STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
COLLIER COUNTY SCHOOL BOARD,
Petitioner,
vs.
EDWARD STARCHER,
Respondent.
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) Case No. 03-3133
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RECOMMENDED ORDER
A formal hearing was held on January 6 through 8, 2004, in Naples, Florida, before Carolyn S. Holifield, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Jon D. Fishbane, Esquire
Roetzel & Andress
850 Park Shore Drive, Third Floor Naples, Florida 34103
For Respondent: Robert J. Coleman, Esquire
Coleman & Coleman
2300 McGregor Boulevard Post Office Box 2089
Fort Myers, Florida 33902-2089
STATEMENT OF THE ISSUE
Whether there is "just cause" to terminate Respondent, Edward Starcher, from employment as a teacher in the Collier County School District.
PRELIMINARY STATEMENT
Respondent, Edward Starcher (Respondent), was employed by Petitioner, Collier County School Board (School Board), as a teacher and coach at Naples High School (NHS). Respondent was employed pursuant to a Professional Services Contract.
On February 12, 2003, the School Board placed Respondent on administrative leave with pay and benefits. On July 11, 2003, Dr. H. Benjamin Marlin, superintendent Collier County Schools, filed with the School Board a Recommendation to Suspend (Recommendation) Respondent pending termination of employment.
The Recommendation charged that on February 10, 2003, Respondent engaged in improper sexual conduct with a female student during school hours. Specifically, the Recommendation alleged that Respondent kissed the neck and lips of the female student, placed his hands on her buttocks and thigh, pressed his body against her such that she could feel that he was sexually aroused, and grabbed his sexual organ through sweat pants and stated, "This is what you do to me." The Recommendation also charged that Respondent "was not truthful in presenting and supporting an undelivered memo purportedly dated and addressed to Naples High School Youth Relations Deputy on February 3, 2003." Finally, the Recommendation charged that the alleged conduct by Respondent constituted violations of (1) School Board Rule No. R-03/00, Policy No. GBAA, which relates to harassing
conduct by personnel and students; (2) Administrative Bulletin No. 2/2000, which relates to student-adult standards of behavior; and (3) Florida Administrative Code Rules 6B-1.001(1) through (3), 6B-1.006(3)(a), (e), (g), and (h), and 6B- 1.006(5)(a) and (h).
Based on the foregoing alleged conduct and violations, on July 24, 2003, the School Board suspended Respondent without pay and benefits pending termination.
Respondent timely appealed his termination and requested a formal hearing. The matter was referred to the Division of Administrative Hearings which noticed and conducted the proceeding.
At the hearing, the School Board called 13 witnesses and Petitioner's Exhibits 1, 3 through 6, and 8 through 21 were admitted into evidence. Respondent testified on his own behalf and called five witnesses. Respondent's Exhibits 1 through 22 and 24 through 28 were admitted into evidence.
A Transcript of the hearing was filed on February 2, 2004. The parties requested and were granted an extension of time in which to file proposed recommended orders. Both parties filed Proposed Recommended Orders on March 17, 2003, and March 18, 2003, respectively, which have been considered in the preparation of this Recommended Order.
In this Recommended Order, students will be referred to by their initials, rather than their name in order to protect their
privacy rights.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
Respondent is a teacher certified by the State of Florida in the areas of physical education, recreational dance, and driver's education.
On August 18, 1986, the School Board hired Respondent as a teacher. Since being hired in 1986, Respondent taught continually in the Collier County public school system, except for a one-year leave of absence. Respondent began his career at Highland Elementary School and taught there for approximately two to three years. He then taught for nine years at Village Oaks Elementary School. Respondent, subsequently, taught at Gulf Coast High School, where he also served as a basketball coach. In the 2000-2001 school year, Respondent was employed at NHS as a physical education teacher, driver's education teacher, and head basketball coach for the boys' varsity basketball team.
At all times relevant herein, Respondent was a driver's education teacher and head coach of the boys' basketball team at NHS.
Throughout his teaching career with the School Board, Respondent received positive evaluations and was recognized for having a passion for coaching. Prior to the disciplinary action at issue in this proceeding, there is no evidence that Respondent has been previously disciplined by the School Board.
