STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PAM STEWART, AS COMMISSIONER OF EDUCATION,
Petitioner,
vs.
LEE KORNHAUSER,
Respondent.
/
Case No. 15-0213PL
RECOMMENDED ORDER
Pursuant to notice, a formal administrative hearing was conducted before Administrative Law Judge Mary Li Creasy, by video teleconference at sites in Tallahassee and Lauderdale Lakes, Florida, on June 16 and 17, 2015.
APPEARANCES
For Petitioner: Charles T. Whitelock, Esquire
Charles T. Whitelock, P.A.
300 Southeast Thirteenth Street, Suite E Fort Lauderdale, Florida 33316
For Respondent: Mark S. Wilensky, Esquire
Dubiner and Wilensky, LLC
1200 Corporate Center Way, Suite 200
Wellington, Florida 33414-8594 STATEMENT OF THE ISSUES
Whether Respondent violated section 1012.795, Florida Statutes, and implementing administrative rules, as charged in
the Second Amended Administrative Complaint, and, if so, what is the appropriate sanction.
PRELIMINARY STATEMENT
On July 8, 2013, Dr. Tony Bennett, as then Commissioner of Education (Petitioner), filed an Administrative Complaint with the Education Practices Commission (EPC) seeking disciplinary sanction of the educator's certificate of Lee Richard Kornhauser (Respondent). On the same date, Respondent filed a request for formal hearing, and the matter was immediately referred to the Division of Administrative Hearings (DOAH). On January 12, 2015, Petitioner filed a Motion to Reopen Case (formerly styled as DOAH Case No. 14-0164PL). On January 13, 2015, DOAH assigned Administrative Law Judge F. Scott Boyd to conduct the proceeding.
The final hearing was originally set for March 12 and 13, 2015. On February 16, 2015, Petitioner filed Petitioner's Motion to Amend Administrative Complaint. This motion was granted, and the final hearing was continued until June 16 and 17, 2015.
The matter was transferred to the undersigned on June 15, 2015, and heard, as scheduled, on June 16 and 17, 2015. At the hearing, Petitioner presented the testimony of 11 witnesses: Angela Fulton, principal of Discovery Elementary School (Discovery); Julie DeGreeff, assistant principal of Discovery; Tammy Akel, prior fifth-grade teacher at Discovery; Charlotte Marchel-Fairclough, paraprofessional at Discovery; D.M., a
student at Discovery; C.M., mother of D.M.; Veronica Soto, second-grade teacher at Discovery; Brandy Williams, fifth-grade teacher at Discovery; Rania Mills, Aftercare Program supervisor at Discovery; Veidra Johnson, fifth-grade teacher at Discovery; and Gwendolyn James-Haynes, third- and fifth-grade teacher at
Discovery. Petitioner's Exhibits 4 through 9, 12 through 15, 18, and 20 through 30, were admitted in evidence.
Respondent testified on his own behalf and presented the testimony of one additional witness, Detective Richard Barber, Broward County School District (District) Police Department.
Respondent's Exhibits 1 through 10 and 12 were admitted.
A four-volume Transcript of the proceeding was filed with DOAH on July 7, 2015. After a requested continuance was granted, proposed recommended orders were timely filed by both parties and have been given due consideration during the preparation of this Recommended Order.
Unless otherwise indicated, all rule and statutory references are to the versions in effect at the time of the alleged violations.
FINDINGS OF FACT
Petitioner is responsible for the investigation and prosecution of complaints against holders of Florida Educational Certificates who are accused of violating section 1012.795, Florida Statutes, and related rules.
Respondent holds Professional Educator Certificate 860147 (certificate). Valid through June 30, 2016, the certificate covers the areas of Elementary Education and English for Speakers of Other Languages (ESOL).
Respondent has been a teacher for 25 years. At all times material to this proceeding, Respondent was employed as a teacher at Discovery in the District. Respondent was employed by the District in a teaching capacity teaching fifth grade math and science for approximately eight years and was assigned to Discovery for approximately five years until his resignation on May 20, 2014.
The charges against Respondent arise from Respondent engaging in a pattern of joking, tickling, touching, seeking out young boys who were not his students, and otherwise inappropriately interacting with male students, despite repeated directives not to do so.
2010-2011 School Year/Counseling Memos
Angela Fulton (Fulton) is an 18-year educator and principal at Discovery for the past six years. Julie DeGreeff (DeGreeff) is a 26-year educator who has been an assistant principal at Discovery for the past six years.
