STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

vs. ) CASE NO. 91-6677

)

SAMUEL LEE ROBERTS, )

)

Respondent. )

) CRAIG MARSH, SUPERINTENDENT, )

)

Petitioner, )

vs. ) CASE NO. 92-0218

)

SAMUEL LEE ROBERTS, )

)

Respondent. )

)

RECOMMENDED ORDERS

Notice was provided and on February 20 and 21, 1992, a formal hearing was held in these cases at 1201 Atlantic Avenue, Fernandina Beach, Florida.

Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner Castor: Lane Burnett, Esquire

331 East Union Street, Suite 2 Jacksonville, Florida 32202

For Petitioner Marsh: Brian T. Hayes, Esquire

245 East Washington Street Monticello, Florida 32344

For Respondent: Thomas W. Brooks, Esquire

Meyer and Brooks, P.A. 2544 Blairstone Pine Drive Post Office Box 1547

Tallahassee, Florida 32302 STATEMENT OF ISSUES

The issues in these cases concern administrative prosecutions in which Commissioner Castor seeks to discipline the Florida Teaching Certificate held by Respondent and Superintendent Marsh has brought charges seeking to dismiss the Respondent from his teaching duties with the Nassau County School District. The alleged offenses described in the Administrative Complaint by Commissioner Castor and the Statement of Charges by Superintendent Marsh are the same as they

detail misconduct associated with inappropriate touching of students male and female, inappropriate remarks, some of a sexual nature, to include drawing innuendos from statements made by students in his class and the use of profanity in front of and directed to students. The Administrative Complaint by the Commissioner differs from the Statement of Charges by the superintendent in that the Commissioner makes allegations about the conduct of the Respondent in the school year 1985-86 while the Statement of Charges by the superintendent does not. In addition Commissioner Castor accuses Respondent of making racially biased remarks in class and of offering a false report to school administrators and police officers concerning alleged harassment with racial overtones directed to the Respondent who is a black man in a setting in which these actions by the students were made in a joking manner and the Respondent acknowledged them in that fashion. Moreover, the Administrative Complaint asserts that the Respondent knew who the students were who had given him certain items with connotations which evidence racial hatred and bigotry and failed to reveal their names to the authorities. The items are referred to in the Administrative Complaint as a rope noose, a wooden tombstone and a miniature coffin. Mention is made in the Administrative Complaint that the Respondent was charged with giving false information to a police officer concerning the alleged commission of a crime by the students in this setting in which the students did not intend offense and Respondent took no offense concerning the items in question and notes given to the Respondent by the student containing racially biased material. Finally, the Administrative Complaint by Commissioner Castor speaks of the Respondent's participation in a pretrial intervention deferred prosecution agreement through the Fourth Judicial Circuit of Florida where Respondent agreed to perform community service hours, thereby deferring the prosecution for a period of six months. In all particulars the Respondent denies that he has engaged in any misconduct.

PRELIMINARY STATEMENT

When served with the Administrative Complaint and Statement of Charges Respondent requested a formal hearing to dispute the operative facts found within the charging documents. The parties agreed to a consolidated hearing. Case disposition is by separate fact finding where applicable, separate legal discussion and independent recommended outcome. All facts which are found in this recommended order coincide with the preponderance of proof and clear and convincing standards which have application to the prosecutions by the Superintendent and Commissioner respectively. The index in the hearing transcript lists those witnesses who testified and describes the exhibits admitted into evidence.

The parties were given leave to submit proposed recommended orders twenty days from the date upon which the transcript was filed with the Division of Administrative Hearings. At the request of the Respondent that time for filing proposed recommended orders was extended by two days. In accordance with Rule 221-6.031, Florida Administrative Code, the requirement for having the Hearing Officer enter a recommended order within thirty days from the date upon which the transcript was filed as announced in Rule 28-5.402, Florida Administrative Code, has been waived. The transcript was filed March 11, 1992. The last proposed recommended order was filed by counsel to the Superintendent on April 9, 1992, beyond the extended deadline for filing proposed recommended orders which deadline was April 2, 1992. Nonetheless, the proposed recommended orders of all parties and the Respondent' brief in support of its proposed recommended order in the two cases have been considered in preparing the recommended order. The fact finding suggested in the proposed recommended orders is commented on in an appendix to the recommended order.