At all times relevant herein, A.K., a female, was a high school student in her senior year at NHS.
In January 2003, A.K. was enrolled as a peer tutor under the direction of Respondent, along with two other students--A.D., a female, and A.F., a male. A.K., A.D., and
A.F. were enrolled as peer tutors during the fourth block, which commenced at 12:45 p.m. As peer tutors, they assisted Respondent with doing the laundry, folding towels and T-shirts, and delivering them to the storage closet. At the beginning of fourth block, the peer tutors would typically meet Respondent in his coaching office or outside of it, and he would give them their assignment for the day.
On Monday, February 10, 2003 (February 10), A.K. reported to Respondent's office during fourth block for her peer tutor responsibilities. A.D., another peer tutor, was absent that day, but A.F. and K.C. were present. K.C., an NHS student, was not assigned as Respondent's peer tutor, but he sometimes assisted Respondent and his peer tutors during the fourth block.
On February 10, as Respondent and the peer tutors were exiting Respondent's office to walk to the laundry room, Respondent "put [A.K.] in a little bit of a headlock," in a playful manner.
After arriving at the laundry room, Respondent and the peer tutor folded laundry. At some point, Respondent handed
A.K. a pile of towels and told her to take it to the storage closet. Respondent also took a pile of towels or jerseys and both A.K. and Respondent proceeded from the laundry area across the gym to the boys' locker room.
On this trip to the storage closet, only A.K. went with Respondent across the gym to the storage closet area. A.F. remained in the laundry room because Respondent told only A.K. to come with him.
The storage closet was located in the boys' football locker room on the opposite side of the auxiliary gym from the laundry room. On February 10, there was a physical education class with at least 20 students and an instructor on the gym floor playing volleyball. The physical education class was divided into two groups at the opposite ends of the gym so that when the peer tutors and Respondent took the laundry across the gym floor to the storage closet, they would pass between the two groups.
Respondent and A.K. entered the boys' locker room area and proceeded to the storage closet to drop off the towels and/or jerseys. A.K. entered the storage closet area first followed by Respondent. After A.K. put the towels down, she noticed Respondent shutting the door quickly, turning the lights off and on, and then opening the door. A.K. asked Respondent what he was doing, and he replied that he was just joking around.
During the first trip to the storage closet, as A.K. was walking through the locker room, she saw J.C., a NHS student, near his locker. Some time after Respondent and A.K. walked through the locker room, J.C. walked around to the bench near the storage closet doorway to put on a knee brace. Thereafter, J.C. saw Respondent in the doorway of the storage closet, and Respondent introduced him to A.K. J.C.'s locker was adjacent to the storage closet wall, and he had to walk to the end of the wall and around the corner to get to the doorway of the storage closet. Due to the location of his locker, there was a period of time when J.C. was not near the doorway of the storage closet and could not see that doorway.
At some point while A.K. and Respondent were in the storage closet, Corporal Ronald Byington (Coach Byington), the NHS youth relations deputy and an assistant football coach at the school, walked through the locker room from the adjacent
coaches' room. Coach Byington stopped and talked to Respondent about a minute and a half. During his very brief conversation with Respondent, Coach Byington did not observe anything out of the ordinary.
After briefly talking with J.C., Respondent and A.K. returned to the laundry room. After a short period of time, Respondent handed A.K. a bag of jerseys to take with her to the storage closet and proceeded alone with her back across the gym to the boys' locker room. J.C. was not in the locker room when Respondent and A.K. returned to the storage closet.
When A.K. and Respondent returned to the storage closet with laundry a second time, Respondent again followed her into the storage closet, closed the door, and turned off the lights. Respondent then kissed A.K. on her neck and lips, grabbed her leg, and pushed it up against his side. A.K. pushed Respondent away from her, after which he turned on the lights, grabbed himself and remarked, "This is what you do to me." As
A.K. approached the door to walk out, he placed A.K.'s hand on his groin.
A.K. described the manner in which Respondent kissed her on the neck as "more of a sucking" than a kiss.
After the incident described in paragraph 16, A.K. returned to the laundry room followed by Respondent. Upon
returning, A.F. and K.C. noticed that A.K.'s neck was red and told her so.