School administrators became concerned over what they viewed as Respondent's inappropriate behavior with young male students not under his supervision. The first person to
complain to Fulton about Respondent's behavior was the aftercare supervisor, Rania Mills. The Aftercare Program (Aftercare) is operated independently and separately from Discovery as an
after-school program for students who could remain at the school site until 6:00 p.m. The program provides homework assistance, enrichment, and school-related activities from 2:00 p.m. to 6:00 p.m. Aftercare is administered by its own director and staff. Respondent, during the operative periods in the Second Administrative Complaint, was not associated with the program.
In the early part of the 2010-2011 school year, Respondent was observed alone in his classroom with Aftercare fifth-grade male students, who were not under his supervision and without the parent's consent. A meeting was held with Respondent where Fulton and DeGreeff gave a verbal directive not to have the Aftercare students in his classroom. Respondent became upset, acted inappropriately, but later apologized.
On January 5, 2011, following a conversation with DeGreeff, Respondent was given a written directive to cease requesting or allowing the Aftercare students to come to Respondent's classroom after school hours. Her admonition was that no student should ever be alone with a teacher for liability reasons. Respondent continuously ignored this directive.
On Friday, January 21, 2011, DeGreeff found Respondent alone in his classroom with one or more male students from the
Aftercare program. On Monday, January 24, 2011, DeGreeff issued a second directive to Respondent reminding him that anyone who is not employed by Aftercare and who has not been given written authorization by a parent may not be with, or request to be with, Aftercare students, either in groups or alone.
On February 8, 2011, DeGreeff spoke with Respondent regarding his inappropriate interaction with the male Aftercare students following several teachers' complaints.
On March 11, 2011, Respondent was again found in the cafeteria playing with the male Aftercare students. He was again escorted out and directed not to have contact with these students. Respondent verbally acknowledged his interaction with the students was inappropriate.
Following this incident, Respondent was issued a written directive on March 24, 2011, which stated, "You are directed not to have contact with the students of Discovery Elementary except in the course of your normal classroom activity or as authorized by administration." Despite the prior admonitions, Respondent continued having contact with the Aftercare students.
Despite the clarity of this directive and his earlier understanding and agreement to avoid contact with the Aftercare students, Respondent requested a meeting with the school administration to obtain clarification what was meant by "no
contact except in course of your normal classroom duties or as authorized by administration." A conference was held with Respondent on April 21 and another memo was issued clarifying DeGreeff's memo to read, "Please restrain your interactions to students under your classroom supervision." Respondent signed that he received and acknowledged understanding of the directive.
Notwithstanding his understanding of the "clarification" of the earlier written directive regarding contact with Aftercare students, Respondent's inappropriate contact with these students continued until he was removed from the school following the November 2013 incident described below with student, D.M.
2011-2012 School Year/Altercation with Akel
Tammy Akel (Akel) is a 28-year educator who was a fifth-grade teacher at Discovery.
Akel provided two written statements regarding her concerns over Respondent's inappropriate actions with male students. The first statement was provided to Fulton on
October 31, 2011, following Akel's confrontation with Respondent regarding his playing with her students. The second was to the Department of Education (DOE) investigator on December 13, 2011.
In her first statement, Akel noted Respondent's interaction with S.G., a fifth-grade Filipino student of Akel's, who was never Respondent's student. Akel described Respondent's
interaction with S.G. as "flirting." "It's like watching people make out and you feel awkward because you're in the way." Respondent, using a playful, odd voice, was heard on several occasions asking S.G. whether, "You can keep a secret, can't you S.G.? You can keep a secret. You're a good boy. You can keep a secret." While repeating this statement, Respondent was tickling and teasing S.G.'s neck with a piece of paper.
Akel was very concerned about Respondent's interaction with L., who was S.G.'s best friend. These two boys were not Respondent's students; yet every day, he watched for them at dismissal and became very excited when he saw them--often flushed in the face. Respondent would touch S.G.'s hair and state, "You need to get a haircut, don't you S.G."
In another encounter at dismissal, Respondent was seen tickling S.G. with a paper, in the face, neck, and arms, while commenting "You can keep a secret, can't you, S.?" Akel described Respondent using another voice, similar to speaking to a baby, during the encounter. Akel felt Respondent was being flirtatious, found it very disturbing, and asked him to stop. This was the second occasion when Respondent had asked S.G., who never was his student, if he could keep a secret.
