STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JIM HORNE, AS COMMISSIONER OF EDUCATION,
Petitioner,
vs.
CARLOS A. TROCHE,
Respondent.
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) Case No. 03-3160PL
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RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on November 4 and 5 and December 4, 2003, in Fort Myers, Florida, before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Kelly B. Holbrook, Esquire
Maria Ramos, Esquire Broad and Cassel
100 North Tampa Street, Suite 3500 Post Office Box 3310
Tampa, Florida 33602-3310
For Respondent: Nina Ashenafi, Esquire
FEA/United
118 North Monroe Street Tallahassee, Florida 32301
STATEMENT OF THE ISSUES
Whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2003), and
Florida Administrative Code Rules 6B-1.006(3)(a), 6B- 1.006(3)(e), and 6B-1.006(5)(d), and, if so, what discipline
should be imposed.
PRELIMINARY STATEMENT
On July 15, 2003, Petitioner, Jim Horne, as Commissioner of Education, issued a six-count Administrative Complaint against Respondent, Carlos A. Troche, alleging that Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i),
Florida Statutes (2003), and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e) and 6b-1.006(5)(d). Respondent
requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge to conduct the final hearing.
On September 25, 2003, Petitioner filed a Motion to Amend Administrative Complaint, which motion was granted. On October 29, 2003, Petitioner filed another Motion to Amend Administrative Complaint, which motion was also granted.
The parties entered into a pre-hearing stipulation in which certain facts were admitted. Those facts are included in the Finding of Facts to the extent relevant.
At the final hearing, Petitioner called the following witnesses: James Rubright, T.H., S.H., J.L., K.L., Clayton Williams, Carol Mount, Michael S. Carson, J.C., Linda M. Caprarotta, and L.A. Petitioner's Exhibits 2 through 10,
12 through 18, and 20 were admitted in evidence. Respondent testified on his own behalf and called the following witnesses: Giovanni Troche, T.H., S.H., J.L., K.L., J.C., John Iwantakey, M.H., A.H., L.A., and Bruce Proud. Respondent's Exhibits 1 through 7 and 9 through 13 were admitted in evidence.
The four-volume Transcript was filed on January 21, 2004. On February 9, 2004, a Joint Motion for Continuance was filed, requesting that the time for filing the proposed recommended orders be extended to allow for the filing of a corrected transcript. The motion was granted. By April 8, 2004, no corrected transcript had been filed, and an order requiring the filing of the proposed recommended orders on or before April 29, 2004, was entered. On April 29, 2004, Respondent requested an extension of time to file the proposed recommended orders on April 30, 2004. The motion was granted. The parties timely filed their Proposed Recommended Orders, which have been considered in rendering this Recommended Order.
FINDINGS OF FACT
Respondent holds Florida Educator's Certificate Number 806514.
In February 2000, Respondent began teaching at Three Oaks Middle School (Three Oaks) in the Lee County School District. Respondent's contract was renewed for the 2000-2001 and 2001-2002 school years. He taught business education
courses and was the advisor for the Future Business Leaders of America (FBLA) club during the 2001-2002 school year.
Bob Sneddon had been the advisor for the FBLA club prior to Respondent's becoming employed at Three Oaks.
Mr. Sneddon took another position within the school district, but continued with the responsibilities for the FBLA activities during the 2000-2001 school year.
Mr. Sneddon could no longer continue working on FBLA activities during the 2001-2002 school year. Respondent assumed the responsibilities of the advisor for the FBLA activities at the beginning of the 2001-2002 school year. His responsibilities included conducting club meetings each Monday night, having fund raisers, taking FBLA students to conferences, and preparing the FBLA students for various competitions.
In March 2002, during the school's spring break, Respondent and seven FBLA students went to Orlando for an annual conference and competition. James Rubright, a teacher at Three Oaks, and T.H., a parent, were chaperones for the competition. T.H.'s daughter, S.H., was one of the students attending the competition.
