STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

EDWARD M. BALDWIN,

Respondent.

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) Case No. 04-0731PL

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RECOMMENDED ORDER

Notice was provided and on May 20, 2004, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (2003). The hearing was held by video-teleconferencing. The administrative law judge was located at a site in Tallahassee, Florida. The remaining participants were located at a site in Jacksonville, Florida. The hearing commenced at 10:00 a.m. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Ellen C. Pappas, Esquire

McFarlain & Cassedy, P.A.

305 South Gadsden Street Tallahassee, Florida 32301

For Respondent: Edward M. Baldwin, pro se

(No appearance)

STATEMENT OF THE ISSUE

Should Petitioner impose discipline on Respondent's Florida Educator's Certificate No. 843208, covering the area of English, based upon the allegations in the Administrative Complaint,

Case No. 023-1821-R, before the State of Florida Education Practices Commission?

PRELIMINARY STATEMENT

On November 5, 2003, Jim Horne, as Commissioner of Education executed the Administrative Complaint. Respondent replied to the Administrative Complaint asking for a formal hearing to contest all allegations of misconduct that are set forth in the Administrative Complaint, referred to as material allegations as they implicate consideration of Counts 1 through 5, pertaining to alleged violations of statutes and rules.

On March 8, 2004, the case was received by the Division of Administrative Hearings and assigned for an evidentiary hearing to resolve material facts in dispute. The assignment was made to the undersigned. Following the assignment the hearing was conducted on the date described.

At hearing, Petitioner presented the testimony of J.L.J. and E.S.H., students. Petitioner's Exhibit numbered 1 was admitted. That exhibit is the deposition testimony of C.D.C., another student.

A hearing transcript was filed on May 25, 2004. On June 7, 2004, Petitioner filed a Proposed Recommended Order, which has been considered in preparing the Recommended Order.

FINDINGS OF FACT

1. The Respondent holds Florida Educator's Certificate No. 843208, covering the area of English, which is valid through June 30, 2003.

2. At all times pertinent hereto the Respondent was employed as an English teacher at Philip Randolph Academy School (Randolph Academy), in the Duval County School District.1

3. J.L.J. was a female student at Randolph Academy in the school year 2002-2003. Her date of birth is October 29, 1987. She was familiar with Respondent when he taught there.

4. J.L.J. had conversations with Respondent over time, conversations in which Respondent would ask her questions she deemed inappropriate and would follow with comments that she found unacceptable. As will be revealed, her perceptions about Respondent's conduct were correct.

5. Most of the conversations complained of took place in the hallway or in a teacher's classroom. They made J.L.J. feel uncomfortable. The conversations were in the presence of other students and J.L.J. was embarrassed for that reason.

6. One example of the conversations took place on a day when J.L.J. wore medical scrubs to school. Respondent commented

   that J.L.J. should not wear the scrubs because he could not see her curves. This is taken to mean that he was commenting on the shape of J.L.J.'s body.

7. On other occasions Respondent would comment on J.L.J.'s attire. He would tell her that she should not wear a certain "outfit" because it made her look a certain way or didn't make her look a certain way.

8. At one point in time at school Respondent asked J.L.J. if she had "black in you." Respondent followed his question by commenting that he had asked her that because J.L.J. was "shaped like a black girl."

9. Respondent told J.L.J. that she was "sexy." He told her that her "butt" was big and that it was sexy.

10. Respondent commented about J.L.J.'s hair and make-up.

    
    

    He would suggest to her certain ways that her hair should be styled and how her make-up should be presented.

11. At a point in time, J.L.J. asked Respondent to leave her alone, referring to his remarks about her appearance. For a couple of days Respondent made no further comments but he began to act the same way that he had before in relation to comments about J.L.J.'s body, specifically her "butt" and her hair.

12. E.S.H. was another female student at the Randolph Academy in the school year 2002-2003. Her date of birth is August 7, 1987. Respondent was her teacher. Respondent had

    conversations involving J.L.J. and E.S.H. on an almost daily basis. As had been identified by J.L.J., these conversations took place in the hallways and in a teacher's classroom.

13. The substance of the conversations to which E.S.H. was privy, coincide with those recounted by J.L.J. and were principally directed to J.L.J. concerning J.L.J.'s hair, face, and overall appearance.

14. E.S.H. was there when Respondent commented about the scrubs worn by J.L.J. She recalls Respondent saying that J.L.J. should not wear the scrubs because they made J.L.J. look like everyone else and did not show her shape, her curves. J.L.J. complained to E.S.H. about these remarks when Respondent walked away from that conversation.

15. As E.S.H. recalls, J.L.J. and E.S.H. went to Respondent and complained about the comments that he made to

    J.L.J. concerning J.L.J.'s appearance. Respondent apologized but he also said that if the two female students went to the principal to complain that it would be his word against theirs.

16. E.S.H. explained that about two days later J.L.J. came to her complaining about Respondent. This agrees with J.L.J.'s recollection of the place and time in which Respondent returned to his habit of making inappropriate comments about J.L.J.

17. E.S.H. overheard Respondent comment to J.L.J. about J.L.J.'s "butt" and how it was getting big, and how that it was shaped like a "black girl."

18. If J.L.J. were wearing certain clothes, Respondent would ask J.L.J. if her body was spreading because to him it looked as if J.L.J.'s "butt" was getting bigger. Those remarks were overheard by E.S.H.

19. E.S.H. was also present when Respondent commented about J.L.J.'s face and her make-up, whether it was too much, or whether not enough time had been spent by J.L.J. applying make- up that morning.

20. These encounters between Respondent and J.L.J. left

    
    

    E.S.H. with the impression that Respondent was attracted to J.L.J.

