STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 94-6411

)

WAYNE DICKENS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Richard Hixson, held a formal hearing in this case on February 15, 1995 in Bartow, Florida.

APPEARANCES

For Petitioner: Donald H. Wilson, Jr., Esquire

150 Davidson Street

Bartow, Florida 33831-1578

For Respondent: Mark Herdman, Esquire

34650 U.S. Highway 19 North, Suite 308 Palm Harbor, Florida 34684

STATEMENT OF THE ISSUES

Whether the Respondent, Wayne Dickens, should be terminated from his employment as an instructor with the Petitioner, Polk County School Board.

PRELIMINARY STATEMENT

On September 27, 1994 the Superintendent of Schools for Polk County suspended Respondent with pay from his position with the Polk County School Board for alleged sexual misconduct. The Polk County School Board in regular session thereafter affirmed the recommendation of termination of employment effective October 11, 1994. On October 18, 1994, Petitioner filed a timely request for formal administrative hearing contesting the termination of his employment by the Polk County School Board.

A formal hearing was held on February 15, 1995. At hearing Petitioner called four witnesses, Leona Smarte, Charles Smarte, Don Cox, and Dale McDonald. Petitioner offered four exhibits which were received in evidence.

Respondent testified in his own behalf. Respondent offered no further exhibits.

A transcript of the hearing was filed February 24, 1995.

Petitioner filed proposed findings of fact and conclusions of law on March 15, 1995. Respondent filed proposed findings of fact and conclusions law on March 14, 1995.

Based upon the evidence presented, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent, Wayne Dickens, is qualified to teach in the state of Florida and currently holds Florida Teacher's Certificate No. 623449. Respondent was employed under contract as an instructor by the Petitioner, Polk County School Board, from 1989 until his termination on October 11, 1994. Respondent is currently 38 years old.

   
   

2. During the 1993-1994 school year, August 8, 1993 to June 6, 1994, Respondent was employed as an instructor at the Ridge Vocational School in Polk County. Respondent's primary duties were to instruct and assist adult students in preparing to take the examination for the Graduate Equivalency Degree (GED). The GED program is designed for the sole purpose of preparing the students for the GED examination. Students do not pass or fail the program and Respondent did not administer any tests or otherwise grade the students in the GED program.

   
   

3. Mrs. Leona Smarte was enrolled as a student in the GED program at Ridge Vocational School from October 1993 to May 29, 1994. Respondent instructed and assisted Mrs. Smarte in preparation for the GED examination. Mrs. Smarte did not complete the GED program. Mrs. Smarte is currently 38 years old.

   
   

4. During the summer of 1994, Mrs. Smarte's husband, Charles Smarte, became suspicious that Mrs. Smarte might be romantically involved with another man. On or about September 1, 1994 Mr. Smarte confronted his wife with these suspicions. Mrs. Smarte at first denied that she was romantically involved with another man. Upon further questioning by her husband, Mrs. Smarte then stated that she had an affair with a fellow student who lived in Orlando. When her husband did not believe that account, Mrs. Smarte stated she had been involved with a man she named as Kenneth Jones. Her husband investigated this account and discovered that Mrs. Smarte had fabricated her statements concerning a Kenneth Jones.

   
   

5. Mr. Smarte then found a business card of the Respondent, Wayne Dickens, in Mrs. Smarte's purse. The business card also contained Respondent's home phone number. Mr. Smarte confronted his wife with the Respondent's business card and Mrs. Smarte then stated she had been having an affair with the Respondent. She further told her husband that she had sexual activity with the Respondent on four or five occasions. Later she told her husband that she had been sexually involved with the Respondent approximately once a week during the summer of 1994 for a total of twelve to fourteen occasions.

   
   

6. At hearing, Mrs. Smarte testified that she had been romantically involved with the Respondent on five occasions. She stated that the first occasion was on May 29, 1994 at the Royal Inn motel in Lakeland, Florida. She further testified that there were three other occasions at the Respondent's home in Lakeland. Mrs. Smarte testified that her final romantic encounter with the Respondent occurred on September 1, 1994 at the Motel 6 on Highway 27.

