Findings Of Fact Clarence Dixon, Respondent, holds Teacher's Certificate No. 435879, Rank III, covering the area of physical education, which expires on June 20, 1984. At all times material hereto Respondent was employed by The School Board of Broward County at its facility known as Piper High School located at 800 Northwest 44th Street, Sunrise, Broward County, Florida. In that cause of action styled School Board of Broward County v. Clarence Dixon, Division of Administrative Hearings Case No. 81-1223, the Honorable R. T. Carpenter, Hearing Officer for the Division of Administrative Hearings, entered his Recommended Order directing [sic] that the Respondent, Clarence Dixon, be discharged as a teacher by The School Board of Broward County. Before the Broward County School Board acted on the Recommended Order of the Hearing Officer, Respondent submitted his resignation, further proceedings against him were terminated and no final order was entered by the Broward County School Board regarding the charges that had been preferred against Respondent. Exhibit 2, the Recommended Order in Broward County School Board v. Clarence Dixon, was admitted into evidence over objection by Respondent, for the limited purpose of showing that the hearing was held. Respondent's stipulation of admitted facts (Finding No. 3 above) admits more than that for which Exhibit 2 was admitted into evidence. The investigation of Respondent's conduct started when Sandra J. Brown, a security officer at Piper High School, overheard some students in the hall discussing Respondent. She then called one of these girls to her office to inquire into any contacts she had with Respondent. When it became evident that Respondent's statements or conduct towards the student may have been inappropriate, the student was taken to the Assistant Principal who, after hearing the story, directed Brown to investigate. As a result of this investigation, the School Board brought charges against Respondent, and, after those charges were disposed of, the proceedings here involved were instituted. Although Respondent disputes the testimony of the three complaining witnesses, McGee, Johnson and Snelling, their testimony was credible and believable, Some testimony was presented to show that Ms. Brown was carrying out a vendetta against Respondent in conducting the investigation; that at least one of the complaining witnesses had a "bad" reputation, meaning that she "came on to men"; that Dixon had told Ms. Brown about a dream he had about her involving sex; that Respondent, like other coaches specifically, was looked up to and frequently approached by students to discuss their problems; and that these incidents had been blown out of proportion to their seriousness. Evidence of misconduct unrelated to the specific charges involving McGee, Johnson and Snelling, has been disregarded as irrelevant to the charges here under consideration. On one occasion during the 1980-1981 school year at Piper High School Respondent approached Lesia McGee, a 16-year-old sophomore, in the hall between classes and commented on the clothes she was wearing and said the next time he saw her in purple slacks he would, as she testified, "tongue me to death." By that, McGee understood that he meant to kiss her. Valynda Johnson was a junior at Piper High School during the 1980-1981 school year and she had no classes under Respondent. She and Respondent talked on campus about how she dressed and various things unrelated to school. On several occasions he sent passes to her to leave class to come talk to him. Some of these times she was excused by her teacher and the conversation did not relate to school work. On one occasion Respondent asked Johnson when she was going to let him do it to her. When she replied "What do you mean?," he responded "You know what I mean." Johnson understood him to be talking about sex. Respondent asked Johnson to meet him at the 7-11 store down the street from the school and called her at her home on one or two occasions. She never went out with Respondent and no physical contact was made between Respondent and Johnson. Respondent had a gold chain delivered to Johnson from him by one of the football players. Respondent's testimony that he found this chain under a garbage can at school and, when he held it up in class to ask whose it was, Johnson claimed it, is not believed. The Amended Administrative Complaint alleges Respondent gave a gold bracelet to Renee Snelling and this complaint was amended at the close of the hearing to change the bracelet to a chain to conform to the evidence. No evidence was submitted that Respondent gave Snelling either a chain or a bracelet. Renee Snelling was an 18-year-old student at Piper High School during the 1980-1981 school year. On one of the first occasions she talked to Respondent he told her she should be a model. Her career as a model was the dominant theme of most of their subsequent conversations. Respondent suggested she go to college and become a model. On one occasion he asked if they had sex would she tell anybody. On another occasion he told her he had a necklace for her. He never cave her the necklace but showed it to her one time when he removed it from his wallet. He called Snelling at her home on one or more occasions to ask her to go out. When Respondent returned from a trip to Moorhead College in Kentucky with some of the football players he took there in his own car to increase their interest in college, he brought back a T-shirt which he had delivered to Snelling by one of the football players. On one occasion Respondent sent a pass to Snelling but she does not recall if she left class to see him in response to the pass. The only occasion Respondent mentioned sex to Snelling was when he inquired if she would tell. The policy at Piper High School regarding passes is that they are used only with respect to school business, and rarely. If a student is in a class he cannot leave that classroom without the permission of that classroom teacher even if he receives a pass from another teacher. Respondent graduated from Pahokee High School in 1974 where he was a football star and a campus leader. With the ecouragement of his coaches, Respondent obtained a football scholarship at Bethune-Cookman College, from where he graduated in 1979. He is appreciative of the help and encouragement he received from his coaches and teachers and desires to repay that debt by helping others as he was helped. In doing this, he encourages all of the kids he talks to to go to college and get an education. When Respondent resigned from Broward County School System, he obtained a job at Pahokee High School in the Special Education Department teaching students with learning disabilities. His principal feels Respondent is doing an excellent job at Pahokee and that he is an asset to the school. During his year at Pahokee Respondent volunteered to coach and led the girls' track team to runner-up position in the state championships. He also took over the cross-country track team, which had been cancelled, and led this team to the district championship. He has continually encouraged students to continue their educations throughout high school and has gone out of his way to help them get scholarships, grants and other assistance towards this goal. Both Respondent and his wife have taken students, with parental consent, to out-of-town games, have had students over for dinner, have driven them to athletic contests, have provided transportation home from football practice which extended beyond the bus schedule, and generally have devoted considerable after-school-hours time to helping and encouraging students to attain higher standards in life.
Findings Of Fact The Respondent, Thomas B. Ferris, holds Florida teaching certificate number 286085 issued by the Florida Department of Education covering the area of physical education and junior college. The Respondent has held a valid teaching certificate since 1971. The Respondent began teaching in 1971 in the field of physical education at Hollywood Park Elementary School in Hollywood, Florida. He later taught at Sterling Elementary School in Fort Lauderdale, Florida, for one year, and for five years at Stephen Foster Elementary School in Fort Lauderdale. The Respondent's latest employment was as a physical education teacher at Spring Hill Elementary School in Hernando County for over 3 academic years. The Respondent's teaching performance and ability have never been less than satisfactory, and he received satisfactory teaching evaluations during his last employment at Spring Hill Elementary School. The principal of Spring Hill Elementary School had the opportunity to observe the Respondent for approximately one and one-half years, and during this time completed two performance evaluations of the Respondent. He is an enthusiastic teacher who works effectively with children. The Respondent also served as teacher-in- charge in the absence of the principal. The Respondent and the subject minor male student first met during the 1979-1980 school year while the Respondent was teaching physical education at West Hernando Elementary School, now named Spring Hill Elementary School. This minor was a student in the Respondent's physical education class, and also became a physical education helper in this fifth grade class. The Respondent and the minor became good friends. During the ensuing four years they participated in various recreational activities together. The minor and the Respondent frequently went jogging, bike riding, motorcycling, canoeing, lifted weights, and played basketball. In the summer of 1983, they engaged in a lawn mowing business and purchased a motorcycle together. The minor babysat for the Respondent and his wife frequently during his seventh, eighth, and ninth grade years, and in 1983 he babysat for them approximately three or four times a month until August. Between 1982 and 1983, the minor's relationship with the Respondent and his family intensified. The minor began to call the Respondent's home, and visit with the Respondent and his family so frequently that the Respondent started to avoid these telephone calls. The minor was visiting at the Respondent's home, or they would see