STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NASSAU COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5589

)

EDWIN D. MACMILLAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on November 14, 1991, in Fernandina Beach, Florida, before Ella Jane P. Davis, a duly-designated hearing officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Brian T. Hayes, Esquire

245 East Washington Street Monticello, Florida 32344

For Respondent: Thomas W. Brooks, Esquire

Meyer & Brooks

Post Office Box 1547 Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether or not Respondent is guilty of misconduct and/or immorality in office (in the nature of suggestive and degrading sexual innuendoes and remarks to several female students) pursuant to Section 231.36(6)(a) F.S. and Rules 6B- 1.001, 6B-1.006, and 6B-4.009 F.A.C. so as to be subject to dismissal by the Nassau County School Board.

Although some evidence of other years was presented, the August 8, 1991 Statement of Charges herein covers only the 1990-1991 school year. Accordingly, only evidence from that school year may be considered for purposes of discipline in this proceeding.

PRELIMINARY STATEMENT

Petitioner presented the oral testimony of Shannon Lysitt, Jessica Smith, Peggy V. Meziere, Darlene Kelly, Tammy McClamma, Craig Marsh and Edward Charles Turvey, Jr. Petitioner had two exhibits (one of which was the deposition testimony of Sherry Meziere) admitted in evidence.

Respondent presented the oral testimony of Shanna Higginbotham and testified on his own behalf and had no exhibits admitted in evidence.

A transcript was filed in due course, and all timely-filed proposed findings of fact have been ruled upon in the appendix to this Recommended Order pursuant to Section 120.59(2), F.S.

FINDINGS OF FACT

1. At all times material, Respondent was a teacher at the Hilliard Middle- Senior High School and the holder of a professional services contract with Petitioner Nassau County School Board. He is certified by the State of Florida in the areas of mathematics, psychology, and broad field social studies.

   
   

2. Respondent had been employed by Petitioner for the nine years immediately preceding his suspension for the charges involved in this case. During the whole of that time he received good job evaluations. He has had no prior disciplinary charges against him.

   
   

3. On or about May 9, 1991, Petitioner, pursuant to the recommendation of the Nassau County Superintendent of Schools, suspended Respondent without pay. This followed the Superintendent's suspension of Respondent with pay on May 2, 1991.

   
   

4. During his employment with Petitioner, Respondent has taught geometry, algebra II, trigonometry, one class of general math, and a class of compensatory mathematics.

   
   

5. Respondent has had a practice of greeting his students at random as they enter the classroom each day and while they are taking their seats and settling down to work. At all times material, these greetings were offered in the presence of students of both genders. Respondent teased the boys about sports and commented on the girls' appearance. The comments made most frequently by the Respondent to the football players were that they had not done well in the immediately preceding game. The comments made most frequently by the Respondent to all the female students were, "You're looking good; you're looking fine; you're looking hot;" or, more simply, "you're fine; you're hot." None of the comments were exclusive to any particular female student. All comments were made out in the open, without any physical touching or aggression on Respondent's part. He made these comments with no intended sexual connotation, and no female student ever expressed to him directly that she objected to these greetings either because they sounded sexual in nature, were too familiar, or were made in the presence of the female students' male peers.

   
   

6. Generally, Respondent's comments were recognized as kidding and not taken seriously or considered objectionable by the students. There is no evidence that the Respondent's comments delayed the commencement of class, caused disruptive behavior on the part of either the male or the female students who heard them, or inhibited any student learning the academic material.

   
   

7. One female student who testified that she found the foregoing practice objectionable was Shannon Lysitt, a student of Respondent's during both the 1989-1990 and the 1990-1991 school years. Ms. Lysitt testified at formal hearing that she "took [these comments] to be sexual but not as in a sexual manner." She considered the comments embarrassing and a display of inappropriate conduct by a teacher but knew Respondent was being friendly and joking. Ms. Lysitt admittedly never told Respondent she felt embarrassed or asked him to stop making such comments. Although she was used to his comments from the previous school year, Ms. Lysitt did not request to be assigned to another class for the 1990-1991 school year.

8. In one isolated conversation, Respondent told Ms. Lysitt that, due to her poor math grades, she would probably wind up as a secretary being chased around a desk by her boss instead of achieving her desired career of psychiatrist. The Respondent denied making that comment specifically, but testified that he had made chiding or derrogatory comments about career plans of college preparatory students to motivate them to do better on tests when they had been doing poorly. By all accounts, Ms. Lysitt was doing all right in Respondent's course but could have done better. Ms. Lysitt's testimony was credible as to what was said, but Respondent's testimony was equally credible as to why he said it. Upon the evidence as a whole, it is found that the Respondent's comment may have been temporarily embarrassing to Ms. Lysitt, and may have, as she testified, made her feel bad or stupid for a short time, but that it did not degrade or humiliate her or adversely affect her classroom performance or overall self-image.

