and (4)(c), and, if so, what penalty should be imposed against the teaching certificate of Respondent.1
On April 3, 2006, Petitioner filed an Administrative Complaint (the Complaint) against Respondent and, upon Respondent's request for hearing, referred the matter to DOAH on January 19, 2007, to conduct an administrative hearing. DOAH assigned the matter to ALJ Susan B. Harrell who scheduled the hearing for March 28, 2007. DOAH then transferred the matter to the undersigned on March 19, 2007. Pursuant to an unopposed motion for continuance, the undersigned rescheduled the hearing for June 13, 2007.
At the hearing, Petitioner presented the testimony of three witnesses and submitted three exhibits for admission into evidence. Respondent testified, presented the testimony of one other witness, and submitted four exhibits.
The identity of the witnesses and exhibits and the rulings regarding each are reported in the one-volume Transcript of the hearing filed with DOAH on August 31, 2007. The ALJ granted Petitioner's unopposed request for an extension of time, until September 17, 2007, to file proposed recommended orders (PROs). Petitioner and Respondent timely filed their respective PROs on September 14 and 5, 2007.
Respondent holds Florida Educator's Certificate Number 719005 (teaching certificate). Respondent is certified to teach English, grades six through 12.
The Seminole County School Board (the School Board) has employed Respondent as a teacher for approximately 13 years. The School Board employed Respondent as a teacher on the date of the hearing.
For the 2003-2004 school year, Respondent taught honors English and drama at Oviedo High School (Oviedo). Oviedo provided a computer in Respondent's classroom. Oviedo limited acceptable use of the computer to educational and academic business use (the acceptable use policy). The acceptable use policy prohibited personal use of the computer such as viewing the news, weather, or sports.
From the start of the school year through February 24, 2004, Respondent violated the acceptable use policy. Respondent used the computer for various personal purposes for as much as
20 to 30 minutes or as little as five minutes; as frequently as every day and as infrequently as one day a week. Respondent viewed various internet sites, including sites for Celtic music, cross-stitching, and Yahoo personal websites. The Yahoo personal websites included pictures of nude adult women, sometimes in sexually explicit scenes.
The Complaint alleges that Respondent's use of the school computer to view Yahoo personal websites violates several statutes and rules. Counts 1 through 3 in the Complaint concern alleged violations of statutes. Counts 4 through 6 concern alleged violations of rules.
Count 1 alleges that viewing Yahoo personal websites is an act that constitutes gross immorality or involves moral turpitude in violation of Subsection 1012.795(1)(c). Count 2 alleges that the unauthorized use of the computer seriously reduced Respondent's effectiveness as an employee of the School Board in violation of Subsection 1012.795(1)(f).
Count 3 alleges that the use of the school computer to view Yahoo personal websites violates the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education Rules in violation of Subsection 1012.795(1)(i). Counts 4-6 identify the specific rules of ethics that were allegedly violated when Respondent used the school computer to view Yahoo personal websites. Counts 4-6 allege that Respondent violated Florida Administrative Code Rules 6B-1.006(3)(a), (3)(e), and (4)(c), respectively, by: failing to make a reasonable effort to protect a student from conditions harmful to learning or to a student's mental or physical health; intentionally exposing a student to unnecessary
embarrassment and disparagement; and using institutional privileges for personal gain or advantage.
At the hearing, Petitioner dismissed Count 5 in the Complaint. That Count alleged that Respondent intentionally exposed a student to unnecessary embarrassment or disparagement in violation of Florida Administrative Code Rule 6B-1.006(3)(e).
The evidence is less than clear and convincing that Respondent violated Florida Administrative Code Rule
6B-1.006(3)(a) by failing to make a reasonable effort to protect a student from conditions harmful to learning or to a student's mental or physical health. There is no evidence that a student at Oviedo viewed any inappropriate material on the computer.
Respondent used the computer during his planning periods after he had graded papers, completed lesson plans, and concluded any other academic business. Students were not present during planning periods. When Respondent used the computer for inappropriate purposes, the classroom door was closed and locked. No students were present, and the computer faced a wall away from the classroom entrance.
The evidence is less than clear and convincing that Respondent violated Florida Administrative Code Rule
6B-1.006(4)(c) by using the school computer for personal gain or advantage. There is no evidence that Respondent did anything other view images on a computer. There is no evidence that
Respondent copied the material, distributed it, pandered the material, or took any other action for personal profit or gain.