each other, nearly every day. During the summer of 1983 the Respondent and the minor terminated their lawn mowing business. At about the same time the Respondent and his wife began to indicate to the minor that he was spending too much time with the Respondent and his family, and they suggested that he spend more time with his own mother and father. The minor's involvement with the Respondent's household began to decrease at this point, which was around the end of August, 1983. On the evening in late August, before school started in 1983, which is the occasion of the first allegation of sexual misconduct against the Respondent, the minor was babysitting for the Respondent and his wife at their home. They returned at approximately 11:30 P.M., and found the minor asleep on the couch in the living room. This was not unusual, as the Respondent and his wife would often find the minor asleep on the couch while babysitting, if they returned home at a late hour. After a brief conversation, the minor retired upstairs to the bedroom of Douglas, the son of the Respondent. After using the bathroom, the Respondent retired to the parents' bedroom on the first floor; his wife followed shortly thereafter. The Respondent did not leave his bedroom during the night. Neither did he proceed upstairs during the night, awaken the minor, and bring him downstairs. Several undisputed facts lead to this finding. The Respondent's wife is a very light sleeper. When the Respondent arises during the night, she is aware of it. She is often awakened by sounds in the house, especially from her children upstairs. The Respondent is a heavy sleeper who normally does not arise during the night. Moreover, the Respondent's bedroom is adjacent to the living room, where the alleged misconduct occurred. While in this bedroom, noise and voices from the adjacent living room are easily heard. The room of the Respondent's son, Douglas, is directly over the Respondent's bedroom. While in the Respondent's bedroom, noise and sound from the son's bedroom, including footsteps, can be heard. From the Respondent's bedroom, the sound of anyone using the adjacent staircase can be heard. Yet the Respondent's wife heard no sound or voices during the night, either from her son's bedroom upstairs, or from the staircase. Neither did she hear voices or sound from the adjacent living room during the night. On a Thursday night, October 6, 1983, the minor and the Respondent attended a concert in Lakeland, Florida. The minor had the permission of his parents to attend this concert. On the way home after the concert, they stopped at Bennigan's on Dale Mabry in Tampa, and ate dinner. They had agreed previously that the minor would pay for the concert tickets and the Respondent would pay for the dinner. Bennigan's was the only stop made by the Respondent and the minor while enroute from the concert to the Respondent's home. The Respondent and the minor arrived at the Respondent's house after the concert at approximately 12:30 A.M. Earlier on this evening, the Respondent's wife attended a painting class in Inverness, which had been meeting once a week on Thursday nights. She was in the kitchen at home working on a class craft project which she had not finished, when the Respondent and the minor arrived. The three of them engaged in a general conversation for approximately a half hour while sitting at the kitchen table. The minor then retired to the upstairs bedroom of Douglas, while the Respondent and his wife remained downstairs. The Respondent spent no time alone in the living room with the minor. The Respondent then retired to his bedroom, and his wife followed shortly thereafter. The Respondent did not arise during the night and leave the bedroom. His wife heard no voices or noise during this night either from the stairs above the bedroom, or from the adjacent living room. The Respondent bad no sexual contact with the minor during either August or October, 1983, or at any other time. These are the relevant facts pertaining to the charges of sexual misconduct which are found from the evidence presented. The minor student testified that one evening near the end of August, but before school started in August of 1983, he babysat for the Respondent. The Respondent's two children went to bed around 9:00 P.M., and because the Respondent and his wife were out late, the minor went to bed in the upstairs bedroom of the Respondent's son. Sometime after the Respondent and his wife returned home, the Respondent awakened the minor and brought him downstairs. The Respondent's two children were upstairs asleep, and his wife had retired for the evening. Once downstairs, the Respondent began massaging the minor's back, then his stomach, and then masturbated him. The minor testified that while doing so, the Respondent told him that he loved him more than just as a friend. The minor testified further, that on October 6, 1983, he and the Respondent attended a concert in the Lakeland Civic Center. He and the Respondent drove to Lakeland alone in the Respondent's automobile. The concert began around 7:00 or 8:00 P.M. and ended approximately 10:00 or 10:30 P.M. After the concert, they drove to a Bennigan's Restaurant in Tampa. Because he is a minor and it was after 9:00 P.M., he was refused admission. The Respondent and the minor left Bennigan's and drove back to Brooksville. On the way, the Respondent stopped at a convenience store and purchased two beers, one for the minor and one for himself. This convenience store is located approximately 20 to 30 miles outside Brooksville, but was not further identified clearly. Because of the lateness of the hour, it had been pre-arranged that the minor would spend the night at the Respondent's house. During this night, in the Respondent's living room, he again began massaging the minor, and masturbated him, and this time also performed oral sex upon the minor. In order to make the findings of fact set forth in paragraphs 1 - 13 above, it is not essential that this testimony of the minor be rejected as false. There simply is not sufficient evidence in this record to corroborate the minor's testimony. There is no evidence of any previous sexual misconduct on the part of the Respondent in the twelve years he has been teaching physical education. There is no evidence of any sexual misconduct with the subject minor throughout their years of close relationship, except the two incidents described, even though better opportunities for such misconduct existed frequently. Even on the night of the concert in Lakeland, there were opportunities to abuse the minor in a parking lot or along the road during the trip, instead of in the Respondent's house only a wall away from the eyes and ears of his lightly sleeping wife. The guidance counselor at Spring Hill Elementary School who receives complaints of sexual molestation received none concerning the Respondent. Neither the principal of Spring Hill Elementary School nor the assistant superintendent of the Hernando County School Board received any such complaints concerning the Respondent. The evidence discloses that the Respondent has a reputation for being a law abiding citizen in both his local community and his teaching community. In summary, the evidence, apart from the allegations in this case, is that the Respondent has never made any sexual contact with any minor. Based upon the allegations of sexual misconduct made against him, the Respondent was arrested on December 22, 1983, and charged by information with the offense of sexual battery. On the advice of his attorney, the Respondent entered a plea of no contest, and on April 18, 1983, the Circuit Court entered its order withholding adjudication, placing the Respondent on probation for three years, and assessing court costs of $515.00 against him. Following the Respondent's arrest, various newspaper articles were published reporting the allegations, his prosecution, and his suspension from the teaching position he held. As a result, the local teaching community as well as the student body became aware of the Respondent's situation. Nevertheless, the principal of Spring Hill Elementary School and the assistant superintendent of the Hernando County School Board testified that if the charges against the Respondent were proven to be true, then his effectiveness as a teacher would be seriously impaired, and the principal would not want the Respondent to return to school as a teacher if the allegations were proven to be true. Based upon the failure of the weight of the evidence to support a factual finding that these allegations are true, this testimony is not relevant. Moreover, there is no evidence in this record to support a finding that the Respondent would not be effective as a physical education teacher under the factual situation that is found above, based on the weight of the credible evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint filed by the Education Practices Committee against the Respondent, Thomas B. Ferris, be dismissed. And it is further RECOMMENDED that the charges against the Respondent, Thomas B. Ferris, brought by the Hernando County School Board, be dismissed. And it is further RECOMMENDED that the Respondent, Thomas B. Ferris, be reinstated by the Hernando County School Board with full back pay from the date of his suspension. THIS RECOMMENDED ORDER entered this 30th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1985. COPIES FURNISHED: J. David Bolder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 Joseph E. Johnston, Jr., Esquire 29 South Brooksville Avenue Brooksville, Florida 33512 Perry Gall Gruman, Esquire 202 Cardy Street Tampa, Florida 33606
The Issue Whether Petitioner's actions on December 13, 1994, were in violation of Section 231.17(3)(c)6, Florida Statutes (1997), which requires the holder of a Florida Educator's Certificate to be of good moral character. Whether Petitioner has been guilty of gross immorality or an act involving moral turpitude, in violation of Section 231.28(1)(c), Florida Statutes (1997). Whether the Petitioner committed an act which would authorize the Education Practices Commission to revoke his teaching certificate, pursuant to Section 231.17(10)(a), Florida Statutes (1997).