   
   

9. Sherry Meziere was a student in Respondent's fourth period general math II class during the 1990-1991 school year. She also was embarrassed by Respondent's compliments to her, but she never told him so.

   
   

10. When Ms. Meziere complained to Respondent that her semester grade was a "C" rather than the "B" she wanted, he told her she could stay after school and she would get her "B". Ms. Meziere is a particularly sensitive and shy teenager, and she took offense at the Respondent's comment because she interpreted it as a sexual come-on.

    
    

11. Respondent denied having any sexual intent behind his comment to Ms. Meziere. At formal hearing, he explained that Ms. Meziere would have been entitled to a "B" if she had turned in all her homework, as required, but she had not. Because her grade was borderline due to the missing homework, Respondent had meant by his remark to Ms. Meziere that if she would come to the classroom after school and work the homework problems in his presence, he would retroactively give her credit for doing the homework and turning it in and this would accordingly alter her semester grade to a "B". Respondent's explanation for why he took this approach is reasonable: he would not accept students bringing in the homework later from home because it might be done anew or copied from someone else.

    
    

12. Perhaps Respondent fell short in not clearly indicating all his reasoning and purpose to Ms. Meziere, but he also had no notice from her that she had misunderstood his offer. On balance, Ms. Meziere's explanation of why she took Respondent's neutral remark sexually is weak. She testified,

    
    

    A: I took it sexually. I don't know.

    Q: Why did you take it sexually? What is it about it that made you think that because you would agree, wouldn't you, that that could also be nonsexual the way you stated it, correct?

    A: Yes.

    Q: So what was it about the way he said it that made you think that it was sexual?

    A: I don't know. I just didn't feel comfortable with it.

    Q: But he didn't say anything explicit-- A: No.

    Q: --about sex or anything like that? A: No. (Exhibit P-2, page 10)

13. Ms. Meziere considered Respondent a good teacher, not really strict, and pretty friendly. She felt he was giving her and one of her girl friends many more compliments of the nature described above in Finding of Fact 5 than he was giving other female students in their particular class. Respondent conceded that perhaps he had complimented Ms. Meziere more than some other female students in her class because he had tried to build up Ms. Meziere's self-esteem while the class was going to and from the cafeteria during the lunch recess which occurred in the middle of that class period, so that she would eat and not diet excessively.

    
    

14. When she felt "uncomfortable" about Respondent's offering to see her after school, Ms. Meziere was not aware that Respondent frequently tutored students after school. Shanna Higginbotham, another one of Respondent's female students, confirmed that she had been tutored by him after school on several occasions, without any sexual innuendoes or overtures. Although what Respondent did not do with Ms. Higginbotham is not corroborative of Respondent's testimony that he did not intend his remark to Ms. Meziere to be sexual, it is supportive of his testimony that he was in the habit of having one or more students in his classroom after school. It also supports a reasonable inference that the Respondent's classroom was hardly the place for a private rendezvous.

    
    

15. Respondent was approached during an inactive period in one of his classes by a senior mathematics student named Monica Adamczewski, who was simultaneously taking a college-level psychology class in child development at Florida Community College, Jacksonville, Florida. Ms. Adamczewski, knowing of Respondent's background in psychology, addressed a question to Respondent involving Freudian theory and child psychology on the issue of whether or not little children have sexual feelings, as hypothesized by Freud. Respondent responded by describing how he had handled an incident involving his own four year child's masturbation. Although the conversation was conducted in low tones with Ms. Adamczewski and Respondent in their respective desks, another student, Darlene Kelly, came up to Respondent's desk in the course of the conversation and heard only part of the conversation. Ms. Kelly was not aware of the context in which the subject arose, did not approve of certain language Respondent employed in discussing his child's activity, and felt it was an inappropriate conversation for the classroom, but Ms. Kelly also testified that the conversation did not embarrass her. There is conflicting evidence as to whether the foregoing incident occurred during the period covered by the Statement of Charges in this case. It is found that it did not occur during the period of time covered by the charges and accordingly that it cannot constitute grounds for disciplining Respondent in this proceeding.

    
    

16. Jessica Smith testified to three incidents that allegedly occurred during the 1989-1990 school year. Because the Statement of Charges against the Respondent is silent as to any allegations of misconduct or immorality that occurred other than during the 1990-1991 school year, these incidents may not be used to discipline Respondent in this proceeding. 1/

    
    

17. Tammy McClamma graduated from Hilliard Middle-Senior High School in May 1990. She was not one of Respondent's students in either her junior or senior year, but she knew him from being around school. The events she described also could not have occurred during the time frame set out in the Statement of Charges and therefore cannot be used to discipline the Respondent in this proceeding. 2/

18. Respondent acknowledged that he may have been careless and used poor judgment in some of the statements he made to his female students. However, he never intended to harm or embarrass any of them and was simply guilty of allowing himself to get too close to the students as friends rather than maintaining the appropriate distance required of the student-teacher relationship.

