STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BETTY CASTOR, as Commissioner ) of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 92-4342
)
ROY E. PROCTOR, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, Don W. Davis, a duly designated Hearing Officer of the Division of Administrative Hearings, held a formal hearing in the above
case on November 18, 1992, in Green Cove Springs, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Robert J. Boyd, Esquire
Post Office Box 26 Tallahassee, Florida 32302
For Respondent: Guy D. Adkins, Esquire
2821-A Bolton Road
Orange Park, Florida 32073 STATEMENT OF THE ISSUES
The issue for determination is whether Respondent's teaching certificate should be disciplined for alleged violation of various provisions of Section 231.28(1), Florida Statutes, and Rule 6B- 1.006(3), Florida Administrative Code. The resolution of this issue rests upon a determination of whether Respondent engaged in sexual misconduct with a student who attended one of the schools where Respondent was employed.
PRELIMINARY STATEMENT
By letter dated June 9, 1992, Petitioner informed Respondent of the filing of Petitioner's Administrative Complaint which charges Respondent with sexual misconduct constituting violations of various provisions of Section 231.28(1), Florida Statutes, and Rule 6B-1.006(3), Florida Administrative Code.
Respondent requested a formal administrative hearing on the charges contained in the Administrative Complaint. The matter was transferred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes
Charges of the Administrative Complaint, if proven by clear and convincing evidence, constitute grounds for imposition of discipline against Respondent's professional certification pursuant to Section 231.28(1), Florida Statutes.
At the hearing, Petitioner presented the testimony of five witnesses and eight exhibits. Respondent presented the testimony of five witnesses, including himself, and one exhibit. At hearing, ruling upon Petitioner's motion for the admission of an affidavit of the alleged victim of sexual abuse in this proceeding, in lieu of his testimony, was reserved. Upon consideration, the motion is denied for the reasons further discussed in the conclusions of law section of this recommended order.
The transcript of the hearing was filed with the Division of Administrative Hearings on December 7, 1992. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.
FINDINGS OF FACT
Respondent is Roy E. Proctor. He is 55 years of age. As a result of his application for certification by Petitioner in April of 1991, Respondent was issued temporary teaching certificate no. 693369, covering the areas of speech and language impairment, on October 10, 1991. The certificate expired on June 30, 1992.
During the 1991-92 school year, Respondent was employed as a speech therapist in a junior high school in Clay County, Florida. Respondent holds a master's degree in speech pathology and has been employed in some capacity in the field of speech therapy since 1973 in the private sector and in the state of South Carolina.
In September of 1991, Respondent approached the school's guidance counselor and told her that he wanted to give special attention and assistance to a student that he had met. Respondent sought the guidance counselor's advice. The guidance counselor was familiar with the student, C.J., and thought Respondent's idea was fine. However, she suggested that Respondent clear the matter with the school's principal, N.S.
Respondent then approached the principal and asked about regulations governing student-teacher relationships and explained that he had become acquainted with a child that needed a "big brother." While C.J. was not a speech student under Respondent's supervision, he had been screened by Respondent for possible speech therapy and results were pending.
C.J. is an emotionally handicapped child with the emotional, psychological age of a nine or ten year old. In spite of his handicap, he possesses normal intellectual functioning, is presently 14 years of age chronologically, and is accompanied by an adult aide who provides self control assistance at the high school he now attends. At that school C.J. is subjected to a contained environment to further control his behavior.
The principal initially responded orally to Respondent and told him that the only regulation he knew about was the need for teachers to disclose student tutoring. Later, the principal sent Respondent a memorandum dated September 27, 1991, and elaborated on their previous conversation regarding contact with students during after school hours in a "big brother" role.
The principal suggested in the memorandum that Respondent should call a student's parents prior to visiting the home in order to obtain their permission; should meet with a student only when a parent was present; should not place himself in a situation where Respondent would be alone with a child behind closed doors; should not take the student away from the home without complete parental knowledge and approval; and should consider contacting the national big brother organization for sponsorship. The principal emphasized in the memorandum that these recommendations were not official regulations, but rather strongly suggested guidelines for the purpose of self-protection.
Within the course of the following two weeks, Respondent visited C.J.'s home on approximately four occasions, generally at C.J.'s invitation. He brought C.J. baseball cards and plastic holders for the cards. He spoke with C.J.'s custodial guardian, the child's paternal grandmother, and her husband.
