STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case on September 23, 2009, in Lakeland, Florida.

APPEARANCES

For Petitioner: Donald H. Wilson, Jr., Esquire

Boswell & Dunlap, LLP

245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831-0030

For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent, John Stelmack, was guilty of violating the Principles of Professional Conduct of the Education Profession in Florida as alleged in the letter of January 3, 2008, and Notice of Amended Charges dated September 18, 2009;

and, whether, as a result, Respondent should be terminated from his position.

PRELIMINARY STATEMENT

By letter dated January 3, 2008, Dr. Gail F. McKinzie, Superintendent of Polk County Schools, notified Respondent, John Stelmack, that she would recommend to Petitioner, School Board of Polk County, his termination as an employee of the Polk County School Board. Dr. McKinzie's letter indicated that the recommendation was based on allegations that he inappropriately touched female students, that at the school he maintained pornographic images, and that he incorporated images of female students into other pornographic images of females. Based upon these facts, she concluded that Respondent had violated the Principles of Professional Conduct of the Education Profession in Florida by failing to make reasonable efforts to protect students and by exploiting relationships with students for personal gain or advantage. By letter dated January 3, 2008, Respondent requested an administrative hearing.

On January 24, 2008, Petitioner referred the case to the Division of Administrative Hearings requesting the assignment of an Administrative Law Judge to hear the case. On January 29, 2008, an Initial Order was sent to both parties requesting mutually convenient dates for the final hearing. On February 7, 2008, based on the response of the parties, the case was

scheduled for final hearing in on April 1, 2008, in Lakeland, Florida.

On March 21, 2008, the parties forwarded a Joint Motion to Postpone Hearing advising that Respondent had pending criminal charges and agreeing that resolution of those charges should precede the administrative hearing. The joint motion was granted, and the case was rescheduled for June 19, 2008.

Respondent filed a Motion to Postpone Hearing on May 23, 2008, again citing the pending criminal trial. The motion was granted, and the case was placed in abeyance. After the case was continued in abeyance several times, it was rescheduled for final hearing on September 23, 2009.

On September 18, 2009, Petitioner filed a Notice of Amended Charges alleging that pursuant to Subsection 1012.33(4)(b), Florida Statutes (2008), school board employees may be terminated during the term of their contract for conviction of a crime involving moral turpitude. Respondent's criminal conviction was a basis for his termination.

The hearing was held as rescheduled on September 23, 2009.

Petitioner presented one witness, Charles Smith, Petitioner's personnel investigator, and entered into evidence four exhibits. Respondent did not appear.

The Transcript of Proceedings was filed with the Clerk of the Division of Administrative Hearings on October 22, 2009.

Petitioner timely filed Proposed Findings of Fact and Conclusions of Law.

All statutory references are to Florida Statutes (2008), unless otherwise noted.

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. Respondent was employed by Petitioner as the principal at Scott Lake Elementary School and held an annual contract as a principal pursuant to Section 1013.44, Florida Statutes.

2. In November 2007, Petitioner's personnel investigator began an investigation of Respondent. This investigation was the result of concerns raised by staff members at Respondent's school involving his physical contact with girls at the school and an extraordinary amount of time he was spending with specific girls from the school. As a result of the information arising out of the investigation, Respondent was placed on administrative leave by the superintendent on December 14, 2007.

3. After Respondent had been placed on administrative leave, his office was searched by Petitioner's personnel investigator as part of the ongoing investigation. In a black leather briefcase located in a locked closet in Respondent's office, the investigator discovered certain photographs. A

   number of the photographs were of females who were determined to be adults and who were fully nude and displayed in graphic and/or lewd poses. There were also separate photographs of young females who appeared to be elementary school-aged girls.

   On five of these photographs the images of the heads of the elementary-aged girls had been transposed onto the photographs of the nude adult models. When Petitioner's personnel investigator discovered these items, the Polk County Sheriff's Office was contacted. The Sheriff's Office proceeded with the investigation and prosecution of Respondent.

4. The five photographs located in Respondent's office resulted in his being charged, prosecuted, tried, and found guilty of five counts of possessing photographs of sexual performance by a child in violation of Section 827.071, Florida Statutes. The criminal judgment was entered in Polk County Circuit Court on July 10, 2009; Respondent was sentenced to 60 months in prison.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of these proceedings pursuant to Sections 120.569 and 1012.33 and Subsection 120.57(1), Florida Statutes (2009).

