (h), and that these rule violations in turn constituted a violation of section 231.28(1)(h), Florida Statutes. The hearing officer concluded that the allegation of misconduct for violating Rule 6B-1.006(3)(e), in that appellant intentionally exposed a student to unnecessary embarrassment or disparagement, must fail. 2/

The hearing officer recommended that appellant's teaching certificate be suspended for two years beginning on January 15, 1991, that he receive a letter of reprimand from the EPC, and that he be placed on three years probation after the suspension is completed with quarterly reports given to the EPC by his immediate supervisor. Upon review, with one minor correction, the EPC adopted the recommended findings of fact and conclusions of law. The EPC adopted the penalty recommended by the hearing officer but added an additional restriction, that for the period of two years from the effective date of its order, appellant was prohibited from serving as a Florida educational administrator.

There must be clear and convincing evidence of wrongdoing before disciplinary action may be taken against the professional license of a teacher. Ferris v. Turnlington, 510 So.2d 292 (Fla. 1987). Pursuant to section 120.68(10), Florida Statutes, governing appellate review, this court is precluded from substituting its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact; however, this court is required to set aside agency action and remand the case to the agency if it finds that the agency's action depends on any finding of fact that is not supported by competent, substantial evidence in the record.

This record is not replete with issues of disputed fact. Instead, by and large, the facts testified to by the witnesses are undisputed. 3/ In its entirety, the competent evidence shows that appellant and Angela were seen together an unusual amount of time during the Spring of 1990, and that this caused the teachers and administrators at Westside Skills Center to suspect wrongdoing. When asked to explain, appellant repeatedly denied that a personal relationship with Angela existed. He was described by his principal as "honest" and given a very good evaluation for the 1989-90 school year.

There was no competent, credible evidence that the two engaged in sexual activities prior to marriage or otherwise acted in a romantic or inappropriate fashion while on the campus or in the presence of other students and faculty. Because school administrators had no evidence of wrongdoing at the close of the 1989-90 school year, no action was taken against appellant. The two were not seen together until after their marriage six months later.

Angela and appellant's marriage cannot form the basis of action against appellant's license because no policy or rule forbids a marriage between a teacher and a student. While the hearing officer recognized this, he nevertheless concluded that this marriage, combined with the evidence that the parties spent an unusual amount of time together in the Spring of 1990, "inferentially" showed that appellant was engaged in a personal relationship with Angela beginning in the Spring of 1990 and continuing until their marriage in December 1990.

In finding a personal relationship based upon the evidence presented, the hearing officer erred. The evidence was not clear and convincing that appellant and Angela maintained an inappropriate personal relationship rather than a teacher/student relationship prior to their marriage. While the facts may raise a suspicion of wrongdoing, they do not rise above mere suspicion. Speculation, surmise and suspicion cannot form the basis of disciplinary action against a teacher's professional license. Compare Sherburne v. School Board of Suwanee county, 455 So.2d 1057, 1061 (Fla. 1st DCA 1984)(one's presence as an overnight or even month long guest in the residence of another of the opposite sex provides nothing beyond supposition to reflect upon that person's morality and is insufficient to serve as the basis of the school board's order denying that person's continuing contract rights as a teacher). Having found no competent evidence beyond speculation, surmise and suspicion that an inappropriate relationship existed between appellant and Angela, the charges against appellant cannot be sustained.

While we do not deem it is necessary to individually address each of the charges, and the failure of proof therefor, we do deem it appropriate to address the issue of whether appellant's effectiveness as a teacher was impaired as the result of his conduct. As already stated, no student or teacher testified that appellant's effectiveness as a school teacher had been seriously reduced as a result of the challenged conduct. The opinion testimony of appellee's expert to that effect was pinned upon the notoriety created in the community by the marriage between appellant and Angela. However, standing alone, the marriage was not unlawful. The attendant publicity surrounding appellant's marriage, which in itself is not a crime or a violation of any rule or statute, cannot be used by the commissioner or the EPC to establish that appellant's effectiveness as a teacher or administrator has been impaired. See Sherburne, 455 So.2d at 1061; Baker v. School Board of Marion County, 450 So.2d 1194 (Fla. 5th DCA 1984); and Bovette v. State Professional Practices Council, 346 So.2d 598 (Fla. 1st DCA 1977). The opinion of the expert, based as it was upon a conclusion contrary to established Florida case law, does not constitute competent, substantial evidence supporting the action taken against appellant. Federated Department Stores Inc. v. Doe, 454 So.2d 10, 12 (Fla. 3d DCA 1984)(an expert's opinion, if based upon an erroneous concept of law, is devoid of competency).