    Disciplinary History

    
    

21. There is no indication that Respondent has been subjected to prior discipline.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding in accordance with Sections 120.569 and 120.57(1), Florida Statutes (2003).

23. The Administrative Complaint contains five counts related to alleged violations of various statutes and rules.

    Count 1 refers to Section 1012.795(1)(c), Florida Statutes (2002). Count 2 refers to Section 1012.795(1)(i), Florida Statutes (2002). Count 3 refers to Florida Administrative Code Rule 6B-1.006(3)(a). Count 4 refers to Florida Administrative Code Rule 6B-1.006(3)(e). Count 5 refers to Florida Administrative Code Rule 6B-1.006(3)(g). In turn the statutes and rules state:

    § 1012.795, Fla. Stat. (2002)

    
    

    1012.795 Education Practices Commission authority to discipline.--

    1. The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, . . . or may impose any other penalty provided by law, provided it can be shown that the person:

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

       
       

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

       
       

       Fla. Admin. Code R. 6B-1.006

       
       

       1. 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.

       
       

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       (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

       
       

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       (g) Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethic 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.

       
       

24. As can be seen, to the extent that any violations have been shown in relation to Counts 3, 4, and 5 they would also constitute a violation of Count 2.

25. The reasons for the violations are set forth in the Administrative Complaint, wherein it is stated:

    3. During the 2002-2003 school year, the Respondent made inappropriate comments to J.L.J., a female student whose date of birth is October 29, 1987. The comments included, but are not limited to, asking her if she "had an black in her," telling her "you look sexy," "I like your butt," "Your booty is getting big," and "Damn, who is that?" [referring to J.L.J.]. On or about March 14, 2003, the Respondent was given a letter of reprimand and suspended for five (5) days without pay. He was subsequently reassigned to Bull's Bay and continues to be employed there.

    
    

26. Petitioner bears the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The definition of clear and convincing evidence is found in the case Slomwitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

27. In considering the outcome of this case, it is with the recognition that educators are expected to conform to higher moral standards. The court has held, "by virtue of their leadership capacity, teachers are traditionally held to a higher moral standard in the community." Adams v. Professional

    Practices Council, 406 So. 2d 1170, 1171 (Fla. 1st DCA 1981).

    
    

28. As an educator, it is not necessary that Respondent " . . . be charged with or convicted of a crime in order to be subject to revocation of a certificate based on conduct reflecting gross immorality or moral turpitude. . . ." Walton v. Turlington, 444 So. 2d 1082, 1084 (Fla. 1st DCA 1984).

29. Count 1 refers to acts of gross immorality or moral turpitude. To understand the meaning of those terms, resort is made to provisions within Florida Administrative Code Rule 6B-4, which defines terms for the benefit of district school systems in disciplining instructional staff.

30. Florida Administrative Code Rule 6B-4.009(2), defines immorality as:

    Conduct that is inconsistent with standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the educational profession into public disgrace or disrespect and impair the individual's service in the community.

    
    

    For the conduct to be grossly immoral, it would need to be a form of immorality that is obvious and inexcusable.

31. In connection with the discipline to be imposed by a district school system for its instructional staff, "moral turpitude" is defined at Florida Administrative Code

    Rule 6B-4.009(6), as:

    
    

    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, in the doing of the act itself and not its prohibition by statutes fixes the moral turpitude.

    
    

    In the word again, it is not necessary that a crime be committed in order to demonstrate moral turpitude.

32. While Respondent's conduct was reprehensible in his treatment of the student J.L.J., it did not evidence gross immorality or moral turpitude. There is no violation of Section 1012.795(1)(c), Florida Statutes (2002).

33. Proof is clear and convincing that Respondent failed to make a reasonable effort to protect J.L.J. from conditions harmful to her learning. Thus he has violated Florida

    Administrative Code Rule 6B-1.006(3)(a), set forth in Count 3. His comments directed to her concerning her physical appearance and heritage were offensive to her and were such as to harm her opportunities to learn as a student.

34. Clear and convincing evidence has been presented to establish a violation of Count 4, in that Respondent's remarks about J.L.J.'s person exposed her to unnecessary embarrassment or disparagement as a student in violation of Florida Administrative Rule 6B-1.006(3)(e).

35. Clear and convincing evidence has been presented to show a violation of Count 5. Respondent harassed J.L.J. based upon her sex by his remarks. This is a violation of Florida Administrative Code Rule 6B-1.006(3)(g).

36. Having violated Counts 3 through 5, clear and convincing evidence has been presented to show a violation of Section 1012.795(1)(i), Florida Statutes (2002), related to Count 2.

37. In keeping with the expectations as set forth in Section 1012.795(1), Florida Statutes (2002), and having in mind the nature of the violations, a recommendation for punishment is made.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law reached, it is

RECOMMENDED:

That a Final Order be entered which finds Respondent in violations of Counts 2 through 5, dismisses Count 1, and suspends Respondent's Educator's Certificate for a period of 30 days.

DONE AND ENTERED this 28th day of June, 2004, in Tallahassee, Leon County, Florida.

S

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2004.

ENDNOTE

1/ The preceding paragraphs were set forth in the Administrative Complaint under the heading "Jurisdiction." Those references are found as fact, in that through Respondent's election for a formal hearing, he has only contested allegations of misconduct which follow the section on jurisdiction and are referred to as "Material Allegations."

COPIES FURNISHED:

Ellen C. Pappas, Esquire McFarlain & Cassedy, P.A.

305 South Gadsden Street Tallahassee, Florida 32301

Edward M. Baldwin 1704 East 24th Street

Jacksonville, Florida 32206

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

325 West Gaines Street, Room 224 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

325 West Gaines Street, Suite 224-E 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: 04-000731PL

Orders for Case No: 04-000731PL