STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5328

)

EMORY TRAWICK, )

)

Respondent. )

) FRANK T. BROGAN, )

as Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1336

)

EMORY TRAWICK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Don W. Davis, a duly designated Administrative Law Judge of the Division of Administrative Hearings, held a formal hearing in the above-styled case on August 26-28, 1996, in Jacksonville, Florida. The following appearances were entered:

APPEARANCES

For Petitioner Duval County School Board:

Ernst D. Mueller, Esquire 600 City Hall

220 East Bay Street Jacksonville, Florida 32302

For Petitioner Frank T. Brogan:

J. David Holder, Esquire

14 South 9th Street

DeFuniak Springs, Florida 32433

For Respondent Emory Trawick:

William J. Sheppard, Esquire Sheppard and White, P.A.

215 Washington Street Jacksonville, Florida 32202

STATEMENT OF THE ISSUES

Issues for consideration in this case include whether there exists an adequate factual basis for Petitioner Duval County School Board (the Board) to terminate Respondent's employment as a principal and teacher for those violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida, 1941, as amended (the Act), which are alleged by the Board's Notice of Dismissal; and whether there exists an adequate factual basis for the Education Practices Commission (EPC) to revoke or suspend Respondent's teaching certificate or otherwise discipline Respondent for violations set forth in the Amended Administrative Complaint.

PRELIMINARY STATEMENT

By letter dated October 20, 1995, the Board informed Respondent that he was alleged to have committed violations of the Act while Principal at Forrest High School during the 1994-95 school year, specifically Section 4(a) of the Act relating to immoral character or conduct. The letter also informed Respondent that he was alleged to have violated Section 4(b) of the Act relating to public school system regulation, namely persistent violation of Rule 6B-1.006(5)(d), Florida Administrative Code, which prohibits an educator from engagement in harassment that creates an intimidating or offensive work environment.

The letter informed Respondent that he would be discharged as a principal and teacher in the Board's school system if one or more of the ten alleged violations of the Act were sustained.

On February 8, 1996, Petitioner Frank T. Brogan, Commissioner of Education (Commissioner) filed an Administrative Complaint which charges Respondent with misconduct constituting violations of Section 231.28 (1)(c), Section 231.28.(1)(f) and Section 231.28(1)(i), Florida Statutes; and Rule 6B-1.006(4)(c) and Rule

6B-1.006(5)(d), Florida Administrative Code.

Subsequent to the filing of the Commissioner's Administrative Complaint and with Respondent's consent, the Board's and the Commissioner's charges were consolidated for this proceeding.

On April 2, 1996, the Board amended the allegations against Respondent to include two additional incidents of misconduct relating to Section 4(a) of the Act, immoral character or conduct, and Section 4(b) of the Act, prohibiting engagement in harassment that creates an intimidating or offensive work environment. The Board's amendment also included allegations of violation of Sections 4(b) and 4(d) of the Act proscribing dishonesty in the course of employment.

The Commissioner also filed an Amended Administrative Complaint containing additional charges reflecting the Board's additional allegations. Respondent did not object and the amendments to the consolidated pleadings were granted.

The formal administrative hearing held in this case dealt with the charges contained in the Amended Notice Of Dismissal and the

Amended Administrative Complaint. It should be noted that this matter was transferred to the Division of Administrative Hearings for conduct of a formal hearing pursuant to Section 120.57(1), Florida Statutes

Charges of the Amended 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.

Charges of the Amended Notice Of Dismissal, if proven by a preponderance of the evidence, constitute grounds for dismissal of Respondent from his employment with the Board.

At the hearing, Petitioners jointly presented the testimony of

16 witnesses and 26 exhibits. Respondent presented testimony of 27 witnesses, including himself, and offered six exhibits of which five were admitted into evidence.

The transcript of the final hearing was filed with the Division of Administrative Hearings on September 17, 1996. Request of the parties for leave to file posthearing submissions more than

10 days after the filing of the transcript was granted, and in accordance with Rule 60Q-2.031, Florida Administrative Code, the parties waived provisions of Rule 28-5.402, Florida Administrative Code. Proposed findings submitted by the parties have been considered in the preparation of this recommended order.

FINDINGS OF FACT

1. Respondent holds Florida Educator's Certificate number 263958, covering the areas of physical education and school principal (all levels). The certificate is valid through June 30, 2001.

