STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6638

)

CLAYTON McWILLIAMS, )

)

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 March 16, 1993, in Madison, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Margaret E. O'Sullivan, Esquire

Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: Thomas E. Stone, Esquire

Post Office Box 292 Madison, Florida 32340

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, Florida Statutes, and Rule 6B

PRELIMINARY STATEMENT

By letter dated September 21, 1992, Petitioner informed espondent of the filing of Petitioner's Administrative Complaint which charges Respondent with misconduct constituting violations of Sections 231.28(1)(c), 231.28.(1)(f), 231.28(1)(h), Florida Statutes, and Rules 6B

6B

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 eleven witnesses and four exhibits. Respondent presented the testimony of four witnesses, including himself.

The transcript of the final hearing was filed with the Division of Administrative Hearings on April 8, 1993. Leave was granted to file post hearing submissions more than 10 days after the filing of the transcript, and in accordance with Rule 60Q- 2.031, Florida Administrative Code, the parties are deemed to have waived provisions of Rule 28-5.402, Florida Administrative Code. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent Clayton McWilliams holds Florida teaching certificate number 653517, covering the area of substitute teaching, which is valid through June 30, 1994. He is 27 years

   of 1989, from Valdosta State College in Valdosta, Georgia. After a few brief months employment in retail sales in Tallahassee, Florida, Respondent returned to Madison, Florida, where he was born and lived prior to attending college.

   
   

2. Respondent returned to Madison in August of 1989, after being contacted by the high school coach there regarding the possible employment of Respondent as an assistant coach at the high school from which Respondent graduated. He was employed in the 1989

   County School Board. Subsequently, he was employed by the Board during the 1990

   high school. Respondent served as an assistant coach during this period.

   
   

3. While serving as a substitute teacher during the 1989

   Respondent was responsible for a ninth grade science class. Female students M.B., R.B., J.D., and R.C., were in a group surrounding Respondent's desk, talking with Respondent. All the students in the group were curious about Respondent and asked him such questions as what are you going to coach, are you married, do you have a girl friend, and why did you come back to Madison?

   Respondent knew many of the students on a first name basis and, in the course of bantering with the group, responded at one point to the students' questions about his private life by asking the students about their social lives, if they kissed their boy friends with their mouths open, and if they used their tongues. There was general laughter from the students, although R.B. didn't think the question was "any of [Respondent's] business." This was the only question or comment that Respondent ever made that bothered R.B.

   
   

4. R.B. regarded Respondent's conduct in the ensuing two years as "flirting" and "didn't ever think anything bad about it." The next year when

   R.B. was in the tenth grade (1990

   photograph. Respondent later told R.B. that he stared at the photograph every night. When R.B. was in the eleventh grade and not a student in a class taught by Respondent, Respondent jokingly asked R.B. in the presence of D.C., her boyfriend at the time and an athlete with whom Respondent enjoyed a rapport, why she wanted to date such a "big, old dummy." There were other times that Respondent would see R.B., tell her that she looked nice, wink at her and blow her kisses.

5. During the 1990

   M.B., by asking her if she kissed with her mouth open, and would she teach Respondent how to do this. Respondent also told M.B. that she looked beautiful.

   M.B. was not a student in a class taught by Respondent.

   
   

6. During the 1991-1992 school year, M.B. was a high school junior and a varsity cheerleader. Respondent continued to speak to M.B., although she was not his student, when he saw her on the school campus or at sporting events. He continued to ask M.B. about kissing with her mouth open, whether she would teach Respondent how to do this, and when could she teach him. M.B. declined to specify any time or place to meet with Respondent. M.B. did not disclose Respondent's behavior to anyone at this time.

   
   

7. On one occasion, M.B. and other eleventh grade students, including her boyfriend, were in the high school library, ordering their class rings. Respondent became involved in conversation with the students and asked M.B. again about teaching him to kiss open

   would lose his job for M.B. Although he heard these comments, M.B.'s boyfriend considered Respondent to be joking.