FINDINGS OF FACT

1. Respondent holds a valid Florida teaching certificate, No. 150877. That certificate allows him to teach in the areas of business education, mathematics, social studies and vocational education and is valid through June

   :30, 1995-.

   
   

2. Respondent has been an employee of the School Board of Nassau County since 1979. He teaches mathematics at West Nassau High School in Callahan, Florida where he also serves as the chairman of the mathematics department.

   
   

3. Respondent taught general math to a male student, Joey Roundtree, in the school 1985-86. One day while the student was in class he stood at Respondent's desk. Respondent was to the right of the student seated his chair. The student laid a book or piece of paper down and the Respondent reached across to pick up the book or paper and the back of his hand touched the student in the area of his midsection or the zipper of his pants. Respondent's hand moved straight across. Nothing was said by Respondent to the student at that time nor did Respondent make any facial gestures at that time. The student said nothing to the Respondent about this and no other action of this nature occurred between the Respondent and the student on any other occasion. While the Administrative Complaint by the Commissioner describes it as inappropriate conduct in that the Respondent is alleged to have "reached across the desk and brushed against the student's lower midsection", this touching by the Respondent is not found to be inappropriate. It is also significant that counsel to the Commissioner in the proposed fact finding does not urge upon the fact finder that this touching was inappropriate.

   
   

4. While Joey Roundtree was in Respondent's general math class in the school year 1985-86 he recalls Respondent making sexually suggestive comments or innuendoes from statements made by other students. While Roundtree can not recall specific statements as they were made he remembers that generally the nature of the exchange between Respondent and a student would be to the effect that the student would say something like, "this is a hard question" and Respondent would say "well it's extremely hard" and in doing so the Respondent would emphasize the word hard. Roundtree recalls walking between the desks on several occasions at which time the Respondent would stare below Roundtree's belt until Roundtree arrived at Respondent's desk at which time time Respondent would lick his lips and look above his glasses. On many occasions Roundtree observed, almost daily, that if a comment was made about length, size or shape that the Respondent would turn this around in a suggestive way that was sexual.

   
   

5. Roundtree in his 1985-86 school year understood that the Respondent was referred to as "Dirty Rob" and after being in class Roundtree recognized that the basis for that name was associated with what Roundtree refers to as dirty and nasty and suggestive conduct by the Respondent. These terms by Roundtree equate to sexual innuendos by the Respondent. `This even extended to Respondent and his conduct involving sexual innuendos out of the classroom and in the hallway.

   
   

6. Roundtree observed that the Respondent in emphasizing the word "hard" would make facial gestures by looking down above his glasses and licking his lips at Roundtree as a member of the class and smiling and laughing when he said the word "hard".

7. Roundtree recalls Respondent making comments to female members of the class of a sexual nature in the school year 1985-86 but cannot specify what those comments were. He did observe that they were accompanied by liplicking and smiling. Those actions by the Respondent met with comments by some of the female students to the effect "you're being nasty" or "I know what your trying to say," to which the Respondent would reply that "well, your mind is in the gutter". Roundtree has no recollection that the female students appeared embarrassed by the actions of Respondent directed to them, actions which were an every day occurrence.

   
   

8. Allegations in the Administrative Complaint and Statement of Charges concerning the school year 1989-90 as to inappropriate and unprofessional conduct involving the touching of the breast and buttocks of a female student, sexually suggestive comments to a female student, inappropriate comments to a female student about her appearance, touching a male student in the genital area, making innuendoes from statements made by students and the use of profanity in front of and directed at students were not proven except to this limited extent:

Dana Kriete was a math student taught by the Respondent in the year 1989-

1. She overheard the Respondent talk about a girl's breasts, how large they were. That girl was Dell Evans. More specifically Respondent commented that he wondered "what her boyfriend could do with them," referring to Evans' breast. This comment was made in the presence of other students and loud enough so that the other students could have heard the remarks. When the remarks were made about Dell Evans, Evans appeared upset. The general remarks about Dell Evans were made on approximately five occasions. Kriete also overheard the Respondent use profanity in the classroom, specifically the words "ass" and "damn."