He told the grandmother, as he viewed a picture of Jesus in the home, that he and C.J. had a common friend in Jesus. He and C.J. went out to eat on one occasion, with C.J. insisting on paying for the meal with his allowance money. He met privately with the grandmother and her husband on another occasion at their invitation and told them of his background, his military service, and his previous experience with other troubled children like C.J.
C.J.'s grandmother was impressed with Respondent, but gradually became uneasy with his attentions toward C.J., including Respondent's habit of having
C.J. call him "Roy."
C.J.'s grandmother had assumed custody of the boy about three and a half years earlier when she lived in a section of Jacksonville that she felt provided an inappropriate atmosphere for the boy. In that neighborhood, C.J. was exposed to high crime areas and spent condoms on the street when he walked to school. C.J.'s grandmother, her husband and C.J. moved to Clay County in June of 1991.
On a visit to the school to speak with the guidance counselor concerning other matters, C.J.'s grandmother sought information about Respondent. The guidance counselor invited the principal into the conversation. C.J.'s grandmother disclosed to the principal her sense of discomfort with Respondent's attentions toward C.J.
As a result of the conversation, the principal and the guidance counselor met with Respondent and told him that C.J.'s grandmother wanted no further contact between Respondent and C.J. Respondent later came back and asked the guidance counselor's advice about visiting with C.J. during the child's visitation with his natural mother. The guidance counselor advised Respondent against the idea.
A couple of weeks after being warned by the principal and guidance counsellor about contact with C.J., Respondent met C.J. on the school campus on October 23, 1991. C.J. wanted Respondent to visit his home again. Respondent advised C.J. that he could not do this in view of C.J.'s grandmother and her feelings about Respondent. C.J. was insistent and followed Respondent into Respondent's vacant classroom which was next door to the room where C.J. was supposed to be in attendance. C.J. was advised by Respondent that C.J. needed to talk with C.J.'s grandmother if he desired further contact with Respondent.
A student aide knocked on the room door and upon admission presented a student pass for C.J. to report to the school's office. It was the second trip that the student aide had made to find C.J., since the aide had gone first to
the room next door and returned to the school office without finding him. Finally, C.J. left and went to the office where his grandmother was impatiently waiting for his arrival.
The student aide had been sent to retrieve C.J. during his discussion with Respondent in order that C.J.'s grandmother could take the child to his psychotherapy session, a routine of long standing since he was eight or nine years of age.
While driving C.J. from the school to the meeting with the therapist, C.J.'s grandmother verbally upbraided him about his tardiness in meeting her at the school. C.J. did not respond or speak to his Grandmother in the course of the trip.
Upon arrival at the meeting with his therapist, C.J. was involved in a discussion of his relationship with his natural mother. The therapist was trying to rehabilitate the relationship between C.J. and his mother, a lady suffering from long standing polysubstance abuse. The therapist emphasized, at the end of the counselling session, that C.J. should feel free to confide in his mother about any problems. In the course of that counselling session, C.J. never spoke about or confided in his therapist any concerns or problems he might be having with regard to Respondent.
C.J.'s mother was present at the counselling session. Upon termination of the session, C.J. spoke privately with her. C.J. nor his mother testified at the final hearing and direct evidence of their discussion was not presented.
C.J.'s grandmother related at the final hearing that C.J. had first confided in his mother, following the counselling session, and later to her that Respondent had exposed his erect penis to C.J. and asked him to touch it. This incident had allegedly occurred earlier that afternoon during Respondent and C.J.'s discussion at school shortly before the arrival of the student aide looking for C.J. In response to C.J.'s question as to why Respondent's penis was hard, C.J.'s grandmother told him that this was called an "erection" and proceeded to explain the term to him.
The next day C.J.'s grandmother reported C.J.'s allegation to the school principal. C.J. then met with the principal and related that Respondent had exposed himself, masturbated in front of C.J. and had put his hands on C.J.'s penis. C.J. also told the principal that Respondent had threatened to kill him or a member of his family if he reported the incident. Later, C.J. told the school guidance counselor that Respondent wanted to see C.J.'s underwear and wanted to "flick" C.J.'s penis.
C.J.'s psychotherapist is Ronald B. Johnson. Johnson has extensive experience in the treatment of emotionally handicapped children. C.J. became a patient of Johnson's in 1989. C.J.'s history of emotional disfunction has been observed for a long time, beginning with C.J.'s errant behavior in kindergarten where he constantly drew circles on paper.