Findings Of Fact On or about September 9, 1997, Petitioner filed an application for Florida Educator's Certificate. Petitioner taught a drop-out prevention class at Cypress Lake High School in Ft. Myers, Florida, for approximately half of the 1997-98 school year. After the Notice of Reasons was issued in February 1998, Petitioner continued to work at Cypress Lake High School. He was transferred to a non-instructional position in the in-school suspension program, where he worked for the remainder of the 1997-98 school year. Petitioner returned to that position for the 1998-99 school year. Both before and after the Notice of Reasons was issued, Petitioner worked as a coach for football and baseball at Cypress Lake High School during the 1997-98 school year, and during the 1998-99 school year. Petitioner has a Bachelors of Arts Degree in English Education from Wright State University in Ohio. He completed the Beginning Teacher Program in Florida while working at Cypress Lake High School. All other requirements for certification have been completed by the Petitioner. After Petitioner applied for his Florida Teachers' Certificate, he was informed by Respondent's investigators that he needed to provide additional information regarding an arrest that had occurred in Key West, Florida, in 1994. Petitioner provided the Respondent's investigators with a letter explaining that he was arrested in Key West on a domestic battery charge involving his girlfriend at that time, Dory Catahan. Petitioner entered into a Pre-trial Intervention agreement with the local State Attorney's office. At the end of his probation term, on or about November 30, 1995, the State Attorney filed a Nolle Prosse dismissing the charges against him. Petitioner has not been convicted of a crime or had adjudication withheld in any jurisdiction in the United States. On or about December 13, 1994, Petitioner came home from work to the apartment he shared with his live-in girlfriend, Catahan. Catahan was angry at Petitioner because a young lady, whose name was either Stephanie or Carolyn, had called the apartment looking for him. Catahan was jealous, and she began yelling and screaming at Petitioner, accusing him of cheating on her. Petitioner tried to ignore her to get her to calm down, but instead Catahan became more enraged, and began pushing and hitting Petitioner. She tried to kick him in the groin area, and he took steps to hold her back, in an attempt to protect himself from being hurt by her attack. One of the steps Petitioner took to protect himself was to hold her arm and try to keep her from kicking him. He also had one hand on her neck area to hold her off as she repeatedly tried to kick him in the groin. On one of her kicks, he caught her foot, and told her, "Stop this or I'll break your damn ankle." Petitioner used that threat to try to get her to stop kicking before she hurt him. He did not do any harm or damage to her ankle, letting go after holding on to it for a minute or so. Catahan became even angrier when he pinned her against the wall to stop her attacks. Petitioner was still trying to get her to calm down. She finally said she was going to call the police. Petitioner dialed the police for her. When the police arrived, Petitioner was arrested and charged with Domestic Battery against Catahan. He spent the night of December 13, 1994, in jail, and was released the following day. Subsequently, Petitioner moved out of the couple's apartment for a few weeks. After a few weeks apart, Petitioner and Catahan resumed their relationship without further incident, until they broke up when he left Key West and moved back to Ohio in 1996. Petitioner felt responsible for Catahan becoming angry at him because he knew she was a jealous and possessive woman. He felt he should not have been trying to "cheat" on her. When he went to court Petitioner was assigned a public defender. His attorney advised him that the State's Attorney was willing to offer him a Pre-Trial Intervention as a disposition of his case, if he was willing to undergo a period of probation, community service, and attend an anger management class. Petitioner accepted the Pre-trial Intervention because he was informed that he would not have any permanent record and would not go to jail. Petitioner's testimony relating to the incident on December 13, 1994, is credible. No witness testified contrary to the version of the events provided by the Petitioner. The evidence failed to prove Petitioner battered his girlfriend or make any threat to do bodily harm to her in an offensive or aggressive way on December 13, 1994. The only touching or threats made by Petitioner to the shoulders and neck of Catahan were defensive in nature, and designed to prevent his girlfriend from harming him. Back in Ohio, Petitioner was a substitute for a short period of time. He then moved to Ft. Myers, Florida, in June of 1997. In August of 1997, Petitioner was hired as a teacher and coach at Cypress Lake High School, in Ft. Myers, Florida. Petitioner had been pursuing a career in teaching since his graduation from college, with a degree in English Education. In fact, when he moved to Key West in 1994, he was trying to find work as a teacher, but the job market was very difficult in Monroe County, and he ended up working in a marina. Petitioner is dedicated to teaching. He wants to make it his career. Petitioner cares about children; he feels he can make a difference. He believes he is a good teacher. His co-workers and peers at Cypress Lake High School have given positive references and reported that Petitioner is a good teacher, with a good demeanor with children, including those students who have difficult discipline problems at school. Two vice-principals at Cypress Lake High School were very supportive of Petitioner. They had positive recommendations about his character, his teaching skills and aptitude, as well as his demeanor around children. Petitioner has been recommended for a permanent teaching position at Cypress Lake. Through the efforts of persons in the administration, Petitioner has stayed on at Cypress Lake in the non-instructional position in the In- School Suspension program. David LaRosa is the Athletic Director at Cypress Lake High School. He hired Petitioner as a football and baseball coach. LaRosa was also the teacher whose class Petitioner took over during the 1997-98 school year. In his dealings with Petitioner, he found him to be very competent, and trustworthy with freshman football players. They are a very special group of athletes which require coaches with special abilities. In spite of his knowledge about Petitioner's arrest in Key West, LaRosa had no misgivings whatsoever about Petitioner's character and abilities as a teacher and coach. Rose Marie Bobbs is a parent of a student that was on Petitioner's football team. She is also an employee at Cypress Lake High School. She was active in the booster program at Cypress Lake and was very comfortable and satisfied with Petitioner's work as a football coach of her child. She had no qualms about having her children in Petitioner's classes or athletic teams. Michael Cooper, a Sergeant with the Sanibel Police Department, with 14 years experience in law enforcement, has known Petitioner since they were coaches together for the Cypress Lake High School freshman football team during the 1997-98 school year. Through his dealings with Petitioner, he found him to be a very honest person, and one who was very caring for his students. Petitioner did not engage in any acts of moral turpitude that should prevent him from teaching in the State of Florida. Petitioner did not engage in any acts that would justify or authorize the Commissioner to deny his teaching certificate. Petitioner is competent and morally fit to teach students in the State of Florida.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Education Practices Commission granting the Petitioner a Florida Teacher's Certificate. DONE AND ENTERED this 23rd day of October, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1998. COPIES FURNISHED: David Brooks Kundin, Esquire 906 Thomasville Road Tallahassee, Florida 32302 Charles T. Whitelock, Esquire Whitelock and Williams, P.A. 300 Southeast Thirteenth Street Ft. Lauderdale, Florida 33316 Kathleen Richards, Executive Director Professional Practices Services Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Services Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether respondent's suspension without pay should be upheld and whether he should be dismissed from employment for the reasons alleged in the administrative complaint?
Findings Of Fact Until his suspension on the strength of allegations like those in the administrative complaint, Ronald Wesley Landen taught horticulture at Rosenwald Junior High School, which operates in Panama City, Florida, under petitioner's aegis. Suzi, who turned 15 in April of 1983, met Mr. Landen as a pupil in one of his classes. She spoke highly of her teacher all year. Mr. and Mrs. Landen took her to Tallahassee to see a play once. Mrs. Landen had not originally planned to make the trip. Mr. Landen worked at the school last summer administering a grant, with moneys from which he hired students, including Suzi, who had graduated in the spring, to assist him in caring for plants. A routine emerged in the summer of 1983. Mr. Landen called for Suzi mornings on his motorcycle. After work, he drove her to the resort on Panama City Beach where Suzi's mother worked, and where he sometimes lingered for long walks on the beach, hand in hand with Suzi. Suzi's mother grew suspicious, but her stepfather wasn't sure anything was amiss. Rifling through Suzi's effects one day, her parents came upon a letter respondent had written her. On lined, blue stationery, respondent, who was born May 20, 1944, had written: To Suzi I love you very much-I am lieing (spelling) here writing this by flashlight. I wanted to tell you-you have made me very-very happy this week-I hope I have made you just as happy. Somethings are working against me-such as like-lights, water-etc but all in all it is working out. I am very happy- just watch out for the bat in the back of the head. I love you-I hope you are feeling better. I don't want you sick. I hate weekends. I can't see you-I can't wait to see you in the morning & I hate to take you home in the afternoon. I want to be able to tell the world how I care about you. I wish you would not worry so much-Wes & Robert will learn to except everything in time. So much worring-is not good for you. I love both of my sons-I love you. They will love you in time. Any way they will be-with us very little. I do want us to do things together-I love you. Well I am going to close now Thank for happenist- (spelling) I love you Ronald Wesley. Petitioner's Exhibit No. 2. Printed script at the top of the stationery proclaims: "Happiness means sharing bright new days, and happy thoughts with a friend." In the lower left corner a bouquet is depicted. The first time Suzi's stepfather saw Mr. Landen after reading this letter, they had a lengthy discussion. Mr. Landen explained, "Well, things just got carried away too far." (T. 20) Suzi's stepfather told Landen to stay away from her, which Landen agreed to do. At her parents' insistence, Suzi quit her job at school. Toward the end of the summer, Suzi and her family moved to Ohio, as they had planned to do for some time. In Ohio, Suzi received mail from school friends in Florida. Her parents noticed Cheryl Lynn's return address, but never spotted respondent's. Nevertheless, an unsigned letter from Landen to Suzi, dated "8/18/83" turned up: Suzi I sure was glad to hear you got to Ohio safe & sound. I prayed for my guardian angle to look out for you. Cheryl Lynn has been up here every day to help me. I am glad. She let me read your letter- hope you did not mine. There is a lot of things I want to say in this but I don't want to get you into trouble. I wrote you a lot of letters in Va. but I can not mail them till I am sure you & you only will get them. I love you & miss you. lots, lots, lots. I will be glad when I get a letter of my own. School will start Monday. 