   
   

   1. In the school year 1990-91 Respondent taught consumer math to Carla Bass, a female student. Bass routinely attended class which was held on each school day, five consecutive days. While attending class Bass overheard the Respondent make sexually suggestive comments. Most of these comments were directed to Sylvia Brantley, a female student, regarding the breasts of Ms. Brantley. Bass overheard Respondent describe how big Sylvia Brantley's breasts were. Bass also heard Respondent say in class that when Brantley was asleep that Respondent was going to "kiss Brantley and wake her up like they do in Snowwhite". These remarks by Respondent were stated loud enough for other students to hear them.

      
      

   2. In the school year 1990-91 Bass heard Respondent refer to a female student whose name is Christine Hughes as Christine "Huge" which was an innuendo having to do with the student's breasts.

      
      

   3. Bass observed that when Respondent would make remarks about Brantley and Hughes that Brantley and Hughes would appear embarrassed.

      
      

   4. In the school year 1990-91 Bass observed the Respondent while staring at her breasts lick his lips and roll his eyes. Bass observed the Respondent lick his lips and raise his eyebrows while looking at other female students in particular certain parts of their bodies.

      
      

   5. While Bass was in the Respondent's class in the school year 1990-91 she overheard Respondent make suggestive comments about a student Jason Englert whom Respondent referred to as "inch". Englert would be cheating in class and giving out answers to other students and would refer to a measurement associated with inches to which the Respondent said, "yeah, I heard that's how long it was"

      taken by the student Bass as a sexual connotation referring to Englert's genitals. That connotation could be drawn by Bass from the remarks made by Respondent concerning the student Englert.

      
      

   6. The use of sexual connotations in the classroom made Bass feel uncomfortable and embarrassed her.

      
      

   7. On one occasion in the school year 1990-91 Respondent told Bass to "get the hell out of his classroom." This had occurred at a time when Bass was disrupting the Respondent.

      
      

   8. As previously alluded to, Respondent taught math to Sylvia Brantley in the school 1990-91. At hearing Brantley described events in the Respondent's classroom. She recalled the sexually suggestive manner in which the Respondent spoke of Christine Hughes as being Christine "Huge." This was done in Brantley's presence while Respondent called the class attendance roll. This occurred throughout the time that Christine Hughes was in school in that academic year.

      
      

   9. In the school year 1990-91 Brantley overheard Jason Englert give answers out in class referring to "an inch" and the Respondent would say something that had a sexual connotation, to the effect, "is that all it is" or "I know that's how small it is". Brantley observed the Respondent roll his eyes and lick his lips after making statements in the class that had a sexual connotation. Brantley observed the Respondent look at the breasts and as she refers to it "the behind" (posterior) of a female student while rolling his eyes and licking his lips. Brantley also observed the Respondent roll his eyes and lick his lips while looking at male students. The class which Brantley attended in the school year 1990-91 had approximately 28 to 30 students.

      
      

   10. Sabrina Silcox was a female student in Respondent's math class in the school 1990-91. When the Respondent would refer to her name in class he would refer to her as Sabrina "Silcock." This was a reference which had a sexual connotation. Respondent made this reference twice during the school year. This reference was made in front of approximately 20 students. On one occasion someone came to the class to get Sabrina Silcox and asked for her by that name, to which Respondent said "do you mean Sabrina Silcock." The person who had called for the student in the class then said "no sir, Sabrina Silcox". Silcox recalls that in class she observed the Respondent "do a little smirk and then do his eyes or something like that, just look at us out of his eyes, the corner of his eyes funny and stuff". Silcox did not pay any attention when Respondent made these gestures. Silcox indicated that at times she was embarrassed by Respondent's mispronunciation of her name. When she observed Respondent make the gestured with his facial expressions the other students would laugh and she was unaware if any of those students were embarrassed by Respondent's actions.

       
       

   11. Stella Darlene Metts, a female student, was taught math by the Respondent in the school year 1990-91. While in the class she heard Respondent make sexually suggestive comments. She heard Respondent refer to Christine Hughes as Christine "Huge," seen as a sexual innuendo referring to the student Hughes's breasts. An innuendo which was correctly interpreted by Metts under the circumstances in which that reference was made by the Respondent.

