DR. ERIC J. SMITH, AS COMMISSIONER OF EDUCATION,
vs.
Respondent.
) Case No. 10-1977PL
Pursuant to notice, a formal hearing was held in this case on September 7, 2010, by video teleconference, with the parties appearing in West Palm Beach, Florida, before June C. McKinney, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.
For Petitioner: Charles T. Whitelock, Esquire
Charles T. Whitelock, P.A.
For Respondent: Matthew E. Haynes, Esquire
Johnson & Haynes, P.A.
Whether Elizabeth Stuglik ("Respondent" or "Stuglik") committed the violations alleged in the Amended Administrative
Complaint dated August 9, 2010, and, if so, whether such violations are just cause for any discipline against her
license.
On January 22, 2010, Petitioner filed a one-count Administrative Complaint against Respondent, alleging that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education making her subject to discipline under Subsection 1012.795(1)(d), Florida Statutes. Stuglik requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on April 15, 2010.
On August 10, 2010, Petitioner filed an eight-count Amended Administrative Complaint against Respondent, alleging that she violated Subsections 1012.795(1)(b), 1012.795(1)(d), 1012.795(1)(g), and 1012.795 (1)(j), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a), 6B- 1.006(4)(b), 6B-1.006(5)(a), and 6B-1.006(5)(m).
At the final hearing, Petitioner called the following witnesses: Vincent Mintus and Ann Wark. Petitioner’s Exhibits 1 through 8 were admitted in evidence. Stuglik testified in her own behalf and presented the testimony of Almaria Thompson, Norma Asencio, and Rachel Haskell. Respondent's Exhibits 1, 2, and 4 were admitted in evidence.
Official recognition was taking of DOAH Case No. 10-1526. The Transcript of the final hearing was filed on
September 23, 2010. The parties agreed to file their proposed recommended orders within thirty days of the filing of the Transcript. On October 8, 2010, the parties jointly requested an extension of time to file their proposed recommended orders. The undersigned granted the motion and extended the deadline to November 3, 2010. The parties have timely filed their Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order.
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:
Stuglik holds Florida Educator’s Certificate No.
1052905, covering the area of Foreign Language Spanish, which is valid through June 30, 2012. She graduated from college in May of 2007 with a Bachelor's of Science in secondary Spanish education from Indiana University.
At all times material to this proceeding, Stuglik was employed as a Foreign Languages Spanish teacher at H.L. Watkins Middle School (Watkins) in the Palm Beach County School District. (School District). Her employment at Watkins was for the 2007-2008 and 2008-2009 school years.
Stuglik started her teaching career during the 2007- 2008 year. Respondent taught seventh and eighth-grade Spanish. Her classroom was located in the chorus room in a stand-alone building apart from the main school building, across the courtyard area connected to the cafeteria.
Stuglik's chorus room was adjacent to Heath Miller's ("Miller") classroom. He was the band teacher. An office divided the two classrooms, which both teachers shared. The shared office had two doors, and each was for entrance into the two classrooms. Each door had the capacity to be locked from the classroom side. The classroom doors could be opened from the office side, even though the classroom doors were locked from the classroom side.
Miller and Stuglik saw each other on a daily basis.
Stuglik felt that Miller started out their relationship by approaching her as a mentor, offering to assist her with anything she needed including discipline of the students.
In the second or third week of school during August 2007, Miller told Stuglik that it was too bad she was married because it would be fun if they could get together. Stuglik failed to respond to the comment. She thought it was his way of being polite and giving her a compliment.
Miller made other inappropriate unprofessional related comments to Stuglik afterwards and she never told him the comments were personally offensive or to stop.
Miller also tried to grab Stuglik's buttocks quite of few times. The first time was in the shared office.
Miller told Stuglik that he and his wife had an open marriage, and that his wife allowed him to have multiple sexual partners.