When A.F. and K.C. commented about the red mark on her neck, Respondent stated that it was because he had put her in a headlock.
After the brief discussion about the red mark on A.K.'s neck, A.K. returned to the boys' locker room a third time, this time with A.F. and Respondent. A.K. had to wait outside the locker room since there were football players in there changing for weight training. Because A.K. could not enter the locker room, she handed the laundry she was carrying to A.F. and/or Respondent.
Upon returning to the laundry room from the third trip to the storage closet, Respondent "kind of stopped [A.K.]" as they were walking across the gym floor. He then had A.K. hold her hand up while he did the same and intertwined his little finger with hers while he asked her to "pinkie swear" (promise) she would not tell anybody, and she agreed to do so. However, Respondent then told A.K. that he could not promise that it would not happen again. This brief exchange took place out of A.F.'s earshot. Moreover, given the considerable activity in the gym, it is reasonable that A.F. did not hear this conversation.
A.K. returned a fourth time to the locker room to get her book bag and left school. She was in a state of shock, drove home, changed, and left for work. That evening A.K. did not tell her parents about the incident with Respondent because she was embarrassed and uncertain as to how they would react.
The next morning, Tuesday, February 11, 2003 (February 11), A.K. was sitting in her car in the NHS parking lot waiting for the first-block bell to ring when her friend, E.W., a senior at NHS, approached her. E.W. noticed that there was something wrong and asked A.K. what was the matter. A.K. started to cry and told E.W. that Respondent had kissed her. As they walked to class, A.K. told E.W. more of what happened.
A.K. told E.W. that on the first visit to the storage closet Respondent shut the lights off. A.K. asked him what he was doing and he turned them on. A.K. also told E.W. that on the second visit, Respondent shut the lights off and imposed himself on her, including kissing her on the neck and lips and grabbing her leg. Sometime during the course of the day, A.K. told E.W. about Respondent's having her touch his penis area.
On the morning of February 11, soon after A.K. told
E.W. about the incident, E.W. asked A.K. whether she had told anyone. A.K. replied that she had not. E.W. then told A.K. that she needed to report the incident to Mary Ellen Bergsma, the school guidance counselor. Although A.K. agreed to do so,
she was hesitant and embarrassed to discuss the incident with Ms. Bergsma or anyone.
At the beginning of the first block, E.W. accompanied
A.K. to Ms. Bergsma's office. Ms. Bergsma invited both girls into her office and shut the door. Initially, when she went into Ms. Bergsma's office, A.K. was visibly upset, choked up, and unable to speak. After being encouraged by E.W., A.K. told Ms. Bergsma about the incident with Respondent. A.K. told
Ms. Bergsma that Respondent had "hit on her," meaning that he had kissed her. In response to her question, A.K. told
Ms. Bergsma that the event occurred in the storage closet area and then explained what happened in more detail. During this time, A.K. continued crying and had a hard time talking.
After A.K. told Ms. Bergsma about the incident,
Ms. Bergsma informed A.K. that she would have to talk with Gary Brown, the principal of NHS, about the incident.
Later that morning, Ms. Bergsma accompanied A.K. to Mr. Brown's office. Although A.K. appeared uncomfortable and nervous and was crying, she told Mr. Brown basically what she had told Ms. Bergsma.
At the end of the day, E.W. went to Ms. Bergsma to report some of the additional details that A.K. was too embarrassed to tell Ms. Bergsma, including Respondent's putting her hand on his genital and saying, "This is what you do to me."
Over the next few weeks, Ms. Bergsma had follow-up conversations with A.K. to see how she was doing. She found that A.K. was having difficulty concentrating at school, not sleeping well, and, overall, was "having a tough time."
On February 11, after A.K. reported the incident to Ms. Bergsma, she decided to remove A.K. from Respondent's peer tutor class. At 9:02 a.m. that morning, Ms. Bergsma e-mailed Respondent advising the following: "FYI – A.K. is out of your class 4th block." The e-mail was opened by Respondent at
9:05 a.m. and deleted by him at 9:05 a.m. Five minutes later, at 9:10 a.m., Respondent prepared a separate E-mail stating, "Thanks for the info. Have a great day."
