STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) Case No. 00-0390

)

DOUGLAS A. LATTA, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Clearwater, Florida, on April 10, 2000.

APPEARANCES

For Petitioner: J. Wiley Horton

Booth & Horton, P.A.

P.O. Drawer 840 Tallahassee, Florida 32301

For Respondent: Mark Herdman

Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

The issue is whether Respondent inappropriately touched a female student in violation of Sections 231.28(1)(c), (f), or (i), Florida Statutes, or Rule 6B-1.006(3)(a) or (e), Florida Administrative Code, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 27, 1999, Petitioner alleged that Respondent inappropriately touched a female student by running his hand down her leg and placing his hand on her buttock and squeezing, inappropriately commented to a female about his sex life and inquired as to her sex life, and downloaded inappropriate pictures of women in bathing suits onto his classroom computer. (Petitioner elected not to offer evidence of the inappropriate use of the classroom computer, so Petitioner has abandoned this allegation.)

The Administrative Complaint alleges that these acts violate Section 231.28(1)(c), Florida Statutes, prohibiting gross immortality or an act of moral turpitude; 231.28(1)(f), Florida Statutes, prohibiting personal conduct that seriously reduces the effectiveness of an employee of the School Board; and 231.28(1)(i), Florida Statutes, prohibiting violation of the Principles of Professional Conduct. The Administrative Complaint alleges that the inappropriate behavior violates Rule

6B-1.006(3)(a), Florida Administrative Code, which requires that a teacher make a reasonable effort to protect his or her students from conditions harmful to learning or to the student's mental health and physical safety; and Rule 6B-1.006(3)(e), Florida Administrative Code, which prohibits a teacher from intentionally exposing a student to unnecessary embarrassment or disparagement.

At the hearing, Petitioner called four witnesses and offered into evidence three exhibits. Respondent called one witness and offered into evidence seven exhibits. All exhibits were admitted.

The court reporter filed the Transcript on April 19, 2000.

FINDINGS OF FACT

1. Respondent holds a Florida educator's certificate, number 700508. His certificate is valid through June 30, 2003, and covers the areas of varying exceptionalities, elementary education, English, specific learning disabilities, visually impaired, and primary education.

2. During the 1995-96 school year, Respondent was employed as an exceptional student education (ESE) teacher by the Sumter County School District. Respondent was assigned to teach at the South Sumter Middle School.

3. Respondent had taught at South Sumter Middle School since the 1994-95 school year. During the first year at the school, Respondent was the ESE math, science, and social studies teacher. During the 1995-96 school year, Respondent was the ESE team leader.

4. During the 1995-96 school year, R. J. was an eighth- grade student at South Sumter Middle School. She was classified as emotionally handicapped (EH) and was assigned to an EH classroom.

5. R. J. was not as disruptive as her EH classmates, so her teacher allowed her, after finishing her work, to leave the classroom and visit Respondent's classroom, in which the students were better behaved. R. J.'s teacher allowed R. J. to attend Respondent's class 1-2 hours weekly. While there, R. J. mostly tutored the other students.

6. One day, in Mid-May 1996, while visiting Respondent's classroom, R. J. was watching a film with the rest of the class. She was seated in the back of the room with Respondent, who was doing some administrative work during the screening of the film. The room was half-lighted.

7. At one point during the film, some servants were dressing a wealthy child. When they attached garters, one boy in the class shouted, "She's wearing a girdle." Respondent responded by saying that the garment was not a girdle, but a device to hold up socks. Sitting next to Respondent, R. J. asked him to explain further what a garter is. Respondent poked her knee to show her where the garter attached. Respondent did not move his chair closer to R. J.'s chair, nor did he run his hand up or down R. J.'s leg.

8. Later the same day, the ESE department sponsored the weekly Coke Day. Respondent had started Coke Day because ESE students never went on field trips. Taking place late in the day on Fridays, Coke Day presented the opportunity for students who had behaved well during the preceding week to buy sodas donated

   by teachers, with the proceeds going to field trips. In addition to paying for ESE field trips and providing an incentive for good behavior, Coke Day also gave the ESE students a chance to socialize and receive praise for good work and good behavior.

9. Toward the end of the time allocated to Coke Day, Respondent saw that someone needed to pick up discarded soda cans and other debris from the field where Coke Day took place. As Respondent was doing so, while the field was filled with students, R. J. approached Respondent closely and complained that another student had been flirting with her. Respondent told the other student to stop flirting with R. J.

10. During this incident, Respondent was holding in one hand a plastic litter bag, into which he was placing empty soda cans. As he warned the other student to stop flirting with R. J., Respondent pushed her lightly on her hip with his hand holding the bag, as though to move her out of the way as he passed her. The bag may have also brushed against Respondent in the vicinity of her buttock thigh.