7th graders come tomorrow. They still do not have schedules for them & this is Thursday. I am not ready for school to start. It will be great if you come back in Sept. I hope so. I really don't want to wait till March. In fact I would pay your way here Thanksgiving & Christmas if your Mom would let you come stay with Cheryl Lynn. In fact all you got to do is call. You know what I mean. I can not tell you how much I love you & miss you & want you here with me because I don't really know if you could believe that much. I do hope you write me soon. There are a lot of people pulling for this to work out-we need a chance to work it out. Does your Mom & Dad still hate me? Do you believe it would do any good to talk to them? Suzi I want it to be right. I know it can be right & great. I pray a lot for it to work out. I even pray that your Mom & Dad will understand & let us be together. They must have be young "once" & had a real love-true feeling for each other. I really don't know how much to write. I don't want to get you into trouble. Gosh I wish they understood. Call me- Everybody hear is waiting. They know to get me to the phone as soon as possible. Like I say everybody I know except your Mom & Dad is hoping this work out for us. We are going to have a letter opening party when I get one. Cheryl Lynn-Faye Burles- Melissa Spear's mother. Melissa, Tommy Setliff I mean every body-they all are pulling for us. So write me soon. I love you & miss you----- Petitioner's Exhibit No. 3. This was on white stationery, unlined but bordered in grey and featuring a cat, in the lower right corner, holding a teddy bear and a cluster of balloons. This proved the last straw for Suzi's stepfather, who contacted school authorities. The photograph he found did not help, either. On back of a likeness of himself, respondent had inscribed, "To Suzi With all the love one man can have for someone--3+=18, 42--all dreams are worth waiting for. It is & will be rough & tough. I love you Ronald Wesley." In three years she would have attained the age of consent and he would have been a mere 42 years old. Superintendent Holman suspended respondent Landen with pay until the School Board met, voted a suspension without pay, and proposed dismissal. Mr. Holman's testimony that respondent's relationship with Suzi seriously reduced his effectiveness as a school board employee was uncontroverted.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner uphold respondent's suspension without pay. That petitioner dismiss Ronald W. Landen as an employee of the school board. DONE and ENTERED this 19th day of September, 1984, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1984. COPIES FURNISHED: Franklin R. Harrison, Esquire Post Office Box 1579 Panama City, Florida 32401 Philip J. Padovano, Esquire 1020 East Lafayette Street Suite 201 Tallahassee, Florida 32301 Ralph D. Turlington, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Pete Holman, Superintendent School District of Bay County, Florida 5205 W. Highway 98 Panama City, Florida 32401
Findings Of Fact Petitioner, Fred D. Greene, began service with the Hamilton County School Board as a teacher in August, 1965. He was employed on annual contract for three school years until he was granted a continuing contract by the school board on July 23, 1968, as a teacher pursuant to Section 231.36, Florida Statutes. After the execution of the continuing contract, Petitioner was assigned as coordinator of vocational education during the 1969-1970 school term but in addition to those duties, continued to teach five classes. As Petitioner was assigned additional duties by the Superintendent, his teaching duties were reduced. Starting in 1970 and continuing through 1973, though the continuing contract as a teacher had not been rescinded, Petitioner and the school board entered into annual contracts of employment in which Petitioner was assigned as Director of Vocational Education. On June 5, 1973, the parties entered into a second continuing contract which described Petitioner's duties as "Director of Vocational, Technical and Adult Education." At no time did Petitioner ever hold a contract as "principal" nor was he ever paid as such. His current Florida Teacher's Certificate shows him certified in, among other things, secondary administration and supervision. Both this contract and the 1968 continuing contract contained a provision that the school board was authorized, upon recommendation of the superintendent of schools, to transfer and assign the Petitioner to a "similar position in any other school" in the district, provided that "the duties shall be similar to the duties originally assigned and the salary shall be as heretofore set forth." From the time he was appointed director of VTAE until January, 1981, Petitioner served in that capacity. As director of VTAE, he considered his position as similar to that of a principal in that he reported directly to the Superintendent of Schools, he supervised the teachers who taught within his program (although he did not rate them) he was paid on the non- instructional salary schedule as is a principal he was responsible for the procurement of and administration of students including their promotion and graduation. Nonetheless, he was not classified as a principal, he served schools throughout the county, the teachers in the program were recruited from regular day teachers and additional personnel who taught only in the night program, and these teachers were rated by their day principal when appropriate. Consequently, his position as Director, VTAE, was not similar to that of a principal. At the time he left the job as Director, VTAE, to assume the office of Superintendent of Schools, he was paid a salary of $21,000.00 per year for a 12 month term and was on step 6 of the non-instructional salary schedule. He has never released the school board from the terms of the continuing contract. In January, 1981, Petitioner took office as Superintendent of Schools. At that time the function of Director, VTAE, was assigned to Ms. Scaff who subsequently also occupied several other positions within the school board system including instructional coordinator, secondary curriculum coordinator, community education director, law education director, and management information systems director. Ms. Scaff did not assume all those functions at one time. The job was built up over a period of years and while the duties changed, the title of Director, VTAE, did not. Ms. Scaff was paid as an instructional director on the non-instructional salary schedule. As Director, VTAE, Ms. Scaff, and Mr. Greene before her, occupied one of the director positions reflected in the directory of the School Board. The School Board uses the same contract form for directors and principals and the director is evaluated by the Superintendent of Schools as is a principal, but there are few other similarities between the function of principal and Director. Petitioner served as Superintendent of Schools from 1981 until November, 1984, when he was replaced as superintendent by Mr. Hinton. Several months before his term expired, in June, 1984, Petitioner recommended to the School Board that it appoint Ms. Scaff, who was at that time serving as, inter alia, Director, VTAE, to a two year contract in that position. This contract was approved by the School Board. Shortly after his defeat in the election, Petitioner allegedly told Mr. Hinton that he did not wish to displace anyone employed by the school system in order to enforce his return rights under the continuing contract he held. It was his position that he would accept a teaching position but at a salary level equivalent to that of an administrator until such time as an administrator's position within the system became open. At a special meeting of the School Board called by Petitioner on the last day of his term as superintendent, Mr. Greene nominated himself for the position as principal at NHE. This nomination, however, was tabled by the School Board upon advice of counsel so that an advisory opinion on it could be requested from the Florida Commission on Ethics. At this point it should be noted that though the position as Principal at NHE became vacant prior to Petitioner leaving his position as superintendent, he did not apply during the period that the·advertisement was open. The only person to do so was Harry Pennington who was subsequently placed in that position. When Mr. Hinton assumed the position of Superintendent of Schools, replacing Mr. Greene, he immediately assigned Petitioner to the position as teacher of business education. Mr. Greene accepted the assignment but requested that he be paid a salary equivalent to the 20th step on the salary schedule for the position of instructional director at a figure of $32,550.00 per year. The figure demanded by Petitioner was not paid, however. After conferring with the State Department of Education regarding the proposed salary for Petitioner, the School Board determined that since he held a continuing contract as a teacher, he would be employed at a salary based on the teacher position. He was given credit for four years of teaching service while serving as Superintendent of Schools which placed him at the 20 year service point. In addition, he was given credit for a master's degree and for teaching in his field of certification. His total salary, therefore, was set at $23,460.00 over a ten month term. Petitioner was not satisfied, especially since Mr. Pennington, who was serving as principal of NHE was receiving $28,100.00 per year based on a 12 month employment contract. On May 27, 1985 the school board rejected