    
    

19. All the student witnesses, including those who were offended by isolated remarks they regarded as inappropriate, agreed that Respondent has a friendly and jocular manner in and out of the classroom. Respondent's classroom clearly has a "laid back" style. Overall, his students seem to appreciate and enjoy his familiar manner and to learn well in his classes. The consistent testimony of the students was that he is generally well-regarded and "everybody's favorite teacher."

    
    

20. Superintendent Marshall opined as a professional educator that the Respondent's effectiveness as an educator had been undermined and eliminated by a continuing pattern of serious misconduct. However, no evidence of lost effectiveness beyond the temporary embarrassment and self-doubt experienced by Ms. Lysitt appears of record, and Mr. Marshall's opinion as rendered at formal hearing was based in part upon incidents outside the dates alleged in the Statement of Charges and also based in part upon the total investigation of this case, which investigation clearly included material not in evidence here.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

    
    

22. Respondent is charged under the statutory and regulatory scheme set forth in Section 231.36 (6)(a) F.S. and Rules 6B-1.001, 6B-1.006, and 6B-4.009 F.A.C..

    
    

23. Rule 6B-4.009 F.A.C. provides, in pertinent part as follows:

    
    

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

    2. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, FAC, the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, FAC, which is so serious as to impair the individuals effectiveness in the school system.

       
       

24. Where a School Board seeks to dismiss a teacher from employment upon the basis of misconduct in office, it is essential to establish each and every element of the charge. See, Smith v. School Board of Leon County, 405 So. 2d

    183 (Fla. 1st DCA 1981), Jenkins v. State Board of Education, 399 So. 2d 103 (Fla. 1st DCA 1981). Also, the School Board is required to prove the charges against Respondent by a preponderance of the evidence. See, Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3d DCA), Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).

25. The Statement of Charges herein embraced only incidents alleged to have occurred during the 1990-1991 school year, and accordingly only those incidents proven to have occurred during that time frame may be used to discipline Respondent. 3/ That leaves only the charges involving Ms. Lysitt and Ms. Meziere to be analyzed.

    
    

26. None of these incidents singly or as a group rises to the level of "immorality" as defined above.

    
    

27. Respondent has garnered some of his popularity with teenaged students by the use of street slang common to their age group. The word "hot," particularly, has a double-meaning in today's society, and because adolescents are endlessly fascinated by their own and everyone else's sexuality, they more often than not will hear a sexual remark where none is intended. Although Respondent implied (intended) no sexual meaning in his interactions with his female students, it was inevitable that some female students would infer (interpret) a sexual content therefrom or would otherwise be embarrassed thereby. Ms. Lysitt was mildly embarrassed but did not tell Respondent so that he could alter his behavior. Ms. Meziere leapt to an unreasonable conclusion and also did not tell Respondent her feelings and concerns so that he could explain or alter his behavior. These situations are not serious enough to call them acts of misconduct on Respondent's part. More serious, however, is Respondent's ridicule of Ms. Lysitt's abilities. Although she is a resilient young lady and suffered no measurable disturbance of her studies or her career goal of becoming a psychiatrist therefrom, Respondent's comments about her choice of careers were less motivational than they were demeaning. Moreover, using the negative image of a secretary being chased around a desk demeans what could be a perfectly legitimate career choice of Ms. Lysitt or anyone else listening to the conversation. Secretaries are valuable in our economy, and being a secretary does not necessitate one being chased around a desk. This remark technically violates the aspirational "Principles of Professional Conduct", Rule 6B-1.006(e) F.A.C., but it does not constitute a pattern of misconduct so severe as to impair Respondent's over-all effectiveness as a teacher.

    
    

28. The testimony that Respondent's actions establish a pattern of serious misconduct is not borne out by the record evidence, nor has it been established that Respondent's actions have rendered him so ineffective as a teacher that he should be dismissed in the face of affirmative evidence of good teaching skills. It also has not been established how Respondent's proven conduct, when separated from the allegations not proven, affected Respondent's employment or effectiveness in the community apart from the notoriety resulting from Petitioner's own investigation. See Shelburne v. School Board of Suwanee County, 455 So. 2d 1057 (Fla. 1st DCA 1984); Baker v. School Board of Marion County, 450 So. 2d 399 (Fla. 5th DCA 1984).

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Nassau County enter a final order dismissing the charges against Respondent and returning him to full duty with all back pay and benefits retroactive to May 9, 1991.

RECOMMENDED this 5th day of March, 1992, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 5th day of March, 1992.