Respondent never contacted Ms. Bergsma to find out why
A.K. was no longer in his fourth-block class. Respondent testified that the e-mail was no big deal to him and that it might have meant A.K. was out just that day since the e-mail from Ms. Bergsma did not have the word "permanently" contained in it.
Between approximately 12:00 to 12:30 p.m., on February 11, Mr. Brown told Respondent in person that he wanted to meet with him in Mr. Brown's office at about 2:00 p.m. When Respondent met with Mr. Brown in his office that afternoon,
Mr. Brown asked Respondent if he knew why he had been called to his office. Respondent seemed to think about the question and
replied that it must be a parent complaining about his basketball program. He thought up several possibilities until Mr. Brown told him it had nothing to do with basketball.
Mr. Brown then told Respondent that the meeting pertained to a complaint from a female student who had peer counseling with him and related to inappropriate physical contact that Respondent had with the student. After progressing through each of his classes and being informed by Mr. Brown that it regarded a complaint from the fourth block the preceding day, Respondent stated that the complainant had to be A.K. because she was the only female present that period on February 10.
After Mr. Brown informed Respondent of the allegations, Respondent's head dropped down. He had tears in his eyes and stated that he could not believe this was happening to him.
Mr. Brown then asked Respondent if he could think of any reason why A.K. would make such an accusation against him. Respondent told Mr. Brown about an incident at the NHS basketball game on January 31, 2003, which involved A.K. Respondent stated that he had spoken with A.K. on February 3, 2003, about her conduct at the game. Respondent then retrieved a letter from his brief case and presented it to Mr. Brown. The letter was dated February 3, 2003, and was addressed to Coach
Byington. Respondent had authored the letter and typed it on a computer.
The letter stated that during half-time of the January 31, 2003, basketball game, while Respondent was outside for "a breath of fresh air," he saw A.K. and two other NHS students, K.S. and S.W., and a former NHS student, J.W., outside. In the letter, Respondent indicated that the students appeared to be intoxicated and under the influence of drugs or alcohol; that two of the students approached him; and that A.K. then began making derogatory comments about two NHS assistant football coaches, one of whom was Coach Byington. Also, the letter indicated that on February 3, 2003, Respondent spoke to A.K., during fourth block about her being intoxicated.
According to the letter, Respondent told A.K. that she and those with her on January 31, 2003, were "lucky that [Respondent] was in the middle of a game and [they] had not been caught."
In addition to information about A.K.'s being intoxicated at the game, Respondent included statements in the letter which were unrelated to the January 31, 2003, incident. Apparently, referring to his February 3, 2003, conversation with A.K., Respondent wrote in the letter:
It was during this conversation that I figured out [A.K.] was extremely bitter about coaches at NHS. After further research, it was determined that [A.K.] need not be trusted. [A.K.] on several occasions
accused Byington and the football staff of starting rumors about her . . . and she claimed people had given her a hard time about being a senior dating a freshman. I had never heard of such rumors and felt that she was overplaying this to an extreme.
After refusing to discuss any more of these matters with her, she became very irate and said that I [Respondent] was just like the others. In quotes "jerks". [sic] Just wanted you to have this information on file.
Respondent told Mr. Brown that he had never given the letter to Coach Byington because he did not want to get A.K. in trouble.
Coach Byington never received Respondent's letter dated February 3, 2003, nor did Respondent speak to Coach Byington about its contents. If a letter with allegations like the ones made in the letter dated February 3, 2003, were brought to his attention, Coach Byington would look into the matter or take some action.
The letter dated February 3, 2003, accurately states and it is undisputed that (1) Respondent saw NHS students, A.K., K.S., and S.W., and a former NHS student, J.W., on January 31, 2003, during half-time at the basketball game that evening;
(2) the students, including A.K., were intoxicated; and (3) on February 3, 2003, Respondent talked to A.K. about being intoxicated at the basketball game.
The letter dated February 3, 2003, falsely and inaccurately states when Respondent saw A.K. on January 31,
2003, she talked to him about her dislike for two of NHS football coaches and said derogatory things about them. Rather, after exiting the gym at half-time, A.K. and K.S. spoke to Respondent only briefly, about a minute. During that conversation, A.K. asked Respondent about his daughter, Callie, and how the basketball game was going; she also wished him luck in the second half. A.K. and K.S., along with S.W. and J.W., continued to walk to A.K.'s friend's car to have a few shots of alcohol during half-time.
