STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5416

)

MICHAEL GEORGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Kissimmee, Florida, on February 14, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Attorney Margaret E. O'Sullivan

Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: Tobe Lev

Egan, Lev & Siwica, P.A.

P.O. Box 2231

Orlando, Florida 32802 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent is guilty of inappropriate and unprofessional conduct toward students and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated July 24, 1991, Petitioner alleged that Respondent, while employed as a high school teacher, made inappropriate and suggestive comments to three students. The Administrative Complaint alleges that Respondent returned to J. W. a graded book report containing several sexually suggestive comments and asked her for a kiss. The Administrative Complaint alleges that Respondent told H. F. not to bend over to pick up an object because she was "tempting" him. The Administrative Complaint alleges that Respondent commented to D. R. about her appearance.

Petitioner alleges that Respondent is thereby guilty of personal conduct that seriously reduces his effectiveness as an employee of the school board, in violation of Section 231.28(1)(f), Florida Statutes; failing to make a reasonable effort to protect his students from conditions harmful to learning,

health, or safety, in violation of Rule 6B-1.006(3)(a), Florida Administrative Code, and Section 231.28(1)(f), Florida Statutes; intentionally exposing students to unnecessary embarrassment or disparagement, in violation of Rule 6B- 1.006(3)(e), Florida Administrative Code, and Section 231.28(1)(f), Florida Statutes; and exploiting a professional relationship with a student for personal gain or advantage, in violation of Rule 6B-1.006(3)(h), Florida Administrative Code, and Section 231.28(1)(f), Florida Statutes.

By Election of Rights filed August 21, 1991, Respondent requested a formal hearing.

At the hearing, Petitioner called two witnesses and offered into evidence two exhibits. Respondent called one witness and offered into evidence one exhibit. The exhibits were admitted except for Petitioner Exhibit 1.

The transcript was filed February 27, 1992. Each party filed a proposed recommended order. Treatment of the proposed findings is detailed in the appendix.

FINDINGS OF FACT

1. Respondent holds Florida teaching certificate 583587 covering the area of general science. The certificate is valid through June 30, 1992.

   
   

2. During the 1990-91 school year, Respondent taught earth space science at Gateway High School in the Osceola County School District.

   
   

3. D. R., who is a 15 year-old female, attended Gateway during the 1990-91 school year as a ninth grader. She took Respondent's science class.

   
   

4. On Halloween, the students wore costumes to school. D. R., who was dressed as a baby, stayed after class to speak to Respondent. During the course of their conversation, Respondent said, "You look very nice."

   
   

5. The comment made D. R. feel "uncomfortable." D. R. testified that Respondent sometimes commented upon the appearance of the students, sometimes in a flirting manner. However, she testified that he never commented upon her appearance except for the incident set forth above. There is no evidence to suggest that the comment was intended, or reasonably construed, as inappropriate or sexually suggestive.

   
   

6. J. W., who is a 17 year-old female, attended Gateway during the 1990-91 school year as a tenth grader. She also took Respondent's class.

   
   

7. During the 1990-91 school year, J. W. frequently skipped school and failed to do her schoolwork. Like other students, she had a good relationship with Respondent. At Christmas, she gave Respondent and another teacher teddy bears as gifts.

   
   

8. However, J. W.'s grades were very poor. In Respondent's class, she earned a D for the first semester. During the fall, she either quit or was ejected from her class devoted to dance and drill team. She asked Respondent if she could serve as his teaching assistant during the period during which she had been in dance and drill team. Respondent agreed, not knowing that she had not properly withdrawn from the other class.

9. At one point during the fall semester, Respondent assigned meteorology lab projects to J. W.'s class. Several students, including J. W., failed to make the required class presentations. Respondent then allowed these students to earn partial credit by doing meteorology reports and submitting them a few days later.

   
   

10. J. W. turned in her report about a week after the deadline. Other students also missed the deadline. Respondent decided not to give these late reports any credit.

