Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings, on October 3, 1996, in Ocala, Florida.
For Petitioner: William C. Haldin, Jr., Esquire
RICHARD, BLINN & HALDIN, P.A.
The issue to be resolved in this proceeding concerns whether the Respondent, an educational support employee, has committed conduct which shows him to be not of good moral character, as envisioned in Section 231.02, Florida Statutes, and whether good
cause exists to terminate him from his employment with the Petitioner as a result of this conduct.
This cause arose based upon notification to the Respondent on April 8, 1996 that he was being suspended with pay based upon charges that he handled, fondled or assaulted one or more female students under the age of 16 years in a lewd, lascivious or indecent manner and engaged in a sexual act or acts with one or more female students and solicited others to engage in sexual acts. It was thus charged that these acts constituted immorality, misconduct in office, and willful neglect of duty.
The Superintendent of the Marion County School District recommended that the Respondent be terminated by the Marion County School Board (Board) and suspended without pay pending the outcome of a formal hearing, if requested. The Board acted on his recommendation on or about April 9, 1996 and suspended the Respondent without pay pending the outcome of the administrative proceeding, which the Respondent requested and which was granted. The matter was, in due course, transmitted to the undersigned Administrative Law Judge for conduct of a formal proceeding.
The cause came on for hearing as noticed. At the hearing, the Petitioner presented five witnesses. Most of the witnesses were the female students involved in the alleged wrongful conduct as alleged victims. Consequently, their names are sealed in the record and are rendered confidential. Agreed-upon fictitious
names for each of those witnesses appear of record. The Respondent presented no testimony or evidence. Upon conclusion of the proceeding, a transcript thereof was ordered; and the parties were accorded, at their request, an extended briefing schedule. At the conclusion of that time, the Petitioner presented Proposed Findings of Fact and Conclusions of Law.
However, none have been filed by the Respondent.
The Petitioner is the School Board of Marion County, Florida. The Respondent, Carlton L. Wilkerson, at times pertinent hereto, was an employee of the Petitioner. He was employed as an academic skills coach and as such, was an “educational support employee”.
The Respondent was hired by the Petitioner on August 15, 1994. He was suspended from employment, with pay, on March 20, 1996 and subsequently was suspended, without pay, by the Petitioner on April 10, 1996.
“Susan” is the name used for purposes of this proceeding to identify a white, female high-school student at Forest High School in Ocala, Florida. At times pertinent to this proceeding, she was 15 years of age and in the ninth grade. At the time of the hearing, she was 16 years of age and in the tenth grade. The name “Susan” has been assigned to her by agreement of the parties as a fictitious name to protect her confidentiality. Her actual name and those of the other female students involved in the
purported conduct at issue appears in Petitioner’s Exhibit 1, which is an exhibit placed under seal in this record.
On Susan’s first day of school in the ninth grade school year (1995-1996), she was assigned to a practical arts class. She was then 15 years of age. Upon her entry into the practical arts class, she first encountered the Respondent. He was a teacher’s aide in that class. This was the first time the Respondent had ever encountered Susan.
On the day in question, while Susan was seated in the back of the room, she was approached by the Respondent. He engaged in a conversation with her and asked Susan if she had ever had sex and also asked her if she had ever had oral sex.
She was taken aback and embarrassed greatly by this and responded in the negative. He also asked her if she would have “sex with a ‘black guy’ and oral sex with a ‘black guy’”. The Respondent is black and Susan is white. She answered “no” to these questions and left the classroom when the bell rang.
About three to four months into that school year in a different class, where the Respondent was also present, he asked Susan why she would not have sex with him. She replied that she did not want to and walked away. On another occasion, outside the school disciplinary office, the Respondent approached Susan and asked, in effect, that since she was having sex with a certain male student, why would she not have sex with him also. She denied that this was occurring and rejected his overture. He
also asked her to check with another female student, whom he named, about what had happened between that student and himself. Susan stated that the female student confirmed that she had been having sex with the Respondent in the boy’s locker room of the gymnasium for some time.
0n another occasion, in Mr. Mackey’s class (one of Susan’s teachers), the Respondent was standing by Mr. Mackey’s desk at the front of the room conversing with him. Susan went to ask Mr. Mackey a question about a paper at the desk, whereupon the Respondent, standing next to her as she leaned over, and with his back toward Mackey, rubbed her genital area with his hand, without her permission. Mackey saw this and told him “. . . don’t be doing that in my classroom . . . you’re going to get yourself in trouble.” Susan picked up her paper and retreated.
In March of 1995-1996 school year, the Respondent telephoned Susan at her home asking when he could have sex with her and asking for her to meet him at a carnival, which she was attending that evening. In that conversation, he told her not to identify who she was talking to anyone at her home.