       Respondent made these remarks about the student Hughes while looking at her in a manner which Metts describes as perverted. Metts also saw the Respondent look at Sylvia Brantley in that fashion. The looks made toward Hughes were to Hughes's breasts. Respondent then would look back at the rest of the class and laugh about the situation with Hughes. Christine Hughes had large breasts, as

       observed by Metts when commenting about the events in Respondent's classroom, and when Respondent would look at Hughes's breasts the male students in the class would think that these antics were funny because to looking at Hughes's breasts Respondent would gain the attention of the male students in the class and laugh. The male students would state, while the Respondent was looking at Hughes, "yeah look at Mr. Roberts looking at you you better not wear red". The reference to the color red had to do with Respondent's expressed fondness for that color.

       
       

   12. Crystal Hicks, a female student, was in a math class taught by the Respondent in the 1990-91 school year. In the class Respondent made sexual innuendo statements in front of Hicks. First, reference football players Respondent stated, "all they do is get out of class and get down and hut all day up the butt." In referring to the band members Respondent stated, "all they do is beat and blow all day." As Hicks established, these statements were made "every now and then". Hicks observed the Respondent raise his eyebrows and stick his tongue out, like licking his lips, when staring at female students in the class. She was unable to determine exactly where those stares were directed concerning the students' bodies. About the use of profanity, which Hicks described Respondent using in class, the swear words "damn" and "hell" are found to have been stated in the presence of that witness.

       
       

   13. Jennifer Yawn, a female student, was in Respondent's math class in the school year 1990-91. Yawn described how Respondent would act if Yawn were chewing gum, that Respondent would say to "quit advertising." Yawn described the sexual connotations behind the remarks of the Respondent as "he would just say it like you were doing something with a sucker", by which Yawn meant that Respondent was describing what the student was doing with a sucker. While making the remarks about advertising Yawn saw the Respondent raise his eyebrows and lick his lips. The comments about advertising with the gum had to do with the instances in which the student blew bubbles. This made Yawn uncomfortable. Yawn also heard the Respondent use profanity in class, the words "hell" and "damn."

       
       

   14. Jason Englert was a male math student taught by the Respondent in the school year 1990-91. He overheard Respondent talk about Sylvia Brantley's breasts in the classroom, in an instance in which Respondent called Sylvia Brantley's breasts "pillows." He recalls sexual gestures by the Respondent when he was talking to Ms. Brantley. Those gestures involve staring at Ms. Brantley's breasts, moving his eyebrows and licking his lips. In addition Respondent made a sexually suggestive comment to Englert while Englert was walking away from the Respondent's desk. Englert glanced back at the Respondent and Respondent was looking at Englert's "butt," (posterior) Englert put his hands over his posterior, to which Respondent said, "well, that's the part I want to see." There were other persons standing by the desk who could have heard the remarks by Respondent. Those persons looked at Englert and laughed. This circumstance did not bother Englert. Englert also overheard the Respondent speak of Carla Bass and her breasts as being "pillows."

       
       

   15. Students other than Joey Roundtree, (school year 1985-86), who were in the Respondent's classes in the school year 1990-91 and who testified at the hearing made mention of the Respondent's nicknames "Dirty Rob" and "Red Rob". These references have to do with perceived conduct by the Respondent leading to the impression that his personality was that of an individual who was perverse, having to do with his involvement with sexual innuendoes. The students knew of Respondent's reputation for sexual innuendos before entering the classroom.

       Such knowledge might influence their reaction to Respondent's conduct which they

       observed first hand. However the impression which the students gained from his actions in the classroom as reported in these facts were not so influenced by his prior reputation that the students are found to have misinterpreted Respondent's intentions by his remarks and facial expressions which had sexual connotations. In crediting the testimony by the students which pointed out the inappropriate conduct by Respondent in engaging in sexual innuendoes, some of the circumstances which the students identified as being in a similar category have been discounted and any doubt about Respondent's conduct in those instances resolved in his favor. Moreover the decision to favor the impression which the students had about some of these events recognizes that the classroom conduct by some of the students who testified at the hearing was less than commendable in its own right. The conduct by those students did not control or excuse Respondent's improprieties in engaging in sexual innuendoes. The fact that some students who had been in the Respondent's math classes at various years, after the school year 1985-86 but including the school years 1989-90 and 1996-91 did not observe the Respondent participate if any form of misconduct involving sexual innuendoes does not change the impression held about the testimony given by students who described those sexual innuendoes. This refers to testimony by Vicki Giveons and Bryan Hopkins who did not observe misconduct by the Respondent in their classes. The classes that they attended were different from the classes attended by witnesses who identified Respondent's sexual innuendoes.

