STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-1712

)

MICHAEL WILLIAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, on July 14 and 15, 1999, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Ernst D. Mueller

Assistant General Counsel Office of General Counsel City of Jacksonville

117 West Duval Street, Suite 480 Jacksonville, Florida 32202

For Respondent: Kenneth Vickers, Esquire

214 Washington Street Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Michael Williams, should be disciplined for violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended, alleged in a Notice of Termination of Employment and Immediate Suspension Without Pay issued March 18, 1999.

PRELIMINARY STATEMENT

On or about March 18, 1999, a Notice of Termination of Employment and Immediate Suspension Without Pay was issued on behalf of the Superintendent of the Duval County Public Schools alleging that Michael Williams had committed certain violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended. By letter dated March 24, 1999, Mr. Williams requested a formal administrative hearing to contest the allegations of the March 18, 1999, Notice.

The Notice and request for hearing were filed with the Division of Administrative Hearings by letter dated April 13, 1999. The Division of Administrative Hearings was requested to conduct the formal hearing on behalf of the Duval County School Board. The request was designated Case No. 99-1712 and was assigned to the undersigned.

The formal hearing was scheduled for formal hearing by Notice of Hearing entered May 12, 1999.

At the formal hearing the Duval County School Board presented the testimony of Nick Haley; Frederick Bernard Culver; Ben Jerry Fleming, Sr.; John Heavner; Laterra Sha-neke Clark; Coda Kiawana Hill; Mary Frances Garven Green; David Leroy Starling; Crystal Shanna Williams; Valma Colvin; and Jitenga Nusu Dakika Thomas. The Duval County School Board also offered 12 exhibits, which were marked for identification as Petitioner's Exhibits 1-11 and 13. All were entered into evidence.

Mr. Williams testified on his own behalf and presented the testimony of Michael Anthony Williams. Mr. Williams offered one exhibits, which was accepted into evidence.

A transcript of the hearing was ordered. The Transcript was filed August 3, 1999. Proposed orders were, therefore, required to be filed on or before August 18, 1999. An Unopposed Motion for Enlargement of Time was granted, extending the filing date of proposed orders to September 20, 1999. A second Motion for Enlargement of Time requested a further extension until September 27, 1999. That motion is hereby granted.

Proposed orders were filed by both parties on September 27, 1999. Petitioner's Proposed Order was filed after 5:00 p.m., but it does not appear that Petitioner gained any advantage by filing its Proposed Order approximately an hour late. Therefore, both proposed orders have been fully considered in entering this Recommended Order.

FINDINGS OF FACT

1. Respondent, Michael Williams, is licensed to teach in Florida. He holds Florida Educator's Certificate No. 456063, which allows Mr. Williams to teach physical education. Mr. Williams' license was valid through June 30, 1999.

2. Mr. Williams has been employed as a teacher or substitute teacher by Petitioner, the Duval County School Board (hereinafter referred to as the "District"), since 1978.

   Mr. Williams was employed by the District at all times relevant to this matter. Mr. Williams is tenured.

3. During the 1997-1998 school year, Mr. Williams was employed as a physical education teacher at First Coast High School (hereinafter referred to as "First Coast").

4. During the summer of 1998, following the 1997-1998 school year, Mr. Williams served as a teacher at First Coast during the summer session. The summer session started June 15, 1998, and ended July 23, 1998.

5. Laterra Clark was a student at First Coast during the 1997-1998 school year. Ms. Clark was a junior. Ms. Clark was 18 years of age on June 25, 1998.

6. On or about June 29, 1998, Ms. Clark went to First Coast to obtain a transcript which she needed in order to transfer to another high school. Ms. Clark had moved in with her God sister, Jitenga Thomas, who lived in the school district for the high school to which Ms. Clark planned to transfer.

7. Before going to the office to obtain a copy of her transcript, Ms. Clark met Fred Culver, a coach and physical education teacher at First Coast. Ms. Clark and Mr. Culver were either in the gymnasium or they went to the gymnasium after meeting.

8. While in the gymnasium, Coach Culver and Ms. Clark met Mr. Williams. Mr. Williams was leaning against a table in the gymnasium just outside the entrance to the boys' locker room.

   Ms. Clark leaned against the table close to Mr. Williams. Mr. Williams and Ms. Clark knew each other because she had been in his physical education class.

9. Mr. Williams and Ms. Clark talked for a while.

   
   

   Mr. Williams touched Ms. Clark on her buttocks. Ms. Clark jumped up when he did so, but returned to leaning against the table next to him.

10. Eventually, Mr. Williams told Ms. Clark that they should go to his office where they could talk. Ms. Clark agreed and followed Mr. Williams in to the boys' locker room.

