STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 97-2567

)

LAWRENCE BUSH, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case by video teleconference on September 5, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. David Holder, Esquire

14 South Ninth Street

Defuniak Springs, Florida 32433

For Respondent: Lawrence Bush, pro se

4840 East Riverside Drive Fort Myers, Florida 33905

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent's certificate as an educator in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative complaint dated May 7, 1997, Frank T. Brogan, as Commissioner of Education for the State of Florida,

sought to discipline Respondent's certificate as an educator in this state because, it is alleged, on or about July 3, 1995, Respondent was arrested and charged with Battery (Domestic Violence) on his wife and child, to which he subsequently pleaded nolo contendere in circuit court. As a result of the plea, the court withheld adjudication but sentenced Respondent to probation for one year; and it also directed him to attend counseling, to pay a fine of $150.00, and to refrain from having any contact with the victim. The Petitioner alleged that Respondent's misconduct constitutes gross immorality or an act involving moral turpitude, in violation of Section 231.28(1), Florida Statutes.

Respondent denied the allegations and demanded formal hearing. This hearing ensued.

At the hearing, Petitioner presented the testimony of Crystal Bush, Respondent's wife and the victim of the alleged misconduct; Michael D. Gregory, a domestic violence and family law investigator for the circuit court in Lee County; and Marilyn

L. Strong, Director of Personnel Services for the Lee County Schools and an expert in the areas of administration and supervision of educators in Florida. Petitioner also introduced Petitioner's Exhibits 1 through 6. Respondent testified in his own behalf and introduced Respondent's Exhibits A and B.

A transcript of the proceedings was furnished, and after the receipt thereof, both parties submitted matters in writing which have been considered carefully in the preparation of this Recommended Order.

After the hearing, but before the transcript was filed with the undersigned, Respondent sent a letter to the undersigned. He also sent a copy of his letter to counsel for Petitioner. In the letter, Respondent summarized his view of the evidence presented as he saw it and submitted written argument in support of his position. Respondent also had his attorney in the divorce action and the criminal case write to the undersigned to indicate that at no time had either he or the Respondent discussed the substantive matters of the domestic violence with Mr. Gregory. A copy of the attorney’s letter was also sent to counsel for Petitioner. Thereafter, Petitioner’s counsel moved to strike the Respondent’s letter and the letter from the attorney, claiming they were both ex parte communications, and sought assessment of a $500 civil penalty against the Respondent.

The transcript of the hearing reflects that at the close thereof, the undersigned afforded both parties the opportunity to submit argument and Proposed Findings of Fact, conditioned upon copies thereof being submitted to the opposing party. Mr. Bush was not represented by counsel at the hearing. His post-hearing submittal does not appear to be inappropriate and is considered only as a position statement within the parameters approved by the undersigned at the close of the hearing. Therefore, imposition of a civil penalty is not deemed appropriate.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, Commissioner of Education, was the state official in

   Florida responsible for the certification of educators and the regulation of the teaching profession in Florida. Respondent was certified as an educator in this state by the Petitioner, and held Florida Educator's Certificate 554449, valid through June 30, 1995, and covering the area of elementary education.

2. Crystal S. Bush, Respondent's wife, met the Respondent when he was her cross-country coach while she was a sixth grade student at Suncoast Middle School. He became her teacher for English and social studies the following year when she was a seventh grade student at that school. She married him in February 1993, when she turned sixteen years old, while she was in the ninth grade.

3. Respondent and his wife had one child, a boy, in February 1994, and separated in the Spring of 1995 because, she claimed, he became very controlling and verbally abusive. Because she did not have any money, and needed funds on which to live, Mrs. Bush withdrew $400.00 from their joint bank account. With their child, she moved back with her parents, occupying the garage apartment on their property about three and a half miles

   from where she had lived with Respondent. Mrs. Bush insists that Respondent knew she was leaving, but she did not know if he knew where she was going. She believes he did, however, because he knew she had no place else to go.

   
   

4. A day or two after the separation, Respondent came to the apartment where Mrs. Bush and the baby were staying. They were taking a nap at the time. He claims he went to the parents’ house first and was told his wife was in the garage apartment and he should "go on in,” which he did.

5. Respondent entered the apartment and went into the bedroom where Mrs. Bush and the baby were sleeping. According to

   Mrs. Bush, she was awakened by Respondent's yelling that he wanted his mail-box key and the money she had taken from their joint account. Mrs. Bush contends that though she had her own checking account before this, he opened up the joint account with her as a gift, and it was into this joint account that their sizable tax refund check had been deposited. She claims that they had agreed she was to get half of the refund, but Respondent later reneged on that agreement.

6. Mrs. Bush gave him the mail-box key, but asked him to let her keep a part of the refund. She had stopped working as a club dancer and had no money. Respondent refused. Because of his attitude, she declined to return any of the money she had withdrawn.

7. Because Respondent's yelling was scaring the baby, and Mrs. Bush tried to terminate the conversation, but Respondent would neither be quiet nor let her leave. She tried to ignore him, but, she contends, he picked up an incense box and threatened to kill her with it.

8. Respondent also demanded that she give him the baby. He claims he had had care of the child 5-to-6 nights a week while his wife was working, but when she left, she refused to let him have the child any more.

9. Mrs. Bush contends that when she refused to give up the child, Respondent pushed her to the floor, pulled her hair and hit her on the lip, splitting it. She cannot say whether he hit her with his open hand or his fist, but there is no doubt her lip

   was split. The injury was observed by Mr. Gregory, a domestic violence investigator with the county, when he interviewed her a few days later. Mrs. Bush also claims that during the course of the fight over the baby, Respondent threatened to break the baby's arm if he had to in order to get the child. Respondent denies this, and there is no evidence that any such injury was inflicted on the child. However, that Mrs. Bush finally gave up the child and the Respondent left the premises.