Lest it be misunderstood, this opinion should not be read as restraining the EPC from taking disciplinary action against a teacher guilty of maintaining an inappropriate relationship with a student. This opinion is confined to the facts presented in this case. Nothing herein is intended to intimate that inappropriate teacher/student relationships may not form the basis for charges against a teacher. We merely hold that the quantum of proof adduced in this case fails to substantiate wrongdoing on appellant's part warranting disciplinary action.

REVERSED.

SMITH AND BENTON, JJ., CONCUR; LAWRENCE, J., CONCURS IN RESULT ONLY.

ENDNOTES

1/ Although it is not entirely clear in the record, it appears that the appellant remained employed by the school board, first in the media center and then in the transportation department.

2/ In addition, the hearing officer found that appellant had violated Rule 6B- 1.006(4)(c), Florida Administrative Code, although appellant had not been charged with violation of this rule. Upon review, the EPC deleted this finding of guilt, determining that such violation was not supported by the record.

3/ There is one notable exception. Angela testified that she and appellant did not have a romantic or personal relationship until the night they were married. On the other hand, friends of hers, over a hearsay objection, were permitted to testify that Angela told them otherwise - that she and appellant were romantically involved. However, these witnesses offered no other evidence of personal observations of a romantic relationship between appellant and Angela.

Because of the hearsay nature of their testimony, and the fact that it did not supplement other competent evidence, the hearing officer was constrained to find that there was no evidence the two engaged in sexual activities prior to marriage. See, 120.58(1)(a), Florida Statutes.

================================================================= AGENCY FINAL ORDER ON REMAND

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

DOUG JAMERSON, as

Commissioner of Education Petitioner,

vs. EPC CASE NO. 91-134-RA

DOAH CASE NO. 91-5288

JOHN R. TENBROECK, EPC INDEX NO. 93-005

Respondent.

/

FINAL ORDER ON REMAND

Respondent, JOHN R. TENBROECK, holds Florida educator's certificate no.

228148. 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.

A panel of the Education Practices Commission (EPC) met on January 28, 1993, in Tampa, Florida, to take final agency action. The panel reviewed the entire record in this case.

Thereupon, the panel entered a Final order dated February 19, 1993 and filed February 24, 1993. After adopting the hearing of ficers findings of fact and conclusions of law, the order imposed sanctions against Respondent.

Respondent appealed the Final Order to the District Court of Appeal, First District, State of Florida which, in John Tenbroeck v. Betty Castor, Case Number 93-771, reversed the Final Order.

Wherefore, pursuant to that Court's Mandate of August 16, 1994, it is,

ORDERED that the Final order filed February 24, 1993 is hereby VACATED, and it is further

ORDERED that the Administrative Complaint entered herein is hereby DISMISSED.

DONE AND ORDERED, this 21st day of September, 1994.

I HEREBY CERTIFY that a copy of the foregoing Order in the matter of Jamerson vs. John R. Tenbroeck, was mailed to Albert Miller, Jr., Esq. 4206 Herschel Street,

Jacksonville, Florida 32210

this 28th day of September, 1994, by U. S. Mail.

KAREN B. WILDE, Clerk

COPIES FURNISHED:

Kathleen Richards, Acting Program Director Professional Practices Services

Rivers Buford, Jr. Attorney General's Office

Florida Administrative Law Reports Dr. Larry L. Zenke, Supt.

Duval County Schools

1701 Prudential Drive

Jacksonville, Florida 32207

Robert Mathena Dir., Personnel

Duval County Schools

Robert J. Boyd Attorney at Law 2121 Killarney Way Suite "G"

Tallahassee, Florida 32308

Jon S. Wheeler Clerk of the Court

District Court of Appeal

First District, State of Florida Tallahassee, Florida 32399-1850

Donald R. Alexander Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Docket for Case No: 91-005288

Orders for Case No: 91-005288