   
   

8. In the fall of the 1991

   Wakulla County for a game which would determine whether the team could compete in the district championship playoff. Upon boarding the bus after the game for the trip home, Respondent was asked by M.B. if he was going to sit with her on the bus. He replied that he would if she saved him a seat. Respondent stored the athletic equipment which he was carrying, returned to the forward section of the bus and assumed the vacant seat beside M.B. Since the team had lost the game, most passengers on the bus were despondent.

   
   

9. In the course of the trip, M.B. and Respondent leaned their heads against the back of the seat in front of them and Respondent talked about college and how being from a small high school had been difficult when he had attended the University of Florida before transferring to Valdosta State. Respondent had his hands between his knees as he talked and at one point placed it on M.B.'s knee or patted her knee. She, feeling discomfited by the gesture, brushed his hand away. This was the only time that Respondent touched a student where such touching was interpreted by a student to have sexual significance. Respondent testified that he patted M.B. because she acted as though "something had been bothering her" and characterized the pat as something he would give "football players or baseball players at school." Eventually, M.B. became sleepy and rested her head against the bus window. Respondent in a normal tone of voice offered to let her place her head on his shoulder, but M.B. declined.

   
   

10. During the 1991

    photographs. On the back of his photograph, Respondent wrote:

    
    

    M., I remember when I first saw you, you struck me as beautiful. I really think you are. You are truly special to me. Please know that I love you. Stay sweet and pretty. Love, Clayton. P.S., Please teach me sometime.

    
    

11. Mary Rice, a teacher at the high school, began teaching there at approximately the same time as Respondent. Rice, like Respondent, was single. Rice, like Respondent, enjoyed informal relationships with some students, such

    as the cheerleaders for whom she served as staff sponsor. The cheerleaders, similar to many students who called Respondent by his first name, referred to Rice as "Mary". She became engaged in October of 1991 to Scott Alley, another teacher who occasionally substituted at the school.

    
    

12. Rice and Respondent had a normal collegial relationship. Prior to Christmas of 1991, Rice and Respondent were in the school office discussing what they were getting their significant others for Christmas. Respondent told Rice that he would tell her what he was getting his girl friend for Christmas if Rice would have sex with him. Later in the day, Respondent got down on his knees in the hallway outside of Rice's classroom in the presence of students and asked Rice to "go with me before you get married". While Respondent meant that he wanted to have sex with Rice, he did not explicitly state such in the hallway.

    
    

13. Later, Respondent sent Rice a note containing four blanks for letters. According to Rice, the note stated that Respondent would tell Rice what he was getting for his girlfriend for Christmas if Rice would " ". Rice assumed the four blanks to represent a sexually suggestive word.

    
    

14. Rice stored the note in her desk drawer. She determined not to tell anyone about the note. In February of 1992, her fiancee, Scott Alley, discovered the note in the desk while he was substituting for Rice. He showed the note to Debra Wetherington, a school secretary, and later asked Rice about the note. Rice was startled that Alley had found the note and became upset.

    
    

15. Later, in a telephone conversation initiated by Respondent, he discussed the note with Alley. Respondent apologized to Alley for any misunderstanding about the note, stating that he had written it merely to get a laugh from Rice. Respondent told Alley that he, Respondent, just flirted with everyone and that was "how I broke the ice with everyone." After Respondent's apology, the two men agreed to remain friends. Subsequently, the note was destroyed by Alley.

    
    

16. Debra Wetherington, the secretary at the high school, frequently interacts with the teaching staff. Initially, Respondent and Wetherington enjoyed a good working relationship no different than those she shared with other teachers. She had known Respondent all of his life. Over a period of time, Respondent began to flirt with Wetherington, asking her about open mouth kissing. At these times, Wetherington ignored his remarks or laughed them off as a joke. When his behavior persisted, she told him that his conduct bothered her and that he should stop. She never told her husband or any one else about Respondent's attentions, hoping to resolve the matter without confrontation and embarrassment.

