The Issue Whether Respondent committed the offenses alleged in the Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent held Florida Educator Certificate 477777, covering Physical Education and Social Sciences. Respondent’s certificate is valid through June 30, 2005. At all times relevant to this proceeding, Respondent was employed by the Palm Beach County School Board and assigned to a classroom at BRHS, where he taught psychology and history. In recent years, Respondent has taught advanced placement classes. The evidence established that Respondent is well-liked by students, parents, and faculty. The present principal of BRHS, who was not at the school during the 1985-86 or 2001-2002 school years, considers Respondent to be an asset to the school. FACTS PERTAINING TO K.P. AND B.K. Prior to the end of the 1985-86 school year, Respondent invited several female senior students to join him for dinner in celebration of their upcoming graduation. Respondent was 33 years old at that time. Each of these females was either 17 or 18-years-of-age. K.P. (now known as K.F.) was 17 and B.K. (now known as B.M.) was 18. K.P. and B.K. were invited to and attended the dinner and subsequent celebration. The dinner invitations were extended by Respondent, who was their teacher, during the school year. There was a conflict in the evidence as to when this dinner engagement occurred.2 That conflict is resolved by finding that the dinner engagement occurred at the Cork and Cleaver restaurant in Boca Raton prior to the graduation ceremonies for the class of 1986. At least four female seniors were invited to Respondent’s celebration. K.P., B.K., and two other female students attended the dinner. All four of the students consumed alcohol at the restaurant that was purchased by Respondent. Respondent knew that the drinking age was 21 and he knew that each of the girls was under that age. Respondent also consumed alcohol at the restaurant. Following the meal, K.P. and B.K. sat on a bench outside the restaurant and continued to drink alcoholic beverages with Respondent. After approximately five bottles of champagne and/or wine had been consumed, Respondent K.P. and B.K. went from the bench outside the restaurant to Respondent’s house. The three of them were alone in Respondent’s house for several hours. At Respondent’s house they drank four to five additional bottles of wine. The quantity of alcohol consumed by Respondent, B.K., and K.P. that evening impaired their judgment. By all accounts, K.P. was inebriated and incapable of consenting to the acts that followed. Both B.K. and K.P. were excellent students who had little or no experience with alcohol. During the 1985-86 school year, K.P. had been a member of BRHS’s varsity teams in basketball, volleyball, and softball. During that school year, B.K. had been a member of BRHS’s varsity tennis team. After K.P. became inebriated, Respondent and K.P. went to Respondent’s bedroom where Respondent had inappropriate sexual relations with her. There was a conflict in the evidence as to whether Respondent had sexual intercourse with K.P. K.P. testified, credibly, that Respondent had sexual intercourse with her and that she suffered bleeding and discomfort the following day. K.P. also testified, credibly, that she had been a virgin up until that evening. Respondent admitted that K.P. was with him in his darkened bedroom with little or no clothes on, but he denied having sexual intercourse with her. Respondent admitted that he fondled K.P.’s breasts and engaged in what he described as “heavy petting.” The undersigned finds Respondent’s denial that he had sexual intercourse with K.P. also to be credible. In view of conflicting, credible testimony and the absence of corroborating evidence to substantiate the fact of sexual intercourse as opposed to the fact that there was the opportunity for sexual intercourse, the undersigned is constrained to conclude that Petitioner did not prove by clear and convincing evidence that Respondent engaged in sexual intercourse with K.P. Petitioner established by clear and convincing evidence that K.P. did not consent to Respondent’s inappropriate sexual behavior because she was too intoxicated and too young to do so. Respondent knew or should have known that K.P. was incapable of consenting to his behavior. After Respondent and K.P. entered Respondent’s bedroom, B.K. left Respondent’s house and drove around the block in her car for approximately 20 minutes. Because she was concerned about K.P., B.K. returned to Respondent’s house. When she returned to Respondent’s house, B.K. looked for K.P. She stepped into the doorway of Respondent’s bedroom and saw Respondent and K.P. in bed together. K.P. was not fully clothed, and the clothes she had on were in disarray. K.P. told B.K. to come in and get in the bed with them. K.P. grabbed B.K.’s arm and pulled her toward the bed. B.K. entered the bedroom and briefly lay on the bed with Respondent and K.P. Shortly thereafter, B.K. got up and left Respondent’s bedroom. Because she was feeling dizzy, B.K. lay down on a mattress in another bedroom. There was a conflict in the evidence as to what next occurred. It is clear that K.P. either intentionally cut herself or accidentally opened a cut on her hand. Respondent testified that K.P. accidentally opened up a cut on her finger while in his bedroom and then went to the kitchen. K.P. testified that she went from Respondent’s bedroom to the kitchen and intentionally cut herself in reaction to what had happened with Respondent. How the cut occurred is not relevant. It is relevant that Respondent went in the kitchen and helped K.P. stop the bleeding. After leaving the kitchen area, Respondent observed B.K. lying on the mattress in the second bedroom. He lay down on the mattress with B.K. with his body touching hers. He tried to kiss B.K., but she resisted his efforts. Respondent engaged in inappropriate sexual behavior with B.K. by lying next to her with his body in contact with hers and trying to kiss her. Respondent was obviously attempting to sexually arouse B.K. When K.P. saw Respondent and B.K. together in the second bedroom, she yelled at B.K. that they needed to get out of Respondent’s house. B.K. and K.P. then exited Respondent’s house and they returned to their respective homes in B.K.’s car without further incident. The next day, Respondent contacted B.K. and