   
   

7. Respondent testified on his own behalf and denied any romantic relationship with Mrs. Smarte. In this respect, Respondent's testimony is

   deemed more credible. Respondent has been consistent in his denial of any contact with Mrs. Smarte outside the classroom. Since February 1994, and at all material times hereto, Respondent has been engaged to be married to another instructor employed with the Polk County School Board. Respondent's only confirmed contact with Mrs. Smarte was as an instructor in a classroom setting. It is not uncommon for instructors of adult students in the GED program to provide the adult students with business cards, and in this respect, Respondent provided his business card and home phone number to several of the adult students, including Mrs. Smarte, that he was instructing in the GED program at Ridge Vocational School during the 1993-1994 school year.

   
   

8. On September 12, 1994 Charles Smarte filed an affidavit with the Polk County School Board setting forth allegations of sexual misconduct by the Respondent.

   
   

9. The matter was investigated by Dale McDonald, an investigator employed by the Polk County School Board. Mrs. Smarte stated to the investigator that she and the Respondent had been together on three occasions at motels, the most recent being at the Motel 6 on September 1, 1994. Mrs. Smarte did not mention an encounter with Respondent at the Royal Inn, nor did she tell the investigator she had met the Respondent at his home.

   
   

10. The Polk County School Board's Investigator conducted a review of the motel records in the area. The investigation failed to confirm that the Respondent had rented a room at the Motel 6, or any other local motel, on September 1, 1994, or that Mrs. Smarte and the Respondent had been observed at any local motel at that time. Similarly, there is no confirming evidence that the Respondent rented a room on May 29, 1994 at the Royal Inn.

    
    

11. The investigation further failed to produce any independent corroborating evidence to show that Respondent was seen in the company of Mrs. Smarte outside of the classroom by any other student, any school personnel, or any neighbors, friends, or relatives of the Respondent or Mrs. Smarte during the five month period from May to September of 1994 when the sexual misconduct is alleged to have occurred.

    
    

12. It is the policy of the Polk County School Board that any sexual relationship between an instructor and a registered student, regardless of the age of the participants, constitutes misconduct, and has a detrimental effect on the instructor's ability to perform his responsibilities.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

    
    

14. Section 231.36(1)(a), Florida Statutes, provides that any person employed as a member of a school board's instructional staff may be dismissed during the term of contract for just cause which includes, but is not limited to misconduct in office.

    
    

15. In accordance with section 231.36, Florida Statutes, Petitioner has the burden of establishing by a preponderance of the evidence that the actions of the Respondent constituted misconduct in office to warrant his dismissal from employment.

16. A sexual relationship between an instructor and a registered student constitutes misconduct in office.

    
    

17. There is insufficient credible evidence to establish that Respondent engaged in a sexual relationship with a registered student during the 1993-1994 school year.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

Petitioner enter a Final Order reversing its decision to terminate the Respondent's employment as an instructional employee, and reinstate Respondent with pay.

RECOMMENDED in Tallahassee, Leon County, Florida, this 17th day of March, 1995.

RICHARD HIXSON

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 17th day of March, 1995.

APPENDIX

The following constitute rulings on proposed Findings of Fact.

Petitioner's Proposed Findings of Fact

1. - 3. Adopted.

1. - 6. Rejected as not supported by the evidence.

   1. Adopted except to the extent Mrs. Smarte actually had affair with Respondent.

   2. Rejected as not supported by the evidence.

Respondent's Proposed Findings of Fact

1. -15. Adopted and incorporated.

COPIES FURNISHED:

Dr. John A. Stewart, Superintendent Polk County Schools

Post Office Box 391 Bartow, Florida 33830-0391

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Donald H. Wilson, Jr., Esquire

150 Davidson Street Bartow, Florida 33831-1578

Mark Herdman, Esquire

34650 U.S. Highway 19 North, Suite 308 Palm Harbor, Florida 34684

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 94-006411

Orders for Case No: 94-006411