    
    

17. On or about February 25, 1992, Respondent came into the school office and physically put his arms around Wetherington in a "bear" hug and, according to Wetherington, tried to put his tongue in her ear. Also present in the room were the school resource officer and another office worker. No eyewitness corroboration of Wetherington's allegation that Respondent attempted to put his tongue in her ear was offered at the final hearing and she had not reported this detail in an earlier affidavit regarding the incident. Respondent denies he attempted to put his tongue in her ear. Respondent's testimony is more credible on this point and it is not established that he attempted to put his tongue in Whetherington's ear. Wetherington later complained about Respondent's conduct to Lou Miller, the school principal. Miller called Respondent into her office, discussed the incident with him, and directed him to have no such contact with

    Wetherington in the future. Respondent apologized for his conduct, both to Miller and Wetherington.

    
    

18. While Respondent and Wetherington had no further contact, Wetherington later asked another teacher, Tony Stukes, if Respondent was angry with her since she had not seen or heard from him lately.

    
    

19. On or about March 24, 1992, Respondent saw M.B. in the hallway outside the door of his classroom while classes were changing. Respondent spoke to M.B. and told her that he had a dream about her. M.B. went to see Mary Rice, the cheerleading sponsor, who had earlier asked M.B. if she was having any problems with a teacher. Rice had taken this action following the discovery of Respondent's note in Rice's desk by Rice's fiancee. M.B. had confided in Rice about Respondent's previous flirtatious behavior toward her. Rice told her to write down future incidents.

    
    

20. After relating to Rice the comment of Respondent about having a dream,

    M.B. was asked by Rice to go back to Respondent and find out more about the dream. M.B. went into Respondent's class where the students were working on a geography project. An overhead projector displayed the continent of South America on a board. Some students were tracing the projection on the board, preparatory to cutting the shape out of the board. Other groups were cutting out other continents. The lights in the room were turned on. Respondent was sitting at his desk, cutting out the Asian continent. M.B. went to a chair by Respondent's desk and sat down. M.B. was on her lunch break and was not a student in the class. However, in the context of the situation, her entry into the classroom was not that unusual. Respondent had on previous occasions entered an art class where M.B. was a student and had spoken with her or, on some of these occasions, had also spoken with the teacher in the class.

    
    

21. After seating herself by his desk, M.B. asked Respondent to tell her about his dream. Respondent replied that he couldn't, but M.B. persisted. Finally, Respondent wrote on a piece of paper, "I had a dream about you and me."

    M.B. then wrote on the paper, "Well, what happened?" The rest of the written exchange is as follows:

    
    

    Respondent: "Well, all I remember is you were teaching me."

    
    

    M.B.: "Teaching you what?" Respondent: "Guess."

    M.B. "I don't know. Why don't you tell me what I was supposedly teaching you."

    
    

    Respondent: "How to kiss with my mouth open. I liked it, too. I woke up sweating and holding my pillow to my mouth."

    
    

22. M.B. then took possession of the piece of paper on which she and Respondent had been writing, left the class and went back to see Mary Rice.

    M.B. discussed the matter with Rice. After this discussion, M.B.'s feelings about Respondent solidified and she determined that she detested Respondent. At Rice's suggestion, she then went to see Principal Miller.

23. Miller and School Superintendent Eugene Stokes confronted Respondent with the note. Respondent stated he meant no harm by his conduct, recognized that he had a problem and needed help for his aberrant behavior. After a discussion of options, including suspension or resignation, Respondent thought about the matter overnight and submitted his resignation to Stokes on March 27, 1992. Respondent was told that the matter must be reported to the Professional Practices Commission. Respondent was, however, under the impression that his resignation would conclude the necessity for any further proceedings of a disciplinary nature.

