STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. WINN, as COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 05-2899PL

)

MICHAEL MITCHELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 10, 2006, in West Palm Beach, Florida, before Patricia M. Hart, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Mark Wilensky, Esquire

Dubiner & Wilensky, P.A.

515 North Flagler Drive, Suite 325 West Palm Beach, Florida 33401-4349

STATEMENT OF THE ISSUE

Whether the Petitioner committed the violations alleged in the Administrative Complaint dated October 25, 2004, and, if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated October 25, 2004, John

1. Winn, in his capacity as Commissioner of Education ("Commissioner"), charged Michael Mitchell with the following:

   Count 1: Having committed acts of gross immorality or an act involving moral turpitude, in violation of

   Section 1012.795(1)(c), Florida Statutes;

   
   

   Count 2: Having engaged in personal conduct that seriously reduced his effectiveness as an employee of the school system, in violation of Section 1012.795(1)(f), Florida Statutes;

   Count 3: Having violated the Principles of Professional Conduct for the Education Profession, in violation of

   Section 1012.795(1)(i), Florida Statutes;

   
   

   Count 4: Having otherwise violated the provisions of law, the penalty for which is revocation of his teaching certificate, as prescribed by Section 1012.795(1)(j), Florida Statutes;

   Count 5: Having failed to make reasonable effort to protect a student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety, in violation of Florida Administrative Code Rule 6B-1.006(3)(a);

   Count 6: Having unreasonably restrained a student from independent action in pursuit of learning, in violation of Florida Administrative Code Rule 6B-1.006(3)(b);

   Count 7: Having intentionally exposed a student to unnecessary embarrassment or disparagement, in violation of Florida Administrative Code Rule 6B-1.006(3)(e);

   Count 8: Having exploited a relationship with a student for personal gain, in violation of Florida Administrative Code Rule 6B-1.006(3)(h);

   Count 9: Having intentionally distorted or misrepresented facts concerning an educational matter in direct or indirect public expression, in violation of Florida Administrative Code Rule 6B-1.006(4)(b);

   Count 10: Having failed to maintain honesty in all professional dealings, in violation of Florida Administrative Code Rule 6B-1.006(5)(a);

   Count 11: Having engaged in harassment or discriminatory conduct which unreasonably interfered with an individual's performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, offensive, or oppressive environment, and further, failed to make reasonable effort to assure that each individual was protected from such harassment or discrimination, in violation of Florida Administrative Code Rule 6B-1.006(5)(d).

   The violations were based on allegations that Mr. Mitchell allegedly engaged in an inappropriate sexual relationship with a student and minor, T.P., and willfully and knowingly provided

   false statements to investigators during two separate investigations into the alleged misconduct. Specifically, the Commissioner alleged:

   1. During the 1999-2000 school year, Respondent engaged in inappropriate, unprofessional conduct with T.S., a female student whose date of birth is April 29, 1983. Respondent dated T.S. for a period of time. Respondent and T.S. went to Respondent's house where they engaged in heavy petting. T.S. refused Respondent's requests for intercourse.

      
      

   2. Beginning on or about January 2000, Respondent began an inappropriate, unprofessional relationship with T.P., a female student whose date of birth is March 19, 1984. Beginning in January or February 2000, Respondent's relationship

      with T.P. included intimate physical contact several times a week. In April 2000, T.S. [sic] ran away from home for about a week.

      During this time, T.P. stayed with Respondent. Respondent knew that T.P. was a reported runaway juvenile and failed to report her to the proper authorities. At Respondent's insistence, T.P. withdrew from school in the summer of 2000. T.P. became pregnant in August 2000 with Respondent's child, who was born in May 2001. Respondent and T.P. married in September 2000.

      Respondent and T.P. are now divorced.

      
      

   3. During the first investigation of Respondent's relationship with T.P. in the spring of 2000, Respondent willfully and knowingly provided false statements to investigators about his relationship with

      T.P. Further, Respondent contacted T.P. prior to her interview and convinced her to provide false statements as well to protect his job. Respondent's actions obstructed an official investigation.