As Respondent admitted in her deposition, Respondent had sex with Miller either three or four times at Watkins. Each time Miller took Stuglik by the hand without protest, took her to the storage room, undressed her by unfastening the top portion of her pants, lowered her pants and then she would cooperate with him by having providing sexual intercourse. Each sexual liaison Stuglik had with Miller was consensual.1
Neither Stuglik nor Miller used protection such as a condom, during sexual intercourse. Stuglik admitted that she wasn't concerned about getting pregnant because she was on birth control.
The first sexual encounter took place one morning in September 2007. Miller went in Respondent's classroom before school while she was sitting at her desk, grabbed her hand, and led her "not in a hard manner" without protest to the storage room. Respondent also failed to resist when Miller undid her
pants by undoing the buttons, took off her pants with her underwear, and she stepped out of her pants. Respondent, who was naked from the waist down, mounted Miller, who was sitting in a chair with his penis exposed, for the sexual act and hugged him as he instructed during sex intercourse.2
Respondent's response to Miller's actions while they engaged in sex were, "I'm married; I don't believe in this." And, "That's you; that's not me; I'm married; I don't do that." She never told him to stop what he was doing.3 Stuglik put on her clothes after sex with Miller and returned to her class and taught that day.
Miller never threatened Stuglik or physically tried to harm or force her to have the sexual liaisons. At no time, did Stuglik refuse, fight, yell, or pull away forcefully during the encounters. Stuglik paused during a sexual liason but never said no or attempted to stop it.
Stuglik also testified to a second sexual encounter with Miller. She admitted that several weeks later Miller got to school early again, grabbed Stuglik's hand, and led her back to the storage room where the two of them had sex again without any conversation. Respondent testified that she didn't say anything because she didn't know what was going to happen.
At least a third sexual encounter occurred between Stuglik and Miller at either the end of October or the beginning of November.
After the 2007 Thanksgiving break, Stuglik did not have sex with Miller again. Respondent never reported any of the sexual encounters with Miller to anyone until April 27,
2009.
During the summer of 2008,, Respondent's husband
divorced her.
During Stuglik's 2008-2009 school year, Respondent taught sixth, seventh, and eighth-grade Spanish. She moved to a different classroom, the general music classroom, in the same music building. Stuglik was provided a key to the classroom that provided a lock for the door, which prevented anybody from entering the classroom without her allowing the individual inside.
The principal informed Stuglik that Miller had asked for a key to her room, stating that he needed access to the storage room. The principal provided the option to Stuglik as to whether she provided Miller the key to Stuglik's classroom. Studlik requested that the principal provide Miller a key, which allowed Miller access to her classroom.
Several times during the 2008-2009 school year, while Stuglik was working at her desk, Miller approached Respondent,
sat on the desk in front of her, and put her hand on his penis. Each time he placed her hand there, he would say, "Let's do it again."
During her second year teaching at Watkins, Stuglik volunteered to help with Miller's band activities on weekends and during the evenings, including going on field trips every couple of months or so.
Respondent's social relationship continued with Miller and his wife. Stuglik had a discussion with Miller's wife regarding children. Miller's wife informed Respondent that she badly wanted to have a baby.
Stuglik also initiated contact with Miller during the 2008-2009 school year and requested concert tickets from him after she heard he could get discounted tickets to see a show.
Stuglik obtained the tickets by getting them from Miller's wife. Stuglik took her boyfriend to the concert for Valentines Day. She and her boyfriend sat next to Miller and his wife at the concert.
Stuglik attended the Waterway Cafe, a restaurant bar, and socialized with a group of teachers including Miller and his wife. She went there several times.
Stuglik had K.H. and T.B. in her second period class and, A.P. in her sixth-period class during the 2008-2009 school year. Miller would ask that K.H., the drum major, and T.B. come
to his classroom from out of Stuglik's class. She would allow the female students to leave during her class core time and go with Miller.
Other teachers also allowed Miller to remove female students from their classrooms during class and take them to his class.
Approximately at the beginning of April 2009, Miller informed Respondent and several other teachers at lunch that there was a rumor that he was involved sexually with students. Respondent was shocked to hear the rumor and did not believe Miller would harm students.
On or about April 16, 2009, district officials started an investigation into allegations that Miller had an inappropriate sexual relationship with a female student during the 2008-2009 school year.