On the evening of January 31, 2003, A.K. never said anything to Respondent about Coach Byington or any other coach at NHS.
In light of the purpose for which Respondent claimed he wrote the letter dated February 3, 2003, there is no reasonable explanation for Respondent's inclusion in the letter of the statement that "[a]fter further research, it was determined that [A.K.] need not be trusted and that A.K. said that Respondent was jerk [sic], just like the other coaches.
Since becoming a peer tutor for Respondent and prior to January 31, 2003, A.K. had talked to Respondent on several occasions and told him that she did not like Coach Byington. The reason A.K. did not like Coach Byington was that she believed that he gave preferential treatment to football players and had made A.K. the butt of jokes because she was dating a
freshman football player. A.K. made no secret that she "did not care" for Coach Byington and candidly admitted her feelings about Coach Byington at hearing. There were no other coaches at NHS who A.K. disliked or told Respondent that she disliked.
The letter dated February 3, 2003, also inaccurately and falsely stated that when Respondent talked to A.K. at school on February 3, 2003, about being intoxicated at the January 31, 2003, basketball game, she became irate. Respondent's testimony at hearing regarding this conversation is not credible. Contrary to Respondent's account, the conversation took place in the gym and not in Respondent's office. Moreover, during the conversation, Respondent seemed to be joking with A.K. about her being intoxicated at the January 31, 2003, basketball game. At no time during that conversation did Respondent talk to A.K. about the kind of people she should hang out with. Respondent also never indicated to A.K., during that conversation or at any other time, that he would report her to school officials or tell her parents that she was intoxicated.
Respondent provided confusing and contradictory testimony in connection with the letter dated February 3, 2003. First, despite the date on the letter, it is not clear when Respondent wrote the letter. Respondent testified that he prepared the letter on Monday, February 3, 2003, but also testified that he could have finished it later that week. This
testimony is consistent with a letter Respondent wrote in March 2003, in response to the report of the School Board's
investigator. Respondent also testified that even if he did not finish the letter on February 3, 2003, he would not have changed the date because he did not consider the letter an official document.
During the investigation of A.K.'s complaint against Respondent, the School Board's computer system technicians checked the school's computers and found no record of the letter in the system. If, as Respondent testified, he made changes to the letter over a period of time, the letter would have been saved on the system and the computer technicians would have been able to retrieve it.
Respondent's testimony and representations regarding the preparation of the letter dated February 3, 2003, are confusing and not reasonable. In his March 2003 letter to the School Board in response to the investigator's report, Respondent stated that after initially writing the February 3, 2003, letter, he waited to review it before delivering it to Coach Byington. Despite all the time Respondent indicated he took to write, review, and edit the letter, Respondent never gave the letter to Coach Byington, even though Coach Byington's office was only a 20- to 30-second walk from Respondent's
office. According to Respondent, the reason was that he had a busy basketball schedule.
Respondent testified that the reason he prepared the letter dated February 3, 2003, was to give Coach Byington a "heads up." Yet, Respondent provided no explanation as to why Coach Byington needed a "heads up."
Respondent's testimony regarding the reason he wrote the letter dated February 3, 2003, is not credible.
Respondent did not prepare the letter dated
February 3, 2003, to give to Coach Byington and did not deliver it to him or discuss it with him. The letter was instead prepared to give to Mr. Brown to undermine the credibility of A.K.
At all times relevant to this proceeding, E.M., a male, was a student at NHS. E.M. and Respondent had a close relationship and have known each other for about five years, having first met when E.M. was in the sixth grade and was coached by Respondent. While a coach at NHS, Respondent sometimes gave E.M. lunch money and also hired E.M. to work in summer basketball camps.
During the investigation of Respondent, E.M. voluntarily came forward to provide information supportive of Respondent. E.M. told Mr. Brown and testified at hearing that when he was in the boys' locker room on February 3, 2003, he
overheard Respondent tell A.K. that she should hang out with better people; that he then saw Respondent leave his office; that he saw A.K. leave the office soon after Respondent left the office; and that he noticed that as she was leaving, A.K. was on a cell phone saying to someone that she hated the coaches at NHS and was going to get back at them.
