STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 01-2824PL

)

BURL JENKINS, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Notice was provided and on September 24, 2001, a formal hearing was held in this case. The hearing location was the Columbia County Courthouse, 145 North Hernando Street, Lake City, Florida. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes.

The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

913 North Gadsden Street Tallahassee, Florida 32301

For Respondent: Mary F. Aspros, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Should Respondent, Burl Jenkins, be disciplined by the State of Florida, Education Practices Commission, for alleged misconduct in association with his position as a certified teacher?

PRELIMINARY STATEMENT

Tom Gallagher, the former Commissioner of Education, brought an action against Respondent through an Administrative Complaint in Case No. 990-0822-C, before the State of Florida, Education Practices Commission. When the formal hearing was held, Charlie Crist had replaced Tom Gallagher as Commissioner of Education. After being served with the Administrative Complaint Respondent elected the opportunity to engage in settlement discussions, failing which he sought a formal hearing as envisioned by Section 231.262(5), Florida Statutes, and consistent with the procedural requirements set forth in Section 120, Florida Statutes. Upon receipt by Sharyn Smith, Chief Judge of the Division of Administrative Hearings, the case was assigned and the hearing ensued.

The parties were required to submit a joint prehearing stipulation. Part of that stipulation included a detailed agreement on facts admitted which would not require proof at hearing. These admitted facts are available for fact-finding. Similarly, as explained in an order entered in the case,

Respondent was required to respond to request for admissions numbered 1, 2, 8, and 10, and did admit those matters leading to the availability of those admissions for fact-finding purposes.

Petitioner filed a motion in limine attempting to limit the proof in the case. That motion was denied.

At hearing Petitioner presented the witnesses Vickie Toni Crafton, Myeesha Charmana Ellis, K.P., N.N., Evanda Ellis, Dianne Clyatt, and Rebecca Moseley. Petitioner's Exhibit A-3 was admitted. Respondent testified in his own behalf and presented the testimony of K.D., Deputy Tony Nolan, A.J., and Jack Rankin.

A hearing transcript was filed on October 22, 2001.

Petitioner requested an extension of time for filing proposed recommended orders. The parties were advised that the motion was granted. Proposed recommended orders were filed and have been considered in preparing the recommended order.

FINDINGS OF FACT

Stipulated or Admitted Facts:

1. Respondent holds Florida Educator's Certificate

   
   

   No. 2597, covering the areas of Specific Learning Disabilities and Social Science, which is valid through June 30, 2002.

2. Respondent was at all times material to the allegations of the administrative complaint an employee of the

   Columbia County School System, as an ESE Teacher at Melrose Elementary School.

3. While employed as a teacher at Melrose Elementary School Respondent received a letter of reprimand from his principal, Jack Rankin.

   Other Findings:

   
   

4. Both Respondent and Vickie Toni Crafton are teachers in the Exceptional Education Department of Melrose Elementary School and have been since the early 1990s. As such they have performed their duties nearby each other. They had adjacent classrooms.

5. Over the years Respondent and Ms. Crafton have discussed the academic circumstances and behavior of their students. Additionally, they have discussed topics concerning their family members. Those conversations about family members were casual. The conversations included the subject of Myeesha Charmana Ellis, Ms. Crafton's daughter, who had attended Melrose Elementary School. Ms. Ellis was born on October 2, 1980.

6. Among the conversations between Respondent and

   
   

   Ms. Crafton were those involving the subject of dating. Those conversations did not include sexual issues.

7. Not all remarks which Respondent made to Ms. Crafton were well received. On one occasion when Ms. Crafton was

   walking away from Respondent, he commented about the manner that Ms. Crafton walked by stating, "I would like some fries with that shake." Although Ms. Crafton interpreted the remark as being an inappropriate remark from one professional to another professional, one teacher to the other, she did not pursue the matter further with anyone in authority, notwithstanding her discomfort. Ms. Crafton simply looked back at Respondent, shook her head, turned around and kept walking. This event took place sometime around the years 1993 or 1994. Ultimately, Ms. Crafton expressed her displeasure to Respondent concerning his remark and asked that he not repeat the conduct. She received an apology from Respondent for the incident.