The third encounter with S.G., observed by Akel, occurred at dismissal. Respondent was observed tapping S.G.'s face in a light and playful manner with a sheet of paper folded
in half. Akel confronted Respondent and inquired what Respondent was doing. Respondent stated he was "playing with S." Respondent told Akel he had a list of "naughty" children, and S.G.'s name was on the list. Respondent repeated this phrase several times in the presence of S.G. before stating, "No, S. is a good boy." "S., you can keep a secret." This is the third occasion when Respondent and S.G.'s "secret" is mentioned in the presence of Akel. Again, Respondent's actions were characterized by Akel as "flirtatious" in nature.
The Parent Teacher Association ran a fundraising at dismissal selling different treats. Respondent purchased several and gave them to various students. Respondent approached S.G. with a fudge pop and put it in his face making an "umm" sound. Respondent, while maintaining eye contact with S.G., was licking it and putting the pop in and out of his mouth, as though he was performing oral sex. Akel was appalled at the interaction between Respondent and S.G.
On another occasion, Akel was sitting with seven male students on a bench at dismissal, when Respondent approached and asked if there was any room on the bench for him. Despite being told no, Respondent remarked "I can squeeze between these two boys [S.G. and L.]." This occurred a second time at dismissal time when he tried to squeeze between Akel and her students to talk to S.G. Akel refused to move, forcing Respondent to leave.
During an early release situation, Respondent was asked by Akel three times to stop playing with S.G. and L. Respondent wanted to know why since he liked the boys. Respondent was told by Akel to attend to his own students and leave hers alone. When Akel walked away, Respondent deliberately ran to S.G. and L. to talk with them.
Akel was very concerned about Respondent's on-going flirtatious and strange behavior towards her students. Respondent's refusal to avoid contact with Akel's students later lead to a confrontation in the school's cafeteria.
On October 31, 2011, Akel was lining up her students to enter the cafeteria. Respondent left his own students unattended and approached Akel's students and started playing with S.G.
and L. Akel asked him to stop so they could get fed without interruption. Respondent giggled, but said nothing.
While Akel was supervising her students who were entering the cafeteria, Respondent entered the cafeteria through another door and resumed playing with S.G. and L. Akel approached Respondent and requested him to stop playing with S.G. and L. so they could get their trays and eat. Respondent refused, stating, "I can talk to any of these kids I want to talk to." Akel responded stating "You're unprofessional." Respondent started yelling, calling Akel names, "You're crazy," "you're insane," causing a disruption in front of the cafeteria staff and
students. Another teacher, Gwendolyn James-Haynes (James- Haynes), intervened and they moved to the teacher's work area. As Akel tried to enter, Respondent, who was standing in the doorway, took his body and pushed into her. Akel decided to report the matter to the principal. On the way to Fulton's office, Respondent was still yelling, "You're crazy, you're insane, you're crazy, you're crazy."
Observations of Other Teachers
Akel's observations of Respondent's concerning behavior towards young males who were not his students are consistent with the observations of eight other experienced educators at Discovery.
James-Haynes is a teacher with 22 years of experience who worked with Respondent at Challenger Elementary (Challenger) before they both transferred to Discovery when it opened. At Challenger, James-Haynes served as Respondent's New Educators Support System (NESS) coach. This program transitions teachers hired from out of state to adapt to the Broward County system. Normally, it is a one-year training system; however, Respondent was required to go through two years of training.
While at Challenger, Respondent was observed by James- Haynes acting inappropriately with young male students. One incident, while on a field trip, resulted in James-Haynes, who
was the field trip coordinator, excluding Respondent from any future out-of-county field trips.
As described above, on October 31, 2011, James-Haynes witnessed the cafeteria encounter between Akel and Respondent. James-Haynes gave three written statements detailing Respondent's inappropriate conduct with young boys, both at Challenger and Discovery. Respondent's inappropriate conduct and its effect on students, as personally observed by James-Haynes, included:
Tickling young boys, rubbing their hair, touching their hair, stroking them on their head;
Being alone with boys in his classroom after school playing with toys, instead of assisting them with school or homework;
Running, grabbing, picking up young boys before swinging them around;
Purchasing expensive gifts for male students;
Respondent's "special relationship" with S.G. and their interaction–-repeatedly seeking him out, tickling and stroking his hair. S.G. would react to Respondent's approach at dismissal time by rapidly blinking, which stopped only after Respondent passed by.