       Finally, Respondent's testimony concerning these events in which he has been found to have acted inappropriately with regard to sexual innuendoes is rejected.

       
       

   16. Racial discussions were held in the Respondent's classes; however, the remarks which he made about racial issues were not biased when examined in the context of the testimony presented at hearing.

       
       

   17. Likewise the Respondent did not engage in any form of misconduct for which he is held accountable pertaining to the racially inflammatory notes, racially inflammatory replica of a grave site cross, racially inflammatory replica of a grave site tombstone, and racially inflammatory replica of a coffin and funeral carriage. Jeff Rieves, a male student in one of Respondent's math classes in the school year 1990-91 was responsible for producing the notes and other paraphernalia. Rieves contends these items were produced in an environment that was cordial or done in the way of a joke. Although the Respondent created the appearance that he was somewhat indulgent concerning the insensitive acts by the student, a stance taken by the Respondent to minimize the impact created by the correspondence and paraphernalia, Respondent did not believe that these incidents were intended to be all in good fun. It is not accepted that Rieves gave the notes and paraphernalia to the Respondent intending it wholly as a joke and that the Respondent perceived that these items were presented as a joke. Whether what extent Rieves intended his actions to have a more sinister influence, to the extent that you could say that Rieves intended racial harassment is less clear. Being uncertain concerning the student's intent, Respondent was prudent to make officials within the Nassau County School District aware that these circumstances existed and to be a willing participant in the investigation that ensued by the Nassau County Sheriff's Office. When interviewed by the principal at his school and officers from the Nassau County Sheriff's Office, both before and after the law enforcement officials had spoken to Jeff Rieves about this incident, Respondent did not name Rieves as the individual who had prepared the tombstone, coffin and funeral carriage.

       Whatever suspicions the Respondent may have had that Rieves was the person who had constructed these items, especially given the realization that Rieves had written notes with overtones that bore a racial threat, those notes having been sailed in Respondent's direction by Rieves as paper airplanes, Respondent did

       not know absolutely that Rieves had constructed the paraphernalia. Contrary to Rieves' assertion, the cross, headstone, coffin and funeral carriage were not handed overt directly to the Respondent as Rieves had told the law enforcement officers when interviewed. Respondent discovered these items where Rieves had left them in his class.

       
       

   18. Having held their conversation with Rieves, rather than confiding to the Respondent that the sheriff's office had ascertained who the culprit was, the officers for reasons that are not apparent, chose to believe Rieves' comment to the effect that Rieves had directly presented the paraphernalia to the Respondent and to confront the Respondent with this belief by asking the Respondent once again who the person was who had created the paraphernalia.

       
       

   19. When Respondent did not respond that Rieves was the person who had prepared the paraphernalia in a setting in which the sheriff's office was convinced that he did know, he was charged with giving false information to a police officer concerning the alleged commission of a crime by claiming that he had been harassed by persons not known to the Respondent when indeed he knew who the individual was who had constructed the paraphernalia. Under summons the State Attorney's Office for the Fourth Judicial Circuit of Florida took action against the Respondent on the theory of the false reporting concerning the alleged commission of a crime in Case No: 91-301218, August 1, 1991. This matter was disposed of through the misdemeanor pretrial intervention program involving deferred prosecution. Respondent served the 40 hours of community service contemplated by the disposition in the case. He did this upon advice of counsel that if he went to a trial that he might not prevail in that case.

       
       

   20. Notwithstanding his decision to conclude the court action by subjecting himself to the requirements set forth in the pretrial intervention, for purposes of this hearing it is not found that the statements which Respondent made concerning his knowledge about the person who had constructed the paraphernalia were false, in that Respondent did not know with certainty who had prepared the paraphernalia.