   4. During the second investigation of Respondent's relationship with T.P. in the fall of 2000, Respondent willfully and knowingly provided false statements to investigators about his relationship with

      T.P. Further, Respondent contacted T.P. prior to her interview and convinced her to provide false statements as well to protect his job. Respondent's actions obstructed an official investigation.

      
      

   5. On or about November 15, 2001, the school district placed Respondent on administrative leave. On or about June 10, 2002, Respondent resigned his position with the school board.

Mr. Mitchell timely requested a formal administrative hearing, and the Commissioner forwarded the matter to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to notice and after several continuances, the final hearing was held on October 10, 2006.

At the hearing, the Commissioner presented the testimony of Belinda Cortez, Phulmatee Shiunarain, Wilfred Paul LaChance, Robert Walton, Raymond Miller, Lawrence Insel, and Lisa Hansen. Petitioner's Exhibits 1 through 7, 23 through 29, 38, 42, 43, and 44 were offered and received into evidence. The Respondent did not present the testimony of any witnesses and did not testify in his own behalf; Respondent's Exhibits 2, 3, and 4 were offered and received into evidence. In an order entered April 13, 2006, official recognition was taken of the court file in the matter of T[] P[] v. Michael Mitchell, Case No. 2001-DA-

003666 FB, filed in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida.

Petitioner's Exhibit 2 is the transcript of the deposition of Mr. Mitchell, and Petitioner's Exhibit 6 is the transcript of the partial deposition of T.P., which was received into evidence in lieu of T.P.'s live testimony.1 The Commissioner also filed a motion requesting leave to take the deposition of Teresa Wyatt after the final hearing and to late-file the deposition transcript in lieu of Ms. Wyatt's live testimony. The motion was granted, and the Commissioner filed the transcript of the deposition of Teresa Wyatt on November 13, 2006, which has been received into evidence as Petitioner's Exhibit 44. Finally,

Mr. Mitchell was given leave to present additional evidence in the form of the transcript of the deposition of Ryan Morrissey; the deposition transcript was filed on December 7, 2006, and received into evidence as Respondent's Exhibit 4.

The one-volume transcript of the proceedings was filed with the Division of Administrative Hearings on December 18, 2006.

After several extensions, the parties timely filed proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.

Note on Findings of Fact

A few comments on the evidence are necessary to lay a predicate for the findings of fact in this case. Neither T.S.

nor T.P., the alleged victims in this case, appeared to testify at the final hearing. In her partial deposition, T.P. invoked the Fifth Amendment and refused to answer any questions regarding the substance of the allegations of misconduct set forth against Mr. Mitchell in the Administrative Complaint.

Mr. Mitchell did not testify in his own behalf, and there was no testimony presented from any witness who had personal knowledge of the facts alleged in the Administrative Complaint or of the nature and extent of the relationship between T.S. and

Mr. Mitchell and T.P. and Mr. Mitchell.

With the exception of the evidence on which the findings of fact below are based, all of the Commissioner's evidence was hearsay. He offered portions of the court file in T[] P[] v.

Michael Mitchell, Case No. 2001-DA-003666 FB. Among the documents in the file are numerous affidavits and sworn statements executed by T.P., together with copies of e-mails, police reports and other exhibits, in which T.P. acknowledged that she and Mr. Mitchell had engaged in sexual relations as early as January 2000, when she was a 15-year-old student, and that Mr. Mitchell had threatened violence against T.P. and her son if she did not lie about their relationship. An Agreed Final Judgment of Injunction for Protection Against Domestic Violence with Minor Child(ren)(After Notice)was entered in the case on December 3, 2001, but the circuit court judge noted on

the judgment that no factual findings were made because the parties agreed to entry of the judgment.