Johnson opined at the final hearing that requiring C.J. to testify at the final hearing would adversely affect his psychotherapy and "set back" C.J. several months or cause disruption in C.J.'s home setting. This potential adverse affect and C.J.'s demonstrated anxiety about any pending event of importance in his life was sufficient, in the therapist's opinion, to recommend
that C.J. not testify at the final hearing. Barring set backs, Johnson believes that C.J. may mature and be able to function in a normal emotional manner in two to four years.
An affidavit consisting of five pages, bearing C.J.'s signature on each page, was submitted by Petitioner's counsel at the final hearing for consideration in lieu of C.J.'s direct testimony. The handwriting of the document is, in large part, that of another person. The affidavit in sum recounts that Respondent came to C.J.'s house, befriended him, talked about Jesus, held C.J. in the air, felt between C.J.'s legs, and later at the school exposed his erect penis to C.J. and asked C.J. to touch it. The affidavit and other hearsay statements attributed to C.J. by witnesses at the final hearing are at variance with one another and are not found to be sufficiently creditable to establish any facts probative of sexual misconduct by Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.
Petitioner has the burden of proving the charges set forth in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
The Administrative Complaint in this case contains six counts. The first count charges Respondent with gross immorality or an act involving moral turpitude in violation of Section 231.28(1)(c), Florida Statutes; the second count with personal conduct reducing his effectiveness as a school board employee in violation of Section 231.28(1)(f), Florida Statutes; the third count with a violations of the provisions of law or rules of the State Board of Education as proscribed by Section 231.28(1)(h), Florida Statutes; the fourth count with violation of Rule 6B- 1006(3)(a), Florida Administrative Code, which requires teachers to make a reasonable effort to protect students from conditions harmful to learning or health and safety; the fifth count with violation of Rule 6B-1.006(3)(e), Florida Administrative Code, in that Respondent is alleged to have intentionally exposed a student to unnecessary embarrassment or disparagement; and a sixth count that Respondent violated Rule 6B-1.006(3)(h) by exploiting a professional relationship with a student for personal gain or advantage.
Any conclusion regarding Respondent's guilt of any of the counts alleged in the Administrative Complaint rests first upon a determination of whether C.J.'s hearsay statements are admissible in this proceeding and whether those statements are sufficient to serve as the basis for the finding of fact. In this regard, Petitioner has moved the admission into evidence of C.J.'s five page affidavit. The motion of Petitioner is denied. All out
statements must comport with reliability guidelines set forth in Section 90.803(23), Florida Statutes, in order to be deemed an exception to hearsay.
Section 90.803, Florida Statutes, provides, in pertinent part:
(23) HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM OF SEXUAL ABUSE OR SEXUAL OFFENSE AGAINST A CHILD.
(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of
trustworthiness, an out
made by a child victim with a physical, mental, emotional, or developmental age of 11 or less describing any act of child abuse, sexual abuse, or any other offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:
The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and
The child either:
Testifies; or
Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1). (emphasis supplied.)
Courts have held that all requirements of the exception statute must be met before such hearsay evidence can be admitted. Weatherford v. State, 561 So.2d 629 (Fla. 1st DCA 1990); State v. Townsend, 556 So.2d 817 (Fla. 5th DCA 1990); State v. Asfour, 555 So.2d 1280 (Fla. 4th DCA 1990).
Section 90.803(23), Florida Statutes, requires that a hearing be conducted outside the presence of the jury to determine the reliability of the statements, and that specific findings on the reliability issue be made on the record by the judge. In administrative proceedings such as this case, the required findings mandated by the statute are included in the recommended order to the agency. Thus, the agency and appellate court, if any, have readily available all material facts found to relate to the reliability issue.
In determining the reliability of out
consideration must be given to the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, other corroborative evidence of the abuse or offense. and any other factor deemed appropriate.
In this case, C.J.'s statement to the school guidance counselor was that Respondent wanted to "flick" C.J.'s penis. He made no statements to her
regarding threats by Respondent. Likewise, his statement to the school principal regarding masturbation by Respondent and Respondent's threats against him or his family are at variance with the content of his written statement which contained no references to threats by Respondent or masturbation. Additionally, there is no other corroborative evidence of the abuse or offense.
Finally, it is concluded that the testimony of C.J.'s psychotherapist that C.J. might suffer a "set back" or cause disruption in his home setting if required to testify at the hearing in this cause does not constitute "a substantial likelihood of severe emotional or mental harm" sufficient to obviate Respondent's right to directly confront his accuser in this matter.