       
       

   21. Although the sheriff's office interviewed Rieves and another individual Michael Lloyd who had been involved in the creation of the paraphernalia, neither the sheriff's office nor the administrative prosecutor sought to verify the information received from the culprits who had created the paraphernalia to determine from a more unimpeachable source that Respondent knew who had created the paraphernalia, in that the Respondent had been given the paraphernalia personally in the classroom as Rieves describes, before attributing false motives to the Respondent in complaining about the racial harassment. This could have been achieved by interviewing students who would have been in attendance at the time when Rieves purportedly presented the paraphernalia to the Respondent in the classroom. Absent that effort Respondent was charged upon information provided by a less than credible source and tried in the present case, leading to the impression that Respondent's explanation about this event is more compelling.

       
       

   22. Craig Marsh, Superintendent, Nassau County School District, a professional educator, was accepted as an expert in the field of education. As an expert Marsh expressed the opinion that the Respondent, based upon his participation in the sexual innuendos discussed in the fact finding, were matters so serious that they impaired Respondent's effectiveness in the school system.

       
       

       That opinion is accepted.

       CONCLUSIONS OF LAW

       
       

   23. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in these cases in accordance with Section 120.57(1), Florida Statutes.

       
       

   24. In proving this case the commissioner must satisfy the burden by presentation of clear and convincing evidence. See Turlington v. Ferris, 510 So.2d 292. (Fla. 1987) and the superintendent must offer proof which is preponderant See Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3rd DCA 1990).

       
       

   25. Concerning those paragraphs in the complaining documents where facts have been found the Petitioners have satisfied their respective burdens of proof. In this connection the allegations in Paragraphs 3(b), 4(c), 5(b), (excluding reference to Darlene Metts), 5(d), 5(e), 5(f) and 5(g) too the Administrative Complaint have been proven. Otherwise the factual allegations set out in the Administrative Complaint have not been proven. In the Statement of Charges, Paragraphs 2(c), 3(b), (excluding Darlene Metts), 3(d), 3(e), 3(f) and 3(g) have been proven. Otherwise the factual allegations set out in the Statement of Charges have not been proven.

       
       

   26. In the Administrative Complaint Petitioner is charged with violating Section 231.28(1)(c), Florida Statutes, in that he has been guilty of gross immorality or an act involving moral turpitude. Concerning the factual incidents found related to the paragraphs in the Administrative Complaint described before, Respondent is guilty of gross immorality and moral turpitude in his involvement in sexual innuendos with the students. To this extent he has violated the first count in the Administrative Complaint.

       
       

   27. Count II accuses the Respondent of violating Section 231.28(1)(h), Florida Statutes, in that he is said to have violated the provisions of law or rules of the State Board of Education in a setting in which the penalty for that violation is revocation of the teaching certificate. This in turn refers to the remaining counts in the Administrative Complaint alleging violations of various provisions of the rules of the State Board of Education.

       
       

   28. Count III accuses the Respondent of violating Rule 6B- 1.006(3)(a), Florida Administrative Code, which makes its incumbent upon the Respondent to make a reasonable effort to protect the students from conditions which are harmful to learning or to health or safety. Again in the instances reported in the facts related to sexual innuendos and use of profanity Respondent has failed to make a reasonable effort to protect the students from conditions harmful to learning. In a similar vein as spoken to in Count IV to the Administrative Complaint, Respondent has violated Rule 6.1006(3)(e), Florida Administrative Code, in that he has intentionally exposed the students to unnecessary embarrassment or disparagement by his involvement in sexual innuendos.

       
       

   29. Count V accuses the Respondent of misconduct by violation of Rule 6B- 1.006(5)(a), Florida Administrative Code, by failing to maintain honesty in all professional dealings. Count VI of the Administrative Complaint accuses the Respondent of a violation of Rule 6B-1.006(5)(g), Florida Administrative Code, by submitting fraudulent information on any document in connection with professional activities. These latter two counts are associated with his involvement with the report of harassment and failure to disclose the name of the individual who had constructed the paraphernalia. The factual allegations

       are set out in Paragraph 6 and 7 to the Administrative Complaint. Counts V and VI have not been proven for reasons described in the fact finding.