Taking young boys back to his classroom during lunch for a one-on-one with his door closed.
Students holding their backpacks up to their face to hide from Respondent at dismissal time.
James-Haynes deemed Respondent's conduct and interactions with these young boys bizarre, inappropriate, and unethical. In part, due to her prior role as the NESS for Respondent, James-Haynes brought these inappropriate actions directly to the attention of Respondent on numerous occasions, concerned about the suspicion surrounding his involvement with these boys. James-Haynes told Respondent, "It's boys, it's young boys, you can't do this." Respondent retorted, "Oh, it's just playing; I'm just playing with them." Respondent was advised by James-Haynes that he was setting himself up for something to answer in the future. Respondent disregarded James-Haynes' concerns and advice to refrain from such interactions.
Similar bizarre behavior by Respondent directed at young boys, who were not under his supervision, was reported by Rania Mills (Mills), who was the Aftercare supervisor at Discovery during the 2010-2011 and 2011-2012 school years.
She hired and supervised the staff that was responsible for approximately 250 students from 2:00 p.m. until 6:00 p.m.
Respondent worked in the program sometime previous, but not during the 2010-2011 and 2011-2012 school years.
Mills observed the following incidents involving Respondent:
Disrupting students in the hallway, tickling, and laughing. Respondent's constant actions at dismissal required Mills to re-route her students when dismissing them from her class to avoid Respondent's coming into contact with her students;
Taking Aftercare students back to his classroom without notice to Mills or permission from parents;
Allowing a young boy (J.D.) to put his fingers in Respondent's mouth, with Respondent licking and biting the boy's fingers. Only after Mills made eye contact with Respondent, he stated "Oh that's making me uncomfortable, that's inappropriate." Two or more students watched Respondent licking the fingers and laughed;
Allowing Aftercare students to sit on his lap in his classroom. When he was observed by Mills, the students and Respondent both quickly jumped up;
Poking, tickling, and hugging male students;
Showing unapproved movies to male Aftercare students rather than allowing them to do homework;
Giving $20 dollars to a student in the cafeteria. When confronted by Mills, Respondent took the money back and stated, "We were only kidding";
Respondent requested a couple of boys from Aftercare to assist him in his classroom. Respondent was offered use of two
adult staff members, but declined, and got frustrated, stating "I just need some boys," before walking away.
Veidra Johnson (Johnson) is a fifth-grade math teacher at Discovery who also observed what she described as Respondent's strange and inappropriate behavior.
During the 2010-2011 and 2011-2012 school years, she noted Respondent's interactions with male students, which she described as a "little weird, little strange." These actions included:
Joking around, making jokes;
Tickling a student in the hallway;
Throwing toys to catch;
Two or three first or second-grade students sitting/bouncing and jumping around on Respondent's lap during Aftercare time with Respondent laughing and joking. Only after eye contact was made with Johnson, Respondent told them, "Hey, get up, get up, get up, what are you doing?"
Tickling J.O. in the stomach area while J.O. was trying to poke Respondent in the stomach.
Interacting with S.G. at dismissal time by playing with or pulling his hair.
Brandy Williams (Williams) is a teacher with ten years of experience who works at Discovery. Her first year there was the 2011-2012 school year. During this time, Williams observed
Respondent's inappropriate interactions with three young male students.
"Specials" are the time which teachers use for planning while students are at lunch, physical education, or another activity. Respondent was observed on several occasions with the same male students in his classroom during lunch and specials. On one occasion, Respondent was observed sitting close to J.O. in the media center with his arm around J.O.'s chair. Respondent did not teach media specials and had no reason to be there during that time.
Follow-up to Akel Incident/DOE Investigation
Immediately after receiving the report regarding the Akel incident, Fulton asked other teachers to provide written statements containing any information they had regarding Respondent's interactions with male students. Because several teachers reported identical concerns regarding Respondent's touching, teasing, joking with, and seeking out young male students that were not in his class, the matter was referred to DOE for investigation.
Detective Richard Barber (Barber) from the District was assigned to investigate. Barber understood his assignment to determine whether Respondent had touched male students in a sexual way. As part of his investigation, Barber reviewed the previously-obtained written statements from Akel and the other
teachers. During December 2011 and January 2012, Barber re- interviewed several of the teachers and asked them to again provide written statements. Barber also interviewed several of the students who are identified as being the targets of Respondent's attention and interviewed Respondent.