ENDNOTES

1/ This student, who graduated in May 1990, testified that during a class, Respondent improperly and suggestively told her that she "would win a wet T- shirt contest." Having observed the candor and demeanor of the witnesses, assessed and weighed their respective credibility, and reconciled all testimony capable of being reconciled, it is found that Respondent's version of this incident is more credible than the foregoing version rendered by Ms. Smith. It is also found that the foregoing comment, if it was made at all, which is unlikely, came up in the context of Respondent properly enforcing the school dress code when Ms. Smith, whose figure is fully matured, was wearing a very thin, "Just say 'no' to drugs" T-shirt. The fact that the T-shirt had been provided by the school did not automatically make it acceptable school attire. Ms. Smith acknowledged that the T-shirt was thin and inappropriate, but she felt it was all right as long as she had another shirt underneath. Respondent was behaving responsibly in having Ms. Smith button a jacket across her chest.

Ms. Smith also testified that Respondent made sexually suggestive remarks to her during an "away" basketball game in 1989 in Charlton County, Georgia, by telling her that he had worked there at one time and knew all the dark corners and by asking if she would like to join him in one of them. The Respondent denied the conversation occurred as related by Ms. Smith but admitted that he probably had told her that he had worked there and knew where all the dark corners were to warn her she could not put anything over on him by sneaking off to one. There were no witnesses to corroborate either version of the incident or to explain or supplement this conversation. Therefore, the testimony, on its face, presents an equipose, probative of nothing. However, this conversation took place in the open with many people milling about. By Ms. Smith's own account, the Respondent neither did nor said anything overtly sexual, and Ms.

Smith's immediate reaction was to giggle and seek out her date. For those reasons, it is found that the tone of the encounter was in a teasing or joking vein, even if the remark occurred as related by Ms. Smith and offended her.

Ms. Smith further testified that one day after class she heard the Respondent tell a student, Tammy McClamma, that Ms. McClamma "had a nice butt" in her blue jeans shorts, and that Ms. McClamma was not offended by his remark but had teased Respondent back. Ms. McClamma and Respondent denied Ms. Smith ever witnessed such an incident. Cf--Finding of Fact 17.

2/ Ms. McClamma recalled that Respondent had, on occasion, made what she regarded as inappropriate remarks about her "butt." Although Ms. McClamma

considered the comments improper for a teacher, she never considered them important or mentioned them to anyone. Specifically, she testified that, "I like Mr. MacMillian as a teacher. He's a good teacher. Nobody would take him serious." Respondent admitted that occasionally he had discussed the appropriateness of clothing which Ms. McClamma and others had worn to cheerleading practice joking that she had a "big butt", that he had ordered students to "get their butts" in seats, or move their "butts" or something of the sort, but he denied ever telling Ms. McClamma she "had a nice butt."

3/ Even if the prior year's incidents described here could be charged against Respondent in this proceeding, each of these incidents is of the same nature as those proven within the four corners of the charging document--isolated, minor, and not inherently evil. None of them amount to "immorality" or suggest a pattern of misconduct.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5589

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF:

1-2. Accepted

3-4. Rejected for the reasons set forth in FOF 16 and its footnote 1.

5. Accepted

6-7. Accepted in part and rejected in part upon the greater weight of the credible competent substantial evidence as set out in FOF 7-8.

1. Rejected as not supported by the record; covered in FOF 9- 14.

2. Rejected as not supported by the record; covered in FOF 17 and its footnote 2.

Respondent's PFOF:

1-3. Accepted

4-5. Covered and expanded in FOF 5-6. I accept the several student's testimony over that of Respondent on the issue of the specific language used, i.e. "hot".

6-13. Accepted

14-16. Accepted in part and rejected in part upon the greater weight of the credible competent substantial evidence as set out in FOF 7-8.

17-21. Accepted in part and rejected in part upon the greater weight of the credible competent substantial evidence as set out in FOF 9-14.

22. Accepted in part and rejected in part upon the greater weight of the credible competent substantial evidence as set out in FOF 17.

23-24. Accepted except as to inappropriate legal argument.

COPIES FURNISHED:

Brian T. Hayes, Esquire

245 E. Washington Street Monticello, Florida 32344

Thomas W. Brooks, Esquire Meyer & Brooks

1. O. Box 1547

   Tallahassee, Florida 32302

   
   

   Craig Marsh, Superintendent

   The School Board of Nassau County 1201 Atlantic Avenue

   Fernandina Beach, Florida 32034

   
   

   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 consult with 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.

   
   

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

   AGENCY FINAL ORDER

   ================================================================= BEFORE THE SCHOOL BOARD OF NASSAU COUNTY, FLORIDA

   IN RE: The Matter of

   EDWARD D. MacMILLIAN, DOAH CASE NO. 91-5589

   
   

   a Teacher.