    
    

11. The testimony of J. W. and Respondent diverge materially at this point. J. W. testified that, while she was alone in his classroom taking a makeup test, Respondent returned to her the meteorology report sometime in February, 1991. He said he had been bored over the weekend, had written some comments on the report, and told her not to show them to anyone. He then asked her to make up a test during a planning period. He then asked her for a kiss, saying that he could not go through the weekend without a kiss. J. W. declined and Respondent did not try to kiss her.

    
    

12. J. W. testified that she felt afraid and immediately left the classroom. While riding the bus home, she opened the meteorology report, read it, and became upset. After she got home, she discussed the matter with a friend and then promptly reported the incident to the school.

    
    

13. Respondent's testimony is quite different. He testified that, sometime after receiving the late meteorology reports, Respondent and his brother went out drinking one night. After a few drinks, they found in Respondent's car the late meteorology reports, as well as possibly other student materials for which no credit had been earned due to tardiness. Deciding to emulate a late-night television entertainer, David Letterman, as well as a periodic feature of his show, "Stupid Pet Tricks," Respondent and his brother started going through the student materials in order to amuse themselves.

    
    

14. Making fun of the students' reports, Respondent and his brother wrote sarcastic comments on the reports. In the case of J. W.'s meteorology report, the comments, which were written by Respondent himself, were of a lewd nature. In the case of other students, the comments took on a different nature, such as questioning the sexual orientation of a male student. Humorless and awkwardly phrased, the comments suggest a combination of high intoxication and low intelligence on the part of Respondent. 1/

    
    

15. When done, Respondent threw the reports in his briefcase. The next morning, possibly forgetting about the incident, Respondent dumped the contents of the briefcase into his desk at school or the shelves behind his desk.

    
    

16. About a month later, J. W., while performing duties as one of Respondent's student assistants, found her meteorology report with the comments that Respondent had added. As she testified, she then notified the school authorities.

    
    

17. The facts are undisputed from this point on. The school conducted an investigation. After initially denying that he wrote the comments on the report, Respondent admitted that he wrote the comments and resigned. He did not offer the Letterman defense set forth above, and he destroyed the other reports bearing irreverent comments written by Respondent or his brother. Respondent explained that he was embarrassed by his behavior in writing the comments and

    obviously felt that disclosure of more reports with more comments would only exacerbate the situation.

    
    

18. Various factors make it difficult to credit the testimony of J. W. or Respondent. Neither is particularly reliable as a witness. Respondent initially lied about the incident. When he belatedly admitted that he wrote the comments, he failed to tell what he now offers as the whole truth concerning why he wrote them. He also failed to disclose the other reports.

    
    

19. J. W. is similarly unreliable. Several times during the 1990-91 school year, she forged her mother's signature in order to obtain excused absences. She displayed behavioral problems at school and was finally expelled prior to the end of the 1990-91 school year for nonattendance. She seemed deliberately vague as to when the meteorology assignment was first given, as well as to what period she was in Respondent's classroom when he returned the report and asked for a kiss.

    
    

20. At one point, J. W. testified that Respondent asked her to make up a test during his planning period, which was when she took English. However, she seemed unclear as to whether the incident took place during the planning period, which was relatively late in the school day, or during the period when she served as a student assistant and had formerly been in dance and drill team. It is unlikely that Respondent would allow her to take a makeup test while she had to be in English due to the possibility of incurring the displeasure of the English teacher. This appears to be J. W.'s testimony, though, because she testified that she read the report 30 minutes after getting it, while on the bus home.

    
    

21. There are problems with J. W.'s testimony. If Respondent had asked for a kiss and warned her not to tell anyone about his comments on the report, it is doubtful that J.W. would wait 30 minutes, as she testified, to read the short report. Also, Respondent would unlikely choose the classroom during the school day as the location to kiss his student. The room has windows and unlocked doors. With students walking by and possibly entering the classroom, Respondent would have no reasonable assurance that he would not have been seen kissing J. W.