Mr. Rubright had assisted with FBLA activities with Mr. Sneddon and had gone to the 2000-2001 competition with Mr. Sneddon and the FBLA students. Mr. Rubright was not an advisor or co-advisor for FBLA activities during the 2001-2002
school year. The evidence established that Linda M. Caprarotta, the principal at Three Oaks, had instructed Mr. Rubright to assist Respondent in getting the students registered for the competition because of time constraints. In that effort,
Mr. Rubright had signed as a co-advisor for FBLA activities one time solely for the purpose of getting the students registered for the competition with the state FBLA organization.
Mr. Rubright was also asked to attend the FBLA competition as a chaperone, but not as a co-advisor.
At the beginning of the trip, Respondent, the students, and the chaperones received $84 per diem for the trip to cover the cost of meals. It was understood by the parents and students that the students would possibly go to Disney World while they were at the conference.
After arriving in Orlando for the competition, T.H. became ill and had to be hospitalized. She contacted another parent, J.L., and asked her to come to Orlando to chaperone the female students. K.L., the daughter of J.L., was attending the competition.
J.L. went to Orlando to chaperone the female students.
When she arrived at the hotel, she, Respondent, and several students went to the hospital to see T.H. They were riding in T.H.'s van, and, on the way to the hospital, Respondent made inappropriate comments to J.L. within the hearing of the
students in the van. Such comments included, "How do you keep your marriage spicy?" He also asked her if she had ever been tempted to cheat on her husband during their marriage. J.L. was embarrassed by the questions and tried to redirect the conversation.
While J.L. and Respondent were visiting T.H. in the hospital, T.H. told J.L. to take her money to use at Disney World. J.L., not knowing that T.H. was talking about the per diem money that the school had provided and thinking that T.H. was talking about her personal funds, told T.H. that she had her own money and would not need T.H.'s money.
When J.L. and Respondent returned to the van, Respondent asked J.L. if he could use T.H.'s money to pay for a ticket for his brother to go to Disney World with the students.
J.L. later told Respondent that he could not use the money for his brother.
Respondent's brother, Giovanni Troche, lived in the Orlando area and met Respondent and some of the students for breakfast while they were at the conference. Respondent wanted his brother to go to Disney World with them as a chaperone. He told the students that his brother could not go because of lack of funds. One of the students, A.H., decided to take up a collection from the other students to raise money for Giovanni Troche to go to Disney World. K.L. was reluctant to contribute
money to the fund raiser. In response, Respondent told the students that if they had a brother or sister there who did not have enough money that he would lend them money. That remark made K.L. feel like she was being selfish if she did not contribute. Feeling obligated to contribute, K.L. donated five dollars for Respondent's brother. Respondent took the student's money to use for his brother. It is inappropriate for a teacher to accept money from students.
Giovanni Troche did go with the students to Disney World. The group arrived at Disney World in the late afternoon. Some time during the evening and after a lot of walking, Giovanni Troche, who is a rather large person, developed a rash between his legs. He felt that he could not continue to walk because of the pain caused by the rash. Respondent secured a wheelchair for his brother and pushed him around the theme park. As a result of Respondent's brother being in a wheelchair, some of the students were able to move up to the front of the line for one of the rides. The evidence does not establish that Respondent secured the wheelchair for the purpose of getting ahead of others in the lines for the rides.
Most of the students who attended the conference were high school students. On the last night of the conference, the FBLA organization sponsored a dance. Respondent attended the dance as a chaperone. While at the dance, Respondent observed
female students kissing one another, female students raising their shirts and "flashing," and couples "dirty dancing."
After the dance and on the way back to their hotel rooms, J.L. overheard Respondent make the comment that he had been helping the disc jockey, and there had been a lot of action going on, including raunchy dancing and girls flashing him.
J.L. was upset that such comments would be made in the presence of students.