The absence of a finding that Respondent violated any of the rules of ethics cited in the Complaint precludes a finding that Respondent violated Subsection 1012.795(1)(i) pertaining to ethical violations. Therefore, clear and convincing evidence does not support the charges in Count 3 of the Complaint.
Nor is Count 2 supported by clear and convincing evidence. The act of viewing Yahoo personal websites on the school computer did not seriously reduce Respondent's effectiveness as an employee of the School Board in violation of Subsection 1012.795(1)(f). Respondent continued as an effective employee of the School Board.
On February 25, 2007, the School Board removed Petitioner from the classroom for the duration of the school year without pay. However, the School Board continued to employ Respondent in non-teaching positions until October 2005 when Respondent returned to the classroom at Greenwood Lakes Middle School (Greenwood) and then at Millennium Middle School (Millennium).2 The principal at Greenwood and Millennium assessed Respondent as proficient and an asset to the schools.3 Respondent earned satisfactory evaluations.4
Clear and convincing evidence does not support the allegations in Count 1 of the Complaint, which alleges that Respondent is guilty of moral turpitude or gross immorality in violation of Subsection 1012.795(1)(c). Petitioner defines the term "moral turpitude" by rule. Florida Administrative Code Rule 6B-4.009(6) defines moral turpitude, in relevant part, to be a "crime . . . evidenced by an act of baseness, vileness, or depravity. . . ." The use of the school computer to view Yahoo personal websites was not a crime. After an extensive criminal investigation, no criminal charges were filed against Respondent.5
The use of a school computer to view Yahoo personal websites was not an act of baseness, vileness, or depravity. There is no evidence that the Yahoo personal websites are pornographic sites. Oviedo blocks access to pornographic sites, and Oviedo does not block access to Yahoo personal websites.
There is no evidence that any of the women depicted as nude or in sexually explicit scenes were underage. Yahoo prohibits persons under 18 from using the personal websites.
Petitioner does not define the term "gross immorality" by rule, but Petitioner does define the term "immorality" by rule. Florida Administrative Code Rule 6B-4.009(2) defines immorality, in relevant part, to be conduct that is sufficiently notorious to bring Respondent or his profession into public
disgrace and impair Respondent's service in the community. The act of viewing Yahoo personal websites did not satisfy the definitional elements of immorality.
The act of viewing Yahoo personal websites did not impair Respondent's service in the community. After the events at issue in this proceeding, Respondent continued to teach at Valencia Community College (Valencia) and Seminole Community College (Seminole). At Valencia, Respondent teaches a dual enrollment class in Western Civilization. A dual enrollment class is one in which high school seniors receive both high school and college credit for the course. At Seminole,
Respondent has taught courses in Fundamentals of Writing 1 and 2, both of which are college preparatory courses; Western Civilization; U.S. History; and Medieval Humanities.
The act of viewing Yahoo personal websites on the school computer was not sufficiently notorious that it brought either Respondent or his profession into public disgrace or disrespect. Any notoriety that did occur resulted from the actions of the School Board and Petitioner.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter and the parties in this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2005). DOAH provided the parties with adequate notice of the formal hearing.
Petitioner bears the burden of proof. Petitioner must prove the allegations in the Complaint by clear and convincing evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); State ex rel. Vining v. Florida Real Estate Commission, 281 So. 2d 487 (Fla. 1973).
It is undisputed that Respondent violated the inappropriate use policy at Oviedo. It is also undisputed that the violation included the use of the computer to view Yahoo personal websites that depicted nude, adult women sometimes in sexually explicit scenes.
Petitioner dismissed Count 5 of the Complaint, which charged that the violation of the inappropriate use policy at Oviedo intentionally exposed a student to unnecessary embarrassment or disparagement. For reasons stated in the Findings of Fact, the evidence does not support a finding that Respondent is guilty of the charges in the remaining counts in the Complaint.
Terms such as "personal gain or advantage," when used in statutes and rules that form the legal basis for license discipline proceedings, must be construed strictly in favor of the licensee and against the imposition of discipline. State ex. rel. Jordan v. Pattishall, 99 Fla. 296, 126 So. 147 (1930); Ocampo v. Department of Health, 806 So. 2d 633 (Fla. 1st DCA 2002); Equity Corp. Holdings, Inc. v. Department of Banking and Finance, Division of Finance, 772 So. 2d 588, 590 (Fla. 1st DCA
2000); Jonas v. Florida Department of Business and Professional Regulation, 746 So. 2d 1261 (Fla. 3d DCA 2000); Loeffler v.