A.K. did not make a cell phone call from school on February 3, 2003. In fact, she does not bring her cell phone to school. Moreover, A.K.'s cell phone records show that no call was made at the time E.M. claimed the call was made. Finally, as noted in paragraph 45, the February 3, 2003, conversation between Respondent and A.K. took place in the gym, not in Respondent's office.
The testimony of E.M. was not credible and was refuted by competent and substantial evidence.
There is no reasonable explanation for A.K. to file false charges against Respondent. As even Respondent admitted, A.K.'s animus was directed to Coach Byington, not toward Respondent.
Prior to the February 10 incident in the storage closet, A.K. liked Respondent and considered him a good friend. She had been a student in Respondent's aerobics class during her sophomore year at NHS. During the first semester of her senior year, A.K. had been an office assistant at NHS and in that
capacity, she was required to hand out passes to designated or assigned teachers. Respondent was one of the teachers A.K. had to deliver passes to on an almost daily basis. When A.K. delivered the passes to Respondent, they often had conversations. The second semester of her senior year, A.K. specifically requested to be a peer tutor for Respondent because she thought he was a "cool teacher."
As a consequence of the February 10, 2003, incident, A.K., in a consultation with her parents, began seeing Dr. Marta Gallego, a clinical psychologist in Naples, to help her address her fears and concerns. The counseling sessions began on or about February 19, 2003, with the initial intake session involving A.K. and her family, and continued until early
May 2003.
The therapy sessions with Dr. Gallego focused on A.K.'s reactions to the incident, helping her deal with her reactions, and processing the incident. During the counseling sessions, A.K. exhibited symptoms related to the trauma, was anxious at times, and was depressed. Also, after the
February 10 incident, A.K. withdrew from friends and family, had difficulty concentrating at school, and felt pain over the impact that the incident had on her family. Finally, A.K. expressed to Dr. Gallego that she could not understand how a teacher that she trusted could violate her trust.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case pursuant to Sections 120.569, 120.57, and Subsection 1012.33(6)(a)2., Florida Statutes (2003).
In his capacity as superintendent of schools,
Dr. Marlin has the authority to recommend the suspension and dismissal of employees pursuant to Subsection 1012.27(5), Florida Statutes (2002).
The School Board has the authority to act on such recommendations of the superintendent and to dismiss school employees. §§ 1001.42(5) and 1012.22(1)(f), Fla. Stat. (2002).
The School Board seeks to dismiss Respondent from his employment as a teacher in the Collier County School District. Accordingly, as Petitioner, it bears the burden of proof 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).
Dismissal must be based on "just cause." "Just cause" includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.
§ 1012.33(1)(a), Fla. Stat. (2003). Because "just cause" is defined to include, but is not limited to the foregoing
offenses, the Florida Legislature gave school boards discretion to determine what actions constitute "just cause" for suspension or dismissal. Carl B. Dietz v. Lee County School Board, 647, So. 2d 217 (Fla. 2nd DCA 1994).
The School Board alleges that Respondent engaged in inappropriate sexual conduct with a student, A.K., and that he was not truthful in presenting a letter dated February 3, 2003, to the school principal.
The School Board charged that Respondent's alleged sexual misconduct violated School Board Rule No. R-03/00, Policy No. GBAA, Zero Tolerance for Discriminatory and Harassing Misconduct by Personnel and Students; Superintendent's Administrative Bulletin No. 2/2000 dated September 26, 2003, "Student-Adult Standards of Behavior;" and Florida Administrative Code Rules 6B-1.001(1-3) and 6B-1.006(3)(a), (e), (g), and (h).
School Board Rule No. R-03/00, Policy No. GBAA, prohibits sexual harassment and sexual misconduct toward any employee or student and subjects the offending party to disciplinary action up to, and including, termination as recommended by the superintendent.