The day after the dance, the group left Orlando to return home. The chaperones had taken their personal cars, and the Three Oaks students and Respondent had ridden a charter bus with high school students. The group stopped for lunch. While waiting outside for the bus driver to finish his lunch, K.L. and
S.H. overheard Respondent talking to a group of high school males near the school bus. They heard Respondent brag to the high school students that he had helped the disc jockey and that they should have been there because he saw girls kissing other girls, girls were all over him, and girls were flashing him.
S.H. went to her mother and told her what Respondent had said.
T.H. told S.H. and K.L. to remain with her. K.L. was embarrassed and disgusted by Respondent's comments, and S.H. was shocked by his remarks.
After the FBLA group returned home, Ms. Caprarotta received several complaints from parents concerning Respondent's
actions on the field trip. An investigation was made, and, as a result, Respondent's teaching contract was not renewed for the 2002-2003 school year.
L.A. came to teach at Three Oaks in February 2001.
Respondent began to make flirtatious and overly complementary remarks to L.A. Respondent would come uninvited to her classroom and talk about his marital problems and tell her that he wished his wife were more like her and that her boyfriend was lucky to have someone like her. His conversations annoyed her and made her feel uncomfortable.
She confided her feelings to a teacher on her team.
The team teacher told the assistant principal, who approached
L.A. about the situation. L.A. told the assistant principal that she would take care of the situation.
Respondent's unwanted attentions continued into the fall of 2001. He e-mailed L.A. on a particular day and told her that she was good looking and that she should wear skirts. She e-mailed Respondent that she did not think that his e-mail was appropriate and that she did not want him sending her anymore e- mails.
The situation finally came to a head one day when L.A. and Respondent were in the copy room. L.A. told Respondent that he made her uncomfortable with his compliments and that she was
involved with someone. She also told him that his conduct was not appropriate and that she wanted him to keep his distance.
L.A. was made uncomfortable by Respondent's actions toward her. Additionally, Respondent was teaching her son in a business class, and she did not feel that it was appropriate for her son's teacher to engage in such conversations with her.
After their confrontation in the copy room, Respondent and L.A. avoided each other. After about a month of avoidance,
L.A. asked Respondent if the situation could be "water under the bridge" and could they just be friends and co-workers. They shook hands, and Respondent did not make any further inappropriate comments to her.
In January 2002, J.C. began working as a teacher at Three Oaks. By February 2002, Respondent began having conversations with her. At first, the discussions consisted of talk about school and the students and would take place while she was taking her students to be picked up by their parents. The conversations eventually included discussions about Respondent's unhappy marriage and J.C.'s separation from a previous spouse. Respondent, however, began to shift the conversations to a sexual nature. One day outside his classroom, Respondent asked J.C., "What's your favorite position?" Prior to this question, J.C. had not discussed her
sex life with Respondent. His comment made her feel uncomfortable, and she told him, "I'm not going there."
The next morning after his sexual comment, J.C. saw Respondent and went her way without talking to him. Just prior to lunch that day, Respondent sent an e-mail to her which stated, "Did I say something wrong?" She ran into Respondent after the morning e-mail, and he inquired whether she had gotten his e-mail. She replied that she had, and a discussion ensued. Later that afternoon, J.C. received another e-mail from Respondent which stated:
I liked the conversation this morning. It was nice talking to you again. The advice you gave me was very interesting. I've been thinking about it. It's just too bad that you had somebody with the same problems in their relationship as me and you don't Qualify. I wish you did.
A couple of weeks later, Respondent sent another e-mail which stated, "I'm still waiting for that e-mail. So just let me know when if ever. Take care."
On another occasion, Respondent came to J.C.'s classroom, interrupted her work, and asked her, "Have you ever done it with a Hispanic guy?" Respondent called J.C. one day on his way home using his cell telephone while J.C. was still at school. J.C. told him that she was the wrong person to talk to because she was very happy in her current relationship. After the telephone call, J.C. tried to ignore Respondent, but
Respondent would make comments in passing such as "Did you think about it?" or "Have you changed your mind?" or "Are you still happy?" J.C. stopped taking her students to be picked up by their parents in order to avoid meeting Respondent.