Florida Department of Business and Professional Regulation, 739 So. 2d 150 (Fla. 1st DCA 1999); Elmariah v. Department of Professional Regulation, Board of Medicine, 574 So. 2d 164 (Fla. 1st DCA 1990); Rush v. Department of Professional Regulation,
448 So. 2d 26 (Fla. 1st DCA 1984); Ferdego Discount Center v. Department of Professional Regulation, 452 So. 2d 1063 (Fla. 3d DCA 1984); Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981); Lester v. Dept. of Professional and Occupational Regulations, 348 So. 2d 923 (Fla. 1st DCA 1977).
The judicial requirement to construe terms strictly against the agency prosecuting a license discipline proceeding applies equally to terms such as "immorality" or "moral turpitude." Such terms are unusually ambiguous and can be defined in an almost unlimited number of ways, depending on the views of the person formulating a definition. As the Florida Supreme Court has explained:
The term "good moral character" . . . by itself, is unusually ambiguous. It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer. Such a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory [agency action]. Konigsberg v. State Bar of California, 353 U.S. 252,
262-263, 77 S. Ct. 722, 728, 1 L. Ed. 2d 810
(1957).
Board of Bar Examiners, 358 So. 2d 7, 8-9 (Fla. 1978).
The definitions of "immorality" and "moral turpitude" in Florida Administrative Code Rule 6B-4.009(2) and (6) have no legal force and effect in license discipline proceedings authorized in Subsection 1012.795(1)(c). Petitioner adopted Rule 6B-4.009 to implement former Subsections 231.36(4)(c) and 231.546(2)(a), Florida Statutes (2001), pertaining, respectively, to dismissal proceedings by a local school board against a teacher with a continuing contract and dismissal of a teacher for violation of ethical standards of the Educational Practices Commission.6 The cited rule does not implement statutes pertaining to license discipline, including
Section 1012.795.
The absence of a rule defining "gross immorality" and "moral turpitude" to implement license discipline proceedings pursuant to Subsection 1012.795(1)(c) does not imbue Petitioner with unbridled discretion to define the relevant statutory terms. The use of unbridled agency discretion to define statutory terms such as "gross immorality" and "moral turpitude" would violate the non-delegation doctrine. The non-delegation doctrine, in relevant part, prohibits the Legislature from
delegating its constitutional authority to the executive branch, including executive agencies. Fla. Const., Art. 2, § 3.
The non-delegation doctrine requires the Legislature to provide standards and guidelines in each enactment that are ascertainable by reference to the terms of the enactment.
Bush v. Shiavo, 885 So. 2d 321 (Fla. 2004); B.H. v. State, 645 So. 2d 987, 992-994 (Fla. 1994); Askew v. Cross Key Waterways,
372 So. 2d 913, 925 (Fla. 1978). If an enactment does not include sufficient guidelines and standards for defining relevant terms, guidelines and standards should be applied in order to interpret the statute in a manner consistent with the constitution. See, e.g., Spurlin v. School Board of Sarasota County, 520 So. 2d 294, 296-297 (Fla. 2d DCA 1988), and Von Stephens v. School Board of Sarasota County, 338 So. 2d 890, 894 (Fla. 2d DCA 1976)(avoiding statutory construction that would authorize unbridled agency discretion even though statute included no express limits).
A determination of whether a teacher deviates from a standard of conduct, including "gross immorality" and "moral turpitude," is not infused with agency expertise. Such a determination is the province of the trier of fact. See Bush v. Brogan, 725 So. 2d 1237, 1239-1240 (Fla. 2d DCA 1999)(finding that conduct was not gross immorality is a finding of fact that is not infused with agency policy); accord Dunham v. Highlands
County School Board, 652 So. 2d 894, 896 (Fla. 2d DCA 1995). Moreover, Petitioner did not articulate in the record any underlying technical reasons for deference to agency expertise in "gross immorality" and "moral turpitude." Johnston, M.D. v Department of Professional Regulation, Board of Medical Examiners, 456 So. 2d 939, 943-944 (Fla. 1st DCA 1984).