In none of the incidents referenced did Susan accept the Respondent’s solicitations or encourage further interaction with him concerning sexual matters. In fact, his actions caused her great embarrassment and engendered great distrust of him. The incidents also caused fear in Susan, such that she did not report the incidents to school authorities or discuss them with other
than a close friend because she knew that the Respondent was popular with a large block of students at the school, and she feared that the students “would be against her” and might retaliate. On the occasion of each of the incidents described herein, Susan was only 15 years old.
“Sarah” is the name used in this proceeding to identify a female, African-American, Forest High School student. Sarah was 17 years of age at the time of the hearing and in the twelfth grade. During the 1995-1996 school year, Sarah was in the eleventh grade and was assigned to a practical arts class, in which the Respondent was a teacher’s aide.
On a day in February in the practical arts class, the Respondent approached Sarah and asked her if she would like to have sex with him and if so, that she should return to that classroom at about 12:35 p.m., during the lunch hour. In response, Sarah simply left her seat and walked away from him.
Sarah had only had incidental contact with the Respondent prior to that incident and had no contact with him afterwards. She reported the incident to her mother, her boyfriend, and to school officials. The school officials took no action because there were no corroborating witnesses, and they apparently chose to believe that nothing could be done if they were faced with a situation of only Sarah’s word against that of the Respondent. Put another way, apparently no effort was made to judge the credibility of either of the protagonists.
The Respondent was not responsible for assigning grades to Sarah. There had been no occasions before that incident in which she and the Respondent had become angry with each other or had been involved in any sort of argument or altercation. Sarah was shown to have no motive to fabricate the story. The same situation is true of Susan, who was shown to have no motive, such as revenge or otherwise, for fabricating a false story concerning the Respondent.
“Tracy” is the name used in this proceeding to identify a white, female, Forest High School student. Tracy, at the time of the hearing, was 17 years of age and in the twelfth grade. At the time of the incidents in question, she apparently was 16 years of age and was in the eleventh grade. She became acquainted with the Respondent when passing him and his friend, Mr. Mackey, a teacher, on her way to and from certain of her classes each day. She saw him occasionally in a weight-lifting class or activity she was involved in at the school, as well, when he would come to the weight room.
Near the end of November or early December in that school year, she happened to be passing the Respondent between classes and he asked her if she would meet him to have sex with him during the lunch period, which she declined. Similar solicitations took place in the same manner at the same place on
or 15 different occasions. On three or four occasions during the 1995-1996 school year, the Respondent telephoned Tracy at
home asking her to have sex with him. The content of the solicitation conversations, whether in person or over the telephone, with this student, as with Susan, were questions concerning whether she had ever had sex with a “black guy” or whether she would ever have sex or oral sex with black persons. When she answered all such questions in the negative, he informed her that she was “missing out”. Tracy declined the solicitations in every instance. She did not initially report the conversation to her parents because she did not intend to respond to them and she was embarrassed and afraid to discuss such graphic, repulsive language and conduct in front of her parents. The Respondent was not in a position to influence Tracy’s grades nor had she or the Respondent had any angry words or other altercation between them before or after the solicitation incidents. She was shown to have had no motive, such as revenge or other motive, to impel her to fabricate her account of these events.
The content and language employed by the Respondent in these solicitation conversations with all the students involved in this action was graphic in the extreme. The Respondent solicited sexual favors from these students in the most grossly, vulgar, obscene and repulsive street language imaginable. The language he used is depicted in the transcript of the victims’ testimony. The students were disparaged by such conduct, such
intent, and such language, were greatly embarrassed by it and rendered fearful, to some extent, of the consequences to them of their reporting it.
“Mary” is the name used for purposes of this proceeding to identify a female, African-American, Forest High School student. At the time of the hearing, Mary was 15 years of age and in the tenth grade. She was 14 years of age at the beginning of her ninth grade year, the 1995-1996 school year, and turned 15 on January 9, 1996. This is the school year when the incidents described below happened.
Mary first encountered the Respondent during the 1995- 1996 school year outside of his friend, Mr. Mackey’s room. At the time, she was bending over and tying her shoes. She had not been acquainted with him before that time but knew that he was a school employee. During their first encounter, the Respondent asked Mary if she were wearing shorts under her skirt and asked her what color and kind her panties were and whether he could “get into them.” She simply laughed and walked away.
Sometime later in the school year, Mary encountered the Respondent at another location at the school. He asked her where she lived, if she was a virgin, and if she had been with an older man. He asked her whether she would like to be with an older man.