       
       

   30. In the Statement of Charges drawn by the superintendent the Nassau County School Board seeks to dismiss the Respondent from his employment under authority set forth in Section 231.36(6), Florida Statutes, for alleged misconduct in office. Misconduct in office as described in the Statement of Charges is referred to in Rule 6B-4.009(3), Florida Administrative Code, as a violation of Code of Ethics of the Education Profession adopted in Rule 6B-1.01, Florida Administrative Code, and the Principles of Professional Conduct in Florida adopted in Rule 6B-1.006, Florida Administrative Code, the quality of these violations being so serious as to impair the individual teacher's effectiveness in the school system. By that standard through his sexual innuendos described in the fact finding, Respondent has acted contrary to Rule 6B-1.001, Florida Administrative Code, and Rule 6B-1.006, Florida Administrative Code, in a manner, as Superintendent Marsh describes, that was so serious as to impair Respondent's effectiveness in the school system. Thus, the misconduct in office defined in Section 231.36, Florida Statutes, for which discipline can be imposed has been established. See Braddock v. School Board of Nassau; County, 455 So.2d 394 (Fla. 1st DCA 1984).

RECOMMENDATIONS

Based upon the findings of fact and the conclusions of law reached, it is, RECOMMENDED:

1. That the School Board of Nassau County enter a final order which dismisses the Respondent from his employment as a continuing contract teacher based upon the violations found.

   
   

2. That the Education Practices Commission suspend Respondent's teaching certificate for a period of three years during which time Respondent shall submit himself to evaluation by a qualified professional to ascertain the underlying causes for the conduct which has brought about this discipline. If the qualified professional believes that Respondent needs to participate in a program to gain insight and correct any underlying condition in the interest of the Respondent and his prospective students, then Respondent shall cooperate in that endeavor. If Respondent fulfills any necessary requirement for counseling or if counselling is not deemed necessary, then the last year in the suspension period shall be served in a probationary status during which time Respondent shall not engage in conduct which violates Chapter 231.28, Florida Statutes, and the associated rules found within Chapter 6B, Florida Administrative Code.

DONE and ENTERED this 13th day of May, 1992, in Tallahassee, Florida.

CHARLES C. ADAMS 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 13th day of May 1992.

APPENDIX CASE NO. 91-6677

The following discussion is given concerning the proposed facts of the parties:

Petitioner Castor

Paragraphs 1 through 13 are subordinate to facts found, except the date in Paragraph 7 which should be 1989-90.

Paragraphs 14 through 16 are rejected for reasons of credibility. Paragraphs 17 through 19 are subordinate to facts found.

Paragraph 20 is rejected.

Paragraphs 21 through 24 4re subordinate to facts found. Paragraph 25 is rejected.

Paragraph 26 is subordinate to facts found with

exception to the last phrase of profanity which is rejected.

Paragraphs 27 through 42 are contrary to facts found in their suggestion that the Respondent acted in a racially biased manner or gave false information or reports as alleged in the Administrative Complaint.

Paragraph 43 is subordinate to facts found.

Paragraphs 44 through 46 are not necessary to the resolution of the dispute. Paragraphs 47 and 48 1 not necessary to the resolution of the dispute and are contrary to the legal conclusions drawn.

Petitioner Marsh

Paragraph 1 is subordinate to facts found..

Paragraph 2 see discussion of Paragraphs 1 through 26 for Petitioner Castor. Paragraph 27 is subordinate to facts found.

Paragraphs 28 and 29 are not necessary to the resolution of the dispute.

Respondent's Facts in the Prosecution by Commissioner Castor Paragraph 1 is subordinate to facts found..

Paragraphs 2 through 36 are not necessary to the resolution of the dispute. Paragraph 37 is contrary to facts found.

Paragraph 38 in its first two sentences are subordinate to facts found. The remaining sentence is rejected as it attempts to absolve the Respondent of his conduct.

Paragraph 39 is contrary to facts found.

Paragraph 40 is consistent with the disposition of the case. Paragraphs 41 through 43 are contrary to facts found.

Paragraph 44 is consistent with the disposition in the case as are Paragraphs 45 through 48.

Paragraph 49 is subordinate to facts found where it describes use of profanity but conary to facts concerning the number of times.

Paragraph 50 is rejected in its attempt to be persuasive in countering the notion that Respondent used profanity in the classroom more than an isolated incident.

Paragraphs 51 and 52 are subordinate to facts found.

