STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, AS COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. )

)

JAMES E. PRICE, )

)

Respondent. )

Case No. 03-0095PL

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on October 20, 2003.

APPEARANCES

For Petitioner: Charles T. Whitelock

Whitelock & Associates, P.A.

300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316

For Respondent: Mark Herdman

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

STATEMENT OF THE ISSUES

The issue is whether Respondent made inappropriate comments and behaved inappropriately with his tenth grade students, so as to be guilty of gross immorality or an act involving moral turpitude, in violation of Section 1012.795(1)(c), Florida

Statutes (2003); failing to maintain his primary professional concern for the student and the development of the student's potential and failing to exercise the best judgment and integrity, in violation of Florida Administrative Code Rule 6B-1.001(2); failing to maintain the respect and confidence of his colleagues, students, parents, and other members of the

community and failing to achieve and sustain the highest degree of ethical conduct, in violation of Florida Administrative Code Rule 6B-1.001(3); failing to make a reasonable effort to protect his students from conditions harmful to learning or the students' mental or physical health or safety, in violation of Florida Administrative Code Rule 6B-1.006(3)(a); intentionally exposing a student to unnecessary embarrassment or disparagement, in violation of Florida Administrative Code Rule 6B-1.006(3)(e); harassing or discriminating against a student due to race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and failing to make reasonable effort to assure that each student is protected from harassment or discrimination, in violation of Florida Administrative Code Rule 6B-1.006(3)(g); and exploiting a relationship with a student for personal gain or advantage, in violation of Florida Administrative Code Rule 6B-1.006(3)(h). If Respondent is guilty of any of these

charges, an additional issue is the penalty that should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 27, 2002, Petitioner alleged that, during the 2001-02 school year, Respondent made inappropriate comments and behaved inappropriately with his tenth grade students. In October 2001, Respondent allegedly stated to a female student, M. Z., who had said that she was Cuban, "yes, you are Cuban," while looking at her buttocks and implying that they were large. Respondent allegedly required M. Z. and another female student to make him coffee while telling them that they had to make coffee because they were girls. Respondent allegedly followed M. Z. to a storage room and said words to the effect, "now I have you in the back room" and giggled. Another time, Respondent allegedly said that he would prefer M. Z. shake a test tube, rather than the boys, and he allegedly told other students that M. Z. had been placed in his class to get him in trouble.

On one or more occasions prior to November 7, 2001, Respondent allegedly sang the song, "Sugar, Sugar, Honey, Honey," substituting "horny" for "honey."

On December 5, 2001, Respondent allegedly placed his hand on the seat of the chair of a female student, M. A., with his palm up, implying that she should sit on his hand. Another

time, Respondent and a male student allegedly accompanied M. A. to another room, and, once there, Respondent said, "Now we have her alone. Let's get her."

The alleged behavior of Respondent made M. Z. and M. A. uncomfortable. M. Z. transferred out of Respondent's class allegedly due to his behavior.

At the hearing, Petitioner called five witnesses and offered into evidence six exhibits: Petitioner Exhibits 1-6. Respondent called six witnesses and offered into evidence one exhibit. The Administrative Law Judge admitted Petitioner Exhibits 1-3 and 5-6, except that Petitioner Exhibits 5-6 were not admitted for the truth of the contents. The parties proffered the remaining exhibits.

The court reporter filed the transcript on November 17, 2003. The parties filed their proposed recommended orders by November 25, 2003.

FINDINGS OF FACT

1. Respondent holds Florida Educator Certificate 263775, which covers the areas of health education, biology, and physical education. His certificate is valid through June 30, 2005. Respondent has taught for nearly 40 years. Since 1984, Respondent has taught continuously at Miami Coral Park Senior High School, where he teaches biology and health.

2. Respondent jokes in class and sometimes banters with his students. One day early in the school year, when students were discussing their ethnic backgrounds, Respondent asked

   M. Z., a tenth grade student, about her background, and she replied that she was Cuban. M. Z.'s last name is a name traditionally associated with other ethic groups, so, when he heard the student state that she was Cuban, Respondent replied, "Oh, yeah, I can see you're Cuban."

3. By this comment, Respondent was attempting to make a joke along the lines that M. Z.'s last name did not suggest that her background was Cuban. M. Z., who did not offer much detail about the incident, did not feel embarrassed by the comment itself, but felt embarrassed by what she believed to be Respondent's gaze at her buttocks as he uttered his reply.

4. Respondent claims not to have looked at M. Z.'s buttocks when he made the comment. Two student witnesses who heard the exchange testified that Respondent did not look at

   M. Z.'s buttocks when he made his joke. It is possible that

   
   

   M. Z. mistakenly believed that Respondent was looking at her buttocks when he spoke. It is impossible to find by clear and convincing evidence that Respondent was looking at M. Z.'s buttocks when he attempted his joke.

5. M. Z. testified that Respondent directed the female students to make the coffee, but admitted that he never

   explained why he did so. However, the record fails to establish that Respondent required any students to make coffee.

6. M. Z. testified that she was making coffee in the classroom when Respondent opened a door to the coffee-making area and said, "Now I have you in the back room." M. Z. testified that this comment made her feel uncomfortable. Again, though, M. Z. provides little detail about the incident, and her demeanor did not suggest that the matter was of importance to her. The record suggests that Respondent was trying, again unsuccessfully, to establish some joking rapport with this student. He was not sexually harassing her, and M. Z.'s transient embarrassment quickly passed.