On Friday, April 17, 2009, K.H. came to Respondent's class crying and upset. Respondent had her step outside and wait while she took attendance. When Stuglik went in the hall to check on K.H., she was gone. When K.H. returned to Respondent's class, she didn't stay long before a person from the main office removed her. Stuglik never talked to K.H. about the crying incident.
Friday was also the day Miller was removed from the school for allegedly having sex with female students. Stuglik
was in Miller's classroom where he was about to update her on the rumor when the police arrived to remove him from the school.
After Miller was removed from the school, he called Stulik on her cell phone at least one time at 4:16 p.m. on Friday; two times on Saturday at 10:11 a.m. and 3:53 p.m.; and one time on Sunday at 6:47 p.m. asking for information regarding the investigation.
On April 21, 2009, during the investigative process, Respondent gave a sworn statement to the school detective, Vincent Mintus ("Mintus"), where he asked her, "did she date Miller" and "was she romantically involved with him." Stuglik responded no to both questions.4 Stuglik did not disclose that she had a sexual relationship with Miller during the interview.
Subsequently, during the investigation, Mintus discovered that from September through November of 2007, Stuglik engaged in sex with Miller on the school campus during school hours.
Stuglik admitted in her deposition that she didn't initially tell the investigator she provided about the sexual relationship with Miller because "I didn't want anybody to know."
On April 27, 2009, Respondent provided a second sworn statement to Mintus where she was told by him that she was a
victim, and she agreed. The Mintus interview included the following questions and answers:
Q. And did it involve sexual intercourse?
A. Yes.
Q. Okay. Was it here at school?
A. Yes.
Q. Yes? Um . . . are you . . .when did that occur? Now let me ask you . . .you are a victim in that.
A. Yes.
Q. Do you understand that?
A. Uh-huh (yes)
Q. That was against your will?
A. Yes.
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Q. Okay, you understand you are a victim?
A. Yes.
Q. Okay. Um . . . and your . . . our explanation to me is that it was absolutely non-consensual.
A. Yes.
Q. So you were a victim of sexual battery.
A. It's . . . don't know what the terminology is, but . . .
Q. Okay, um . . . okay. It was non- consensual though, right?
A. Correct.
After the interview, Mintus contacted the Victim's Advocate of Palm Beach County for Stuglik and started a criminal investigation into her rape allegations. Stuglik went to see the Victim's Advocate after Mintus called them.
The rape investigation required a third interview of Stuglik. Respondent only agreed to provide the statement with the assurance that Miller would not be criminally prosecuted for her allegations.
On July 29, 2009, Almarie Thompson ("Thompson"), a Victim's Advocate for Victim Services, and an attorney went with Stuglik to her third interview with Mintus. During that sworn interview, Mintus asked Studlik if she were taken advantage of [by Miller]. She answered, "A little bit, yeah."
Thompson referred Stuglik to Norma Asencia ("Asencia"), a licensed mental health provider with Palm County Victim Services. Asencia had an intake visit with Stuglik on December 14, 2009.
Asencia did not diagnose Stuglik but determined that she had common symptoms of a rape victim and structured her remaining four sessions to deal with the symptoms.5 The last session was on March 3, 2010.
CONCLUSIONS OF LAW
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 (2009).
Subsection 1012.795(1), Florida Statutes, gives the Education Practices Commission the authority to suspend or revoke the teaching certificate of any person, or to impose any penalty provided by law, if the person is guilty of certain specified acts.
Petitioner has alleged in the Amended Administrative complain that Stuglik has violated Subsections 1012.795(1)(b), 1012.795(1)(d), 1012.795(1)(g), and 1012.795 (1)(j), Florida Statutes, which provide:
The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for up to 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students 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, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for up to 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby
denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon an order of the court or notice by the Department of Revenue relating to the payment of child support; or may impose any other penalty provided by law, if the person:
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(b) Knowingly failed to report actual or suspected child abuse as required in s. 1006.061 or report alleged misconduct by instructional personnel or school administrators which affects the health, safety, or welfare of a student as required in s. 1012.796.