11. Ms. Clark had not been in the boys' locker room before. She had been in the girls' locker room, which has almost the same layout as the boys' locker room. One difference in the layout of the girls' and boys' locker room is that the coaches' office in girls' locker room may be accessed by going into a room next door to the coaches' office and through a bathroom in the back of that room. The room has lockers in it and is used by the coaches as a changing room. The coaches' office in the boys' locker room has the same type of changing room with a bathroom in the back as the girls' locker room but the bathroom is not connected with the coaches' office. The door to the changing room in the boys' locker room is reached before the door to the coaches' office.

12. Mr. Williams led Ms. Clark to the coaches' changing room, unlocked the door, and opened it. The light was not on. Mr. Williams led Ms. Clark to the door to the bathroom at the

    back of the changing room, opened the door to the bathroom, turned on the light, and stood aside to allow Ms. Clark to walk in.

13. Ms. Clark thought that the room led to the coaches' office, as it does in the girls' locker room, but realized as soon as she walked into the room that there was door to the office. She turned around and asked Mr. Williams what they were doing in the bathroom. Mr. Williams responded, "you know what we're doing," and moved closer to Ms. Clark.

14. Mr. Williams had closed and locked the bathroom door. He picked Ms. Clark up and put her down on the sink. Ms. Clark began asking Mr. Williams what he was doing and kept sliding off the sink.

15. Mr. Williams pressed his body against Ms. Clark and rubbed her right breast. Mr. Williams, who was wearing shorts, became aroused and his penis was erect. Mr. Williams did not expose his penis to Ms. Clark.

16. Ms. Clark attempted to leave the bathroom, but Mr. Williams turned her around and began to unbutton her floor-length denim dress. Mr. Williams managed to get enough buttons open to put his hand inside, touch her panties, upper thigh, and her vagina. Mr. Williams told Ms. Clark that she was "hairy."

17. Ms. Clark continued to resist and ask Mr. Williams "What are you doing?" She told Mr. Williams "stop."

    Mr. Williams told Ms. Clark, "Well, then, you say you're grown. Act like you're grown." She eventually got the door to the bathroom open and went out into the changing room. Mr. Williams did not try to prevent her from leaving. Ms. Clark buttoned up her dress and then followed Mr. Williams out of the changing room and to the coaches' office next door. The episode lasted approximately ten minutes.

18. Mr. Williams' conduct in the bathroom with Ms. Clark was unwanted and uninvited by Ms. Clark.

19. Mr. Williams and Ms. Clark sat in the coaches' office for a short time until Michael Chandler, the Dean of Boys, came to get Mr. Williams. Mr. Williams and Ms. Clark followed Mr. Chandler out of the boys' locker room. Mr. Williams and Ms. Clark went their separate ways.

20. Ms. Clark did not immediately report the incident to any authority at First Coast. Immediately upon leaving the gymnasium Ms. Clark ran into a close friend whom she told about the incident. She told another close friend immediately after leaving First Coast. Finally, she told her God sister about the incident that evening. Although there were some discrepancies in what Ms. Clark told her close friends and her God sister, or in what they recalled, their recollection of what Ms. Clark told them was consistent in most material aspects.

21. A few days after the June 29, 1998, incident, Ms. Clark returned to First Coast to get a copy of her transcript. In

    addition to confronting Mr. Williams, Ms. Clark reported the incident to two teachers, Coach Fred Culver and Ben Fleming. Neither teacher took any action to report the incident to administrators at First Coast.

22. When Ms. Clark returned to school the following school year, she was teased by students about the incident and left school.

23. Mr. Williams' conduct in taking Ms. Clark into the boys' locker room was inappropriate for a teacher. Mr. Williams' conduct with Ms. Clark was inappropriate.

24. Mr. Williams admitted taking Ms. Clark into the boys' locker room. His explanation about why he took Ms. Clark into the boys' locker room was not credible.

25. On or about March 18, 1999, a Notice of Termination of Employment and Immediate Suspension Without Pay was issued on behalf of the Superintendent of the Duval County Public Schools alleging that Michael Williams had violated Sections 4(a) and (b) of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended (hereinafter referred to as the "Act").

26. The District alleged the following specifications for the alleged violations of the Act:

    On or about June 29, 1998, you made sexually suggestive remarks to a female student, L. C. and attempted to undress her. You fondled her breasts and genital area and exposed your penis to her.

27. By letter dated March 24, 1999, Mr. Williams requested a formal administrative hearing to contest the allegations of the March 18, 1999, Notice. The Notice and request for hearing were filed with the Division of Administrative Hearings by letter dated April 13, 1999.

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57, Florida Statutes (1997).