Barber concluded that he could not corroborate whether Respondent had touched the boys in a sexual manner and concluded his investigation. Barber did not make any determination with regard to whether Respondent violated the Principles of Professional Conduct or the Code of Ethics.
February 14, 2012, Choking Incident with G.M.
On February 14, 2012, fifth-grade student G.M., who was on safety patrol duty after dismissal at Discovery, was observed talking and joking with Respondent in the area where buses pick up students. Respondent and G.M. teased each other about how much candy they had eaten on that Valentine's Day.
When running to catch his bus, G.M. stopped and told Charlotte Marchel-Fairclough (Marchel-Fairclough), paraprofessional, that, "Mr. Kornhauser choked me." Although G.M. did not appear to be in distress or hurt, Marchel-Fairclough reported it to another teacher who then informed DeGreeff.
Another student exited the bus and told Respondent that
G.M. was crying and very upset. Respondent got on G.M.'s bus to
ask him what was wrong. G.M. told Respondent that he was upset because he told two adults that Respondent had choked him and they did not believe him.
Respondent denies choking G.M.1/ Respondent claims he briefly placed his hand on G.M.'s shoulder to get him to stop joking around and pay attention to his safety patrol duties. While on G.M.'s bus, Respondent offered to provide G.M. with Orbeez (small polymer balls which expand in water used in science class) to get G.M. to calm down and stop crying.
Approximately an hour and one-half after G.M.'s bus departed Discovery, Respondent showed up at G.M.'s aftercare karate studio. According to Respondent, he needed to pick up birdseed at the pet store next to the karate studio and decided to stop by to "check on" G.M.
G.M.'s mother arrived and verbally confronted Respondent, and then called the police. Respondent was arrested, but no criminal charges were filed. Respondent received a
five-day suspension without pay as a result of this incident. November 5, 2013, D.M. Incident
On November 5, 2013, D.M., a second-grade student, was waiting for his Aftercare ride in the Discovery car line when he was approached by Respondent. D.M. was holding a rocket which he made for a class project. Respondent asked D.M. to see his project. D.M. was not familiar with Respondent but had seen him
around school. When D.M. handed Respondent his project, Respondent broke it.
D.M. became upset and started to cry. Respondent told
D.M. that it was an accident, that he was sorry, and that he would fix the project over the weekend. Respondent asked D.M. three highly unusual questions: "What do you play with," "What do you sleep with," and "Who do sleep with?"
Respondent then took a dollar from his wallet and gave it to D.M. Respondent told D.M. to meet him after school on Monday in his classroom where he would return D.M.'s project. This interaction was observed by D.M.'s second-grade teacher, Veronica Soto (Soto); however, Soto did not hear the conversation between Respondent and D.M.
D.M.'s Aftercare ride arrived, and Respondent approached the vehicle to speak with the driver. Soto told Respondent that the adults in the car were not the parents of
D.M. Seeing that D.M. was still crying, Soto told D.M. to calm down. Respondent attempted to explain to the adults why D.M. was so upset.
After arriving home, D.M. told his mother what had transpired. D.M.'s mother was understandably distressed that a stranger was talking to her son, offered him money, and asked him highly-unusual and inappropriate questions. She immediately sent
an email marked "urgent" to Soto. Soto forwarded the message to Fulton and also called her.
Soto was extremely concerned because she herself had previously noted what she considered Respondent's attraction to young Hispanic boys, often leaving his class unattended to play with them. Soto's son, who was six and in first grade at Discovery, was told to avoid Respondent because of his mother's concern about Respondent's bizarre behavior with young boys. Although Soto's son was not his student, Respondent tried to befriend Soto's son with gifts and food.
Soto felt compelled to report the D.M. incident to the administration because of the perceived attempt by Respondent to build trust with these young boys in order to exploit them. Soto believed that Respondent's actions were not innocent but that of a sexual predator attempting to start a relationship.
The following week, Respondent was removed from the classroom and placed on administrative leave. Respondent ultimately resigned his employment on May 20, 2014, in lieu of termination and agreed not to reapply for employment with the
District.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this
proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes (2014).
Burden of Proof; Standard of Proof
Petitioner has the burden of proof in this disciplinary proceeding. The "disciplinary" nature of the proceeding requires that the standard of proof Petitioner must meet is "clear and convincing evidence." See Ferris v. Turlington, 510 So. 2d 292
(Fla. 1987), and McKinney v. Castor, 667 So. 2d 387 (Fla. 1st DCA
1995).