2. Respondent is a certified teacher who, on the basis of his long-term employment by the Board, has tenure as a result of the length of his service in a satisfactory capacity.

3. Respondent was employed as the Principal at Sandalwood High School by the Board from 1988 through the spring semester of 1994.

4. Commencing in the summer of 1994 and continuing through October 20, 1995, Respondent was employed by the Board as Principal at Forrest High School.

5. Respondent has been removed from his position as Principal of Forrest High School, but continues as a salaried employee of the Board pending resolution of the charges which form the basis for this proceeding.

6. During Respondent's tenure as Principal at Forrest High School, he supervised teachers Julie T. Lee, Kimberly L. Smith, Pamela W. Bean, and Karen E. Jones.

   
   

   Julie T. Lee, Teacher

7. During the 1994-1995 school year, Lee was both the Student Activities Director and the Cheerleading Coach for Forrest High School. In addition, she taught two classes on the subject of

   ecology. As Student Activities Director, she had an office centrally located, apart from the classroom she used.

8. In November of 1994, Respondent called Lee into his office. He shut and locked the door. He asked Lee to sit down in a chair that Lee noted had been turned and was out of place. She sat down. Respondent then went behind her and proceeded to rub her shoulders. Lee was uncomfortable and did not welcome or encourage Respondent's actions.

9. On February 6, 1995, Respondent again called Lee into his office and shut and locked the door. After a conversation with Lee, Respondent approached Lee and said he need a hug. He proceeded to hug Lee without her consent.

10. In May of 1995, while Lee was using the telephone in the Principal's office for a long distance call, Respondent returned unexpectedly, shut and locked the door, and sat down in a chair behind Lee. He proceeded to grab Lee about her hips and pull her down to sit in his lap. He told her if she would take care of him, she could have anything she wanted at the school. Lee got up, said she would take care of student activities and left. About a week later, Respondent encountered Lee outside her office and asked her if she had thought about his offer. Lee acted as if she didn't know what Respondent was talking about.

11. Later, before the end of the school year, Respondent informed Lee that he was moving her office. The new location for Lee's job as Student Activities Director was a weight room near the school gym. The room was bright red, smelled of sweat, and was

    located in an out of the way place for purposes of student activities. Lee commenced using the new location prior to the end of the school year for a period of approximately four weeks.

12. At the end of the four week period, Respondent came to Lee's office and told her that she had one hour in which to move. The new office was a former special education classroom at the other extreme end of the building, away from a central location, flooded with water and dirty. A few days thereafter, Respondent also told Lee that she would have to teach three out-of-field social studies classes in addition to the Cheerleading Coach and Student Activities Director jobs.

13. Lee felt she could not do all three jobs under any circumstances. Further, she felt that teaching a majority of out- of-field classes would subject her to being surplussed the following year unless she became certified in those areas in the interim.

14. Lee did not accept the justification that the additional class assignment was purely the result of budgetary constraints and felt that she was being subjected to retaliation for not meeting Respondent's sexual overtures. She talked with Mark Scott, a music teacher, about the matter on September 18, 1995. Scott had heard about difficulties that another teacher was having with Respondent.

    Scott revealed his discussion with the other teacher, Kimberly Smith, to Lee. Lee subsequently contacted Smith.

    
    

    Kimberly Smith, Teacher

15. Sometime near the middle of the 1994-1995 school year, Respondent walked up behind Smith in the school library and massaged her shoulders. Smith did not welcome or invite Respondent's conduct.

16. On or about June 14, 1995, Respondent asked Smith into his office and locked the door. After a conversation relating to her resignation as basketball coach, Respondent asked Smith for a hug. As Smith attempted to pull back from the hug, Respondent pulled Smith against his body and with his face on her neck told her that she smelled good. Respondent then told Smith to get out of there before he forgot who he was.

17. The next school year, on September 18, 1995, Respondent approached Smith in the hallway near the library and after some conversation grabbed her arm, pulled her to him and requested that Smith come to his office and give him "some tender loving care." If she complied, Respondent promised to "see what I can do for you."

18. Smith told Jon Nerf, an English teacher at Forrest High

    School, about the September 18, 1995 incident shortly after it occurred. Nerf's testimony establishes that Smith was emotionally upset by Respondent's action.