    
    

24. Until the time of his resignation, Respondent had received good evaluations. His contract was renewed annually. However, as expressed at final hearing by Miller and Stokes, they would not rehire Respondent in view of his past behaviors which now, in their opinion, would reduce his effectiveness as a teacher at Madison High School.

    
    

25. Subsequently, Respondent was informed on May 28, 1992, that an investigation regarding alleged misconduct been instituted by the Professional Practices Commission.

    
    

26. In August of 1992, Respondent sought and was appointed to a teaching position in Hawthorne, Florida, at the combined junior/senior high school in that city for the 1992

    completion of course work for issuance of a five year teaching certificate from the State of Florida which he received in October of 1992.

    
    

27. Dr. Lamar Simmons, the supervising principal at the school in Hawthorne, Florida, where Respondent is presently employed is acquainted with Miller. Simmons contacted Miller at the Madison High School, prior to employing Respondent. Miller informed Simmons that Respondent had been a satisfactory employee. Miller did not disclose Respondent's alleged misconduct to Simmons because she assumed Respondent was receiving professional help for his problem and that the issuance of Respondent's five year certificate indicated that further disciplinary proceedings by the Professional Practices Commission had been abandoned. Respondent later disclosed the instant disciplinary proceeding to Simmons. To date of the final hearing, Respondent continues to teach at the school in Hawthorne without apparent incident.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

    
    

29. 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).

    
    

30. 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

    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

    professional relationship with a student for personal gain or advantage; the sixth count with violation of Rule 6B

    in that Respondent is alleged to have intentionally exposed students to unnecessary embarrassment or disparagement; and a seventh count that Respondent violated Rule 6B

    institutional privileges for personal gain or advantage.

    
    

31. Section 231.28(1), Florida Statutes, provides, in pertinent part:

    
    

    1. The Education Practice Commission shall have authority to suspend the teaching certificate of any person as defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law, provided it can be shown that such person:

       * * *

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

       * * *

       (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;

       * * *

       (h) Has otherwise violated provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

       
       

32. Rule 6B

    principles of professional conduct for individuals in the education profession in Florida, provides, in pertinent part:

    
    

    1. Obligation to the student requires that the individual:

       1. Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.

          * * *

          (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          (h) Shall not exploit a professional relationship with a student for personal gain or advantage.

    2. Obligation to the public requires that the individual:

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

    
    

33. As noted above, Section 231.28(1)(c), Florida Statutes, provides that the Education Practices Commission has the authority to suspend a teaching certificate for up to three years, or revoke that certificate permanently if an individual is guilty of "gross immorality or an act involving moral turpitude." The terms "moral turpitude" are defined by Rule 6B

    Administrative Code, as follows:

    
    

    Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

34. The terms have also been defined by the Supreme Court of Florida as follows:

    
    

    Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society . . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.

    
    

    (emphasis supplied.)

    
    

    Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933).

    
    

35. Respondent's conduct with regard to female students and co bothersome and annoying to those individuals and, as candidly admitted by

    Respondent to Stoke and Miller, reflective of a deeper behavioral problem. That such behavior with regard to minor female students by an educator violates standards of acceptable behavior in such situations cannot be questioned.

    
    

36. However, the general impression created by the evidence presented is that Respondent was viewed more as a foolish oaf and immature irritant than a perceived threat to welfare and safety. With the exception of Respondent's "bear hug" of a lifelong acquaintance, Wetherington, his acts are not of sufficient intentional "baseness, vileness or depravity" to be termed grossly immoral or a crime of moral turpitude. With regard to Wetherington, her inquiry to Tony Stukes expressing concern that Respondent had not been to see her, casts doubt on the creditability of her expressed distaste for Respondent's conduct. Respondent is not guilty of the first count of the Administrative Complaint, violation of Section 231.28(1)(c), Florida Statutes.