6. Petitioner has the burden to prove allegations against Respondent by a preponderance of the evidence. See McNeill vs.

   Pinellas County School Board, 678 So. 2d 747 (Fla. 2d DCA 1976); and Sublett v. Sumter County School Board, 646 So. 2d 1178 (Fla. 5th DCA 1995).

7. Subsection 1012.33(1)(a), Florida Statutes, provides that any member of the school board's instruction staff may be dismissed at any time while under contract for "just cause", defined as set forth:

   (1)(a) . . . Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude." [Emphasis added.]

   
   

8. Florida Administrative Code Rule 6B-4.009(3) defines misconduct in office as:

   Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule

   6B-1.006, F.A.C., which is so serious as to impair the individual’s effectiveness in the school system.

   
   

9. Florida Administrative Code Rule 6B-1.006 provides in part, as follows:

   1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

   2. 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.

      
      

   3. 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.

         
         

         * * *

         
         

         (h) Shall not exploit a relationship with a student for personal gain or advantage.

         
         

10. Florida Administrative Code Rule 6B-4.009(6) defines a crime involving moral turpitude as follows:

    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.

    
    

11. Respondent's criminal conviction for having taken the images of children, combining them with images of adults to create pornographic images, and housing such images at the school where he served as principal is a crime that, on its face, involves moral turpitude. By contrast, far less shocking conduct has been deemed an act of moral turpitude. In Castor v. Chester, 9 FALR 5553(1987), a teacher participating in a "French kiss" with an under-aged female student, who participated

    willingly, was found to be an act involving moral turpitude. In Adams v. State Professional Practices Counsel, 406 So. 2d 1170 (Fla. 1st DCA 1981), the court upheld the finding that an individual was guilty of acts involving moral turpitude in the possession of 52 marijuana plants.

12. Florida courts have struggled with the question of whether a particular crime involves moral turpitude. In Cisneros v. Miami-Dade County School Board, 990 So. 2d 1179 (Fla. 3rd DCA 2008), the School Board was seeking to dismiss a teacher who pled nolo contendere to a vehicular homicide charge. The court concluded, despite the tragic result of the automobile accident the employee caused, that such conduct did not involve "moral turpitude." The court's analysis of that term is applicable to the instant case. Referring back to the definition of moral turpitude contained in the Florida Administrative Code, as quoted above, the court looked for the meaning of the terms "moral turpitude," "base," "vile," and "depraved." Using the dictionary to help define these terms, the descriptions or definitions quoted by the court in its opinion were:

    Moral turpitude: lacking values, untrustworthy, despicable and cruel.

    
    

    Base: treacherous and vulgar.

    Vile: morally despicable and abhorrent. Depraved: corrupt and perverted.

    Each of these terms is applicable to Respondent's conduct for which he was found guilty, the "possession of photographs of sexual performance of children." Respondent was found guilty of multiple counts of a crime involving moral turpitude.

13. Florida Statutes specify specific categories of conduct for which a school administrator may be terminated during the term of his or her contract, and one of those categories is the conviction of a crime of moral turpitude. The facts in this case are undisputed that Respondent was convicted of five counts of possession of photographs of sexual performances of a child. Such a crime evidences moral turpitude by the perpetrator.

14. The record of this case also establishes that Respondent has committed "misconduct in office." By creating pornographic images of students and maintaining those images at his school, he has failed to make reasonable efforts to protect students from harmful conditions. Further, he has exploited his relationship with the students entrusted to him for his personal advantage. Respondent's conduct is so outrageous that it is evident that his effectiveness as an educator has been impaired. Purvis v. Marion Cty. Sch. Bd., 766 So. 2d 491 (Fla. 5th DCA 2000); Walker v. Highland Cty. Sch. Bd., 752 So. 2d 127 (Fla.

2nd DCA 2000); and Summers v. Marion Cty. Sch. Bd., 666 So. 2d

175 (Fla. 5th DCA 1996). Respondent's misconduct in office establishes just cause for his termination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be issued by Petitioner, Polk County School Board, finding just cause exists for Respondent, John Stelmack's, termination and adopting the superintendent's recommendation for termination.

DONE AND ENTERED this 20th day of November, 2009, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2009.

COPIES FURNISHED:

Dr. Eric Smith Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Deborah Kearney, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Gail McKinzie, Superintendent Polk County School Board

1915 South Floral Avenue Bartow, Florida 33831-0391

John Stelmack

5749 Deer Tracks Trail Lakeland, Florida 33811

Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP

245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831

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: 08-000537TTS

Orders for Case No: 08-000537TTS