    Pamela W. Bean, Teacher

19. In April of 1995, Respondent asked Pamela W. Bean, a teacher, to come into his office when she asked to talk with him. He closed the door. After she was seated and talking, Respondent told Bean that she "looked stressed." He stepped behind her and began to rub her shoulders. When Bean got up, Respondent told her that he "needed a hug." Bean, nonplussed by the unsolicited and unwelcome advance of Respondent, complied with a brief hug and left. The next day, a similar incident with Bean occurred in Respondent's office. Again, Respondent's back rub and hug overtures were unsolicited by Bean who complied again with Respondent's request for a hug.

    Karen Jones, Teacher

20. In the spring of 1995, Karen E. Jones, another teacher, asked to speak with Respondent. He asked her into his office and closed the door. Respondent then told Jones "I need a hug" and proceeded to hug her. After hugging Jones, Respondent told her that "we need to do that more often."

21. In the first half of September of 1995, Respondent asked Jones to come into a room near his office called "Trawick's Trough." After entering the room, he again asked for a hug and hugged Jones. Jones did not solicit or welcome the hug. Jones later confided prior to initiation of any formal charges against Respondent in her long-term friend, Susan Ingraham, who is a school board employee, regarding Respondent's overtures.

    Julie A. Gray, Teacher

22. Julie A. Gray was a first year teacher of Spanish and the yearbook sponsor at Sandalwood High School during the 1991-1992 school year when Respondent was her supervisor and the Principal at that school.

23. Respondent approached Gray in the hallway during the early part of that school term. Respondent told Grey that he liked to get hugs from his faculty members. Gray patted him lightly on the shoulders. Respondent then said,"oh, I didn't mean here. I meant in my office."

24. Later in the school term, Gray went to report to Respondent that all the yearbooks had been sold. Gray found Respondent near the bookkeeper's office and started talking to him.

    He leaned over and tried to kiss her on the mouth. When she backed away, Respondent tried to hug Gray. She was embarrassed by the incident and informed Peggy Clark, a professional support staffer for new teachers, that Respondent had made remarks of a sexual nature to Gray. Gray's roommate was also informed by Gray regarding Respondent's attempt to kiss Gray.

    The Teachers

25. As a result of Lee's conversation with Mark Scott, Lee subsequently compared experiences with Smith. Bean, assigned by Respondent to sit in the student activity office during one of Lee's social studies classes also had a discussion with Lee.

26. The three, Lee, Smith and Bean, decided to lodge complaints with the school administration and did so in early October of 1995. Lee felt she had not choice if she did not want to lose her job. Smith would have reported Respondent's behavior toward her earlier, but felt that she was alone and could not succeed. Bean, likewise, had felt she was alone and would not be believed over the word of a principal.

27. Jones learned about the other teachers and their grievances a couple of weeks following Respondent's last advance toward her and decided to join the others in making a complaint.

28. Gray had considered bringing sexual harassment charges against Respondent in the spring of 1992, but felt it would simply be her word against Respondent. She decided to come forward with her allegations in response to requests by the Board's representative who had learned of Respondent's behavior in 1992 toward Gray.

29. Based on their candor and demeanor while testifying, as well as the consistency of their testimony with earlier statements made by them to persons with whom they spoke following various incidents, the testimony of all five teachers, Lee, Smith, Bean, Jones, and Gray, is fully credited and establishes that Respondent's conduct toward them was intimidating and adversely affected their abilities and enthusiasm for teaching in such situations.

    Stefani Powell, Contract Manager

30. Stefani Powell was a district supervisor for ARAMARK, the operator of the Board's food service in the school system during the 1994-95 school year. In her capacity, Powell managed 14 school cafeterias, including the one at Forrest High School. Respondent, as the Principal at Forrest, was a client of ARAMARK's, oversaw what happened in the cafeteria, and approved certain aspects of the cafeteria's functioning.

31. In meetings with Powell in his office, Respondent began closing and later locking the doors, commencing in October of 1994.

    He initiated hugs with Powell at the end of these meetings. On approximately eight to 10 occasions, the last in January or February of 1995, Respondent hugged Powell. Initially, the hugs were light, but progressed and grew stronger with Respondent eventually placing his hand on Powell's back and pushing inward. On the last occasion, Respondent kissed Powell on the cheek. None of these attentions by Respondent was solicited by Powell and were unwelcome.