    
    

37. Petitioner has alleged that Respondent's personal conduct seriously reduces his effectiveness as a teacher in the school system for Madison County. As evidenced at the final hearing, neither the school superintendent or the school principal would rehire Respondent as a result of his conduct and their

    perception of how that conduct was viewed by students and the community. However, Respondent was an annual contract teacher whose contract would have expired at the conclusion of the 1991-1992 school year. Further, he is not seeking reinstatement in the school system of Madison County. The second count of the Administrative Complaint is therefore moot and need not be considered further.

    
    

38. Respondent is guilty of the third count of the Administrative Complaint in that his conduct also violated certain rules of the State Board of Education in contravention of Section 231.28(1)(h), Florida Statutes. Counts four through seven of the Administrative Complaint deal with these alleged rule violations. Rulings with regard to those counts are set forth below.

    
    

39. The evidence supports a conclusion that Respondent was obviously infatuated with M.B. and willingly pursued a course of action with her that went beyond the bounds of the behavior which is expected of a teacher toward students. Whether M.B. instigated the written exchange between Respondent and herself or encouraged Respondent's other flirtatious conduct toward her, is irrelevant in light of this conclusion. Respondent is guilty of the fourth count of the administrative complaint, violation of Rule 6B

    Administrative Code, in that he failed to protect students from conditions harmful to a learning atmosphere by actually creating those conditions, however unintentional.

    
    

40. Respondent's actions, whether termed as flirting or teasing, were inappropriate, exploitative and created discomfort for students in an educational situation that Respondent was duty bound to foster, as opposed to his seeking personal advantage or gratification. Respondent is guilty of the fifth count of the Administrative Complaint, violation of Rule 6B

    Florida Administrative Code.

    
    

41. Petitioner has not shown that Respondent's actions were intentionally calculated to expose students to embarrassment or disparagement. Accordingly, Respondent is not guilty of the sixth count of the Administrative Complaint.

    
    

42. Respondent's conduct with regard to co-workers Wetherington and Rice is alleged to constitute the use of institutional privileges by Respondent for personal gain or advantage. But questions exist regarding the elapsed time between the writing of Respondent's note to Rice in December of 1991, her secreting of the note in her desk until its discovery in February of 1992 by her fiancee, and her eventual embarkation after that time to meet her duty with regard to Respondent's aberrant conduct in connection with other people, i.e.,

    M.B. Rice's suggestion that M.B. go back to Respondent's classroom and attempt to engage him in further conversation with the obvious goal of eliciting unprofessional conduct or an unprofessional statement from Respondent is particularly troublesome. Likewise, Wetherington did not present any testimony at hearing that she was intimidated by Respondent because he was a teacher, but rather that she had participated in a joking or lightly flirting relationship, had tired of those exchanges to the point of warning Respondent that he was becoming offensive, and had reached the break point at the time of the "bear hug". Respondent is not guilty of count seven of the Administrative Complaint.

    
    

43. The evidence strongly suggests that Respondent, at the time of his resignation suffered psychological impairment which affected his ability to interact with students and staff in a mature and professional manner. While the personal impact of his behavior in the form of his forced resignation may have provided him with a stimulus sufficient to correct his problem, such impairment

must be considered in the determination of the penalty to be imposed in this matter as a result of the finding of guilt with regard to counts three, four and five of the Administrative Complaint.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered finding Respondent guilty of the third, fourth, and fifth count of the Administrative Complaint, and placing Respondent's teaching certificate on probation for a period not to exceed three years upon reasonable terms and conditions to be established by Petitioner, including the following requirements:

1. That Respondent present himself for psychological evaluation by a qualified professional selected

   by Petitioner.

   
   

2. That Respondent complete such course of psychotherapy as may be prescribed as a result of that evaluation.

   
   

3. That Respondent assume the cost of such evaluation and subsequent therapy, if any.

   
   

4. That Respondent enroll and complete a minimum of six hours of continuing education courses in the area of professional conduct for educators.