10. Immediately after Respondent's departure, Mrs. Bush called the police who responded within fifteen minutes. When they arrived, she told them that Respondent had hit her and the child, and she repeated that allegation to the court when she subsequently sought an injunction against him. She also advised an investigator for the Department of Education that Respondent had hit her and had returned the child to her scratched and bruised. This report was also made to child protection investigators with the Department of Health and Rehabilitative Services some weeks later. No evidence was introduced to confirm her allegations of injury to the child, however.

11. Later the day of the incident, Respondent was arrested on a charge of domestic violence, and the child was returned to Mrs. Bush. While the police were at her house, they suggested she sign a document seeking a restraining order against Respondent, which she did. Respondent and his wife talked by telephone several times after his arrest. As a result of these discussions, she put up the funds required to get him released

    from jail on bond the following morning.

    
    

12. Several days after the incident, because she was experiencing pain in the neck, Mrs. Bush saw her doctor. At that visit, no medical attention was required for the injury to her lip. She did not feel it necessary to take the child to the

    doctor because though, she claims, he had been struck by the Respondent, he did not seem to be injured.

13. In the interim between Respondent's arrest and his subsequent court appearance at which his plea of nolo contendere was entered, Mrs. Bush obtained an order granting a temporary injunction against the Respondent to prevent him from committing any violence against her. This was followed by an amended order which made the injunction permanent.

14. Mr. Gregory, the court's domestic violence and family law investigator, received the same story from Mrs. Bush that she had told to the police, and conducted his own investigation. Gregory claims to have spoken with Respondent during several mediation meetings. On each interview, save one, Respondent had an attorney present. Mr. Gregory contends that Respondent admitted there had been a physical altercation between him and his wife, but that the hitting of Mrs. Bush was an accident which occurred while he was trying to take the child from her arms. Gregory also states that Respondent admitted striking Mrs. Bush in the mouth, pushing her to the floor, pulling her hair, and threatening to take the child away from her.

15. At hearing, Respondent again claimed he was acting in self-defense to his wife’s striking out at him and grabbing him by the genitals. In light of the fact that this defense was not raised to anyone prior to hearing, however, it is rejected.

16. Based on his investigation into the incident, Mr. Gregory recommended that the State Attorney proceed with

    prosecution of the criminal charges which had been filed against the Respondent. Thereafter, on February 27, 1996, Respondent pleaded nolo contendere in circuit court to a charge of domestic violence. The court withheld adjudication but sentenced the Respondent to one-year probation, a fine of $150.00, required him to attend counseling, and directed him to refrain from contact with Mrs. Bush.

17. In the expert opinion of Marilyn L. Strong, the Director of Personnel Services for the Lee County Schools and an educator with almost a quarter century of administrative and supervisory background, the misconduct attributed to Respondent constitutes both gross immorality and moral turpitude as they are defined in the Florida Statutes and the rules of the Department of Education. However, Ms. Strong’s opinion is not supported by the facts in this case, and it is found that Respondent’s single striking of his wife does not here constitute either gross immorality or moral turpitude.

    CONCLUSIONS OF LAW

    
    

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

19. The Petitioner seeks to discipline the Respondent’s certification as an educator in Florida because of Respondent’s alleged misconduct in committing domestic violence on his wife and child, an allegation to which he pleaded nolo contendere in circuit court. Petitioner contends that Respondent thereby has

    been guilty of gross immorality or an act involving moral turpitude, in violation of Section 231.28(c), Florida Statutes.

20. The provision cited permits the Education Practices Commission to suspend for a period not to exceed three years, or to revoke, either permanently or for a period of up to ten years, the Respondent’s teaching certificate, provided it can be shown that Respondent, as alleged herein, has been guilty of gross immorality or an act involving moral turpitude.

21. Gross immorality, within the purview of this statute, is not defined. However, immorality is defined by Rule 6B- 4.009(2), Florida Administrative Code, as:

    ... conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual’s service in the community,

    
    

    and moral turpitude is defined, at Rule 6B-4.009(6), Florida Administrative Code, as:

    ... 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 that the doing of the act itself and not its prohibition by statutes fixes the moral turpitude.

    
    

22. The evidence or record clearly establishes that Respondent struck his wife and split her lip, and in the course of that action may have unintentionally also struck his little boy. Teachers, by virtue of their position of leadership and role models for their students, can properly be held to a higher moral standard than other regulated professionals. Therefore, it

    is safe to say that Respondent’s misconduct was wrong and properly punishable under the law. He paid the penalty exacted by the court as a result of his appearance before it.

23. However, it stretches the point to claim that a domestic scuffle, during which no serious physical injury was sustained by anyone, rises to the level of gross immorality or moral turpitude. To be sure, Respondent is guilty of misconduct, but his misconduct does not constitute that level of misconduct which is cited in the statute as a basis for discipline of his certificate, notwithstanding the opinion of the local school board’s personnel official.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commissioner of Education enter a Final Order dismissing the Administrative Complaint.

DONE AND ENTERED this 16th day of October, 1997, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

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) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1997.

COPIES FURNISHED:

J. David Holder, Esquire

14 South Ninth Street

DeFuniak Springs, Florida 32433

Lawrence Bush, pro se 4840 East Riverside Drive

Fort Myers, Florida 33905

Kathleen M. Richards Executive Director

Education Practices Committee 224-E Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Program Director

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, Pl-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: 97-002567

Orders for Case No: 97-002567