In addition to the court file, the Commissioner offered the testimony of the following witnesses, together with documents they prepared:

1. Teresa Wyatt, an investigator with the Palm Beach County State's Attorney's Office who prepared a sworn probable cause affidavit in which she related T.P.'s statements to her that T.P. and Mr. Mitchell had engaged in sexual relations while she was a student and that Mr. Mitchell had been asking her to lie so that he wouldn’t lose his teaching certificate;

2. Belinda Cortez, a circuit court clerk who took T.P.'s sworn statement dated March 25, 2002, and identified T.P.'s signature on the statement, which included allegations by T.P. that Mr. Mitchell was harassing her and threatening her and asking her to lie under oath so he wouldn’t lose his job:

3. Phulmatee Shiunarain, a circuit court clerk who identified T.P.'s signature on a document in which T.P. stated that Mr. Mitchell was intimate with her and impregnated her while she was a minor and who identified another sworn statement by T.P. in which she related that Mr. Mitchell was threatening to kill her;

4. Wilfred Paul LaChance, an investigator with the Palm Beach County School Board's Office of Professional Standards,

   who investigated a charge filed in April 2000 alleging that Mr. Mitchell was having an inappropriate sexual relationship with a student and who took a statement from T.P. in which she stated that she had engaged in an ongoing sexual relationship with Mr. Mitchell when she was a 15-year-old student;

5. Detective Robert Walton, an officer with the Palm Beach County School District police, who conducted a criminal investigation arising from a complaint filed against

   Mr. Mitchell by T.P.'s mother accusing him of having a sexual relationship with her 15-year-old daughter, who initially found no probable cause based on Mr. Mitchell's denial of an inappropriate relationship with T.P.; and who received T.P.'s statement in which she stated that she and Mr. Mitchell had had sexual relations beginning in January 2000, when she was

   15 years old, and that they had engaged in intercourse on at least 30 occasions during the 1999-2000 school year;

6. Raymond T. Miller, who was employed in the Palm Beach County School District's Department of Employee Relations in 2001, who investigated renewed charges by T.P. that Mr. Mitchell had engaged in a sexual relationship with her when she was a 15- year-old student, and who prepared type-written summaries of his interviews with (a) T.P., during which she described her sexual relationship with Mr. Mitchell beginning in January 2000,

   (b) Mr. Mitchell, during which he denied having sexual relations

   with T.P. until their marriage, (c) T.P.'s mother, and (d) T.S., during which she stated that she had dated Mr. Mitchell when she was a 16-year-old student;

7. Larry Insel, an investigator with the Department of Education who took the written statement of T.S., in which she stated that she had dated Mr. Mitchell when she was a 15-year- old student, and the statement of T.P., in which she acknowledged that she had met Mr. Mitchell in January 2000, began having sexual relations with him in February 2000, and was pregnant when they got married in September 2000;

8. Lisa Hansen, an assistant state's attorney who filed a Motion to Show Cause in the circuit court action referenced above, who reviewed all six of T.P.'s sworn affidavits, and who testified that she had no reason to dispute the factual allegations in the affidavits.

All of this evidence is hearsay. Section 120.57(1)(c), Florida Statutes (2006),2 provides as follows: "Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." Although the Commissioner established that many of the documents were either official court records or business records kept by the Palm Beach County School Board, and, therefore, were admissible over objection in civil actions, the

information contained in the documents is also hearsay. Because the Commissioner was unable to provide any direct evidence relating to the allegations of misconduct recited in the Administrative Complaint, the hearsay evidence contained in the documents cannot form the basis for any findings of fact herein.

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:

1. The Education Practices Commission ("EPC") of the Department of Education is the state agency with the authority to suspend or revoke the teaching certificate of any person holding such a certificate in the State of Florida.

   § 1012.795(1), Fla. Stat. The Commissioner of Education is the state official responsible for making a determination of probable cause that a teacher has committed statutory or rule violations based on the investigation conducted by the Department of Education. § 1012.796, Fla. Stat.

2. Mr. Mitchell holds Florida Educator's Certificate No. 715339. At the times material to this proceeding,

   Mr. Mitchell was employed as a teacher by the Palm Beach County School Board.3

3. T.P. was born on March 19, 1984, and she was a student at Palm Beach Lakes High School in January 2000.

4. T.P. met Mr. Mitchell in January 2000. At the time, Mr. Mitchell was 29 years old and was a teacher at J.F.K. Middle School.