8. In 1993 Ms. Crafton purchased a home and was discussing her new home with Respondent, in particular the subject of the spacious countertops in the home. Respondent remarked that he "sure would like to lay Ms. Crafton on the countertop." She did not like that comment. Ms. Crafton looked at Respondent in return and walked away. Again,

   Ms. Crafton did not tell anyone about Respondent's comments believing that she could handle the matter by herself.

9. In 1996 Ms. Crafton was outside of her classroom on the steps yawning. Respondent was also outside on the sidewalk. He commented that he "sure would like to get over

   into that," while the two teachers were engaged in conversation. Ms. Crafton went back into her classroom and closed the door. She took the comment to mean that Respondent would like to put his penis in her mouth. Ms. Crafton did not report the comment by Respondent to anyone, believing, as before, that this was an issue that she could deal with herself without going to the school administration to complain.

10. On another occasion Respondent remarked to Ms. Crafton that he would like to "mix cream with the

    chocolate." This occurred when the two teachers were engaged in conversation outside the classroom. As before, no one else was present. Ms. Crafton considered Respondent's comment to be an inappropriate remark from one professional to another.

    She interpreted the comment as one involving black and white individuals. Ms. Crafton is black. Respondent is white.

    What exactly Respondent meant by his reference to mixing cream with chocolate was not something that Ms. Crafton indicated she would allow her mind to countenance. Nonetheless she was offended by the remark.

11. On September 17, 1998, another incident occurred between Ms. Crafton and Respondent which upset Ms. Crafton. On that date Myeesha, Ms. Crafton's then teenage daughter,

    came to the mother's classroom. Ms. Crafton took her daughter

    next door to Respondent's classroom and commented to Respondent, "Look how tall she has gotten. She has really grown up from here, going from the first grade on up to the fifth grade" and so forth. Respondent then put his hand on Ms. Crafton's shoulder and put his other hand on the daughter's shoulder, turned the two face to face, looked down at their breasts and said "what is wrong with this picture." Ms. Crafton deemed this to be a reference to the respective breast sizes of the mother and daughter. This made

    Ms. Crafton angry because she believed that Respondent had made inappropriate sexual comments directed to her daughter in the past and felt that this was "The straw that broke the camel's back." As a consequence, Ms. Crafton made a written complaint to Jack Rankin, principal for Melrose Elementary School. In response Mr. Rankin placed a letter of reprimand in Respondent's school personnel file. In the afternoon the incident happened with the daughter, Respondent offered his apology to Ms. Crafton and conveyed an apology to Myeesha through Ms. Crafton.

12. Ms. Crafton remained upset by Respondent's more recent remarks directed to her and her daughter.

13. On September 17, 1998, Myeesha was a ninth grade student at Lake City Christian Academy. The daughter also felt that the Respondent was comparing the breast size of the

    two women and deemed the remark to be unusual. The daughter was shocked that Respondent had made the comment.

14. The remarks that have been attributed to Respondent and reported here constitute inappropriate sexual innuendo. Other Facts:

15. The student K.P. is an ESE student who was 13 years old at the time the hearing was conducted, enrolled in Richardson Middle School, part of the Columbia County School system. In the school year of 1999-2000 K.P. attended Melrose Park Elementary School. Respondent was her teacher at Melrose Park.

16. At times relevant to this inquiry K.P., as an ESE student has needed assistance with learning disabilities and behavior problems. As an ESE student K.P. is classified as EMH and EH.

17. K.P. has accused Respondent of inappropriately touching K.P. on her breast and thighs, on some occasions when the lights were out in the classroom.

18. It was established in the hearing that K.P. does not enjoy a good reputation for truthfulness, so much so that she is not deemed a credible witness concerning her accusations against Respondent.

19. N.N., the only witness who has supported K.P.'s testimony concerning the inappropriate touching alleged to

    have occurred, has made contradictory statements concerning the alleged touching which places N.N.'s credibility in question, to the extent that she is not found to be credible when testifying that Respondent inappropriately touched K.P.