Mr. Greene's nomination of himself as principal at NHE. The board's rejection of Mr. Greene was based on the recommendation of Mr. Hinton who felt that Petitioner was not qualified for the position in that he did not hold certification in administration and supervision at the elementary level his contract was not for the position of principal he had no experience as principal or assistant principal he did not apply for the position when it was advertised and because counsel advised that filling the position based on self nomination might violate Florida law. Mr. Pennington on the other hand, was fully certified in administration and supervision for all grade levels involved at NHE. Other positions for which Respondent felt himself qualified came open during the 1984-1985 school year but he was not selected to fill any of them. Included in these were that of principal of Hamilton County High School and administrative assistant positions at both North Hamilton Elementary and South Hamilton Elementary. When Mr. Hinton took over as Superintendent of Schools, as a part of his management program and in an effort to correct what appeared to be a problem regarding the late payment of School Board obligations which existed when he took over, he recommended certain personnel changes including the creation of an office manager position. Mattie Fouraker, formerly the business education instructor at Hamilton High School, was appointed office manager to the School Board at a salary approximately equivalent to that she received as a teacher. It is to her vacant job as teacher of business education that Mr. Greene was assigned. Petitioner contends Ms. Fouraker was appointed to the position before it was ever officially created and approved by the School Board. Be that as it may, however, it becomes clear that the Superintendent of Schools intended that a problem be solved and to do so, created a position designed to correct it. He appointed Ms. Fouraker to the job on a temporary basis and as soon as the School Board met at the next scheduled meeting in December, 1984, it approved the position and confirmed Ms. Fouraker's assignment to it. This formal board action, however, served to increase her pay from that of a teacher at $23,460.00 per year to that of an administrative position at $29,700.00 per year and her position was changed from that of a 10 month to a 12 month employment, along with the benefits accruing thereto. Petitioner's salary as business education instructor was developed through a tailored formula developed with an intent to,-in the opinion of Mr. Hinton, put Mr. Greene in approximately the same position for the four years he was Superintendent of Schools. As was stated previously, Mr. Greene was given credit for his 16 years in the classroom plus his years of superintendent for a total of 20 years experience credit. Added to that was credit for a Master's degree and credit for teaching in his field of certification. When the $23,460.00 salary that was arrived at for this was compared to what it was anticipated he would have earned had he stayed as Director of VTAE, it was seen that had he remained in his position on the same salary schedule, he would have presumably earned $2,362.50 per month ($23,625.00 per 10 month school year) as an instructional director, Step 6. This is approximately $155.00 more over the school year. Had Petitioner been paid at the salary of an instructional support position, Step 6, the monthly salary would be slightly lower. It should be noted, however, that due to schedule changes during the period, this might not be a valid comparison. Positions within the school system are assigned by the Superintendent of schools on the nature of the position. Non- instructional personnel are assigned categories on the salary schedule based on an assessment of their qualifications and value to the system. Teachers, on the other hand, who are generally serving under contracts, are placed on the salary schedule consistent with the number of years experience they have plus certain other additions. It was Mr. Hinton's position that Mr. Greene should be paid as a teacher since he was serving as a teacher and once that decision was made, Mr. Greene was paid the highest amount that a person with his certificate and his experience and qualification could earn in that position. When the Florida Commission on Ethics issued its opinion on the question certified to it regarding Petitioner's recommending himself for the position of Principal of NHE, the opinion indicated the Commission could not conceive of how the Petitioner's actions in recommending himself for a position could not have constituted a misuse of public position. In other words, while not saying that it was, the Commission concluded that it probably was a violation. Thereafter, the School Board requested an Attorney General's opinion on whether a school superintendent may nominate himself for appointment of a principal. The opinion was not received as of the date of the hearing. Turning again to the issue of the function of Director of VTAE, the School Board contends that the function of Director has steadily expanded in scope. For example, Mr. Hinton urges that the work that Mr. Greene was doing as Director, VTAE prior to being elected superintendent now constitutes only 10 to 20% of the currently described duties of the position. The additional functions that Ms. Scaff performs, as described above, he contends, constitute more by far than that which Petitioner did when he held the job. In support of that position, Mr. Hinton refers to the organization and management study conducted in 1983 at the request of Petitioner when he was Superintendent of Schools. Among the pertinent recommendations of that study was the restructuring of the organization within the school district level. The position of Director, VTAE was not one of the three Director and five coordinator positions recommended by the study. Ms. Scaff indicates that when Petitioner was defeated in his bid for re-election as superintendent of schools, she indicated her willingness to step down from the position of Director, VTAE and return to classroom teaching. She does not consider the return to a position of teaching as a demotion nor does Ms. Fouraker. It should be noted, however, that both individuals received substantial increases in salary by virtue of their position changes under the Hinton administration. For example, Ms. Fouraker's promotion to the position of office manager carried a pay increase from $23,460.00 to $29,700.00 per year. Ms. Scaff now earns the same. Mr. Greene was at Step 6 on the non-instructional scale when he left the job of Director, VTAE. These scales were modified in the intervening years, and Ms. Fouraker traced Mr. Greene's position as Director, VTAE, to the new scale as if he had stayed in place. She placed him at Step 6 on the new scale at a salary of $28,350.00. Petitioner contends that he should be treated the same as Mr. Coe, Director of Personnel, who realized a large salary and step increase when the pay scales were changed. If this were done, and he was given an instructional director's position at step 20 on the non- instructional salary schedule, his salary would be $32,500.00. Subtracting that $28,350.00 from the $32,550.00 he says he should be earning, Mr. Greene indicates that he lost approximately $4,958.87 for the period starting November 20, 1984, when he began teaching, to the end of the school year. He further contends that his salary loss is continuing at the rate of $757.50 per month and in addition, he is also being deprived of other benefits of employment such as paid annual leave, sick leave, enhanced retirement benefits, and other like perquisites attached to a 12 month contract. Mr. Greene further contends that since he was involved in litigation with the school board concerning Mr. Coe's contract prior to his leaving the position of Superintendent of Schools, the School Board should have known of his entitlements under the continuing contract since it was shown that it had been established for assignments and transfers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Fred D. Greene, be assigned a non-principal supervisor/director position within the Hamilton County Schools as available that he be paid accordingly when performing in such a position but that he be denied adjustment for back pay and attorney's fees and costs. RECOMMENDED this 29th day of October, 1985, in Tallahassee, Florida. ARNOLD H POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1985. COPIES FURNISHED: John D. Carlson, Esquire Gatlin, Woods, Carlson & Girtman 1030 East Lafayette, Suite 112 Tallahassee, FL 32301 Paul Hendrick, Esquire 111 South Central Avenue Suite 1 Jasper, FL 32052 Owen Hinton, Jr. Superintendent Hamilton County School Board P. O. Box 1059 Jasper, FL 32052 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, FL 32301 APPENDIX Ruling by the Hearing Officer as to the Petitioner's Proposed Findings Of Fact: Paragraphs Accepted Accepted Accepted Accepted Accepted Accepted Accepted* Accepted* Accepted* Accepted Accepted except as to the veracity of the reported comment of the School Board member Accepted Accepted Accepted Accepted except as to comments of Ms. Scaff as to her being a principal and signing forms as such Accepted except for Petitioner's comment that he would receive temporary certificate for Elementary Ed principal and would obtain certification in grades K-6 without much problem Accepted Accepted Rejected as irrelevant Irrelevant as a finding of fact should be conclusion of law Accepted Accepted except as to last sentence which is irrelevant unnumbered between and 23 Rejected Rejected Rulings by the Hearing Officer as to Respondent's Proposed Findings of Fact (Respondent failed to number paragraphs.) The unnumbered paragraphs are therefore treated in sequence and numbered herein for purposes of identification only. Paragraphs Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted Accepted as to substance Accepted Accepted Accepted except that acceptance of the position was not meant to be acquiesed in permanent assignment Accepted Accepted Accepted Accepted Accepted Accepted as it relates to teacher salaries only Accepted Accepted Accepted Accepted Accepted as to the request made. As of the hearing, the opinion had not been received. It was not offered into evidence and though attached to Respondent's Proposed Recommended Order, was not considered Accepted Accepted Accepted except for the conclusion drawn in the last sentence which was not supported by evidence admitted. Accepted Accepted Accepted Rejected. Position was held by Ms. Scaff who performed the same duties performed by Petitioner when he was the encumbent, in addition to additional duties which he did not *Petitioner's terms describing the personnel changes are not necessarily dispositive of the issue.