Petitioner has failed to establish that the child's out
statements are specific enough as to time, content, and circumstance to provide sufficient safeguards as to reliability; that there is other corroborative evidence of Respondent's abuse; or that C.J.'s unavailability as a witness is necessitated in order to prevent a likelihood of severe emotional or mental harm.
In the absence of direct admissible evidence of misconduct by Respondent or hearsay statements which comport with reliability guidelines set forth in Section 90.803(23), Florida Statutes, Petitioner has not proven the charges set forth in the Administrative Complaint by clear and convincing evidence.
Based on the foregoing, it is hereby
RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint.
DONE AND ENTERED this 5th day of January 1993, in Tallahassee, Leon County, Florida.
DON W. 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 January, 1993.
APPENDIX
In accordance with provisions of Section 120.59, Florida Statutes, the following constitutes my specific rulings on proposed findings of fact submitted by the parties:
Petitioner's proposed findings
1. Rejected, legal argument.
2.-3. Accepted.
4. Rejected, not supported by weight of the evidence. 5.-11. Accepted.
12. Rejected, subordinate to Hearing Officer's findings on this point.
13.-18. Accepted.
19.-27. Rejected, unreliable hearsay.
Accepted.
Rejected, unnecessary.
Rejected, unsupported by weight of the evidence, hearsay. The transcript indicates that the guidance counselor was told by C.J. that Respondent wanted to flick C.J.'s penis.
Accepted.
32.-33. Rejected, subordinate to Hearing Officer's findings on this point.
34.-37. Rejected, unnecessary.
38.-40 Accepted.
41.-46. Rejected, subordinate to Hearing Officer's findings on this point.
Respondent's proposed findings
Respondent's proposed findings were not referenced to any particular transcript citation or evidentiary exhibit. However, the proposed findings have been reviewed, and to the extent possible, are addressed by the foregoing findings of fact.
COPIES FURNISHED:
Robert J. Boyd, Esquire Post Office Box 26 Tallahassee, Florida 32302
Guy D. Adkins, Esquire 2821-A Bolton Road
Orange Park, Florida 32073
Karen Barr Wilde Executive Director
Education Practices Commission
301 Florida Education Center
325 W. Gaines Street Tallahassee, Florida 32399-0400
Jerry Moore, Administrator Professional Practice Services
352 Florida Education Center
325 W. Gaines Street Tallahassee, Florida 32399-0400
Sidney H. McKenzie, Esquire General Counsel
Department of Education The Capitol PL-08
Tallahassee, Florida 32399-0400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should 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 EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA
BETTY CASTOR, as
Commissioner of Education,
Petitioner, CASE NO. 92-116-RT DOAH CASE NO. 92-4342
vs. EPC INDEX NO. 93-087-FOF
ROY E. PROCTOR,
Respondent.
/
FINAL ORDER
Respondent, ROY E. PROCTOR, holds Florida educator's certificate no. 693360. 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 issued by the Division Hearing Officer on January 5, 1993 was forwarded to the Commission pursuant to Section 120.57(1), F.S., (copy attached to and made a part of this order). The matter was subsequently remanded to the hearing officer April 5, 1993, for further clarification. However, an Order Declining Remand was issued April 29, 1993.
A panel of the Education Practices Commission (EPC) met on June 22, 1993 in Lake Buena Vista, Florida, to take final agency action. Petitioner was represented by Robert Boyd, Esquire; Respondent was represented by Guy Adkins, Esquire. The panel reviewed the entire record in the case. Petitioner filed Exceptions to the Recommended Order. The Exceptions are attached to and incorporated by reference.
RULINGS ON EXCEPTIONS - FINDINGS OF FACT
Exception Number 1 is withdrawn by Petitioner.
Exception Number 2 is accepted as a matter law. Section 90.803(23), F.S., permits introduction of the affidavit of Chad Johnson proffered as PE-3. Therefore the Conclusions of Law in the Recommended Order, paragraphs 27, 30-35 are modified to the extent they are inconsistent with the legal ruling on admissibility of the affidavit. Further, the Commission adds to Findings of Fact those facts adduced in the affidavit and outlined in Petitioner'S proposed findings of fact, paragraphs 19-27. It concludes these facts are supported by competent substantial evidence in the record, the affidavit of Chad Johnson.