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(d) Has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education.
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(g) Upon investigation, has been found guilty of personal conduct that seriously reduces that person’s effectiveness as an employee of the district school board.
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(j) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
Petitioner has also alleged that Stuglik has violated Florida Administrative Code Rules 6B-1.006(3)(a), 6B- 1.006(4)(b), 6B-1.006(5)(a), and 6B-1.006(5)(m), which provide 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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Obligation to the public requires that the individual:
(b) Shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression.
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Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
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(m) Shall self-report within forty-eight
(48) hours to appropriate authorities (as determined by district) any arrests/charges involving the abuse of a child or the sale and/or possession of a controlled substance. Such notice shall not be considered an admission of guilt nor shall such notice be admissible for any purpose in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. In addition, shall self- report any conviction, finding of guilt, withholding of adjudication, commitment to a pretrial diversion program, or entering of a plea of guilty or Nolo Contendre for any criminal offense other than a minor traffic violation within forty-eight (48) hours after the final judgment. When handling sealed and expunged records disclosed under this rule, school districts shall comply with the confidentiality provisions of
Sections 943.0585(4)(c) and 943.059(4)(c), Florida Statutes.
Petitioner has the burden to establish the allegations in the Amended Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern
and Company, 670 So. 2d 932 (Fla. 1996); Ferris v Turlington, 510 So. 2d 292 (Fla. 1987).
Petitioner has failed to present evidence that Stuglik suspected or knew of any child abuse taking place at Watkins or that she failed to report any misconduct by Miller that was effecting the health, safety, or welfare of any student. The record is devoid of evidence to show Respondent was aware of Miller's predatory nature or that he was sexually molesting any of the middle-school girls. Even though Stuglik released female students from her classroom to go with Miller, the record lacks evidence that she violated Subsection 1012.795(1)(b), Florida Statutes, and, therefore Florida Administrative Code Rule 6B- 1.006,(3)(a).
The terms "gross immorality" and "moral turpitude" are not defined in the context of Section 1012.795, Florida Statutes, but guidance may be found in Florida Administrative Code Rule 6B-4.009, which provides the basis for charges upon which disciplinary action by the school districts against
instructional personnel may be taken. Florida Administrative Code Rule 6B-4.009 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.
* * *
(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.
"Moral turpitude" has also been defined by the Florida Supreme Court as follows:
Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though, it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.
State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (Fla. 1933).
Petitioner has established by clear and convincing evidence that Stuglik's actions rise to the level of gross
immorality or moral turpitude. Stuglik's consensual sexual liaisons with her co-worker Miller on the middle school campus approximately three times are inconsistent with what is right or proper for a teacher at school. Thus, Petitioner has established by clear and convincing evidence that Stuglik violated Subsection 1012.795(1)(d), Florida Statutes.
Petitioner has failed to establish by clear and convincing evidence that Stuglik violated Subsection 1012.795(1)(g), Florida Statutes. Even though Stuglik had consensual sexual liaisons with Miller at Watkins, Petitioner failed to present any evidence that Respondent's effectiveness in the classroom was impaired.
Petitioner also failed to establish by clear and convincing evidence that Stuglik violated Florida Administrative Code Rule 6B-1.006(4)(b), in that when talking to the investigator about her sexual liaisons with Miller, Stuglik did not misrepresent facts concerning an "educational matter."
Petitioner has demonstrated by clear and convincing evidence that Stuglik violated Florida Administrative Code Rule 6B-1.006(5)(a), thereby violating Subsection 1012.795(1)(j), Florida Statutes, which obligates teachers to maintain honesty in all professional dealings. Stuglik failed to honestly answer the questions Mintus posed to her during a professional educational investigation. She continuously distorted the facts
alleging nonconsensual sex with Miller that was actually consensual.
Petitioner has failed to establish that Stuglik violated Rule 6B-1.006(5)(m), as she had no obligation to self- report when the record lacked evidence that she was either charged or knew of an arrest regarding a crime involving a child or possession of a controlled substance. Therefore, Stuglik did not violate the rule.