    
    

22. Respondent's explanation of the circumstances under which he wrote the comments on the meteorology report, although undermined by certain factors, was reinforced somewhat by his responses to questions concerning what happened to the other reports on which he wrote comments and the nature of the comments. Respondent did not seem to have anticipated these questions, which were posed by the undersigned. Confessing that he destroyed the other reports, Respondent admitted with evident embarrassment that the remarks were hurtful to other students, such as referring to the sexual orientation of a male student.

    Nothing in Respondent's version of what happened or in his demeanor and manner of testifying suggests that Respondent has the mental acuity likely needed to fabricate such a detail to his testimony without substantial advance notice.

    
    

23. Based on the record, the most that can be said is that it is possible that the incident took place largely as J. W. described it, or it is possible that the incident took place largely as Respondent described it. Petitioner has not proved by clear and convincing evidence J. W.'s version of the incident.

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

25. The Education Practices Commission is authorized to discipline persons holding teaching certificates for violations of applicable law. Section 231.28.

    
    

26. Discipline may be imposed if a person holding a teaching certificate is guilty of "personal conduct which seriously reduces that person's effectiveness as an employee of the school board" or 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." Section 231.28(1)(f) and (h).

    
    

27. The rules of the State Board of Education provide for discipline when a person holding a teaching certificate fails to "make reasonable effort to protect the student from conditions harmful to learning or to health or safety"; "intentionally expose[s] a student to unnecessary embarrassment or disparagement"; or "exploit[s] a professional relationship with a student for personal gain or advantage." Rule 6B-1.006(3)(a), (e), and (f).

    
    

28. Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). "Clear and convincing evidence" is an "intermediate standard of proof" between preponderance of the evidence and evidence that is beyond a reasonable doubt. Smith v. Department of Health and Rehabilitative Services, 522 So. 2d 956, 958 (Fla. 1st DCA 1988).

    
    

29. Reviewing definitions of "clear and convincing evidence," the court in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), determined 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 remembered; the testimony must be precise and explicit and the witnesses 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.

    
    

30. Petitioner has failed to prove by clear and convincing evidence that Respondent's comment to D. R. violates any of the above-cited provisions of law.

    
    

31. Petitioner has failed to prove by clear and convincing evidence the allegations on which Petitioner relies to show that Respondent violated any of the above-cited provisions of law with respect to J. W. Based on the evidence presented, including the demeanor of the witnesses, the likelihood of various actions or events, the credibility of J. W. and Respondent, and the precision of their testimony, the proof fails to establish a firm belief or conviction, without hesitancy, as to the truth of the allegations of the request for a kiss and delivery of a report with sexually suggestive comments.

32. As to the comments in the report, Petitioner alleged that Respondent returned the report to her. The theory of Petitioner's case is Respondent intentionally communicated sexually suggestive comments to J. W. orally and in writing. As noted above, the evidence fails to establish by the requisite degree of proof that Respondent made the oral statement or "returned" (i.e., delivered) the report to J. W. The evidence fails to preclude, by the requisite degree of proof, the possibility that the comments were written for self- amusement, rather than literally and for presentation to J. W. The evidence fails to preclude, by the requisite standard of proof, that Respondent negligently allowed the report to come into J. W.'s possession, rather than intentionally delivered it to her.

    
    

33. Respondent is not alleged to have to have violated the above-cited provisions of law by writing these comments in the presence of his brother and then negligently allowing the report to be found by J.W. or another student. Instead, Petitioner alleged and Respondent prepared to answer allegations that he made sexually suggestive comments--orally and in writing--to J. W. Petitioner may not predicate discipline upon facts not alleged in the Administrative Complaint. See, e.g., Sternberg v. Department of Professional Regulation, 465 So. 2d 1324 (Fla. 1st DCA 1985). 2/

    
    

34. The only evidence concerning H. F. was the transcript of her deposition, which was excluded. Rule 1.380, Florida Rules of Civil Procedure, sets forth the requirements for the use of a deposition transcript at hearing. The relevant provisions are that the deposition of a witness may be used if "the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of State"; "the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment"; "or . . . that the party offering the deposition has been unable to procure the attendance of the witness by subpoena . . .." Rule 1.380(3)(B), (C), and (D).