32. Since Respondent's advances made Powell uncomfortable, she eventually confided in her supervisor who advised that Powell always take someone with her or ensure the presence of a third person at conferences with Respondent. Powell followed this practice with regard to future meetings with Respondent.

33. After reading in the newspaper of the allegations of the teachers at Forrest High School, Powell told her mother, a school board employee, of her experiences with Respondent. As a result,

    Powell was put in touch with the Board's investigator and her complaint against Respondent followed.

34. Due to her candor and demeanor at the final hearing, as well as consistency of her testimony with statements made by her to others, Powell's testimony is totally credited.

    Dishonesty In The Course Of Employment

35. Carol Abrahams was a clerk one at Forrest High School during the 1994-1995 school year. She shared a social relationship with Respondent and his wife. In April of 1995, Respondent made Abrahams the Principal's secretary. Abrahams was a clerk one. A clerk three is the customary rating and higher paying position normally assigned duties as a Principal's secretary.

36. Respondent sought to augment Abrahams' pay since she was paid less than a Principal's secretary would normally receive. Respondent directed the use of Community School funds to pay Abrahams for work after the normal school day hours. Commencing with the beginning of the 1995-1996 school year, Abrahams was paid

    $9.50 per hour for the hours of 3:30 p.m. to 6:30 p.m. each day that Community School functioned, Monday-Thursday, through September of 1995.

37. Abrahams did not work during all the hours for which she claimed payment for the period of August 23, 1995 through September 28, 1995. Specifically, Abrahams went to an aerobics class conducted at Forrest High School from 3:30 until 4:30 p.m. almost every Monday, Wednesday and Thursday of each week during August and September, 1995.

38. On three payroll hour certifications signed by Respondent, payment was made to Abrahams for a total of 16 hours during 16 days that were not actually worked at the times claimed.

39. Respondent knew that Abrahams was attending the aerobics classes, but it was assumed by he and others that Abrahams would make up the missed hours. Abrahams testimony that she did school work at home, on weekends and at other times in an amount of hours sufficient to more than make up for the hours claimed on the subject pay roll certifications, while creditable, is not corroborated by any record of such "comp" time and cannot serve to extinguish the commission by Respondent of the technical violation of approval of those time sheets for subsequent payment when he knew those records were not accurate.

    Conduct And Effectiveness

40. Respondent's misconduct, as established by the testimony of Lee, Smith, Bean, Gray, Jones and Powell, constitutes personal conduct reducing Respondent's effectiveness as an employee of the Board.

    CONCLUSIONS OF LAW

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

42. The Commissioner's Amended Administrative Complaint in this case alleges that Respondent has violated Section 231.28(1)(c), Florida Statutes, in that he is guilty of gross immorality or an act involving moral turpitude; that Respondent has

    violated Section 231.28(1)(f), Florida Statutes, in that he is guilty of personal conduct seriously reducing his effectiveness as an employee of the Board; and that Respondent has violated Section 231.28(1)(i), Florida Statutes, in that he is guilty of conduct violative of the Principles of Professional Conduct for the Education Profession contained in rules prescribed by the State Board of Education.

43. The Board's Amended Notice of Dismissal alleges that Respondent has violated Section 4(a) of the Act as the result of immoral character or conduct and Section 4(b) of the Act as the result of persistent violation of a regulation relating to the public school system, specifically Rule 6B-1.006(5)(d), Florida Administrative Code, which states that an educator:

    Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly process of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and further shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.

44. The Amended Notice of Dismissal also alleges that Respondent has violated Section 4(b) of the Act as the result of persistent violation of Rule 6B-1.006(5)(a) and Rule 6B- 1.006(5)(h), Florida Administrative Code; and is subject to dismissal from employment pursuant to provisions of Section 4(d) of the Act.

45. Rule 6B-1.006(5)(a), Florida Administrative Code, states that an educator "[s]hall maintain honesty in all professional

    dealings."

46. Rule 6B-1.006(5)(h), Florida Administrative Code, states that an educator "[s]hall not submit fraudulent information on any document in connection with professional activities."

47. Section 4(d) of the Act provides that the Board may dismiss an employee for acts of dishonesty committed in the course of employment by the Board.

48. The Board must sustain an action seeking to dismiss an instructional employee by a preponderance of the evidence. Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990).