   
   

   /

   
   

   FINAL AGENCY ORDER REJECTING FINDINGS OF FACT AND CONCLUSIONS OF LAW;

   ALLOWING EXCEPTIONS; FINAL ORDER OF DISMISSAL OF EMPLOYEE

   
   

   This matter was considered, after notice, by the School Board of Nassau County on the Recommended Order submitted on March 5, 1992 by Ella Jane P. Davis, duly assigned Hearing Officer of the Division of Administrative Hearings, State of Florida. Present were the Plaintiff, Craig Marsh, Superinten- dent of Schools, and his attorney, Brian T. Hayes, Monticello, Florida, Respondent, Edwin D. MacMillian, and his attorney, Thomas W. Brooks, Tallahassee, Florida.

   FINDINGS

   
   

   The Board members, after having read and reviewed the entire record in this case, concludes by a vote of four to one that the exceptions to the Recommended Order are well-taken and such exceptions are made a part of this Order and incorporated herein.

   
   

   The Board specifically finds that no reasonable person reading the record of evidence of this case and having reviewed the exhibits could have arrived to the conclusions that the Respondent, Edwin D. MacMillian, had not openly and consistently, in the presence of female students, used sexually suggestive remarks, innuendo and comments. This agency, therefore, finds that there was no evidence to support the conclusions of the Hearing Officer that the remarks were made "jokingly or in jest". This Board considers very serious the conduct of Respondent in making the disparaging and embarrassing remarks to his female students.

   
   

   The Board rejects as naive and not worthy of significance comments that the Hearing Officer determined that since no student "complained" of Mr.

   MacMillian's remarks, such remarks were not offensive, improper or grossly inappropriate. No reasonable person, the Board finds, therefore, could conclude that such remarks did not tend to embarrass or disparage the teenage female students of the Respondent, all of which were made at a school setting or at school functions.

   
   

   In light of the foregoing, the School Board of Nassau County finds as follows:

   
   

   1. The Respondent, EDWIN MacMILLIAN, at all times herein, was a classroom teacher employed by the School Board of Nassau County, Florida, and assigned to Hilliard Middle-Senior High School.

      
      

   2. He has been continuously employed by the School Board of Nassau County for the past nine years and has had no previous disciplinary matters.

      
      

   3. During the 1989-90 school year, the Respondent made improper and suggestive remarks to Jessica Smith, one of his students, regarding her clothing, which remarks she testified were of a sexual nature; specifically, he advised her she "would win a wet t-shirt contest", which caused the pupil embarrassment and discomfort. These statements were inappropriate, improper and constituted misconduct by an educator.

      
      

   4. Additionally, the Respondent made sexually suggestive remarks during a basketball game in 1989 in Charlton County, Georgia, to Jessica Smith when he asked her if she would like to tour the building with him since he knew "all the dark corners", which sexually suggestive remarks she considered to be improper. The student's reaction is appropriate and well-founded.

      
      

   5. Darlene Kelly, another student, testified as to improper and suggestive remarks which Mr. MacMillian made to her during the 1988-89 school year.

      
      

   6. Shannon Lysitt was a student in Mr. MacMillian's class during the 1991 school year. On more than one occasion, Mr. MacMillian commented, in the presence of other students, that Shannon looked "hot" and "good". She stated she felt the remarks were an embarrassment and a display of inappropriate conduct, inasmuch as he commented about her appearance and her body.

   7. In other conversations with Ms. Lysitt, Mr. MacMillian remarked upon her career potential, and I accept her testimony that Mr. MacMillian denigrated her in stating that she would never make the grade in psychology, but would most likely become a secretary.

      
      

   8. Sherry Meziere was a student in Mr. MacMillian's fourth period general math I class during the 1990-91 school year. On more than one occasion, the Respondent suggested that Sherry could improve her grade by staying after school. That comment was interpreted to be of a sexual nature, and I find that interpretation to be reasonable.

      
      

   9. Tammy McClamma was a student in Mr. MacMillian's class during the 1989-

90 year. In the presence of Jessica Smith, he commented that Tammy had a "nice- looking butt". I accept the testimony of Jessica Smith in this regard.

CONCLUSIONS OF LAW

1. The evidence is overwhelming that Edwin MacMillian is guilty of misconduct in office while employed by the Nassau County School Board.

   
   

2. I conclude that his pattern of conduct during the 1989 through 1991 time period demonstrates that he has been guilty of misconduct in office as defined by Rule 6B-4009, State of Florida, Department of Education.

   
   

3. I further find that his effectiveness as a teacher has been reduced, and I, therefore, accept the testimony of CRAIG MARSH, SUPERINTENDENT, in this regard.

   
   

4. The Plaintiff having withdrawn his claim of "Immorality" as defined by the State of Florida Department of Education, no finding or conclusion is made in this regard.