29. The burden of proof in this proceeding was on the District. The District was required to prove the allegations against Mr. Williams by a preponderance of the evidence. See Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3rd DCA 1990); and Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990).

30. Section 4 of the Act provides causes for the "discharge or the demotion of a teacher . . . ." Section 4(a) and (b) of the Act provide the following causes for discharge or demotion:

    1. Immoral character or conduct, insubordination or physical or mental incapacity to perform the duties of the employment.

       
       

    2. Persistent violation of or willful refusal to obey the laws of the State of Florida or regulations adopted by authority of law, relating to the public schools or the public school system. (Emphasis added).

       
       

31. "Immoral character or conduct" is not defined in the Act. In relevant part, the term "immoral" is defined as follows

    "not moral; broadly: conflicting with generally or traditionally held moral principles." Webster's New Collegiat Dictionary (1977). The term "moral" is defined as "1 a: of or relating to principles of right and wrong in behavior : ETHICAL . . . c: conforming to a standard of right behavior . . . ." Id. Thus, immoral conduct is conduct with is inconsistent with the standards of public conscience and good morals. See Rule 6B- 4.009(2), Florida Administrative Code.

32. Sexual contact with a student by a teacher is conduct that is inconsistent with the standards of public conscience and good morals. Parents expect teachers to protect their children. They do not expect teachers to have any sexual contact with their children. Children also expect their teachers to refrain from sexual contact with them. Mr. Williams' sexual contact with

    Ms. Clark, who was a student at the time of the incident, constituted conduct that is inconsistent with the standards of public conscience and good morals and is, therefore, "immoral conduct."

33. The specific regulations relating to public schools which Mr. Williams has been alleged to have willfully refused to obey in violation of Section 4(b) of the Act are Rules

    6B-1.006(3)(a), (e), (g), and (h), Florida Administrative Code.

    
    

34. Rule 6B-1.006, Florida Administrative Code, establishes the "Principles of Professional Conduct for the Education Profession in Florida." Rule 6B-1.006(3), Florida Administrative

    Code, establishes the following relevant obligations which teachers owe to students:

    1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.

       
       

       . . . .

       
       

       (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

       
       

       . . . .

       
       

       1. Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.

       2. Shall not exploit a relationship with a student for personal gain or advantage.

35. The evidence established that Mr. Williams willfully failed to make a reasonable effort to protect Ms. Clark from conditions harmful to learning and/or to the her mental and/or physical health and/or safety. Mr. Williams has, therefore, willfully refused to obey Rule 6B-1.006(3)(a), Florida Administrative Code.

36. The evidence also established that Mr. Williams intentionally exposed Ms. Clark to unnecessary embarrassment or disparagement. Mr. Williams has, therefore, willfully refused to obey Rule 6B-1.006(3)(e), Florida Administrative Code.

37. The evidence also established that Mr. Williams exploited his relationship with Ms. Clark for personal gain or advantage; his own sexual gratification. Mr. Williams, therefore, willfully refused to obey Rule 6B-1.006(3)(h), Florida Administrative Code.

38. Finally, however, the evidence failed to prove that Mr. Williams harassed or discriminated against Mr. Clark on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background or that he failed to make reasonable effort to assure that Ms. Clark was protected from harassment or discrimination. Mr. Williams, therefore, did not willfully refuse to obey Rule 6B-1.006(3)(g), Florida Administrative Code.

39. Section 4 of the Act provides that a teacher may be discharged or demoted for any of the violations listed therein. Mr. Williams has violated Sections 4(a) and (b) of the Act. Although not specifically applicable in this case, Rule 6B- 11.007, Florida Administrative Code, provides guidelines of the Education Practices Commission for discipline of teachers licensed in Florida. Rule 6B-11.007(i), Florida Administrative Code, recommends suspension or revocation of a teacher's license for sexual misconduct with any student or any minor in violation of Rules 6B-1.006(3)(a), (e), (g), or (h), Florida Administrative Code.

40. Based upon the foregoing, Mr. Williams should be discharged from his employment with the District.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered by the District discharging Michael Williams from his position of employment with the Duval County School Board.

DONE AND ENTERED this 21st day of October, 1999, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1999.

COPIES FURNISHED:

John C. Fryer, Superintendent Duval County School Board 1701 Prudential Drive

Jacksonville, Florida 32207-8182

Ernst D. Mueller, Assistant General Counsel Office of General Counsel

City of Jacksonville

117 West Duval Street, Suite 480 Jacksonville, Florida 32202

Kenneth Vickers, Esquire

214 Washington Street Jacksonville, Florida 32202

Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel The Capitol, Suite 1701 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: 99-001712

Orders for Case No: 99-001712