Sometime later, she encountered the Respondent after school by the football field and he asked her if she wanted to
“do something” with him. He asked her to meet him behind the auto mechanics building and told her to take an opposite route to the building from a route he would take, so that they would not be seen together. She met him at the auto mechanics building and on that occasion she and the Respondent had vaginal sexual intercourse. No one else was present.
From sometime before Thanksgiving of 1995 through March of 1996, starting when she was 14 years of age and in the ninth grade, the Respondent and Mary had vaginal sexual intercourse on
occasions at the following locations:
behind the auto mechanics building;
in Mr. Mackey’s classroom during a lunch break;
in a classroom during “Saturday school”;
in an aerobics workout room at the school; and
in a van in the auto mechanics garage at the school.
On one additional occasion, the Respondent met Mary at a school basketball game. He took her to his apartment during the game and had oral sex with her and returned her to the school before the game was completed.
The last sexual encounter between the Respondent and Mary occurred on March 18, 1996. Shortly after that, Mary sought medical treatment for what she believed was a urinary tract infection. In fact, it was chlamydia and genital warts, both sexually-transmitted diseases. At the request of the medical personnel she had contact with, she identified the Respondent as
the person with whom she had been having sex.
Other than a brief conversation immediately following her first visit to the doctor, Mary had no further contact with the Respondent after the time she identified him to medical authorities. It was apparently by this means of identification that proceedings were instituted against the Respondent by the School Board authorities and by the State’s Attorney.
No evidence whatever was offered by the Respondent and certainly none to contradict the testimony of the four students. There was no evidence presented that any of these students knew each other, were aware of the Respondent’s actions with respect to each other, or had any reason or motive to falsely accuse him for purposes of revenge or other reasons.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1995).
The burden of proof in such a proceeding, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); and Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The Petitioner is asserting the affirmative
of the issue and, therefore, has the burden of proving that the Respondent should be dismissed as an educational support employee.
The evidence of record is unrefuted in proving, as shown by the above Findings of Fact, that during the 1995-1996 school year, while employed as a “academic skills coach” at Forest High School, the Respondent:
repeatedly solicited female students under the age of
18 at Forest High School to engage in sexual activities with him;
fondled or intentionally touched a female student under the age of 16 on her genital area in a sexually-suggestive manner;
repeatedly engaged in a sex act involving vaginal penetration by or union with a sexual organ with that of a female student when she was 14 years of age and continuing to do so when she was 15 years of age;
solicited a female student of 14 years of age to perform oral sex on him, which the student did at his request.
The Respondent’s conduct during the 1995-1996 school year described above obviously constituted misconduct in office and immorality. One of the threshold requirements of his position as an academic skills coach or “educational support employee” is that he maintain and be possessed of good moral character. The Respondent’s moral character is non-existent. The only character he exhibited by the facts related above is
immoral character of a distinctly/egregious sort. A person employed in a school system, who shows no more interest in and respect for his own character and position as one who should be guiding and molding both the academic skills and character of young students in his charge and who shows such a gross lack of regard for their feelings, their self-esteem, and their worth as human beings, has no business being employed by any school system.
As found above, the Respondent was an “educational support employee” during that school year, as that position is defined in Section 231.3605(1)(a), Florida Statutes. His employment in that position was subject to the requirement that he be of “good moral character”, pursuant to Section 231.02, Florida Statutes. He could not be dismissed during the term of his employment, except for “good cause”, pursuant to the Petitioner’s policy GDPD(1).
“Good cause” for purposes of dismissal of such an educational support employee, as opposed to an instructional employee or teacher, is not further defined but may be considered analogous to “just cause”, which, for purposes of instructional employees of a school district, is defined in Section 231.36(1)(a), Florida Statutes. “Just cause”, among other things, includes misconduct in office and immorality. See Section 231.36(1)(a), Florida Statutes.
When one considers the atrocious conduct the Respondent committed, as described in the above Findings of Fact, it is patently obvious that, under anyone’s reasonable definitions of misconduct in office and immorality, the Respondent’s conduct with respect to these female students during the 1995-1996 school year was basely immoral and clearly constituted misconduct “in office” and immorality. Additionally, his conduct demonstrated that he is not of good moral character, as required of every school employee by Section 231.02(1), Florida Statutes. It follows logically that if his hiring in his position required good moral character, the failure to maintain good moral character after being employed in such a position is clearly grounds for termination. There is no question that good cause has been established to terminate the Respondent from his employment with the Petitioner.
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1997.
Frank T. Brogan Commissioner of Education Department of Education The Capitol
William C. Haldin, Jr., Esquire RICHARD, BLINN & HALDIN, P.A.
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.