   
   

5. I conclude that the suspension which proceeded this hearing was appropriate and was supported by sufficient evidence.

   
   

   JUDGMENT OF DISMISSAL

   
   

   Respondent, EDWARD D. MacMILLIAN, having been found guilty of misconduct in office, as proscribed in Florida Statute 231.36(6) and said charges having been clearly established by competent evidence, it is

   
   

   ORDERED AND ADJUDGED that the Respondent, EDWARD D. MacMILLIAN, is herewith discharged as an employee and his suspension without pay is herewith ratified and confirmed. Respondent's continuing contract (professional services contract) is therefore cancelled and terminated.

   
   

   DONE AND ORDERED in open session this 23rd day of April, 1992.

   
   

   
   

   ROBERT B. JOHNSTON

   Chairman, School Board of Nassau County

   Copies furnished:

   
   

   Craig Marsh, Superintendent

   Thomas W. Brooks, Attorney for Respondent Brian T. Hayes, Attorney for Superintendent Ella Jane P. Davis, Hearing Officer

   
   

   CERTIFICATE OF SERVICE

   
   

   I HEREBY CERTIFY that copies of the foregoing Final Agency Order Rejecting Findings of Fact and Conclusions of Law; Allowing Exceptions; Final Order of Dismissal of Employee, has been furnished by mail, this 1st day of May, 1992, to: Thomas W. Brooks, Attorney for Respondent, Edward D. MacMillian, Meyer & Brooks, 2544 Blairstone Pines Drive, P. O. Box 1547, Tallahassee, Fl. 32302; Brian T. Hayes, Attorney for Craig Marsh, Superintendent, 245 E. Washington St., Monticello, Florida 32344; Ella Jane P. Davis, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Fl. 32399-1550.

   
   

   
   

   CRAIG MARSH Superintendent of Schools, Nassau County, Florida

   
   

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

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

   
   

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

   
   

   EDWIN D. MACMILLAN, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND

   Appellant, DISPOSITION THEREOF IF FILED.

   
   

   1. CASE NO. 92-1639

      DOAH CASE NO. 91-5589

      NASSAU COUNTY SCHOOL BOARD,

      
      

      Appellee.

      / Opinion filed December 9, 1993.

      An Appeal from an order of the school board (final agency). Thomas W. Brooks, of Meyer & Brooks, P.A., Tallahassee, for Appellant. Brian T. Hayes, Monticello, for Appellee.

      PER CURIAM.

      
      

      Appellant, Edwin MacMillan, is a former teacher of mathematics at Hilliard Middle-Senior High School who was suspended in May 1991 by Appellee, the Nassau County School Board, for his alleged "immorality" and "misconduct in office." The charge of immorality was dropped. Having determined in the initial administrative hearing that MacMillan's statements and behavior did not constitute misconduct in office, the hearing officer recommended that the School Board enter a final order dismissing the charges and returning MacMillan to full duty with back pay and all benefits, retroactive to May 9, 1991. At the conclusion of its own proceedings, the School Board rejected the hearing officer's findings of fact and conclusions of law, incorporated the exceptions taken to the recommended order, ratified MacMillan's suspension without pay, and ordered him to be discharged from employment based on misconduct in office.

      After carefully reviewing the record, we have determined that the School Board rejected certain findings of fact made in the recommended order that were supported by competent substantial evidence, and that it substituted its own judgment without any showing that the initial hearing was procedurally flawed or produced faulty conclusions of law. Additionally, the School Board relied on certain school-related incidents that occurred outside the time period embraced in the specific statement of charges. Based on these errors, the School Board's final order must be reversed. See section 120.57(1)(b)10., Fla. Stat. (1991); McPherson v. Sch. Bd. of Monroe County, 505 So. 2d 682, 683 (Fla. 3d DCA 1987); Forehand v. School Board of Washington County, 481 So. 2d 953, 955 (Fla. 1st DCA 1986); Heifetz v. Dep't of Bus. Reg., 475 So. 2d 1277 (Fla. 1st DCA 1985). We remand the case to the School Board with directions to reinstate MacMillan to his former position with full back pay and other benefits plus interest.

      Section 231.36(6), Fla. Stat. (1991).

      
      

      MacMillan was a nine-year veteran teacher in May 1991, when School Superintendent Craig Marsh verbally suspended him with pay based on section 231.36(6). Written confirmation of suspension followed the next day. Although the original basis of the suspension was MacMillan's alleged immorality and misconduct in office, only the latter charge remained at the time of the hearings. In a May 2, 1991 letter, the Superintendent informed MacMillan that an investigation had "revealed that at least eight female students stated that you have repeatedly made comments to them or about them which I consider as inappropriate." MacMillan was notified of his right to counsel (at his own expense) and right to a full hearing. A week later, the Superintendent' recommended that the School Board formally suspend MacMillan, which suspension was ratified, but without pay, pending the hearing. The grounds for suspension were MacMillan's purported "inappropriate, lewd or sexually oriented remarks to at least eight (8) minor female students who, at the time of such suggestive conversations, stood in a custodial relationship to him." Three months after the suspension, on August 8, 1991, Superintendent Marsh filed a specific statement of charges.