Clear and Convincing
The "clear and convincing" standard of proof and its components are described by the Florida Supreme Court in In re
Davey, 645 So. 2d 398 (Fla. 1994). The Court held:
Clear 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 testimony 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 a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Id. at
404 (quoting with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
Although the "clear and convincing" standard of proof may be met where the evidence is in conflict, In re Guardianship
of Browning, 543 So. 2d 258, 273 (Fla. 2d DCA 1989), approved,
568 So. 2d 4 (Fla. 1990), it precludes evidence that is ambiguous. Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 986 (Fla. 1st DCA 1991).
Application of Standard of Proof in This Case
Respondent argues that what was deemed "inappropriate" by his co–workers was merely innocent joking and teasing with students to build a rapport to enhance their learning experience. Respondent points to the fact that no teachers claimed to see him harm any student, no one reported that he physically harmed any student, and that the consistent testimony of his co-workers was that he was an excellent teacher. Although Respondent acknowledged violating the directives not to interact with students who were not in his class, Respondent asserts that at most this constitutes "insubordination," a violation of school board rules with which he was not charged.
Petitioner argues that Respondent's pattern and practice of touching, tickling, teasing, joking with, seeking out young boys who were not his students, providing gifts and food to male students, repeatedly leaving his own students to pay attention to several young boys, taking Aftercare students to his classroom or engaging them while they were in Aftercare, constitutes classic "grooming" behavior of a pedophile who is attempting to gain the trust and confidence of young children prior to taking advantage of them sexually.
While this pattern and practice, of what can only be characterized as unusual and bizarre behavior, was confirmed by consistent and overwhelming testimony by Respondent's co–workers, no evidence was presented that Respondent's actions constitute what experts would deem "grooming." Although Petitioner's suspicions about Respondent's motives may be well-founded, they were not proven by clear and convincing evidence. The Second Amended Administrative Complaint (Complaint) did not charge Respondent with "grooming" of young male students in violation of any particular statute, rule, or policy.
Gross Immorality or an Act Involving Moral Turpitude
Count 1 of the Complaint alleges a violation of section 1012.795(1)(d): gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education.
"Immorality" is defined in Florida Administrative Code Rule 6A-5.056(1) as:
"Immorality" means conduct that is inconsistent with the standards of public conscience and good morals. It is conduct that brings the individual concerned or the education profession into public disgrace or disrespect and impairs the individual's service in the community.
There is no definition of "gross immorality" in statute or rule nor is there any definition in statute or rule of the term
"gross" in relation to the rule's definition of "immorality" quoted above.
While one might infer that "gross immorality" is misconduct that is more egregious than mere "immorality," absent definition in a rule of the State Board of Education, the charge against Respondent cannot be lodged. See Pam Stewart, as Comm'r of Educ. v. Scheumeister, Case No. 14-1052PL (Fla. DOAH Sept. 8,
2014); Arroyo v. Dr. Eric J. Smith, as Comm'r of Educ., Case No.
11-2799 (Fla. DOAH May 31, 2012; Fla. EPC Nov. 5, 2012); Torreya
Landrea Davis v. Pam Stewart, as Comm'r of Educ., Case No. 13-
2501 (Fla. DOAH Dec. 13, 2013; Fla. EPC Mar. 28, 2014); Pam
Stewart, as Comm'r of Educ. v. Elaine Anderson, Case No. 13-
1347PL (Fla. DOAH Dec. 16, 2013; Fla. EPC Mar. 28, 2014);
Dr. Tony Bennett, as Comm'r of Educ. v. Doreen Whitfield, Case
No. 13-3360PL (Fla. DOAH Jan. 8, 2014; Fla. EPC May 20, 2014).
Even if the definition of "immorality" was applicable as the standard for gross immorality, Petitioner has not met its burden to establish that Respondent's conduct rose to the requisite level. No evidence was presented to support a finding that Respondent's conduct was sufficiently notorious to bring the Respondent or the education profession into public disgrace or disrespect. Similarly, there was no evidence presented that Respondent's conduct impaired his service in the community.