   
   

5. That in the event that Respondent fails to comply with any of the terms and conditions of probation, Respondent's teaching certificate shall be subjected to a period of suspension not to exceed two years, and that compliance with these conditions of probation serve as the prerequisite for any reinstatement of Respondent's teaching certificate in the event that suspension for noncompliance with these conditions occurs.

DONE AND ENTERED this 1st day of June 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 1st day of June, 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.-12. Accepted.

1. Rejected as to D.C.'s feelings, hearsay.

2. Accepted.

1. (Note: this is the second finding numbered 13.) Rejected as to "two or three times", accepted as to touching on the knee one time, on the basis of resolution of credibility on this point.

2. (Note: this is the second finding numbered 14.) Accepted.

3. Accepted in substance, not verbatim. 16.-18. Accepted.

1. Rejected as to tickling reference since no sexual significance was ascribed by M.B. to this action, she did not supply a point in time when this occurred and inclusion would imply a significance not proven at the final hearing.

2. Rejected, unnecessary.

21.-23. Rejected, subordinate to Hearing Officer findings on this point.

24.-42. Accepted, but not verbatim.

43. Accepted as to bear hug, remainder rejected on basis of creditibility.

44.-57. Accepted, but not verbatim. Respondent's proposed findings

1.-20. Accepted, but not verbatim.

21. Rejected, unnecessary.

22.-23. Accepted, but not verbatim.

1. Rejected, unnecessary.

   
   

   COPIES FURNISHED:

   
   

   Margaret E. O'Sullivan, Esquire Department of Education

   352 Florida Education Center

   325 West Gaines Street Tallahassee, Florida 32399-0400

   
   

   Thomas E. Stone, Esquire Post Office Box 292 Madison, Florida 32340

   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 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,

   Commissioner of Education, Petitioner,

   vs DOAH CASE NO. 92-6638

   CLAYTON MCWILLIAMS, EPC CASE NO. 92-168-RT EPC INDEX NO. 93-162-FOF

   Respondent.

   /

   FINAL ORDER

   
   

   Respondent, CLAYTON MCWILLIAMS, hold Florida educators certificate no.

   653517. 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 June 1, 1993, was forwarded to the Commission pursuant to Section 120.57(1), F.S. (copy attached to and made a part or this Order.)

   
   

   A panel of the Education Practices Commission (EPC) met on October 29, 1993 in Panama City, Florida, to take final agency action. Petitioner was represented by Robert Boyd, Attorney at Law. Respondent was represented by Thomas Stone, Attorney at Law. The panel reviewed the entire record in this case.

   
   

   Petitioner filed exceptions to certain conclusions of law in the Recommended Order. Copies of those exceptions are attached to and incorporated by reference.

   
   

   RULINGS ON PETITIONER'S EXCEPTIONS

   
   

   l. Accepted--The Commission agrees with Petitioner that the facts found by the hearing officer support a conclusion that Respondent's conduct constituted gross immorality or an act of moral turpitude.

   
   

   1. Accepted--The Commission agrees with Petitioner that the facts found by the hearing officer support a conclusion that Respondent's conduct resulted in a loss of his effectiveness to the School Board of Madison County.

      
      

   2. Accepted--The Commission agrees with Petitioner that the facts found by the hearing officer support a conclusion that Respondent's conduct was an intentional cause of embarrassment or disparagement to the student involved.

      
      

   3. Accepted--The Commission agrees with Petitioner that the facts found by the hearing officer support a conclusion that Respondent's conduct constituted a use of his institutional privileges for personal gain or advantage.

FINDINGS OF FACT

The Commission adopts as its Findings of Fact paragraphs 1- 27 of the hearing officer's Findings of Fact.

CONCLUSIONS OF LAW

1. The Commission adopts as a part of its Conclusions of Law paragraphs 28-35, 38-40, and 42 -in the hearing officer's Conclusions of Law.

   
   

2. Additionally, Respondent's conduct constituted gross immorality or an act of moral turpitude in violation of Section 231.28(1)(c), Florida Statutes

   
   

3. Additionally, Respondent's conduct seriously reduced his effectiveness as an employee of the school board in violation of Section 231.28(1)(f), Florida Statutes.