      
      

      Rule 6B-4.009(3), Fla. Admin. Code, defines "misconduct in office" as any violation of Rule 6B-1.1001 (Code of Ethics of the Education Profession in Florida) and Rule 6B-1.006 (Principles of Professional Conduct for the Education Profession in Florida) "which is so serious as to impair the individual's effectiveness in the school system." Rule 6B-1.006(2) provides that violation of any of the Principles shall subject the individual to revocation or suspension of the teacher's certificate or to other penalties as provided by law. Subsection (3) of this rule governs the individual educator's duty to the student and, relating to the specific charges against MacMillan, states in pertinent part:

      Obligation to the student requires that the individual:

      1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.

   * * *

   1. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

   2. Shall not intentionally violate or deny a student's legal rights.

   3. Shall not harass or discriminate against any student on the basis of . . . sex

      . . . and shall make reasonable effort to assure that each student is protected from harassment or discrimination.

   4. Shall not exploit a relationship with a student for personal gain or advantage.

   
   

   Because the context in which MacMillan made the alleged improper statements is critical to our determination of whether competent substantial evidence supported the findings of fact and conclusions of law in the recommended order, we quote at length the hearing officer's general findings regarding MacMillan's typical verbal interactions with his students in the classroom.

   
   

   1. Respondent has had a practice of greeting his students at random as they enter the classroom each day and while they are taking their seats and settling down to work. At all times material, these greetings were offered in the presence of students of both genders. Respondent teased the boys about sports and commented on the girls' appearance. The comments made most frequently by the Respondent to the football players were that they had not done well in the immediately preceding game. The comments made most frequently by the Respondent to all the female students were, "You're looking good; you're looking fine; you're looking hot;" or, more simply, "you're fine, you're hot." None of the comments were exclusive to any particular female student. All the comments were made out in the open, without any physical touching or aggression on Respondent's part. He made these comments with no intended sexual connotation, and no female student ever expressed to him directly that she objected to these greetings either because they sounded sexual in nature, were too familiar, or were made in the presence of the female students' male peers.

   2. Generally, Respondent's comments were recognized as kidding and not taken seriously or considered objectionable by the students.

There is no evidence that the Respondent's comments delayed the commencement of class, caused disruptive behavior on the part of either the male or the female students who heard them, or inhibited any student learning the academic material.

In Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985) we held that "deviation from a standard of conduct is essentially an ultimate finding of fact clearly within the realm of the hearing officer's fact-finding discretion." The administrative rules on which the School Board based its rejection of the recommended order constitute the same sort of provisions governing professional conduct as were involved and discussed in Holmes.

The statement of charges specifically alleged that MacMillan's objectionable comments and conduct all occurred during the 1990-91 school year. The allegations at issue here were made in Paragraphs 4, 5, 6 and 7. We need not further address Paragraph 5, which alleged "offensive conduct" against D.P., because the record otherwise contains no reference to any such female student or to that specific allegation.

Paragraph 4

This section alleged that MacMillan "made suggestive, degrading and sexual innuendos and remarks to a minor referred to as S.L., which conduct was improper, unprofessional and intended to lead to an improper sexual relationship with said student." Our review of the testimony indicates that the record amply supports the hearing officer's findings that although certain remarks might have proved "temporarily embarrassing," S.L.'s own testimony suggests that she felt neither degraded nor humiliated by the statements. Even if we accept the conclusion of law that one remark technically violated aspirational Rule 6B- 1.006(3)(e) (intentional exposure of a student to unnecessary embarrassment or disparagement), we cannot ignore the fact that the record is devoid of competent evidence proving that any violation of policy was "so serious as to impair the individual's effectiveness in the school system." There being competent substantial evidence to support the hearing officer's findings and conclusions concerning S.L., the School Board was not in a position to reject or modify that portion of the recommended order.

Paragraph 6

This section alleged that MacMillan "made improper sexual suggestions to a female student referred to as S.M." MacMillan denied that his comment included any sexual intent, and at the hearing, he provided a reasonable and logical explanation for offering tutorial assistance to S.M. in his class after school, just as he had assisted other students without incident. Although she did not feel comfortable about MacMillan's offer, S.M. conceded that MacMillan's statement could be interpreted nonsexually as well. The hearing officer noted that although MacMillan perhaps "fell short in not clearly indicating all his reasoning and purpose" to S.M., she had never voiced any objection to MacMillan or otherwise indicated her discomfort over the situation. Like S.L., S.M. considered MacMillan to be a good teacher. Despite the fact that competent substantial evidence supported the hearing officer's findings and conclusions regarding MacMillan's behavior toward S.M., the School Board improperly rejected that interpretation of the facts and accepted S.M.'s interpretation of the comment as the more reasonable explanation.