The term "moral turpitude" is defined in Florida Administrative Code Rule 6A-4.009, which has been transferred to Florida Administrative Code Rule 6A-5.056. The incidents observed by Akel, culminating in her October 31, 2011, altercation with Respondent, occurred prior to a substantial
re-wording of rule 6A-5.056 on July 8, 2012. Thus, whether the incidents constituted ones involving moral turpitude must be gauged against the standard in effect at the time the act giving rise to this proceeding occurred, i.e., that version of the rule as it existed prior to its 2012 amendment. Childers v. Dep't of
Envtl. Prot., 696 So. 2d 962, 964 (Fla. 1st DCA 1997)("The version of a statute in effect at the time grounds for disciplinary action arise controls.").
Prior to its 2012 amendment, rule 6A-5.056(6) defined "moral turpitude" as "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."
A finding that an individual has engaged in moral turpitude requires a finding of intent. See Pearl v. Fla. Bd. of Real Estate, 394 So. 2d 189, 191 (Fla. 3d DCA 1981). There is no
evidence to establish that Respondent intended to hurt S.G., L.,
J.O., or the other male students with whom he was observed to interact with, or to otherwise commit a crime.
The choking incident with G.M. also occurred prior to the rule change. G.M. did not testify at the final hearing, but his excited utterance, that Respondent choked him, was heard by both Respondent and Marchel-Fairclough, and indicates G.M. certainly believed he was choked by Respondent which would constitute a battery. However, battery does not rise to the level of crime of moral turpitude.
The D.M. incident occurred after the rule change in 2012. Now, "moral turpitude" is defined by specific criminal acts listed in section 1012.315 and rule 6A–5.056(8)(a) through (j). The incident with D.M. did not rise to the level of any of the specified crimes.
Petitioner failed to demonstrate by clear and convincing evidence that Respondent engaged in gross immorality or an act of moral turpitude.
Reduction of Effectiveness as a School Board Employee
Count 2 of the Complaint alleges that Respondent is guilty of conduct which seriously reduces his effectiveness as a school board employee.
However, the witnesses uniformly and unequivocally testified that Respondent was considered a great teacher. No one testified about Respondent's alleged ineffectiveness as a
District employee. Therefore, Petitioner failed to meet its burden as to Count 2.
Violation of the Principles of Professional Conduct
The charge in Count 3 of a violation of section 1012.795(1)(j) for violations of the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education involves two rules which are cited in Counts 4 and 5.
The first is Florida Administrative Code Rule 6A- 10.081(3)(a), as cited in Count 4. It requires that the holder of an educational certificate "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."
The second is rule 6A-10.081(3)(e), as cited in Count 5. It requires that the holder of an educational certificate "shall not intentionally expose a student to unnecessary embarrassment or disparagement."
Respondent's conduct, with regard to seeking out and pulling students from Aftercare, having them sit on his lap, having one student put his fingers in Respondent's mouth, touching, tickling, and teasing these young boys, leaving his own students to seek out and be disruptive in the lunchroom and dismissal areas with other young boys, constitutes a failure to protect students from conditions harmful to learning and to their
mental health. In light of the numerous oral and written directives that Respondent received from school administrators, as well as warnings received from his co–workers, Respondent's bizarre behavior can only be described as intentional.
Respondent intentionally exposed S.G. and L. to unnecessary embarrassment when his refusal to leave them alone, as directed by their teacher, Akel, resulted in a loud altercation in front of other students and teachers in the cafeteria. Whether these young boys perceived they were being victimized or relished the excessive attention they received from Respondent is irrelevant. Respondent's repeated singling them out for horseplay certainly created conditions harmful to learning.
Unquestionably, Respondent's conduct of choking G.M., causing him to become very upset, and then following him to his off-site karate class, constituted a failure to protect the student's physical and mental health, and unnecessarily exposed him to embarrassment or humiliation. Similarly, breaking D.M.'s project, asking him bizarre and personal questions, bribing him with the dollar, and attempting to get D.M. to meet alone in his classroom the following Monday to return the project, failed to protect D.M.'s mental health and unnecessarily exposed him to embarrassment or humiliation.
Respondent is guilty of the charges contained in Counts 3, 4, and 5 of the Administrative Complaint.
Penalty Assessment
Section 1012.796(7) provides a range of penalties for a teacher who violates section 1012.795, including denial of an application for a teaching certificate, revocation or suspension of a certificate, written reprimand, an administrative fine, and probation. See also Fla. Admin. Code R. 6B-11.007. In light of
Respondent's history of inappropriate contact with young male students, his repeated failure to abide by consistent and clear directives to leave the students alone, and his inability or refusal to acknowledge that he engaged in any wrongdoing, revocation of Respondent's certificate is appropriate.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Education Practices Commission
enter a final order revoking Respondent's educator's certificate.
