STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, AS COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. )

)

TODD C. SETTER, )

)

Respondent. )

Case No. 03-0182PL

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings, on April 10, 2003, in Tampa, Florida.

APPEARANCES

For Petitioner: Bruce Taylor, Esquire

Post Office Box 131

St. Petersburg, Florida 33731

For Respondent: Mark Herdman, Esquire

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

STATEMENT OF THE ISSUE

Whether Respondent engaged in misconduct by making inappropriate comments to a student as alleged in the Administrative Complaint and, if so, what disciplinary action should be imposed on his Florida Educator’s Certificate.

PRELIMINARY STATEMENT

On July 30, 2002, the Commissioner of Education, Charlie Crist, brought an Administrative Complaint in EPC Case No. 001- 1359-C against Respondent. The material allegations in the Complaint were as follows:

On or about September 14 and 15, 2000, Respondent engaged in inappropriate conduct with A.S., a 13-year-old, male student.

Respondent made inappropriate comments to the A.S. [sic], attempted to meet him during non-school hours, and discussed sex with him at school. Respondent made A.S. uncomfortable. On or about January 22, 2001, the School District issued Respondent a letter of reprimand of his conduct.

Based on this alleged misconduct, the Administrative Complaint alleged two statutory violations and two rule violations. Count One states that by engaging in the alleged misconduct, Respondent is guilty of gross immorality or an act involving moral turpitude in violation of Section 231.2615(1)(c), Florida Statutes (2000). Count Two states that the alleged misconduct violated the Principles of Professional Conduct for the Education Profession in Florida in violation of Section 231.2615(1)(i), Florida Statutes (2000). Count Three alleges that, by engaging in the alleged misconduct, Respondent failed to make a reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical safety as required by Rule 6B-

1.006(3)(a), Florida Administrative Code. Finally, Count Four stated that, by engaging in the alleged misconduct, Respondent intentionally exposed a student to unnecessary embarrassment or disparagement in violation of Rule 6B-1.006(3)(e), Florida Administrative Code.

At hearing, Petitioner presented the testimony of six witnesses: A.S., S.S., Andrew Rouleau, James Lance, James E. Davis, and Linda Kipley. Respondent testified on his own behalf and presented the testimony of five other witnesses: Margaret Patterson, David Snyder, Chris Ellis, Diane Lee McConnell, and John Sanders. The parties stipulated to the admission of the reports of Dr. James Edgan and Dr. Sydney Merin, which were received into evidence as Petitioner’s Exhibit 1 and Respondent’s Exhibit 1, respectively.

At the conclusion of the hearing the time for filing proposed recommended orders was set for ten days from the filing of the transcript. On May 1, 2003, the Transcript was filed.

Prior to the date the proposed recommended orders were to be filed, Petitioner requested an extension of time to file proposed recommended orders. The unopposed request was granted. Subsequently, the parties timely filed Proposed Recommended Orders in accordance with the extended time frame. These Proposed Recommended Orders have been considered in preparing this Recommended Order.

FINDINGS OF FACT

1. Respondent holds Florida Educator’s Certificate 716042 covering the areas of emotionally handicapped, mathematics, general science, and psychology, which is valid through June 30, 2005.

2. At all times pertinent hereto, Respondent was employed as a mathematics teacher at Young Middle Magnet School in the Hillsborough County School District (School District). Young Middle Magnet School is a school specializing in the areas of math, science, and technology.

3. During his career, Respondent has been employed by the Pasco County and Hillsborough County School Boards. He has been teaching for 11 years. During his career in Hillsborough County, he has taught mathematics.

4. Respondent explains that he teaches because he loves teaching. The testimony of his co-workers and administrators confirm that Respondent loves teaching and is an excellent teacher.

5. During the 2000-2001 school year, A.S. was a seventh grade student at Young Middle Magnet School in Tampa, Florida. He was a good student who earned A’s and B’s.

6. At that time, it was fashionable for music performers and other young celebrities to grab at their crotch areas. Many

   of the students at Young Middle Magnet School, including A.S., emulated that behavior.

7. In or about September or October of 2000, on one particular occasion, while standing in line in the lunchroom at school, A.S. placed his hand on his groin area. Respondent saw

   A.S. touch himself in this manner, pulled him out of the line, and asked him if he knew what he had done. When A.S. said no, Respondent told him "that was picking your dick" or “you picked your dick” or some similar comment.

8. A day or two after the comment in the lunch line, there was an "incentive" party being given for all students who had straight A's in conduct. A.S. had received one B in conduct, apparently for talking too much, and, therefore, was not going to the party. Instead A.S. was assigned to a class and/or study hall that was being supervised by Respondent. During this class period, Respondent assigned A.S. a variety of projects, all of which A.S. completed without difficulty.

9. At some point during the class session, Respondent asked A.S. to come into the hall so they could talk. The purpose of the conversation was to discuss why A.S. was in the class and not in the party, given that A.S. was the type of student who should have been at the party.