Paragraph 7

This allegation alluded to "5 additional similar incidents in which Respondent, throughout the 1990-91 school year and perhaps before, made improper, suggestive and sexually oriented remarks to female students." (Emphasis added.) In the recommended order, the hearing officer concluded, "The Statement of Charges herein embraced only incidents alleged to have occurred during the 1990-1991 school year, and accordingly only those incidents proven to have occurred during that time frame may be used to discipline Respondent." We agree. See Conklin Center v. Williams, 519 So. 2d 38 (Fla. 5th DCA 1987) (a party to an administrative proceeding is entitled to notice of the issues to be presented, as a matter of due process). Our review of the statement of charges indicates that all of the alleged incidents were said to have occurred during the 1990-91 school year, except that Paragraph 7 refers to some vague time "perhaps before" then. The statement of charges was never amended or clarified as to any period beyond the 1990-91 school year. The fact that the School Board based its dismissal of MacMillan partly on events that occurred outside the

1990-91 school year is a key element of MacMillan's argument for reversal of the final order. The above- quoted statement of the hearing officer manifests her concern that the record on which the School Board would base its weighty decision accurately reflect the specific incidents, and the timing thereof, giving rise to the charges. In his exceptions to the hearing officer's findings fact and conclusions of law, Superintendent Marsh did not challenge the fact that the recommended order was based exclusively on a consideration of events during the 1990-91 school year. Under these circumstances, we think that any expansion of the scope of the initial hearing to address and determine matters not previously noticed for hearing would have violated MacMillan's due-process rights. Epic Metals Corp. v. Samari Lake East Condominium Ass'n, Inc., 547 So. 2d 198 (Fla. 3d DCA 1989). MacMillan's concern about violations of due process is accentuated by the fact that, although his suspension occurred in early May 1991, he was not provided with a statement of charges until August of that year.

These allegations were addressed in testimony presented by female students D.K., T.M., J.S., and S.H., whose testimony indicated either that the comments and acts at issue occurred outside the time period contemplated in the statement of charges or else failed to meet the prerequisites for teacher suspension or dismissal. Regarding the various statements at issue in the proceedings below, MacMillan steadfastly denied ever intending to say anything improper or to harm a student, and the hearing officer so found. Crawley v. Department of Highway Safety and Motor Vehicles, 616 So. 2d 1061, 1063 (Fla. 1st DCA 1993) (determination of whether violation of DHSMV policy was willful was a factual matter for the hearing officer, which the reviewing agency could not reject if supported by competent substantial evidence). From our consideration of the overall record and the detailed explanation offered by the hearing officer to support her findings of fact, we must disagree with the School Board's determination that no reasonable person could have arrived at the same result as the hearing officer. That is not to say that we condone MacMillan's admittedly poor judgment in making some of the disputed remarks. Where a school board seeks to dismiss a teacher on the basis of misconduct in office, it must establish each and every element of the charge. See Jenkins v. State Board of Education, 399 So. 2d 103 (Fla. 1st DCA 1981).

We reiterate that Rule 6B-4.009(3) defines misconduct in office as a violation of the Code of Ethics and the Principles of Professional Conduct "which is so serious as to impair the individual's effectiveness in the school system." School Superintendent Marsh opined that MacMillan's effectiveness as a

teacher had been seriously impaired due to the charged behavior, and that termination was the only appropriate penalty for MacMillan's acts.

Considering the severity of the charges and the number of students who gave live testimony, we find it striking that the students consistently stated that MacMillan was "generally well- regarded" and was "everyone's favorite teacher." The record supports the hearing officer's conclusion as to the issue of effectiveness:

The testimony that Respondent's actions establish a pattern of serious misconduct is not borne out by the record evidence, nor has it been established that Respondent's actions have rendered him so ineffective as a teacher that he should be dismissed in the face of affirmative evidence of good teaching skills. It also has not been established how Respondent's proven conduct, when separated from the allegations not proven, affected Respondent's employment or effectiveness in the community apart from the notoriety resulting from Petitioner's own investigation.

Other than the Superintendent's conclusory remarks, we find no evidence demonstrating loss of effectiveness in the school system. Accordingly, the order dismissing MacMillan must be reversed. Baker v. School Board of Marion County, 450 So. 2d 1194 (Fla. 5th DCA 1984) (publicity attendant to allegations of misconduct in office and immorality was not, of itself, a proper basis for a finding of impaired effectiveness as a teacher); Braddock v. School Board of Nassau County, 455 So. 2d 394 (Fla. 1st DCA 1984).

The final order of the School Board is REVERSED, with directions to reinstate MacMillan to his former position with full back pay and other benefits plus interest.

MINER, WEBSTER and MICKLE, JJ., CONCUR.

Docket for Case No: 91-005589

Orders for Case No: 91-005589