DONE AND ENTERED this 30th day of September, 2015, in Tallahassee, Leon County, Florida.
S
MARY LI CREASY
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 30th day of September, 2015.
ENDNOTE
1/ Respondent gave four accounts of this incident which led to his suspension. First, he provided a written account on February 16, 2012. Then, he gave a statement to the District's detective on March 23, 2012. He later provided a deposition on February 26, 2014, followed by his testimony at the hearing on June 17, 2015. Each one provides a different account of this incident.
At the hearing, Respondent denied he choked G.M., or that
G.M. stated he did after he went on the bus, but offered two exhibits in which G.M. explained how Respondent first choked him (because he was having a bad day) before coming onto the bus to bribe him with Orbeez. His written account stated he noticed that G.M. was in tears when the bus had arrived. G.M. told Respondent that he was upset because the teachers had ignored him when he told them that Respondent had choked him.
At hearing, Respondent denied G.M. ever stated he choked him, but in his District statement and in his deposition, he provides a different version. There he admitted G.M. stated, "You choked me," when he spoke to him on the bus. However even here, he attempts to change the version that maybe he stated
something about putting a hand on him before stating, "I don't remember what he [G.M.] said."
Respondent claims he went to buy birdseed next to G.M.'s aftercare karate class; however, there was no mention of the bird feed or going to G.M.'s karate class to check up on him in his written account. In his recorded statement, Respondent noted he went on the bus and offered Orbeez to stop G.M., who he described as "very, very, very upset, from crying." In his deposition and at the hearing, Respondent claimed an hour and 20 minutes later that he decided to purchase birdseed at a store which just happened to be next to G.M.'s karate class. Respondent also claimed he never went on the bus to speak to G.M., which differs from his earlier versions given in his District statement and his deposition. In the latter, he claimed he saw G.M. was upset and getting ready to get on the bus when he spoke with him. In his deposition, he claimed G.M. was on the bus for five minutes when a student came out and stated G.M. was really upset.
As a result, Respondent's testimony at the final hearing regarding the G.M. incident was deemed not credible by the undersigned.
Marchel-Fairclough's testimony regarding G.M.'s statement, "Mr. Kornhauser choked me," was admitted at hearing over Respondent's hearsay objection as an "excited utterance," which is admissible pursuant to section 90.802(2), Florida Statutes.
G.M. immediately reported being choked as he ran to catch his bus. The time between the startling event and the statement was insufficient to permit reflective thought by G.M. Given G.M.'s young age and his state of being very upset, as described by Respondent, his statement, as reported by Marchel-Fairclough, is credible.
COPIES FURNISHED:
Gretchen K. Brantley, Executive Director Education Practices Commission Department of Education
Turlington Building, Suite 316
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Charles T. Whitelock, Esquire Charles T. Whitelock, P.A.
300 Southeast Thirteenth Street, Suite E Fort Lauderdale, Florida 33316 (eServed)
Mark S. Wilensky, Esquire Dubiner and Wilensky, LLC
1200 Corporate Center Way, Suite 200
Wellington, Florida 33414-8594 (eServed)
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Marian Lambeth, Bureau Chief Bureau of Professional
Practices Services Department of Education
Turlington Building, Suite 224-E
325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 22, 2016 | Agency Final Order | |
| Sep. 30, 2015 | Recommended Order | Teacher's pattern and practice of touching, teasing, tickling, joking with, and seeking out young boys who were not his students, constitutes a violation of the Principles of Professional Conduct. Recommend revocation of educator's certificate. |
LEE COUNTY SCHOOL BOARD vs CHARLES DAILEY, 15-000213PL (2015)
EDUCATION PRACTICES COMMISSION vs. WILLIE LYNN BROWN, 15-000213PL (2015)
BETTY CASTOR, AS COMMISSIONER OF EDUCATION vs JOHN T. GUZALAK, 15-000213PL (2015)
FRANK T. BROGAN, AS COMMISSIONER OF EDUCATION vs JOSUE NARVAEZ, 15-000213PL (2015)
TOM GALLAGHER, AS COMMISSIONER OF EDUCATION vs FREDERICK D. SPENCE, SR., 15-000213PL (2015)