    
    

35. Petitioner was unable to show that any of these three criteria had been satisfied so as to allow the use of the deposition rather than require H.

F. to testify live. Petitioner had no return of service to show that H. F. had been served with a subpoena. Shortly before the hearing, H. F. contacted Petitioner's counsel and said that she could not attend the hearing for a reason that was unrelated to a reason that she offered during her deposition, about two weeks earlier, for her expected inability to attend. Other comments in the transcript suggest that H. F.'s nonattendance was due to a lack of conviction or ambivalence, rather than a scheduling conflict or even typical apprehension at the prospects of testifying. 3/

RECOMMENDATION

Based on the foregoing, it is hereby recommended that the Education Practices Commission enter a final order dismissing the administrative complaint against Respondent.

RECOMMENDED this 11th day of March, 1992, in Tallahassee, Florida.

ROBERT E. MEALE

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 11th day of March, 1992.

ENDNOTES

1/ The comments are as follows. The report mentions the study of winds. The comment adds: "or [pun on J. W.'s last name]." The report describes the manner of detecting wind direction by persons who would "wet their finger." The comment strikes "their" and adds "my," questions how they would wet their finger, and adds "a lab would explain this better." The report shows a hurricane from a top view. The comment is: "What, do you have a mirror on your ceiling[?]" The report mentions a "whirling mostion [sic]." The comment states: "sounds fun." The report mentions the earth's rotation. The comment follows: "Your turn on top." The report describes a warm front lifting from the earth's surface. The comment is: "It sounds kinky & fun." A reference in the report to thunderheads elicits the comment: "This must be a good one. Rain please." The last comment refers to an explanation of the positions of air masses: "The more positions the better. It is right!?"

2/ It is impossible to treat the pleadings as raising the issue whether Respondent should be disciplined even if his version of the fact were true. First, Respondent's version is not a violation Rule 6B-1.006(3)(e) or (h). The former subsection requires an intentional act, which is negated by the fact, under Respondent's version, that he negligently allowed the report to be found by J. W., but did not intentionally give it to her. The latter subsection requires the exploitation of a professional relationship for personal gain or advantage, which, under Respondent's version, is not the case.

The question is closer under Rule 6B-1.006(3)(a), which requires a "reasonable effort" to protect the student from conditions harmful to learning. It is open to question whether Respondent exercised "reasonable effort" to protect J. W. from the pain and embarrassment that ensued from his own insensitivity.

However, the reasonableness of this effort was not litigated because this was not an issue under Petitioner's theory of the case.

The question is even closer under Section 231.28(1)(f), which requires a determination whether Respondent's effectiveness as an employee of the school board was "seriously reduced" by his conduct. Respondent resigned, after admitting that he wrote the comments and had initially lied to the school board. However, a teacher's resignation does not foreclose further inquiry under this section. There was some evidence that the students remained loyal to Respondent. In any event, Respondent did not litigate the question as to the

impact upon Respondent's effectiveness as a teacher of his admission that he wrote the comments; again, this was not the issue raised by Petitioner.

3/ H. F. began her deposition by offering a statement. In part, she stated:

. . . the more I talk to more people about this, it just didn't seem like there was any ground or reason to take this to court at all.

What I said on my statements was true about things he said, but I don't think this should go to court.

* * *

[J. W.] just wanted somebody, if it did go to court, as a witness. I said I would. Now I wish I wouldn't have because it's really nothing. He never did anything to me. I just got spooked by the fact that she told me that she was in the classroom and he wouldn't let her go.

. . . [J. W.] just wanted somebody there for support, I guess. And I opened my mouth too soon and I wish I wouldn't have.

Petitioner Exhibit 1 for Identification, pp. 4-5.

The admission of the deposition transcript would not have altered the result in this case. As to the allegation that Respondent told H. F. not to bend over because she "tempted" him, H. F. said that she "just kind of laughed at him" because it was said "jokingly" rather than "sexually." Petitioner Exhibit 1 for Identification, page 39. Somewhat contradictorily, H. F. earlier testified that she viewed the comment as a "roundabout" sexual proposition.