5. T.P. withdrew from school in June 2000.

   
   

6. Mr. Mitchell and T.P. applied for a marriage license on July 28, 2000, and were married on September 25, 2000.

7. On May 29, 2001, T.P. gave birth to a son, who was Mr. Mitchell's child.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006).

9. In its Administrative Complaint, the Department seeks to impose penalties against Mr. Mitchell that include suspension or revocation of his Florida Educator's Certificate. Therefore, it has the burden of proving by clear and convincing evidence that Mr. Mitchell committed the violations alleged in the Administrative Complaint. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

10. In Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

    1989), the court defined clear and convincing evidence as follows:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of conviction, without hesitancy, as to the truth of the allegations sought to be established.

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

11. Judge Sharp, in her dissenting opinion in Walker v.

    
    

    Florida Department of Business and Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Sharp, J., dissenting), reviewed pronouncements on clear and convincing evidence and observed:

    Clear and convincing evidence requires more proof than preponderance of evidence, but less than beyond a reasonable doubt. In re Inquiry Concerning a Judge re Graziano,

    696 So. 2d 744 (Fla. 1997). It is an intermediate level of proof that entails both qualitative and quantative [sic] elements. In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995), cert.

    denied, 516 U.S. 1051, 116 S. Ct. 719, 133

    L. Ed. 2d 672 (1996). The sum total of the evidence must be sufficient to convince the trier of fact without any hesitancy. Id. It must produce in the mind of the fact finder a firm belief or conviction as to the truth of the allegations sought to be established. Inquiry Concerning Davie, 645 So. 2d 398, 404 (Fla. 1994).

12. Based on the findings of fact herein, the Commissioner has failed to meet his burden of proving the factual allegations of misconduct in the Administrative Complaint, and he has, therefore, failed to prove by clear and convincing evidence that Mr. Mitchell committed the statutory and rule violations set forth in Counts 1 through 11 of the Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing all charges against Michael Mitchell.

DONE AND ENTERED this 1st day of June, 2007, in Tallahassee, Leon County, Florida.

S

PATRICIA M. HART

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 1st day of June, 2007.

ENDNOTES

1/ Prior to the hearing, the Commissioner filed Petitioner's Motion to Compel/Motion for Sanctions/Motion to Submit Deposition as Exhibit. The Commissioner requested an order compelling T.P. to appear for the continuation of her deposition and determining that T.P. was not entitled to invoke the Fifth Amendment protection against self-incrimination with respect to questions about her relationship with Mr. Mitchell. An Order Granting Petitioner's Motion to Compel was entered on June 1, 2006, and T.P. was directed to appear for deposition and to answer the questions for which she had asserted the Fifth Amendment. T.P. failed to appear for the continuation of her deposition. The Petitioner subsequently filed a Motion to Compel/Motion for Sanctions/Motion to Submit Deposition as Exhibit on September 29, 2006, in which he requested, among other things, that he be permitted to offer at hearing that portion of T.P.’s deposition completed on March 9, 2006, in lieu of her live testimony. An order was entered on October 6, 2006, denying the Motion to Compel and the Motion for Sanctions and reserving ruling on the Motion to Submit [T.P.'s] Deposition as Exhibit. When it became clear at the hearing that, despite the Commissioner's best efforts, T.P. could not be served with a subpoena to testify at the hearing, the Motion to Submit Deposition as Exhibit was granted.

2/ All references to the Florida Statutes herein are to the 2006 edition unless otherwise specified.

3/ In or about April, May, or June 2002, the Palm Beach County School Board found probable cause to terminate Mr. Mitchell based on the results of the investigation of Mr. Mitchell's relationship with T.P. Mr. Mitchell resigned his teaching position on the day of the meeting at which the Palm Beach County School Board was to consider whether to suspend him and initiate termination proceedings against him.

COPIES FURNISHED:

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

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

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

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Mark Wilensky, Esquire Dubiner & Wilensky, P.A.

515 North Flagler Drive, Suite 325 West Palm Beach, Florida 33401-4349

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Marian Lambeth, Program Specialist Department of Education

Turlington Building, Suite 224-E

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.

Docket for Case No: 05-002899PL

Orders for Case No: 05-002899PL