J.C. tried to make it clear to Respondent that she was not interested in him, but the more she tried to brush him off, the harder he pursued her. She confided to Mr. Rubright that Respondent had been acting inappropriately toward her.
Mr. Rubright told her that she needed to advise the administration at Three Oaks about the incidents. The day after her conversation with Mr. Rubright, J.C. did discuss her concerns about Respondent with Clayton Simmons, assistant principal at Three Oaks.
Respondent's actions on the FBLA trip and with his female colleagues reduced his effectiveness as a teacher at Three Oaks. Some parents, including T.H. and J.L. were unhappy with his conduct; teachers at Three Oaks, including
Mr. Rubright, L.A., and J.C., did not want to work with Respondent again; and some administrators at Three Oaks, including Ms. Caprarotta, Mr. Carson, and Mr. Simmons, did not want to work with Respondent again. J.L., who was a teacher at Three Oaks, did not want to work with Respondent at any school in the school district.
After Respondent's employment at Three Oaks ended, he began working at Richmond Milburn Academy in Lee County. He has received satisfactory performance evaluations, and no complaints have been made against him concerning inappropriate comments. Respondent no longer discusses his personal problems with female colleagues.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2003).
Petitioner has the burden to establish the allegations in the Second Amended Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Petitioner alleged that Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2003), which provide that the Education Practices Commission may discipline a teacher when it can be established that the teacher has committed the following acts:
(c) Has been guilty of gross immorality or an act involving moral turpitude.
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(f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board
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(i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
Petitioner has also alleged that Respondent violated Florida Administrative Code Rules 6B-1.006(3)(a), 6B- 1.006(3)(e), and 6b-1.006(5)(d), which provide that The Principles of Professional Conduct for the Education Profession in Florida requires the following:
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.
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(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
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(5) Obligation to the profession of education requires that the individual:
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(d) Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each
individual is protected from such harassment or discrimination.
In the Second Amended Administrative Complaint, Petitioner alleged that the following actions are the bases for Respondent's violation of the above-referenced statutory and rule provisions:
During the 2000-2001 and 2001-2002 school years, the Respondent engaged in inappropriate conduct with students, colleagues, and parents. These incidents include, but are not limited to:
while participating in a student/teacher/parent field trip to Orlando in March 2002, asking parent J.L. how she kept her marriage "spicy" or words to that effect, and asking her whether she had ever been "tempted" or words to that effect;
harassing colleague L.A. with flirtatious comments and sexual innuendo on a near daily basis;
making statements to colleague J.C. which included "I never did ask you this before, but--what is your favorite position?" and "Have you ever done it with a Hispanic guy?" or words to that effect.
discussing with high school students, who were also present on the trip to Orlando in March 2002, how he helped the DJ at a high school dance, and how "People were making out. Some girls flashed me. Girls were all over me, and they were kissing.
You guys should have been there," or words to that effect. This discussion took place in the presence of Respondent's students.
suggesting to students that his brother could not afford to go on the trip to Disney World and then accepting money
from the students to pay for his brother's ticket to Disney World. Once at Disney World, the Respondent allowed his brother to use a wheelchair so that the group could go to the front of the ride lines, even though his brother did not need a wheelchair. This was done in the presence of Respondent's students. On or about June 7, 2002, the Respondent was notified by the Lee County School District that he would not be recommended for reappointment for the 2002- 2003 school year.
Petitioner has established by clear and convincing evidence that Respondent violated Subsection 1012.795(1)(c), Florida Statutes (2003). Neither the term "gross immorality" nor the term "moral turpitude" is defined in Subsection 1012.795(1)(c), Florida Statutes (2003). However, the terms "immorality" and "moral turpitude" are defined in Florida Administrative Code Rule 6B-4.009, which relates to the dismissal of teachers by school districts. Such definitions are instructive in ascertaining the meaning of those terms as they are used in Section 1012.795, Florida Statutes (2003).