10. Respondent and A.S. talked about homework and the need for A.S. to be thorough in his work for his regular math

    teacher. At some point, sexual topics came up during the conversation. A.S. maintains that he did not instigate any conversations about sexual topics and, thus, asserts that Respondent initiated the conversation. Respondent does not recall how the topic arose. The reasonable conclusion is that Respondent introduced the topic dealing with sexual issues. The testimony of A.S. is found to be credible.

11. Respondent asked A.S. if he knew about safe sex. A.S. responded that his mother told him abstinence was the only safe sex. Respondent said that there was another way, to which A.S. asked, "Are you talking about whacking off?" Respondent told

    A.S. that the correct terminology was "masturbation." A.S. contends that Respondent then stated that as a single man he had to do this. Respondent adamantly denies making this statement.

12. Respondent and A.S. then talked about sports. In fact, most of their conversation centered around sports. During this conversation, Respondent became aware that both he and A.S. enjoyed tennis. Respondent asked A.S. if he wanted to play tennis. A.S. indicated that he did. Respondent told A.S. that he would contact his parents to arrange a tennis game.

13. During the following weekend, Respondent called the home of A.S. and spoke with A.S.’s mother about the tennis game. A.S.’s mother said she would check with A.S. and her husband and would get back in touch with him. Respondent called again the

    next day and was told by A.S.'s mother that, subject to certain conditions, A.S. could play tennis with Respondent. However, the tennis game never materialized.

14. A.S. felt uncomfortable about the conversation involving sexual topics which he had with Respondent. A.S. was not used to having such conversations with a teacher, and after the conversation, for a brief time, he was worried that he might become a homosexual. Initially, A.S. only told his older sister about the conversation, and his sister advised his mother of what A.S. had shared with her. Subsequently, A.S.'s mother talked to A.S. about the conversation that he and Respondent had at school.

15. On the Monday following the weekend that Respondent called A.S.'s mother about A.S. playing tennis and after A.S. had told his mother about his conversation with Respondent, A.S.'s parents complained to School District officials about the incident. Based on the complaint from A.S.’s parents, School District investigators spoke with Respondent about the conversation with A.S. The School District had concerns about the nature of the conversation and sought medical opinions about Respondent’s fitness as a teacher.

16. Respondent saw two medical professionals. He saw Sidney J. Merin, Ph.D., a clinical psychologist. Dr. Merin conducted interviews with Respondent and performed psychological

    testing. Dr. Merin concluded, in part, that the conversation with A.S. appeared to be a function of this man’s natural gregariousness without any malevolent intent. Dr. Merin’s overall impression of Respondent was as follows:

    On the basis of the above examinations and the observations made, it is this examiner's opinion Mr. Setter is free of any debilitating psychological symptoms. Of particular note, and the concerns that would be addressed, there are no indications of pedophilia or sexual perversions. Rather, Mr. Setter is a bright man, gregarious, friendly, trusting, and even naive. The latter is in particular reference to his reported comments to Andrew and the plans that the two play tennis. Such behavior would be in keeping with teaching principles as related to sexual behavior, and also in keeping with his high degree of sociability. Given those characteristics in today's social climate wherein parents are understandably alert to adult and even teacher behavior they may question, it would not be out of keeping for responsible parents to question the behavior of

    Mr. Setter in relation to their son.

    
    

    Mr. Setter's teaching experiences and his sociability, need for admiration, and the ease with which he can socialize can obscure for him interpretations made by others of his behavior. That is, what he may consider to be appropriate, not offensive, educational, and innocent may not be interpreted in a like manner by others.

    Mr. Setter knows his intent as he relates his comments, but his thinking is often so directed toward his own interests, he fails to recognize that others may perceive his comments and his behavior with great suspicion.

    On the basis of what Mr. Setter related to this examiner, this entire matter may come down to the normal and understandable concerns by parents who are alert to behavior they may view as being questionable and out of place. From there, the authorities would understandably be alerted, with a subsequent investigation that, according to this examiner's understanding of Mr. Setter's comments, brought out little, if anything, that would be pointedly incriminating or descriptive of a sexually deviant personality.

    
    

    It would be well if Mr. Setter would be educated in the direction of understanding how sensitive healthy parents can be concerning their offspring, and to limit his comments, which he may view as being material for a casual conversation and thus innocent, as carrying ominous interpretations for others.

    
    

    Unless other examiners or investigators have contrary, substantive, relevant, and proven information contrary to this examiner's psychological findings, Mr. Setter would do well to return to his work, having been significantly educated now in the potency of his comments, even though they may be expressed innocently and naively.

    
    

17. Respondent also saw James R. Edgar, M.D., P.A., who conducted similar psychological testing and interviews, and concluded in relevant part, “. . . currently I believe

    Mr. Setter is able to make sound personal and professional judgments and to safely instruct minor children.”

18. Following these reports, Respondent was transferred to another school and has maintained his career in Hillsborough

    County. However, for the above-described incident, the School District also issued a reprimand to Respondent.