The Superintendent's Administrative Bulletin
No. 2/2000 reinforces the Collier County School District's, standards and expectations relative to the appropriate behavior
for students, employees, and volunteers. The administrative bulletin prohibits inappropriate physical contact and gestures that are intended to have a sexual connotation. The penalties for School Board employees violating the standards consist of suspension without pay, termination, and/or referral to Professional Practices, depending on the nature and severity of the behavior.
Florida Administrative Code Rule 6B-1.001, Code of Ethics of the Education Profession in Florida, provides:
The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.
The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
Florida Administrative Code Rule 6B-1.006, Principles of Professional Conduct for the Education Profession in Florida, reads, in pertinent part:
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
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.
Obligation to the student requires that the individual:
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.
* * *
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.
Shall not exploit a relationship with a student for personal gain or advantage.
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Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
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(h) Shall not submit fraudulent information on any document in connection with professional activities.
This School Board proved its factual allegations related to the charge of sexual misconduct by a preponderance of the evidence.
The case hinges on the credibility of the parties and the witnesses, and the more compelling evidence supports the School Board. A.K. testified credibly at the hearing that Respondent had sexually imposed himself on her and made inappropriate sexual comments to her. Her testimony was consistent with the information she provided during her two lengthy investigative interviews with the School Board’s investigator.
At the hearing, A.K. added a new element that Respondent had placed her hand on his genital area before he opened the door of the storage closet to let her out. Counsel for Respondent argued that this created an inconsistency that undermined A.K.’s credibility. This argument is rejected. The credible testimony of A.K. was that the reason she did not report that conduct by Respondent to the investigator or
Ms. Bergsma was that it was embarrassing and revolting. The testimony of A.K. in this regard is credible and supported by the testimony of Ms. Bergsma, who testified that it is
understandable, and apparently not unusual, that a teenage girl would not to want to discuss such behavior by a teacher.
The conduct of Respondent as described in paragraph 16 above, constitutes violations of School Board Rule No. R-03/00; Administrative Bulletin No. 2/2000; and Florida Administrative Code Rule 6B-1.006(3)(a), (e), (g), and (h).
The School Board met its burden of proof as to the allegation that Respondent was not truthful when he presented to the school principal a letter dated February 3, 2003, and included in that letter inaccurate and false information that served to undermine the credibility of the student with whom he had engaged in prohibited sexual misconduct. This conduct by Respondent violated Florida Administrative Code Rule
6B-1.006(5)(a).
The foregoing violations by Respondent also constitute violations of Florida Administrative Code Rules 6B-1.001(1), (2), and (3).
Having established the foregoing violations, the School Board has established by a preponderance of the evidence that Respondent’s conduct constitutes "just cause" for dismissal from his teaching position.
Based on the foregoing Findings of Facts and Conclusions of Law, it is
RECOMMENDED that Petitioner enter a final order terminating Respondent from his position as a teacher with the Collier County School Board.
DONE AND ENTERED this 4th day of June, 2004, 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 4th day of June, 2004.
COPIES FURNISHED:
Robert J. Coleman, Esquire Coleman & Coleman
2300 McGregor Boulevard Post Office Box 2089
Fort Myers, Florida 33902-2089
Jon D. Fishbane, Esquire Roetzel & Andress
850 Park Shore Drive, Third Floor Naples, Florida 34103
Dr. H. Benjamin Marlin Superintendent of Collier County
School Board 5775 Osceola Trail
Naples, Florida 34109-0919
Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514
325 West Gaines Street 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.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 27, 2004 | Agency Final Order | |
| Jun. 04, 2004 | Recommended Order | Respondent engaged in inappropriate sexual conduct with a female student. This conduct constituted just cause for his termination as a teacher. |
MIAMI-DADE COUNTY SCHOOL BOARD vs NEIL D. LEFKOWITZ, 03-003133 (2003)
PAM STEWART, AS COMMISSIONER OF EDUCATION vs ALEXANDER OSUNA, 03-003133 (2003)
LEE COUNTY SCHOOL BOARD vs ERNEST OVERHOFF, 03-003133 (2003)
DADE COUNTY SCHOOL BOARD vs. RICHARD COHAN, 03-003133 (2003)
MIAMI-DADE COUNTY SCHOOL BOARD vs ANA B. GARCIA, 03-003133 (2003)