Paragraphs 53 and 54 are not necessary to the resolution of the dispute.

Paragraph 55 is subordinate to facts found.

Paragraph 56 is not necessary to the resolution of the dispute.

Respondent's Facts in the Prosecution by Superintendent Marsh Paragraph 1 is subordinate to facts found.

Concerning Paragraphs 2 through 15, see discussion of facts in the Castor prosecution, Paragraphs 3-7 through 50.

COPIES FURNISHED:

Thomas W. Brooks, Esquire Post Office Box 1547 Tallahassee, FL 32302

Karen 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 Burnett, Esquire

331 East Union Street, Suite 2 Jacksonville, FL 32202

Brian T. Hayes, Esquire

245 East Washington Street Monticello, FL 32344

Craig Marsh, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, FL 32034

Robert Johnson, Chairman Nassau County School Board Post Office Box 436 Callahan, FL 32011

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.

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

AGENCY FINAL ORDER

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

BETTY CASTOR, as

Commissioner of Education,

Petitioner,

EPC CASE NO. 91-226-RT

vs. DOAH CASE NO. 91-6677

EPC INDEX NO. 92-018-FOF

SAMUEL LEE ROBERTS,

Respondent.

/

FINAL ORDER

Respondent, SAMUEL LEE ROBERTS, holds Florida educator's certificate no.

150877. 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 August 7, 1992, in Melbourne, Florida, to take final agency action. Petitioner was represented by John Gilroy, Attorney at Law. Respondent was represented by Thomas W. Brooks, Attorney at Law. The panel reviewed the entire record in the case.

Respondent's first exception was denied by the panel because it was determined that the Recommended Findings of Fact were based on competent substantial evidence and clear and convincing evidence.

Respondent's second exception was accepted and Recommended Finding of Fact number 30 is therefore rejected for reason that the expert opinion relied on as a basis for such finding was based on a hypothetical question, portions of which were not established as true.

Respondent's third exception was rejected by the panel in that it was found that the Petitioner met the required burden of proof for the referenced provisions of the administrative complaint.

Respondent's fourth exception was rejected by the panel in that it was found that there was evidence to support a finding of a violation of the referenced provisions of the administrative complaint.

Respondent's fifth exception related solely to the recommended penalty and was considered as argument in that regard.

The panel adopts the Hearing Officer's Findings of Fact and Conclusions of Law as set forth in the Recommended Order with the exception of paragraph 30 of the Findings of Fact and the last paragraph of the Conclusions of Law of the Recommended Order.

Based on its ruling on Respondent's second exception and resulting deletion of paragraph 30 of the Findings of Fact of the Recommended Order from those adopted herein, it was determined that the recommended penalty should be reduced. Wherefore, it is ORDERED that the Respondent's Florida educator's certificate be suspended for a period of one year, that he be issued a letter of Reprimand, and that he serve a three year period of probation during his employment as a Florida educator following his period of suspension. The terms of probation shall be that in the event of reemployment as a Florida educator, Respondent shall notify the EPC immediately upon such employment; arrange for his immediate supervisor to submit Respondent's performance reports to the EPC at least every three months; complete three hours of college level course work or 60 hours in-service course work in the areas of classroom management or ethical conduct; all costs incurred in fulfilling terms of probation shall be borne by the Respondent. This Order takes effect upon filing.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within 30 days of the date of filing.

DONE AND ORDERED, this 2nd day of September, 1992.

KEITH WARBROGH, Presiding Officer

COPIES FURNISHED:

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. Samuel Lee Roberts was Sydney McKenzie, III mailed to Thomas W. Brooks, Esquire General Counsel 2544 Blairstone Road, Tallahassee,

Florida 32301, this 11th Florida Admin. Law Reports day of September, 1992, by U.S.

Mail.

Craig Marsh, Supt.

Nassau County Schools 1201 Atlantic Avenue KAREN B. WILDE, Clerk

Fernandina Beach, Florida 32034

Margaret McKee Personnel Coordinator Nassau County Schools

Charles C. Adams, Hearing Officer Division of Admin. Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

John Gilroy, Esquire Department of Education 1701, The Capitol

Tallahassee, Florida 32399

Docket for Case No: 91-006677

Orders for Case No: 91-006677