4. Additionally Respondent, by his conduct, intentionally exposed a student to unnecessary embarrassment or disparagement in violation of Rule 6B- 1.006(3)(e) Florida Administrative Code.

   
   

5. Additionally, Respondent's conduct constituted a use of institutional privileges for personal gain or advantage in violation of Rule 6B-1.006(4)(c), Florida Administrative Code.

   
   

6. The Commission has jurisdiction of the parties and subject matter of this cause pursuant to Section 120.57 and Chapter 231, F.S.

Based upon the foregoing findings of fact, Respondent is guilty of violating Section 23l.28(1)(c), F.S., by having been guilty of gross immorality or an act involving moral turpitude; 231.28(1)(f), F.S., by having been guilty of personal conduct which seriously reduced his effectiveness as an employee of the school board; and Section 23l.28(1)(Th), F.S., by having violated Rule 6B- 1.006(3)(a), F.A.C., by having failed to make a reasonable effort to protect students from conditions harmful to learning or to health or to safety; 6B- 1.006(3)(e), F.A.C., by having intentionally exposed a student to unnecessary embarrassment or disparagement; Rule 6B-1.006(4)(c), F.A.C., by using institutional privileges for personal gain or advantage; and 231.28(2), F.S., by having been found guilty of the aforestated violations which constitute prima facie grounds for revocation of a teaching certificate; for all of which the Commission may impose discipline pursuant to Sections 231.262(6) and 231.28, F.S.

The legal conclusions by the Commission that Respondent is guilty of charged violations in addition to those of which he was found guilty by the hearing officer, constitute sufficient cause to enhance the penalty recommended by the hearing officer.

WHEREFORE, it is ORDERED AND ADJUDGED that Respondent violated Section 231.28(1)(c), (f) and (h), Florida Statutes.

It is further Ordered that Respondent's educator's certificate be suspended for a two-year period effective on the filing date of this order. Upon recertification and reemployment in a position requiring a Florida educator's certificate, Respondent shall be placed on a three-year probation.

The terms of probation shall be that upon employment in a position requiring a Florida educator's certificate, Respondent shall:

1. Present himself for psychological evaluation by a qualified professional selected by Petitioner.

   
   

2. Complete such course of psychotherapy as may be prescribed as a result of that evaluation.

   
   

3. Assume the cost of such evaluation and subsequent therapy, if any.

   
   

4. Enroll and complete a minimum of six hours of continuing education courses in the area of professional conduct for educators.

   
   

5. That in the event that Respondent fails to comply with any of the terms and conditions of probation, Respondent's teaching certificate shall be subjected to an additional period of suspension not to exceed two years, and

that compliance with these conditions of probation serve as the prerequisite for any reinstatement of Respondent's teaching certificate in the event that suspension for noncompliance it these conditions occurs.

All costs incurred in fulfilling terms of probation shall be borne by the Respondent. This Order becomes effective 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 thirty days of the date of filing.

DONE AND ORDERED, this 17th day of November, 1993.

COPIES FURNISHED TO:

Aaron Wallace, Presiding Officer

Jerry Moore, Program Director Professional Practices Services

Rivers Buford, Jr. I HEREBY CERTIFY that a copy of Attorney General's Office the foregoing Order in the matted

of BC v. Clayton McWilliams, was

Barbara J. Staros mailed to Thomas Stone, P.O. Box

General Counsel 292, Madison, Florida 32340, this 23rd day of November, 1993. by

U.S. Mail.

Florida Admin. Law Reports

Colleen Campbell, Supt. Madison County Schools

P. O. Box 449 Madison, Florida 32340 KAREN B WILDE, Clerk

Mrs. Stuart Fenneman Personnel Coordinator Madison County

Docket for Case No: 92-006638

Orders for Case No: 92-006638