Findings Of Fact Respondent, Otis J. Fells, has been an employee of the Petitioner, School Board of Dade County, since 1975. At all times material hereto, he was a teacher and basketball coach at American Senior High School. On September 8, 1981, Paulette Brown was fifteen years of age, a student at American Senior High School, and a student in Respondent's sixth period physical education class. Monday, September 7, 1981, was Labor Day. Since classes for the 1981- 82 school year had commenced the week prior to Labor Day, American Senior High School was closed on Monday and reopened on Tuesday, September 8, 1981. On September 8, Respondent reported to American Senior High School to carry out his teaching and coaching duties. Since the floor of the gym was being painted, and since the school year had just begun so that not all physical education students had their gym clothes, the physical education classes were held in either the auditorium or the gym as study-halls, and the students wore their regular clothing. Between 9:30 and 10:30 the morning of September 8, Norman Blanco, a volunteer assistant basketball coach, came to American High to talk to Respondent about holding tryouts for the basketball team for the new school year. Since Respondent was with a class, Blanco told Respondent he would return after school to discuss that matter. Both the sixth period classes and the school day ended at 2:15 P.M. Respondent's sixth period physical education class had been held in the auditorium. James Lee, one of Respondent's sixth period students, asked Respondent for a ride home after school, and Respondent agreed to give Lee a ride home. Respondent left the auditorium and went to the main office to sign out and check his mail. He started to walk toward the boys' locker room, but stopped to speak to the art teacher about the eagle emblem to be placed on the gym floor by the art students. He then went to the gym to get the paint for the floor and took the paint to the art teacher's room, where he left it, although the art teacher was no longer there. Respondent then went to the coaches' office, where Blanco was waiting. From past experience, Blanco knows that if he arrives at American High at 2:15, he cannot find a place to park. He usually arrives about fifteen minutes after school lets out so that all the cars are gone and he can park wherever he wishes. On September 8, he arrived at American High at approximately 2:20 P.M. He went to the coaches' office to talk to Respondent. By the conclusion of their ten-to-fifteen minute meeting in the coaches' office, Blanco had talked Respondent into holding tryouts for the basketball team rather than simply using last year's team, as Respondent had intended to do. Blanco left Respondent in the coaches' office at approximately 2:35 P.M. There are two doors in the coaches' office: one opening into a hallway, and one opening into the boys' locker room. During Respondent's meeting with Blanco, the doors were open. After school on September 8 in the hallway outside the coaches' office, band members were going out to the football field, members of the flag corps were assembling for practice, and the cheerleaders were practicing approximately fifteen yards from the door into the coaches' office. In the boys' locker room, members of the cross-country team, the football team, and the soccer team were using their lockers or changing their clothes for practice. Additionally, the coaches' office is not Respondent's private office; rather, it is also used by the cross-country coach, the baseball coach, and the soccer coach, who are also involved with their students, their team members, aides, and managers. Inside the boys' locker room is a small room used for storing basketball equipment. The door to that room is kept locked. There are only three keys for that room: Respondent possessed one, Assistant Coach Jones possessed the second key, and the third key which traditionally was kept in the main office had never been returned after the girls' basketball team borrowed it one night the previous school year. After his meeting with Blanco, Respondent went to the main office, where he left his handwritten announcement concerning tryouts for the basketball team on the public address system. He then saw James Lee out in front of the school, directly in front of the main office. At approximately 2:45, from the main office, Respondent went to his car and left school with James Lee. When Lee arrived at his home, he told his mother that it was 3:00 and that Coach Fells had given him a ride home. After dropping off James Lee, Respondent went to Mr. B's Package Store and Lounge to see A. J. (Arnold) Johnson, one of the owners. Over the Labor Day holiday, Bobby Hunter, Assistant Basketball Coach from Boston College, visited Respondent and left sneakers for A. J. Johnson at Respondent's house. Respondent took the sneakers into Mr. B's and gave them to Johnson, who was waiting for the bank to open at 3:00 so he could transact some business at the bank. Johnson left Mr. B's to go to the bank at approximately 3:05, and when he returned from the bank, Respondent was still there. While Johnson was gone from Mr. B's, Respondent visited with Roscoe Large, the sales representative from Southern Wine and Spirits, and several other persons whom he also knew. After Respondent had been at Mr. B's for approximately thirty minutes, he left and drove to Coconut Grove to pick up his son at the baby-sitter's. On the following day, Respondent went to school and spent a normal day. After he arrived home on Wednesday, his wife told him that someone had been calling on the telephone accusing Respondent of raping Paulette Brown. The next morning, Respondent called the principal of American Senior High, and the principal advised him to stay home. On September 8, 1981, Paulette Brown stayed after school rather than leaving the school grounds when school adjourned for the day at 2:15. Between 2:30 and 2:45, she visited with Agnes Pitts and William Hopkins in the vicinity of the coaches' office and boys' locker room. When Agnes Pitts again saw Paulette Brown, it was approximately 3:00, and Brown was walking toward the front of the school. Brown told Pitts that she was going home. At approximately 3:00, Brown called her father and asked him to pick her up at school. After he picked her up and pursuant to her suggestions, they first picked up fried chicken for dinner and then picked up Paulette's brother when he got out of school at 3:30. Mr. Brown then took Paulette and her brother home and then went to pick up Paulette's mother, Pauline Brown, at 4:00 at her place of employment. Between 5:00 and 6:00 P.M. on September 8, 1981, Paulette Brown called her godsister, April Clark, and told Clark that Respondent had raped her. She also told her story to George Richberg that same evening. She also told her story twice to Jeffrey Clark. During her second relating of the story to Jeffrey Clark, she included mention of a janitor with a key to the boys' locker room. On Wednesday, September 9, Paulette Brown stayed home from school. After taking a nap, she called her boyfriend's sister and told her that Coach Fells had raped her. When the boyfriend's sister threatened to tell someone in a position of authority if Paulette refused to, Paulette told a neighbor, who told Mrs. Brown. Paulette Brown was tested at the Rape Treatment Center on September 9, and the investigators for the police department examined the equipment room on September 12. To gain entry to the room, the police drilled through the deadbolt lock. Five non-mobile sperm were found within Paulette Brown by the Rape Treatment Center. Testing by the Miami-Dade Police Department Crime Lab established that the sperm came from an individual that was an "O-positive secreter." This is the most common blood type. Forty percent of the American population falls in this category. Respondent is a member of this category, that is, Respondent is an "O-positive secreter." The Miami-Dade Police Department's fingerprint experts examined and dusted the equipment room at American Senior High School and found identifiable fingerprints of the Respondent. They found no identifiable fingerprints of Paulette Brown. The parties have stipulated that simply because one touches an object, one does not necessarily leave fingerprints. The sheet, which Paulette Brown claims she lay upon while having sexual intercourse with Respondent, was impounded from the equipment room and examined. Nothing of serological value was found. Respondent, Otis J. Fells, did not commit sexual battery upon Paulette Brown on September 8, 1981, and Respondent, Otis J. Fells, did not engage in any sexual activity with Paulette Brown on September 8, 1981.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Respondent not guilty of immorality and misconduct in office, as set forth in the Amended Notice of Charges filed in this cause, and reinstating Respondent as an employee of the School Board of Dade County with back pay. RECOMMENDED this 16th day of July, 1982, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 1982. COPIES FURNISHED: Jose E. Martinez, Esquire Leib I Martinez, P.A. 201 Alhambra Circle, Suite 1200 Ponce de Leon Plaza Coral Gables, Florida 33134 Phyllis O. Douglas, Esquire Assistant Board Attorney Dade County Public Schools Administrative Office 1410 N.E. Second Avenue Miami, Florida 33132 Elizabeth J. du Fresne, Esquire du Fresne & du Fresne, P.A. 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Dr. Leonard M. Britton Superintendent of Schools Dade County Public Schools Administrative Office 1410 N.E. Second Avenue Miami, Florida 33132
Findings Of Fact Clarence Dixon received a Bachelor of Science degree with academic honors from Bethune-Cookman College. He was active in athletics and was rated "All-American" in football. He was employed by Piper High School for the 1980- 81 school year in his first teaching position. He was hired to teach physical education, and was encouraged by the principal of Piper High School to take an active part in the black community. Sandra Brown is employed at Piper High School as a security specialist. She met Dixon through their work association and asked Dixon to counsel her son, as she knew he respected Dixon. Mrs. Brown related several conversations wherein Dixon made sexual advances to her. Mrs. Brown was also involved in the initial school investigation of Dixon's alleged sexual improprieties with Piper High School students; Sharon Cooper is a 15-year-old female student at Piper High School. She had been upset over rumors that involved her reputation, and was considering leaving school over the matter. Dixon became aware of her problem end counseled her to remain in school and ignore the rumors. Carl Nadler, a 16-year-old student at Piper High School, overheard Cooper tell Dixon that, "All the guys say I suck dicks and fuck." This was the statement attributed to Dixon in Count 2 of the Petition. However, it appears that Dixon did not use these words, or at least did not use them in a sexually suggestive context. Lesia McGee is a 17-year-old student at Piper High School. She did not testify at the hearing due to illness, but the parties agreed to allow her deposition to be admitted as evidence associated with Count 5 of the Petition. Her testimony establishes that Dixon told her, "If you wear those purple pants again, I'm going to tongue you to death." Any doubt regarding the sexual implication of this statement was removed by remarks Dixon made to McGee on other occasions to the effect that she had a good figure and would she be enough of a lady not to tell anyone if she and Dixon were to make love. McGee readily admitted that Sandra Brown wanted her to exaggerate her complaint, but she refused. Her testimony indicated no animosity toward Dixon nor influence by Sandra Brown. Freddie Jones is a student at Piper High School. He informed another student, Sandra Cunningham, that Dixon had asked Jones to spread a rumor