49. The Commissioner has the burden of proving the charges set forth in the Amended Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

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

    
    

    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 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;

    * * *

    1. Has violated the Principles of Professional Conduct for the Educational Profession prescribed by State Board of Education rules; or

    2. Has otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate.

51. Moral turpitude is defined by Rule 6B-4.009(6), Florida 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.

52. The term has 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.

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

53. Gross immorality is defined by Rule 6B-4.009(2), Florida Administrative Code, as:

    [C]onduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the educational profession into public disgrace or disrespect and impair the individual's service in the community.

54. It is concluded that the Respondent's conduct with regard to teachers, specifically, Lee, Smith, Bean, Jones and Gray, as well as Powell, the contract manager, constituted immorality or acts involving moral turpitude. Respondent took advantage of his position of authority and control to make unwanted sexual overtures to these enumerated female individuals. His conduct created a hostile, oppressive and offensive work environment.

55. Respondent's conduct also has reduced his effectiveness as an employee of the Board. Section 231.28(1)(f), Florida Statutes, provides that the Education Practices Commission also has the authority to suspend or revoke a teaching certificate if an individual is guilty of conduct which seriously reduces his effectiveness as an employee. The Respondent's conduct did reduce his effectiveness, as well as the Board's trust in the Respondent's ability to conduct himself in a professional manner with female employees under his supervision and control.

56. Rule 6B-1.006(2), Florida Administrative Code, provides for revocation or suspension of the individual educator's certificate, or imposition of other penalties as provided by law, in instances of violation of any of the Principles of Professional Conduct of the Education Profession in Florida. Similarly,

    Section 4 of the Act provides that a violation of the same regulations constitutes grounds for discharge or dismissal from employment with the Board.

    Other Rule Violations

57. Section 231.28(1)(h), Florida Statutes, provides that the EPC has the authority to suspend or revoke a teaching certificate if an individual violates the rules of the State Board of Education. Rule 6B-1.006(2), Florida Administrative Code, prohibits the violation of the Principles of Professional Conduct for the Education Profession in Florida. The penalty for such violation is suspension or revocation of an individual's teaching certificate. In this case, Petitioners argue that Respondent has violated the following Principles of Professional Conduct: Rule

    6B-1.006(4)(c), Florida Administrative Code, which prohibits the educator from using institutional privileges for personal gain or advantage; b.) Rule 6B-1.006(5)(d), Florida Administrative Code, which prohibits the educator from engaging in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or the orderly processes of education or which creates a hostile, intimidating, abuse, offensive, or oppressive environment, and further, requires the educator to make reasonable effort to assure that each individual is protected from such harassment or discrimination; c.) Rule 6B-1.006(5)(a), Florida Administrative Code, which requires that the educator shall maintain honesty in all professional dealings; and d.) Rule 6B-1.006(5)(h), Florida

    Administrative Code, which prohibits the educator from submitting fraudulent information on documents in connection with professional activities.

58. Based upon the clear and convincing evidence presented, Respondent's conduct constitutes a violation of each of the rule provisions cited. Clearly and convincingly, Respondent engaged in sexual harassment of female employees on his staff and a female contract manager at his school. Respondent also knowingly signed and permitted the submittal of false and fraudulent information on documents in connection with his official duties and responsibilities as a high school principal. Disciplinary action is warranted for these violations.

RECOMMENDATION

Pursuant to provisions of disciplinary guidelines contained within Rule 6B-11.007, Florida Administrative Code, it is

RECOMMENDED that a final order be entered by EPC revoking Respondent's teaching certificate for a period of two years, with recertification at the conclusion of that time conditioned upon Respondent's acceptance of a three year probationary period upon terms and conditions to be established by the EPC, and it is

FURTHER RECOMMENDED that a final order be entered by the Board dismissing and discharging Respondent from his position of employment with the Board.

DONE AND ENTERED this 13th day of December, 1996, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1996.

COPIES FURNISHED:

Ernst D. Mueller, Esquire Office of the General Counsel City of Jacksonville

600 City Hall

220 East Bay Street Jacksonville, Florida 32202

J. David Holder, Esquire

14 South 9th Street

DeFuniak Springs, Florida 32433

William J. Sheppard, Esquire Sheppard and White, P.A.

215 Washington Street Jacksonville, Florida 32202

Karen Barr Wilde, Executive Director

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Kathleen M. Richards, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Michael H. Olenick, Esquire Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive

Jacksonville, Florida 32207-8154

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 95-005328

Orders for Case No: 95-005328