20. Other evidence offered did not rehabilitate the testimony presented by K.P. and N.N. Finally, testimony from K.D., and A.J., who like N.N. and K.P., were students at Melrose Park Elementary School during the time in question, established that K.P. has falsely accused others of sexual acts or inappropriate touching, further undermining K.P.'s credibility in alleging that Respondent had inappropriately touched K.P. on her breasts and thighs.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in accordance with Sections 120.569, 120.57(1), and 231.262(5), Florida Statutes.

22. Through the Administrative Complaint in Case No.

    
    

    990-0822-C, the following material allegations have been made concerning Respondent's conduct.

    1. On or about September 17, 1998, Respondent acted inappropriately toward a minor female student, M.C., and her mother when he openly remarked about the comparative size of their breasts. Respondent sexually harassed the student's mother when he made sexually charged remarks to her.

       
       

    2. On or about October 1999, Respondent acted inappropriately when he touched a minor female student, K.P., on the breasts and thighs. Respondent would play games with the students with the lights out in his classroom and during these times he fondled K.P. and "snapped" her bra strap.

       
       

23. As a consequence, Respondent is accused of the following statutory and rules violations:

    Count 1: The Respondent is in violation of Section 231.17(3)(c)5., Florida Statutes, which requires that the holder of a Florida Educator's Certificate be of good moral character.

    
    

    Count 2: The Respondent is in violation of Section 231.17(10)(a), Florida Statutes, which provides that the Department of Education may deny an [sic] Respondent a certificate if the department possesses evidence satisfactory to it that the Respondent has committed an act or acts, or that a situation exists for which the Education Practices Commission would be authorized to revoke a teaching certificate.

    
    

    Count 3: The Respondent is in violation of Section 231.28(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude.

    
    

    Count 4: The Respondent is in violation of Section 231.28(1)(f), Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board.

    
    

    Count 5: The Respondent is in violation of Section 231.17(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education

    Profession prescribed by State Board of Education rules.

    
    

    Count 6: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety.

    
    

    Count 7: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement.

    
    

24. To succeed in the prosecution, Petitioner must prove the allegations in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The term clear and convincing evidence is defined in Solmowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

25. Concerning Counts 1 and 2, Section 231.17(3)(c)5, Florida Statutes, and Section 231.17(10)(a), Florida Statutes, respectively, in their terms, involve themselves with applications for a teaching certificate and the disposition of those applications. The provisions are unrelated to a certificate holder. Therefore, Respondent cannot be found in violation of those statutory provisions, per se.

26. Concerning Count 3, Respondent has violated Section 231.28(1)(c), Florida Statutes, in that he is guilty of acts

    involving moral turpitude in his remarks to his fellow teacher Vickie Toni Crafton and her daughter Myeesha Charmana Ellis.

27. Concerning Count 4, Petitioner has failed to prove that Respondent has violated Section 231.28(1)(f), Florida Statutes, in that his personal conduct has seriously reduced his effectiveness as an employee of the school board.

28. Concerning Count 5, Petitioner has failed to prove that Respondent has violated the principles of professional conduct for the Education Profession prescribed by State Board of Education rules in violation of Section 231.28(1)(i), Florida Statutes, in that Petitioner has failed to prove through Count 6 that Respondent violated Rule 6B-1.006(3)(a), Florida Administrative Code, by failing to make a reasonable effort to protect K.P. from conditions harmful to her learning or to her mental health or physical health or safety, and has failed to prove in accordance with Count 7 that Respondent has violated Rule 6B-1.006(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed K.P. to unnecessary embarrassment or disparagement.

RECOMMENDATION

Upon the consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered finding Respondent in violation of Section 231.28(1)(c), Florida Statutes, suspending Respondent's Teaching Certificate for a period of

30 days, and dismissing Counts 1, 2, and 4 through 7.

DONE AND ENTERED this 19th day of December, 2001, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 19th day of December, 2001.

COPIES FURNISHED:

Ron Weaver, Esquire

913 North Gadsden Street Tallahassee, Florida 32301

Mary F. Aspros, Esquire Meyer and Brooks, P.A.

2544 Blairstone Pines Drive Tallahassee, Florida 32302

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

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

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

325 West Gaines Street, Room 224E 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: 01-002824PL

Orders for Case No: 01-002824PL