about her. Jones recanted his initial statement to investigators at the prehearing deposition. He returned to the allegation at the hearing, explaining that he had tried to help Dixon by lying at the deposition, but came to believe it was more important to tell the truth. Jones' testimony lacks credibility because of its inconsistency with his earlier sworn statement. Valynda Johnson is an eleventh grade student at Piper High School. She and Dixon had frequent contacts even though she was not his student. Several times Dixon sent her passes to leave class in order to meet him on the athletic field. Dixon concedes that he once sought to have her excused from class to do some typing for him. On one occasion, Dixon invited Johnson to a basketball game with him and on another to meet him at a convenience store. On two occasions, Dixon asked Johnson, "When are you going to let me do that?" or words of similar import. When she asked what he meant, he replied, "You know what I'm talking about." Johnson was unsure of Dixon's intentions, but believed that Dixon was probably seeking sexual relations with her. Although Johnson was confused on some of the details of her testimony, she was a generally credible witness, showing no animosity toward Dixon or influence by Sandra Brown. Rene Snelling is an 18-year-old student at Piper High School. Dixon and Snelling became friendly, and Dixon made periodic comments to her about her figure and potential for a modeling career. They also discussed a trip to visit a college in Kentucky. Although Dixon took only male students on this trip, he did bring back souvenir T-shirts for Snelling and several other students. Dixon also phoned Snelling at her home and once told her he had a gold chain for her. The comment on which Count 8 is based involved Dixon's question to Snelling, "If we ever had sex would you [Snelling] be ladylike enough not to tell anyone?" or words of similar meaning. This conversation took place in the school library where Snelling was working on a class assignment. Dixon denies making this statement but recalls that when he asked to sit beside her in the library she replied that a nice-looking man like Dixon could sit next to her. Although Snelling was unsure of some of the details of her contacts with Dixon, she was a generally credible witness and showed no animosity toward Dixon or influence by Sandra Brown. Hooker T. Robinson is a 18-year-old student at Piper High School. He overheard Rene Snelling tell another student that if Coach Dixon were not so dedicated to his wife she would fuck him. Robinson was called by Respondent apparently to discredit Snelling's testimony. However, Robinson's testimony indicates that a sexual attraction was developing between Dixon and Snelling which is consistent with the charges contained in Count 8. Darryl Allen is a 15-year-old student at Piper High School. He overheard Chanita Austin, Rene Snelling and Valynda Johnson discussing Dixon in early January. He heard one of them say, "He [Dixon] is acting so high class and doesn't speak anymore," or words of similar import. Darwin Taylor is a 15-year-old student at Piper High School. He overheard a discussion between Sandra Brown and Rene Snelling about February wherein Mrs. Brown stated to Snelling, "Don't worry, we've got him where we want him." Taylor further overheard Mrs. Brown advise Snelling to tell the judge that Dixon gave her a gold chain and tried to touch her and have sex with her. This testimony and that of students Lesia McGee and Chanita Austin (deposition) establishes that Mrs. Brown either intentionally or in the zeal of her investigation encouraged exaggerations. However, the students testifying in this proceeding recognized this and were net swayed by Mrs. Brown's encouragement. The testimony of Piper High School students Alvin Williams, Eugene Wimbs and Ernest Merrell is not material and is accorded no evidentiary weight herein. The depositions of Piper High School students Sandra Anderson, Chanita Austin and Jackie Dawson do not contain evidence relevant to the charges herein and are likewise accorded no weight. The testimony of Anthony Ash, Broward County CTA representative, and Andrew Thomas of the Broward County School System, involve procedural matters not directly relevant to factual questions at issue here. The Respondent denies making the statements and other improper conduct attributed to him by the witnesses. He points out that the complaining witnesses are all from the same neighborhood and are all below-average students. He theorizes that they were confused over factual matters and did not appreciate the damage their statements could have upon him, and that they were unduly influenced by Sandra Brown. The testimony of these Piper High School students, with the exception of Freddie Jones who changed his testimony, was generally credible. They demonstrated an appreciation for the gravity of their complaints and the potential impact on Dixon's career. They did not show any resentment toward Dixon, but rather viewed him as a friend or former friend. The witnesses were encouraged to come forward by Sandra Brown. As noted above, Mrs. Brown's investigative techniques were lacking in objectivity. However, there was no indication that any witness committed perjury as a result of improper influence by Mrs. Brown. Although it was apparent that the students did discuss this case among themselves, there was no indication of any conspiracy against Dixon.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Counts 3 and 4 of the Petition be dismissed. It is further RECOMMENDED that Respondent Clarence Dixon be found not guilty of the charges contained in Counts 1, 2 and 6 of the Petition. It is further RECOMMENDED that Respondent Clarence Dixon be found guilty of the charges contained in Counts 5, 7 and 8 of the Petition. It is further RECOMMENDED that Respondent Clarence Dixon be discharged from employment as a teacher by the Petitioner School Board of Broward County. DONE and ENTERED this 6th day of August, 1981, in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the clerk of the Division of Administrative Hearings this 6th day of August, 1981. COPIES FURNISHED: Charles Whitelock, Esquire 1244 SE Third Avenue Fort Lauderdale, Florida 33316 Richard H. Frank, Esquire 341 Plant Avenue Tampa, Florida 33606
Findings Of Fact Based upon my observation of the witnesses, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Richard A. Cohan, was employed by the Dade County School Board as a classroom teacher continuously from the time of his initial hiring in August 1970 until November 19, 1986, when he was suspended by Petitioner. During Respondent's employment with the Dade County School Board, he has taught at Shenendoah Junior High School, Booker T. Washington Junior High School, Kinloch Park Junior High School, Kensington Park Elementary School and Miami Edison Senior High School. Respondent was employed as a continuing contract teacher at Miami Edison Senior High School at all times relevant to the alleged misconduct herein. 1984-85 School Year Respondent's performance as a classroom teacher was satisfactory until the 1984-85 school year when he was absent 41 days from school. Frederick Sturgeon, Principal of Miami Edison Senior High School, made a notation concerning the absences on the Respondent's 1984/85 annual evaluation. 1985-86 School Year The Respondent's absenteeism continued into the 1985-86 school year. On November 5, 1985, Sturgeon held a conference for the record with Respondent because he had been absent 27.5 days since the beginning of the school year. Sturgeon was also concerned because Respondent failed to follow established school procedures when reporting his absences. During the 1985-86 school year, teachers who anticipated an absence were required to call a specific telephone number at the school and leave a taped message. The school secretary could check the messages during the night and arrange for any needed substitutes. The Respondent, however, usually called the school on the morning of the day he was absent. Thus, the school would have very little time in which to secure a substitute teacher who was specifically suited to teach the subject matter of the Respondent's classes. At the November 5, 1985 conference, Respondent was given specific instructions by Sturgeon to: Report any future absences to Assistant Principal Weiner personally and to discontinue calling the tape recording machine to report absences; Ensure that weekly lesson plans were available so that a substitute teacher would be able to continue with the lesson for that day; and Have on file with the school three days of "emergency lesson plans" dealing with general academic skills. On February 28, 1986, Sturgeon held another conference with the Respondent. The Respondent had been absent 5 times since the November 5, 1985 conference. On three of the days, Respondent did not call to report his intended absence. Sturgeon reiterated the same directives given Respondent during the November 5, 1985 conference. As of April 24, 1986, Respondent had been absent 58.5 days since the beginning of the school year. Because Respondent's absence pattern made it difficult to schedule a face to face conference, Sturgeon wrote a letter to Respondent expressing his concern over the high number of absences and the fact that from March 18, 1986 through April 24, 1986, there were 26 days during which the Respondent had not furnished lesson plans for his classes. Sturgeon again reiterated the directives of the November 5, 1985 conference. On May 12, 1986, a conference for the record was held with Respondent at the school board's Office of Professional Standards. Present at the conference were Assistant Principal Weiner, the Respondent, Dr. Gil (a coordinator in the office), and a union representative. The conference was held to discuss Respondent's performance assessment and future employment with the school board. The Respondent indicated his absences during the year were due to his grandmother's illness, the fact that he was not functioning well and the fact that he was taking medication for an upper respiratory illness. At the May 12, 1986 conference, the Respondent was directed to call Ms. Weinter directly to report any absences and to return his grade book to the school by May 13, 1986. Dr. Gil also determined that Respondent should be evaluated by a physician and an appointment was scheduled for the Respondent with Dr. Roger Rousseau, a psychiatrist. The Respondent first saw Dr. Rousseau on May 15, 1986. On May 20, 1986, the Respondent had still not furnished the grade book to the school. Ms. Weiner directed Respondent, by way of a memorandum, to produce the grade book as previously requested. On May 30, 1986, Sturgeon completed an annual evaluation in reference to Respondent's teaching performance. Respondent was rated "unacceptable" in the category of professional responsibility. On June 4, 1986, Sturgeon discussed with Respondent his most recent absences (May 29th to June 3rd) and the fact that he had not called Ms. Weiner to report them, had not provided lesson plans for two of the days and had still not provided the grade book to the school. The Respondent stated that he would comply with the directives in the future and provide his grade book to the school. Respondent was absent from June 6, 1986 until June 19, 1986. By letter dated June 11, 1986, Sturgeon requested that Respondent provide final examinations for his students and again directed that Respondent furnish the school with his grade book. On June 19, 1986, Sturgeon held a conference with the Respondent. The Respondent had not provided final examinations for his classes (one of the other teachers had to prepare the final exams), had not produced the grade book and had not provided lesson plans for use during his absences. The Respondent indicated to Sturgeon that on occasions, he attempted to contact Ms. Weiner but was unable to get through to her and at other times he forgot to contact her. The Respondent also informed Sturgeon that he was having a personal problem that he could not share with the school, and that the personal problem was having such an effect on him that he didn't feel that he could comply with the directives. On July 17, 1987, a conference was held at the school board's Office of Professional Standards, between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to review Respondent's performance over the previous school year. In Sturgeon's opinion, the Respondent's students had not been graded properly during nearly the entire year, final exams had to be administered which did not adequately assess the students' progress and the students had not reached the course objectives. At this time, the Respondent was a little more specific about the problem that he had mentioned to Sturgeon earlier and stated that he was having a mental problem and that he had experienced a series of traumatic experiences which had affected his ability to attend school. At the conclusion of the July 17, 1987 conference Sturgeon decided to recommend a short term of suspension, a medical examination and a period of controlled monitoring during the next school year. The recommendation was approved by the school board and Respondent was suspended for ten work days beginning the 1986-87 school year and was placed on probation for a 45 day monitoring period. The Respondent did not contest the suspension. 