STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2909

)

JOHN THOMAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case at West Palm Beach, Florida, on December 11, 1996, before Michael M. Parrish, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. David Holder, Esquire

14 South Ninth Street

DeFuniak Springs, Florida 32433

For Respondent: Mr. John Thomas, pro se

507 North L Street

Lake Worth, Florida 33460

STATEMENT OF THE ISSUE

This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of allegations of misconduct set forth in an Administrative Complaint. The Administrative Complaint charges the Respondent with having entered into a sexual relationship

with a minor who was a student at a school where the Respondent was an administrator and teacher.

PRELIMINARY STATEMENT

Following service of the Administrative Complaint, the Respondent submitted an Election of Rights in which he denied all allegations of misconduct and requested a formal hearing. The case was referred to the Division of Administrative Hearings and a final hearing was conducted on December 11, 1996. At the formal hearing the Petitioner presented the testimony of two witnesses and offered three exhibits, all of which were received in evidence. The Respondent testified on his own behalf and also presented the testimony of two other witnesses. The Respondent offered three exhibits, all of which were received in evidence.

On January 21, 1997, the Respondent filed a four-page letter containing arguments and factual assertions in support of his position. That document has been treated as the Respondent’s proposed recommended order and has been carefully considered during the preparation of this Recommended Order. A transcript of the hearing was filed with the Division of Administrative Hearings on February 7, 1997. On February 14, 1997, the Petitioner filed its proposed recommended order containing proposed findings of fact and conclusions of law. The Petitioner’s proposals have also been carefully considered during the preparation of this Recommended Order.

In order to facilitate an understanding of the findings of fact which follow, and of the reasons certain proposed findings of fact have not been made, it is first noted that this is a case in which the Petitioner bears the burden of proving the essential elements of its charges by clear and convincing evidence. There is evidence in this case to the effect that the Respondent engaged in the misconduct described in the Administrative Complaint. That evidence is not, however, sufficiently persuasive to constitute clear and convincing evidence of such misconduct.

FINDINGS OF FACT

1. The Respondent holds Florida teaching certificate number 518573 covering the area of English. The certificate is valid through June 30, 1997.

2. During the school years of 1978-1979, 1979-1980, and 1980-1981, the Respondent was employed as an administrator and teacher at Summit Christian School in West Palm Beach, Florida.

3. During those same school years, J. R. G. was a female student attending Summit Christian School. Those school years were, respectively, her sophomore, junior, and senior years of high school. J. R. G. was fifteen years old during her sophomore year of high school.

4. During J. R. G.’s sophomore year the Respondent was her History teacher and was also the Principal of the school. During the next two school years, the Respondent continued to be the

   Principal of the school, but he did not teach classes on a regular basis.

5. During most of the three school years mentioned above,

   
   

   J. R. G. was frequently a baby-sitter for the Respondent’s children. During that period of time J. R. G. was on very friendly terms with the Respondent, with the Respondent’s wife, and with the Respondent’s children. During that period of time

   J. R. G. was a frequent visitor to the Respondent’s house at times other than when she was baby-sitting.

6. During J. R. G.’s sophomore year and until about the middle of her junior year, whenever J. R. G. baby-sat for the Respondent the Respondent always drove J. R. G. from her home to his home at the beginning of each baby-sitting job and he always drove her home after each baby-sitting job. The Respondent’s wife never drove J. R. G. to or from a baby-sitting job.

7. During the second half of J. R. G.’s junior year and during her senior year she drove herself to and from baby-sitting jobs at the Respondent’s house.

8. Although the circumstances described in paragraph 6, above, provided an opportunity for the misconduct alleged in the Administrative Complaint, the evidence of such misconduct falls short of the clear and convincing standard which is applicable in this case.1

   CONCLUSIONS OF LAW

   
   

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

10. In a license discipline proceeding of this nature the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the above-quoted language from Slomowitz. The Smith case also includes the following at page 958:

    "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

11. The misconduct alleged in the Administrative Complaint has not been proved by clear and convincing evidence. Although

J. R. G. appeared to be sincere during her testimony describing various acts of misconduct, the Respondent appeared to be equally sincere in his assertion that no acts of misconduct ever occurred. Other than the conflicts between the testimony of J.

R. G. and the testimony of the Respondent, there is no persuasive evidence that either impeaches or corroborates either version of what did or did not happen.2 J. R. G. and the Respondent both appear to be reasonable people. One of them is obviously either very confused about, or has a very poor memory about, the events that occurred when they were both at Summit Christian School; or one of them has resorted to unmitigated mendacity. However, on the record in this case there is simply insufficient evidence upon which to make a logical and rational choice between the version of events described by J. R. G. and the version described by the Respondent. On this state of the record, the evidence that would tend to support the Petitioner’s version of the case simply cannot be described as “clear and convincing.” And without that quality, the evidence is insufficient to sustain the charges against the Respondent.

RECOMMENDATION

For the reasons set forth above, it is RECOMMENDED that a Final Order be issued in this case dismissing all charges against the Respondent.

DONE AND ENTERED this 28th of February, 1997, in Tallahassee, Florida.

MICHAEL M. PARRISH

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 28th of February, 1997.

ENDNOTES

1/ J. R. G. testified at the hearing that on numerous occasions when the Respondent was taking her home after baby-sitting he engaged in various intimate activities with her. The intimate activities described in J. R. G.’s testimony included several types of sexual touching. J. R. G.’s testimony also described some incidents of sexual misconduct that allegedly took place after she began to drive herself to and from baby-sitting jobs. The Respondent testified at the hearing that he never engaged in any intimate activities or in any sexual touching of J. R. G. For reasons discussed in the Conclusions of Law portion of this Recommended Order, J. R. G.’s testimony does not constitute clear and convincing evidence and is insufficient to support the charges in this case.

2/ The only evidence offered to corroborate J. R. G.’s testimony consisted of copies of handwritten notes (Petitioner’s Exhibit 3) which were described as being notes written by the Respondent to

J. R. G.’s younger sister which are asserted to be similar to notes written by the Respondent to J. R. G. Those notes are of no assistance in choosing between the conflicting versions of what did or did not happen because they are equally consistent with either version. The only evidence offered to corroborate the Respondent’s testimony consisted of testimony to the effect that he enjoyed a reputation as a good teacher, was well-liked by his students, and had not been the subject of any other complaints. Such evidence is of little, if any, assistance in resolving the issue of whether the Respondent did or did not commit the misconduct described in the Administrative Complaint.

Experience has shown that even very good and very well-liked teachers sometimes engage in inappropriate conduct with their students.

COPIES FURNISHED:

J. David Holder, Esquire

14 South 9th Street

DeFuniak Springs, Florida 32433

Mr. John Thomas

507 North L Street

Lake Worth, Florida 33460

Karen Barr Wilde, Executive Director Education Practices Commission

224-B 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, General Counsel Department of Education

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

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: 96-002909

Orders for Case No: 96-002909