7. M. Z. testified that Respondent sang a once-popular song, "Sugar, Sugar, Honey, Honey," but substituted "horny, horny" for "honey, honey." The record does not support this testimony. Respondent admits singing the song, but denies changing the lyrics. It is impossible to find whether Respondent sang the song and changed the lyrics.

8. M. Z. testified that she did not recall any other comments and admitted that Respondent was "probably" joking around when he made the comments that he did. She testified that she did not recall Respondent saying anything about her parents' names.

9. M. Z. remained in Respondent's class only a couple of weeks, at which time the school transferred her out of Respondent's class at the request of M. Z.'s parents. The possibility arises that M. Z.'s embarrassment at Respondent's attempts at humor was a factor in her transfer. However, M. Z. provided little basis to support such a reason. M. Z. was mainstreamed into Respondent's regular-education class, and transition issues could have as easily been a factor in M. Z.'s need to try a different classroom. Again, it is impossible to determine that Respondent's poor attempts at establishing a joking rapport with M. Z. were a material cause in her transfer out of his class.

10. M. A. did not testify. However, Respondent testified that he and a male student entered a bookroom and found her and a chemistry teacher present. Respondent testified that he stated to the male student, evidently so as to be heard by

    M. A., "we've got her now." However, Respondent testified that

    
    

    M. A. and the male student took the comment as a joke.

    
    

11. As for the allegation about the hand, palm up, on the stool, Respondent testified only that he touched the top of a stool, gesturing to M. A. to come up to his desk, sit down, and spell her name for him.

12. As described by Respondent and his student witnesses, Respondent in the classroom is a "grandfatherly" figure who

    develops a joking rapport with the students. One student described him as the best teacher that she had ever had. An especially credible student witness called by Respondent, N. A., testified that a school administrator investigating this matter said to her that, if she ever changed her mind about what she had observed about Respondent in the classroom, he might help her with her grades.

13. On the other hand, another especially credible student witness called by Petitioner, J. C., testified that she did not know how to react to Respondent's classroom banter. Evidently backing off earlier statements, J. C. testified that she "knew him better now" and understood that Respondent had no bad intentions in his remarks.

14. The record establishes two comments by Respondent-- both to the effect that he had a female student where he wanted her, when he found her in a small room. Although the circumstances surrounding these comments clearly preclude a finding that Respondent was literally threatening a sexual assault upon these students, such humor is inappropriate. Respondent's sense of humor obviously requires some thoughtful students, such as J. C., to take time to gain the measure of his comments--a process that M. Z. apparently undertook also, after she transferred out of Respondent's class. Perhaps most students can view Respondent's humor as they probably view his

    musical taste--dated, but consistent with the obvious fact that two generations separate the grandfatherly Respondent from his students. However, Respondent's professional obligations extend to all of his students, not merely those students who are capable of adjusting to his sense of what is funny. As already noted, though, the record fails to establish by clear and convincing evidence the material allegations of the Administrative Complaint.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stats. (2003).

16. Section 1012.795(1)(c) and (i), Florida Statutes, authorizes the Education Practices Commission to discipline the certificate of a teacher if he is guilty of gross immorality or an act involving moral turpitude and if he has violated the Principles of Professional Conduct for the Education Profession, which are at Florida Administrative Code Rule 6B-1.006.

17. Petitioner alleges two violations of the Code of Ethics of the Education Profession, which are at Florida Administrative Code Rule 6B-1.001. Although the result in this case would be no different if these ethical provisions were available to Petitioner to discipline a teacher's certificate, the statutes and rules do not expressly authorize discipline

    based on a violation of the Code of Ethics of the Education Profession.

18. Unlike the Principles of Professional Conduct for the Education Profession, which is statutorily incorporated into the grounds on which discipline may be based, the Code of Ethics of the Education Profession is not statutorily incorporated into the grounds on which discipline may be based. By rule, the Code of Ethics of the Education Profession is incorporated only into the grounds on which a teacher's contract may be terminated for "just cause."

19. The Code of Ethics in the Education Profession is incorporated only into the definition of "misconduct in office." Florida Administrative Code Rule 6B-4.009(3) defines "misconduct in office" as a violation of the Code of Ethics of the Education Profession, as long as the violation is "so serious as to impair the individual's effectiveness in the school system." By statute, "misconduct in office" appears only in Section 1012.33(1)(a), Florida Statutes, where "misconduct in office" is an example of "just cause" for terminating a teacher's contract midterm.

20. Florida Administrative Code Rule 6B-1.006(3)(a), (e), (g), and (h) imposes the following responsibilities upon a teacher:

    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.

       
       

21. 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).

22. Petitioner has failed to prove the material allegations by clear and convincing evidence.

RECOMMENDATION

It is

RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 10th day of December, 2003, in Tallahassee, Leon County, Florida.

S

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 10th day of December, 2003.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director Florida Education Center

Department of Education 1244 Turlington Building

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

Daniel J. Woodring, General Counsel Department of Education

1244 Turlington Building

325 West Gaines Street Tallahassee, Florida 32399-0400

Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education

1244 Turlington Building

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

Mark Herdman

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

Charles T. Whitelock Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

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: 03-000095PL

Orders for Case No: 03-000095PL