Florida Administrative Code Rule 6B-4.009(2) and (6) provides:
(2) Immorality is defined as conduct that is inconsistent with the standards 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.
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(6) 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 statute fixes the moral turpitude.
Petitioner's actions towards J.L., L.A., and J.C. exhibited gross immorality. The comments were inappropriate and contrary to the standards of public conscience and good morals. Respondent did not limit his sexual remarks to just one person, but when his comments were not reciprocated he would just move to another female in an attempt to make a conquest. His comments to L.A. and J.C. were in the workplace setting, and his comments to J.L. were made during a school field trip in the presence of middle school students. Such conduct cannot be tolerated from a teacher in these settings. Thus, Petitioner has established that Respondent is guilty of gross immorality. Petitioner did not establish that Respondent is guilty of an act of moral turpitude. His actions did not rise to the level of a crime.
Petitioner has established by clear and convincing evidence that Respondent violated Subsection 1012.795(1)(f), Florida Statutes (2003). Respondent's actions during the FBLA field trip such as taking money from students and bragging about girls flashing him seriously impaired his effectiveness as a
teacher. Parents were complaining to Ms. Caprarotta about his conduct. Students were embarrassed about his conduct and thought it was inappropriate. Respondent's actions toward L.A., J.C., and J.L. also impaired his effectiveness as a teacher.
Neither L.A. nor J.C. wants to work with Respondent again, and
J.L. would not want to work with Respondent at any school in the school district. School administrators do not want to work with Respondent again.
Petitioner has established by clear and convincing evidence that Respondent violated Subsection 1012.795(1)(i), Florida Statutes (2003), by violating Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), and 6B-1.006(5)(d).
Respondent did not make a reasonable effort to protect students from conditions harmful to their mental health when he bragged to high school students that girls at the FBLA dance were flashing him, were all over him, and were kissing one another; when he made sexual remarks to J.L. in a van full of middle school children; and when he told students that his brother could not afford to go to Disney World and that he would lend money to the students' brothers and sisters if they were in the same situation.
Respondent intentionally exposed students to embarrassment when he made the remarks concerning the girls at the FBLA dance. The remark was made in the presence of high
school students and in a situation where it was probable that middle school students such as K.L. and S.H. could overhear the remark. K.L. was embarrassed and disgusted by his bragging, and
S.H. was shocked by his conduct.
Respondent harassed L.A. and J.C. and created an offensive working environment for them with his sexual comments. He interfered with their work responsibilities by making the comments during work hours and using various modes of communication including e-mails and telephone calls. J.C. stopped taking her students to the designated pick-up area in an effort to avoid Respondent and his harassing behavior.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of violating Subsections 1012.795(1)(c), 1012.795(1)(f), and 1012.795(1)(i), Florida Statutes (2003), and Florida Administrative Code Rules 6B-1.006(3)(a), 6B- 1.006(3)(e), and 6B-1.006(5)(d); suspending his Florida Educator's Certificate for one year; upon employment in any public or private position requiring an educator's certificate, placing him on probation for three years on such terms as the Education Practices Commission deems advisable; and requiring Respondent to take a three-hour college level course in women's issues.
DONE AND ENTERED this 5th day of August, 2004, in Tallahassee, Leon County, Florida.
S
SUSAN B. KIRKLAND
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 5th day of August, 2004.
COPIES FURNISHED:
Nina Ashenafi, Esquire FEA/United
118 North Monroe Street Tallahassee, Florida 32301
Kathleen M. Richards, Executive Director Education Practices Commission Department of Education
325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400
Kelly B. Holbrook, Esquire Maria Ramos, Esquire
Broad and Cassel
100 North Tampa Street, Suite 3500 Post Office Box 3310
Tampa, Florida 33602-3310
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
1244 Turlington Building
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 |
|---|---|---|
| Nov. 22, 2004 | Agency Final Order | |
| Aug. 05, 2004 | Recommended Order | Respondent made inappropriate sexual remarks to teachers and parents. |
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