Florida Administrative Code Rule 6B-11.007(2) provides that the disciplinary action which may be taken for engaging in conduct which is grossly immoral or an act involving moral turpitude as an employee of the school district, or for violating the Principles of Professional Conduct for the Education Profession, ranges from a probation to revocation.
Florida Administrative Code Rule 11B-11.007(3) provides that the following aggravating and mitigating factors may be considered in taking disciplinary action:
The severity of the offense;
The danger to the public;
The number of repetitions of offenses;
The length of time since the violation;
The number of times the educator has been previously disciplined by the Commission;
The length of time the educator has practiced and the contribution as an educator;
The actual damage, physical or otherwise, caused by the violation;
The deterrent effect of the penalty imposed;
The effect of the penalty upon the educator’s livelihood;
Any effort of rehabilitation by the educator;
The actual knowledge of the educator pertaining to the violation;
Employment status;
Attempts by the educator to correct or stop the violation or refusal by the educator to correct or stop the violation;
Related violations against the educator in another state including findings of guilt or innocence, penalties imposed and penalties served;
Actual negligence of the educator pertaining to any violation;
Penalties imposed for related offenses under subsection (2) above;
Pecuniary benefit or self-gain inuring to the educator;
Degree of physical and mental harm to a student or a child;
Present status of physical and/or mental condition contributing to the violation including recovery from addiction;
Any other relevant mitigating or aggravating factors under the circumstances.
Respondent's co-worker, Amber Schmeider, admitted to engaging in sexual intercourse with Miller, consensually. In Eric Smith, as Commissioner of Education v. Amber Schmeider, DOE Case No. 090-0474 (2010), Schmeider's discipline was a written reprimand.
Even though Stuglik's sexual intercourse with Miller was consensual. The level of dishonesty Respondent displayed in her professional dealings is troubling, and is an aggravating factor to increase the penalty in this disciplinary matter. Based on the totality of the circumstances, an appropriate penalty would be a one-year suspension followed by probation of one year.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner finding Stuglik did not violate Subsection 1012.795(1)(b), 1012.795(1)(g), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)9a), 6B-1.006(4)(b), and 6B-1.006(5)(m); finding that Stuglik did violate Subsections 1012.795(1)(d), 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6B-1.006(5)(a), and suspending her
educator's certificate for one year followed by probation for one year.
DONE AND ENTERED this 30th day of November, 2010, in Tallahassee, Leon County, Florida.
JUNE C. MCKINNEY
Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2010.
1 Respondent's assertion that she was raped is found not to be credible by the undersigned.
2 The description of the sexual positions in the sworn statements, deposition, and hearing testimony are not in the same order. The differences in the sexual positions, whether it was Studlik straddling Miller on top, mounting Miller on top, or bent over in a chair is without significance. No matter the sequence, the description of each act was consistent and indicative of consent.
3 Petitioner's Exhibit 1.
4 The undersigned finds the answers to be truthful even though Studlik did not volunteer information about the relationship that she had with Miller.
5 The undersigned is not persuaded by the three witnesses Respondent purports to be experts in that none of them provided testimony based on all of the facts. The extent of their knowledge is limited in that Thompson was not provided enough details to evaluate the situation; Ascencia testified that she didn't diagnosis Studlik because "we believe our victims"; and Dr. Haskill based her testimony strictly on Studlik's deposition without any other documents, such as sworn statements, and she was not informed of all the incidents relating to Studlik and Miller for both school years. Therefore, the undersigned rejects the aforementioned opinions. In Thompson v. Department of Children and Families, 835 So. 2d 357, 360 (Fla. 5th DCA 2003), the court held that the trier of fact may accept or reject all or any part of an expert's testimony and is in no way bound by uncontroverted expert opinion testimony.
Kathleen M. Richards, Executive Director Education Practices Commission
Charles T. Whitelock, Esquire Whitelock & Associates, P.A.
Deborah K. Kearney, General Counsel Department of Education
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.