The fact-finder interpreted "gross immorality" and "moral turpitude" in Subsection 1012.795(1)(c) by reference to the standards and guidelines provided in Florida Administrative Code Rule 6B-4.009. The fact-finder considered the definitions of "immorality" and "moral turpitude" in Florida Administrative Code Rule 6B-4.009 to be analogous or instructive standards or guidelines for interpreting similar terms in Subsection 1012.795(1)(c).
The use of the school computer to view Yahoo personal websites was not an act involving moral turpitude because the act was not a crime and was not a base, vile, or depraved act within the meaning of Rule 6B-4.009(6). The use of the school computer to view Yahoo personal websites did not satisfy the definitional requirements of "immorality." The conduct was not "sufficiently notorious" to impair Respondent's "service in the community" within the meaning of Florida Administrative Code Rule 6B-4.009(2).
Petitioner cannot rely on evidence of its own activities to show that a violation is "notorious" or widely known. See Sherburne v. School Board of Suwannee County, 455 So. 2d 1057, 1058 (Fla. 1st DCA 1984); Baker v. School Board of Marion County, 450 So. 2d 1194 (Fla. 5th DCA 1984)(each case involving teacher dismissal by a local school district). In addition, the term "service in the community" is measured by Respondent's effectiveness in the classroom. McNeill v. Pinellas County School Board, 678 So. 2d 476, 477-478 (Fla. 2d DCA 1996)(citing McKinney v. Castor, 667 So. 2d 387 (Fla. 1st DCA 1995), and Sherburne, 455 So. 2d at 1062.
When counsel for Petitioner asked the executive director of Human Resources and Professional Standards (executive director), an employee of the School Board, a question concerning service in the community or loss of effectiveness, the witness did not answer the question. Rather, the witness provided an answer pertaining to ethics.
Q. . . . [I]n your opinion, have the allegations that led to this investigation and subsequent administrative complaint resulted in impairment of service to the community or loss of effectiveness to the School District concerning [Respondent]?
A. I think there has been a breech [sic] of the Code of Ethics, based on the conduct. It certainly falls below the standard that educators are held to to [sic] maintain the highest degree of respect among peers, students, the community, and certainly
doesn't rise to maintaining ethical standards that we expect of teachers in the District.
Transcript at 78-79.
Even if the quoted answer was construed as responsive to a question concerning the effectiveness of Respondent as a teacher, the weight to be accorded conflicting testimony is within the province of the trier of fact. K-Mart Corporation v. Collins, 707 So. 2d 753, 755 (Fla. 2d DCA 1998); Werner v. State, Department of Insurance and Treasurer, 689 So. 2d 1211, 1213 (Fla. 1st DCA 1997). The trier of fact finds the remaining evidence to be clear and convincing that Respondent's effectiveness in the classroom has not been reduced by the events at issue in this proceeding.
The quoted answer of the executive director is conclusory testimony that Respondent violated unspecified rules of ethics. Conclusory testimony invades the province of the trier of fact and is less than clear and convincing. Boller v. State, 775 So. 2d 408, 410 (Fla. 1st DCA 2000).
It cannot be inferred or surmised that the testimony of the executive director related to ethical violations not cited in the Complaint. Petitioner cannot satisfy the clear and convincing standard by inference and surmise. Tenbroeck v.
Castor, 640 So. 2d 164, 167-168 (Fla. 1st DCA 1994).
The conclusory testimony of the executive director must be limited to the ethics violations charged in the Complaint. Petitioner cannot find Respondent guilty of ethics violations not charged in the Complaint. Thomas P. Trevisani, M.D. v. Department of Health, Case No. 1D04-2488 (Fla. 1st DCA July 20, 2005); Ghani v. Department of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998); Cotrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996).
If it were determined that Respondent is guilty of the violations charged in the Complaint, it is less than clear and convincing that aggravating circumstances exist which would warrant revocation or suspension of Respondent's teaching certificate pursuant to Subsection 1012.795(1). Petitioner submitted no evidence of any prior disciplinary history, harm to others, or profit to Respondent.
If Respondent were guilty of the charges in the Complaint, numerous mitigating factors in evidence would support a written reprimand authorized in Subsection 1012.796(7)(f). Respondent has been, and is, an excellent teacher and a valuable asset to the School Board. Respondent provides a valuable service in the community.