Petitioner Exhibit 1 for Identification, page 25.

H. F.'s testimony would not have reinforced J.W.'s version of events due to material discrepancies in the testimony of J. W. and the testimony of H. F. as to what J. W. told her. In addition to specific discrepancies, H. F. summarizes the credibility issue as follows:

[Respondent] is a good guy. None of this would have ever come out [sic] to this if she never would have told me that he tried to trap her in the classroom. Like I said, I don't know if that's true. Either it's just what she told me, and sometimes you can't believe what everybody says. It's her word against his.

Petitioner Exhibit 1 for Identification, page 35.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5416

Treatment Accorded Proposed Findings of Petitioner

1-5 (except second clause of last sentence): adopted.

5 (second clause of last sentence): rejected as irrelevant and speculative. 6: adopted except for the time of the assignment, which is rejected as unsupported by the appropriate weight of the evidence.

7-8 (except first clause of last sentence): rejected as unsupported by the appropriate weight of the evidence.

8 (first clause of last sentence): adopted.

9: rejected as unsupported by the appropriate weight of the evidence.

10: adopted except for implication that Respondent gave J. W. the report. 11: rejected as irrelevant and subordinate.

12-13 (first sentence): adopted.

13 (second and third sentences): rejected as unsupported by the appropriate weight of the evidence, although, even crediting Respondent's version, his comments were not merely "silly." The comments clearly were of a sexual nature. As noted in the recommended order, the comments were not, as alleged, part of an attempt by Respondent to communicate sexually suggestive comments to J. W. The sexually oriented comments on the report were stupid and hurtful.

The comments, even though expressed privately to entertain himself and his brother, betray a rank misconception on Respondent's part as to the role that he occupies with respect to his students and the role that they occupy with respect to him. But the allegations of the Administrative Complaint require that Petitioner prove that the Respondent intended to communicate these comments to

J. W. As noted in the recommended order, Petitioner has failed to prove these allegations by the requisite standard of proof.

14: rejected as unsupported by the appropriate weight of the evidence. 15: rejected as subordinate and argument.

16: rejected as irrelevant to the allegations of the Administrative Complaint. However, these proposed findings accurately describe J. W.'s reaction to the discovery of the report.

17-18: rejected as unsupported by the appropriate weight of the evidence to the extent of any implication of inappropriate behavior.

19: adopted.

20: rejected as irrelevant and without sufficient predicate even to connect this harassment to the subject incident.

Treatment of the Proposed Findings of Respondent

1 (first sentence): adopted.

1 (remainder): rejected as irrelevant.

2-4 (first two sentences): adopted or adopted in substance.

1. (third sentence): rejected as irrelevant.

2. (first sentence): adopted.

5 (remainder): rejected as irrelevant.

6-7: adopted except for cheating, which is unsupported by the appropriate weight of the evidence.

8: rejected as subordinate. 9-10: adopted.

11: adopted except for the description of the comments as "inane [and] nonsensical." The sexual nature of the comments, which have been amply characterized above, precludes their description as "inane" or "nonsensical." 12-13: adopted, although the evidence suggests a somewhat longer period of dissembling on the part of Respondent prior to his confession that he wrote the comments.

14-16: adopted.

17 (first sentence): rejected as irrelevant.

17 (remainder): adopted in substance, at least insofar as Petitioner failed to prove by the requisite standard that Respondent committed the acts that he is alleged to have committed.

18-19: adopted or adopted in substance.

COPIES FURNISHED:

George A. Bowen, Acting Executive Director Education Practices Commission

301 Fla. Education Center

325 W. Gaines St. Tallahassee, FL 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Fla. Education Center

325 W. Gaines St. Tallahassee, FL 32399-0400

Sydney H. McKenzie, General Counsel Department of Education

The Capitol, PL-08 Tallahassee, FL 32399-0400

Attorney Margaret E. O'Sullivan Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

Tobe Lev

Egan, Lev & Siwica, P.A.

P.O. Box 2231 Orlando, FL 32802

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: 91-005416

Orders for Case No: 91-005416