11. Petitioner subpoenaed R. J. to testify in this case, but she refused to honor the subpoena. Petitioner therefore presented R. J.'s testimony in the form of a videotaped deposition taken on October 11, 1996, in the criminal case, which did not result in a conviction.

12. In her deposition, R. J. testified that Respondent rubbed the tips of his fingers up one time and down one time

    along the front of her thigh when demonstrating the location of a garter. She also testified that Respondent lightly squeezed her buttock for two or three seconds on the field during Coke Day.

13. Fifteen years of age at the time of the deposition, R.

    
    

    J. testified haltingly. Although not appearing overly nervous about testifying, R. J. required repeated prompting when asked to describe in detail the touches and, even then, her testimony was vague. At times, R. J.'s attempts to describe in detail what she claimed Respondent had done had an invented quality, as R. J.'s replication of Respondent's movements seemed to lack any real conviction or certainty.

14. R. J. claims that she has been the victim of sexual abuse several times, naming as perpetrators her step-father and uncle, and she says that hugs from her father make her uncomfortable. R. J. also admitted that a friend had had sexual intercourse with her, while she was asleep after an evening of drinking. R. J. describes a troubled family life, testifying that her mother and step-father accuse her of being promiscuous.

15. An eyewitness to the Coke Day incident, D. P., gave conflicting statements at the time of the investigation. At some point after the day of the incidents, D. P. became R. J.'s boyfriend. At the hearing, D. P. testified contradictorily about whether he saw any inappropriate touching. There is little doubt that he saw nothing.

16. An agent of the Florida Department of Law Enforcement testified at the hearing. The agent is a coordinator of crimes against children.

17. Shortly after the incidents, the agent visited the school. After speaking to a school administrator and possibly reading R. J.'s statement, but before talking to her, the agent interviewed Respondent. Not taping the interview, the agent misinformed Respondent that he had talked to R. J., and other students had joined in her claims of inappropriate contact. When Respondent denied any inappropriate contact, the agent, during this initial interview, accused Respondent of lying.

18. The agent testified that Respondent admitted that he had pulled R. J.'s chair closer prior to demonstrating the location of a garter. This is something that he has later denied. However, the matter is inconsequential, even for the limited purpose of trying to assess Respondent's credibility. As for the Coke Day incident, the agent testified that Respondent said he might have touched, but did not grab, R. J.'s buttock. Absent additional detail, this admission does not establish an inappropriate touching or a lack of credibility

19. The most significant part of the agent's testimony is his claim that Respondent admitted that he needed sexual counseling and asked what kind of deal he could get if he "told the truth." Respondent denied making these statements.

20. Several possibilities exist concerning the agent's testimony describing these two statements. The agent may have misunderstood Respondent or may be misreporting what Respondent said. Respondent may have made these quoted statements.

21. However, several facts are quite clear. First, nothing else in the record provides significant support for these statements, at least to the extent that they would also constitute implicit admissions of inappropriate touching.

22. Second, the agent described Respondent as cooperative. Given the contrasting personalities of the agent, who is intense and focused, and Respondent, who is quiet-spoken to the point of passivity, it is quite possible that Respondent made statements substantially the same as reported by the agent in response to a coercive atmosphere perhaps inadvertently created by the agent.

23. Although it is not possible to resolve the dispute in the testimony concerning the two statements that the agent claimed that Respondent made, it is clear that the record lacks clear and convincing evidence that Respondent touched R. J. in an inappropriate manner.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

2. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

3. Sections 231.28(1)(c), (f), and (i) authorizes the Education Practices Commission to discipline a person holding a teaching certificate who is guilty of "gross immorality or an act involving moral turpitude," "personal conduct which seriously reduces that person's effectiveness as an employee of the school board," a violation of the Principles of Professional Conduct.

4. Rules 6B-1.006(3)(a) and (e), which are part of the Principles of Professional Conduct, require that a person holding a teaching certificate "[s]hall 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" and "[s]hall not intentionally expose a student to unnecessary embarrassment or disparagement."

5. Petitioner has failed to prove that Respondent violated any of these requirements.

RECOMMENDATION

It is

RECOMMENDED THAT the Education Practices Commission enter a final order dismissing the Administrative Complaint against Respondent.

DONE AND ENTERED this 15th day of June, 2000, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 15th day of June, 2000.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director Florida Education Center

325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400

J. Wiley Horton Booth & Horton, P.A.

Post Office Drawer 840 Tallahassee, Florida 32301

Mark Herdman

Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

Michael H. Olenick, General Counsel Department of Education

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

Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education

325 West Gaines Street, Suite 224-E 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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 00-000390

Orders for Case No: 00-000390