1986-87 School Year The Respondent returned to work from his suspension on September 16, 1987. Classes for the new school year had already commenced. Prior to returning to work, Respondent had gone to school and was given a teacher handbook in biology by Ms. Weiner. Respondent prepared lesson plans and tests based on the teacher handbook he had been given. When Respondent returned to school, he was given a new teacher handbook for biology. Respondent had to re-do all of his lesson plans and tests. In addition, he discovered that none of his classes had been issued textbooks. Respondent also received a folder filled with five classes worth of work for the proceeding 15 days which was assigned by the substitute teacher. On September 29, 1986, Ms. Weiner conducted an observation of Respondent's class. Respondent was rated "acceptable" in five categories but "unacceptable" in the area of assessment techniques. This rating was based on the fact that there was no work done by the students contained in the student folders, his grade book contained only one entry grade per student for only one week and students were allowed to grade other students' essay-type examinations. Weiner gave Respondent a prescription for improving his deficiencies which included the directive that he conduct at least two formal assessments of student progress per week and maintain student folders to keep evaluative items. During October 1986, the Respondent was absent 15 days. Most of the absences were due to a severe intestinal flu which Respondent contracted. The Respondent failed to report his absences directly to Ms. Weiner as previously directed. On some occasions, the Respondent attempted to call Ms. Weiner, but could not get through to her on the telephone. When Respondent was unable to contact Ms. Weiner he would sometimes call the answer phone and leave a recorded message. On October 27, 1986, a conference for the record was held at the Office of Professional Standards between Sturgeon, the Respondent, Dr. Gil and a union representative. The purpose of the meeting was to discuss Ms. Weiner's observation of Respondent, his continued failure to contact Ms. Weiner directly regarding absences and his failure to file emergency plans. On November 3, 1986, Sturgeon conducted an observation of the Respondent's classroom. Sturgeon rated the Respondent "unacceptable" in the area of assessment techniques. This unacceptable rating was based on the fact that Respondent did not have any student folders and had not assigned any homework. School policy required that teachers assigns homework at least twice a week. Respondent was also rated unacceptable in the area of professional responsibility. On November 14, 1986, Ms. Weiner conducted an observation of Respondent's class and rated him "unacceptable" in the area of assessment techniques. The Respondent had no student folders, did not conduct at least two formative assessments of the students per week and there were no summative assessments of the student's progress. The Respondent admitted that he did not have formal folders and that his evaluation techniques were deficient. The Respondent stated that he was unable to employ the student assessment procedures recommended given by Ms. Weiner during the first few months of the 1986-87 school year because he was in the process of "catching up" after his return from suspension and was unable to do all of those things in such a short period of time. In addition, Respondent was hindered in his attempt to catch up because he was unable to have a lot of needed items copied because at times the machines were broken and at other times teachers with current items requiring reproduction were given priority. On November 19, 1986, Petitioner suspended Respondent from his position at Miami Edison Senior High School. Beginning in the 1984-85 school year and continuing through to the 1986-87 school year, Respondent suffered from a dysthymiac disorder referred to as neurotic depression. Respondent's condition was first diagnosed by Dr. Roger Rousseau, a psychiatrist, on May 15, 1986. At the insistence of Dr. Gil, Respondent went to Dr. Rousseau's office for an examination. Dr. Rousseau was chosen from a list provided to Respondent by Dr. Gil. Dr. Gil personally made the appointment for Respondent to see Dr. Rousseau. Respondent at first did not realize or believe that he was suffering from a mental illness and initially resisted the treatment provided by Dr. Rousseau. However, Dr. Rousseau was able to establish a psychotherapeutic relationship with the Respondent after a short period of time. After the doctor-patient relationship was established, Respondent decided to continue seeing Dr. Rousseau and kept weekly appointments from June, 1986 until November, 1986. Respondent was treated with individual psychotherapy and antidepressant medication. In November of 1986, Respondent stopped seeing D. Rousseau because Respondent moved to Atlanta, Georgia, shortly after being suspended. Neurotic depression is a serious mental illness of a cyclical nature which may be physically disabling while the afflicted person is in a pathological state of depression. The symptoms of a neurotic depression include extreme sadness, apathy, lack of motivation, inability to concentrate, psychomotor retardation, insomnia and loss of appetite. Respondent's periods of pathological depression were characterized by feelings of helplessness, hopelessness and an apathy toward outside activities, including his employment. During Respondent's depressive states he would isolate himself at home, withdraw from all social contact, neglect his nutrition and hygiene and suffer insomnia. At times, Respondent would be unaware of the passage of time and would have crying spells. In his depressive condition, sometimes Respondent knew what he was required to do, such as calling in to report an absence, but because of his despair and dejected mood, was unable to motivate himself to do anything. Respondent's apathy and inability to attend to his necessary duties was a direct result of his neurotic depression. Due to the depressive symptomatology, a neurotically depressed person might fail to perform required duties for a number of reasons. As a result of an inability to concentrate, the depressed person may be unable to receive and assimilate instructions. The depressed person having a desire to complete a required duty may lack the physical capacity to perform because mentally he or she feels unable to do so. Further, because of an unconscious, passive- aggressive need for punishment, a depressed person may neglect to perform a required duty. The Respondent was examined by Dr. Albert Jaslow, a psychiatrist, on September 15, 1986 at the request of Dr. Gil of the Office of Professional Standards. Dr. Jaslow confirmed that Respondent was suffering from a mental illness and found that Respondent had made progress with his treatments from Dr. Rousseau. Dr. Jaslow noted that Respondent had reached a state of "relative adjustment" and had begun to realize that it would be necessary for him to be involved in a psychotherapeutic relationship in order to control the negative behavioral aspects of his periods of depression. Dr. Rousseau believes that Respondent responded well to treatment after an initial period of resistance and lack of insight (which is a part of the depressive symptomatology). Dr. Rousseau feels that the Respondent was getting better during the course of therapy but will need to continue taking his medication and receiving psychotherapy in order to fully complete the recovery process and control any recurring symptoms of depression.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that: Respondent be dismissed from employment; however, said dismissal shall be held in abeyance for 2 years from the date of the Final Order contingent on the following: Respondent's present suspension shall remain in effect until the commencement of the 1987-88 school year when Respondent shall return to work; Respondent shall continued treatment with Dr. Rosseau or another qualified psychiatrist of his choice; Respondent shall maintain acceptable performance evaluation reports during the school year, overall acceptable annual evaluations and be recommended for employment by his school principal at the end of the 1987-88 and 1988-89 school years. The Office of Professional Standards, Dade County Board, shall monitor the Respondent's progress and fulfillment of the terms of the Final Order. If the Office of Professional Standards provides information by letter or motion to the school board that the Respondent has failed to meet any of the terms of this Order, the school board shall, if satisfied that the information is correct, immediately effectuate Respondent's dismissal by majority vote. If Respondent meets the requirements of the Final Order, the dismissal shall be remitted without further action. DONE and ORDERED this 28th day of July, 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4805 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Addressed in Procedural Background section. Addressed in Procedural Background section. (No finding of fact 3) Addressed in Procedural Background section. Adopted in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 8. Adopted in substance in Findings of Fact 9, 10 and 11. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 14. Adopted in substance in Finding of Fact 15. Rejected as unnecessary and/or subordinate. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 23. Addressed in Conclusions of Law section. Adopted in substance in Finding of Fact 24. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 6. Adopted in substance in Findings of Fact 8-21. Adopted in substance in Finding of Fact 9. Adopted in substance in Findings of Fact 9 and 10. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 29. Rejected as subordinate and/or unnecessary. Addressed in Procedural Background section. Adopted in substance in Finding of Fact 31. Addressed in Conclusions of Law section. COPIES FURNISHED: Frank R. Harder, Esquire 8360 West Flagler Street Suite 205 Miami, Florida 33144 William duFresne, Esquire 2950 Southwest 27th Avenue Suite 310 Coconut Grove, Florida 331133 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 Northeast Second Avenue Miami, Florida 33136 Dr. Patrick Gray Division of Professional Standards Dade County Public Schools 1550 North Miami Avenue - Suite 100 Miami, Florida 33136 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1550 North Miami Avenue Miami, Florida 33136