Exception Number 3 is withdrawn.
Exception Number 4 is withdrawn.
Exception Number 5 is withdrawn.
RULINGS ON EXCEPTIONS - CONCLUSIONS OF LAW
Exception Number 1 is accepted in conjunction with Exception Number 2 to factual findings that, as a matter of law, the affidavit is admissible.
Exception Number 2 is accepted, having accepted the facts contained in PE-3, the affidavit of Chad Johnson, that as a matter of law Petitioner has proven that Roy Proctor is guilty of immorality. Paragraph 35 of the Hearing Officer's Recommended Order is rejected.
FINDINGS OF FACT
The Commission adopts as its Findings of Fact paragraphs 1-22 of the hearing officer's Recommended Order. Paragraph 23 is rejected to the extent it conflicts with the Commission's rulings on Exceptions to the Facts and Law. The facts accepted in the ruling on Exception Number 2 to the Findings of Fact are substituted.
CONCLUSIONS OF LAW
The Commission adopts as its Conclusions of Law paragraphs 24-26, and 28-29 of the Hearing Officer's Recommended Order. Paragraph 27 and 30-35 are rejected to the extent they conflict with the Commissions rulings on Exceptions to the Facts and Law.
RECOMMENDATION
Because there is competent, substantial evidence to violations of Sections 231.28(1)(c), (f) and (h), Florida Statutes and Rules 6B-1006(3)(a), (e) and (h), F.A.C. the Commission permanently revokes the educator's certificate of Roy
E. Proctor.
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 10th day of July, 1993.
LORETTA VACANTI, Presiding Officer
COPIES FURNISHED TO:
Jerry Moore, Program Director Professional Practices Services
Ann Cocheu, Esquire I Attorney General's Office
Sydney McKenzie, III General Counsel
Florida Admin. Law Reports Ann B. Wiggins, Supt.
Clay County Schools
900 Walnut Street A
Green Cove Springs, Florida 32043
Martin Miller, Asst. Supt. Human Resources Development Clay County Schools
Don Davis, Hearing Officer Division of Admin. Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Robert Boyd, Esquire
411 East College Avenue Tallahassee, Florida 32301
I HEREBY CERTIFY that a copy of the foregoing Order in the matter of
BC vs. Roy E. Proctor was mailed to Guy D. Adkins, Esquire, 2821-A Bolton Rd., Orange Park, FL 32073 this 15th day of July, 1993,
by U.S. Mail.
KAREN B. WILDE, Clerk
| Issue Date | Proceedings |
|---|---|
| Jul. 19, 1993 | Final Order filed. |
| Apr. 27, 1993 | Order Declining Remand sent out. (remand is declined) |
| Apr. 20, 1993 | Order of Remand for Clarification filed. |
| Apr. 19, 1993 | Order of Remand for Clarification and A Transcript; Petitioner`s Exceptions to Recommended Order filed. |
| Jan. 26, 1993 | Petitioner`s Exceptions to Recommended Order filed. |
| Jan. 22, 1993 | Letter to K. Barr from D. Davis (RE: copy of exhibit which was left out of package containing recommended order) sent out. |
| Jan. 05, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 11/18/92. |
| Dec. 28, 1992 | Proposed Recommended Order filed. (From Robert J. Boyd) |
| Dec. 28, 1992 | Respondent`s Proposed Findings of Fact and Conclusions of Law filed. |
| Dec. 07, 1992 | Transcript filed. |
| Nov. 18, 1992 | CASE STATUS: Hearing Held. |
| Oct. 29, 1992 | (Petitioner) Notice of Appearance and Substitution of Counsel filed. |
| Sep. 28, 1992 | (Petitioner) Notice of Service of Interrogatories; Request for Production; Petitioner`s First Request for Admissions by Respondent; Petitioner`s First Interrogatories to Respondent filed. |
| Sep. 11, 1992 | Notice of Hearing sent out. (hearing set for 11/18/92; 10:30am; Green Cove Springs) |
| Aug. 04, 1992 | (Petitioner) Response to Initial Order filed. |
| Jul. 22, 1992 | Initial Order issued. |
| Jul. 15, 1992 | Agency referral letter; Correction to Administrative Complaint; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 10, 1993 | Agency Final Order | |
| Jan. 05, 1993 | Recommended Order | Hearsay statement of alleged child victim contradicted other hearsay statements of same child. Child's hearsay statement excluded. |