19. The evidence establishes that Respondent had a conversation with A.S. that briefly centered on sexual topics that were inappropriate under the circumstances. Respondent's discussion of these topics with A.S., a seventh grade student, were not only inappropriate, but exposed A.S. to conditions harmful to his mental health, and exposed him to unnecessary embarrassment or disparagement.

20. After the conversation he had with Respondent, A.S. did not want to see Respondent and, in December 2000, A.S. transferred to a different school. Also, after the conversation with Respondent, A.S. had to attend at least three counseling sessions.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case pursuant to Sections 120.569 and 120.57(l), Florida Statutes.

22. This proceeding involves disciplinary action against Respondent's teaching certificate and is therefore penal in nature. State ex rel Vining v. Florida Real Estate Commission,

    281 So. 2d 487 (Fla. 1973). Petitioner bears the burden to prove the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v.

    Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

23. In the Administrative Complaint filed against Respondent, it has been alleged that he committed acts prohibited by the provisions of Section 231.2615(1)(c) and (i), Florida Statutes (2000), which is now Section 1012.795(1)(c) and (i), Florida Statutes, and Rule 6B-1.006(3)(a) and (e), Florida Administrative Code.

24. Section 231.2615(1), Florida Statutes (2000), now Section 1012.795(1), Florida Statutes, authorizes the Education Practices Commission to suspend, revoke or otherwise penalize a teaching certificate provided it can be shown that the holder of the certificate

    (c) Has been guilty of gross immorality or an act involving moral turpitude.

    
    

    * * *

    
    

    (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education rules.

    
    

25. Rule 6B-1.006, Florida Administrative Code, reads in pertinent part:

    6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.

    
    

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.

       
       

    3. Obligation to the student requires that the individual:

       
       

       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.

          
          

26. Rule 6B-4.009, Florida Administrative Code, provides:

    
    

    (2) "Immorality" is defined as conduct that is inconsistent with the standard 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.

    
    

27. The term "moral turpitude" is defined in Rule 6B- 4.009(6), Florida Administrative Code, as follows:

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

    
    

28. Count One of the Administrative Complaint alleges misconduct in violation of Section 231.2615(1)(c), Florida

    Statutes (2000), now Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude. That allegation has not been proven.

29. Count Two of the Administrative Complaint alleges that Respondent has engaged in misconduct by violating Section 231.2615(1)(i), Florida Statutes (2000), now Section 1012.795(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession in Florida prescribed by the State Board of Education. The specific provisions within the Principles of Professional Conduct for the Education Profession in Florida are addressed in Count Three and Count Four of the Administrative Complaint.

30. Count Three of the Administrative Complaint alleges misconduct 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 safety.

31. Given the concerns that A.S. indicated resulted from his conversations with Respondent, it is reasonable to conclude that Respondent failed to make reasonable efforts to protect

    A.S. from conditions harmful to his mental health.

    
    

    Notwithstanding Dr. Merin's concluding that Respondent acted

    without any malevolent intent, by his discussing the sexual topics with A.S., Respondent failed to make reasonable efforts to protect the student from conditions harmful to his mental health, in violation of Rule 6B-1.006(3)(a), Florida Administrative Code.

32. Count Four of the Administrative Complaint alleges misconduct in violation of Rule 6B-1.006(3)(a), Florida Administrative Code, in that Respondent intentionally exposed a student to unnecessary embarrassment or disparagement.

33. In order to sanction an educator for such conduct, it must be shown that the educator intentionally exposed a student to unnecessary embarrassment or disparagement. See School Board of Pinellas County V. Ray, Case No. 94-1631 (June 13, 1994). In Ray, the Hearing Officer explained that specific intent to embarrass is not always required, where "a general intent to act in a way which could expect to result in embarrassment or disparagement." Id. Here, the evidence is clear that Respondent's discussion of sexual topics with A.S., a seventh grade student, could reasonably result in embarrassment to the student. As a result of Respondent's discussion of sexual topics with A.S., the student was embarrassed and, thereafter, tried to avoid Respondent while at school.

34. Respondent clearly exposed A.S. to unnecessary embarrassment in violation of Rule 6B-1.006(3)(e), Florida

Administrative Code.

RECOMMENDATION

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

RECOMMENDED that the Department of Education issue a final order finding that Respondent violated Section 231.2615(1)(i), Florida Statutes (2000), and Rule 6B-1.006(3)(a) and (e), Florida Administrative Code, but did not violate Section 231.2615(1)(c), Florida Statutes (2000). It is further

RECOMMENDED that a final order be entered issuing a reprimand to Respondent, with a copy to be placed in his certification file.

DONE AND ENTERED this 2nd day of July, 2003, in Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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 2nd day of July, 2003.

COPIES FURNISHED:

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

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

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

Bruce Taylor, Esquire Post Office Box 131

St. Petersburg, Florida 33731

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

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

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street 1244 Turlington Building

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: 03-000182PL

Orders for Case No: 03-000182PL