K.P. separately and apologized to them for his conduct. Respondent also apologized to B.K. for his conduct with K.P. Respondent stated that he had been unable to resist their athletic bodies. Respondent gave each of these girls a pair of diamond earrings as a gift. K.P. and B.K. did not report these events to any authority figure until 1993.3 As a result of difficulties K.P. (then known as K.F.) was having with sex in her marriage, she and her husband underwent counseling. It was during a session she and her husband had with their therapist that she revealed the events of the evening in 1986. Her husband, a teacher, felt obliged to report the incident to the Palm Beach County School District, which he did without naming K.P. and B.K. as being the students involved. His wife became upset when she learned of the report. After further reflection, K.P. revealed to the Palm Beach County School District that she and B.K. were the students involved with Respondent on the evening in question. The Palm Beach School District investigated the allegations, but it did not report these allegations to Petitioner. Petitioner learned of these events during its investigation of the facts pertaining to K.S. FACTS PERTAINING TO L.E. L.E., a female, graduated from BRHS in 1986. Respondent met L.E. when she was a freshman at BRHS and he subsequently became attracted to her. During her senior year, Respondent offered tickets to a Miami Dolphins football game to L.E. and other students as a reward for helping him grade papers in the class they took from him. Before she graduated, Respondent told L.E. that after she graduated he wanted to take her to dinner. There was insufficient evidence to establish that Respondent engaged in an inappropriate relationship with L.E. before she graduated. After she graduated, Respondent treated L.E. to dinner,4 gave her a pair of diamond earrings, and told her he wanted to be more than friends. Later during the summer of 1986, Respondent and L.E. went to Marathon, Florida, together and also traveled to San Francisco, California, at Respondent’s expense. DISCIPLINE PERTAINING TO K.S. K.S., a female, attended BRHS for her freshman through her senior years. She graduated in 2003. Respondent was K.S.’s history teacher in her junior year and her psychology teacher her senior year. During the 2001-2002 school year, K.S. confided certain personal family matters to Respondent. Thereafter, Respondent engaged in inappropriate conduct toward K.S. On at least five occasions toward the end of the 2001-02 school year Respondent came to her place of employment (a Kmart) looking for her. On one occasion he left her a gift of a cheesecake and on another he left a bag of M & M candy as a gift. These visits upset and frightened K.S. At the beginning of the 2002-03 school year, Respondent physically hugged K.S. when he first saw her in his psychology class. On several occasions Respondent put his hands on K.S.’s shoulders and massaged them. On one occasion he rubbed her hair. This type physical contact continued even after K.S. told Respondent not to touch her. On one occasion Respondent referred to K.S. in front of her classmates as being his “baby.” Respondent’s conduct upset and embarrassed K.S. K.S. complained to Robert O’Leath, a dean of students at BRHS, about Respondent’s behavior. Following an investigation of these allegations, the School Board of Palm Beach County suspended Respondent’s employment without pay for a period of ten days and required him to attend diversity and sensitivity training. Respondent did not contest this discipline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further recommended that the final order permanently revoke Respondent’s educator certificate. DONE AND ENTERED this 25th day of February, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2005.
The Issue The issue to be presented is whether Respondent failed to maintain good moral character as alleged in the Administrative Complaint, in violation of Section 943.1395(7), Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was certified as a law enforcement officer by the Florida Department of Law Enforcement, having been issued certificate number 281123. Respondent was employed by the City of Madison Police Department from December 2008 through July 2009. At the beginning of 2009, Respondent was 23 years old. Sometime in late December 2008 or early in 2009, Respondent received the telephone number for E.B.H. from Paige Bell, a friend of E.B.H.'s. At the time Ms. Bell gave Respondent E.B.H.'s number, E.B.H. was 16 years old. Respondent knew that E.B.H. was under the age of 18. Although the exact time-frame of the communications is unclear, in approximately January or February of 2009, Respondent and E.B.H. texted and called each for a one to two-week period. They never met in person. During their short period of communication, the two sent each other pictures of themselves so that each knew what the other looked like. E.B.H. testified that the first pictures sent were normal photos where she was clothed. After receiving those, she testified that Respondent asked her for "sexy" photos of herself wearing no underclothing. In response, E.B.H. sent him two pictures of herself, either nude or partially nude. The communication between Respondent and E.B.H. was brief, lasting no more than a few weeks. Once E.B.H. learned that Respondent was a law enforcement officer, she stopped texting him because she did not want either of them to get in trouble. Sometime after the texting stopped, the police chief for City of Madison Police Department received an anonymous complaint alleging that Respondent had possession of nude pictures of a minor female. On July 7, 2009, Sergeant Benton Ebberson was assigned to conduct an internal investigation in response to the complaint. As part of his investigation, Sergeant Ebberson spoke to several individuals who did not testify at hearing. What those individuals told him during the investigation is clearly hearsay. However, from these interviews, Sergeant Ebberson was able to gather enough information to get descriptions of the photos and identify E.B.H. as the subject of the photos. As a consequence, Sergeant Ebberson located and, with the permission of her parents, interviewed E.B.H. She admitted sending the photos to Respondent, but no longer had possession of the phone from which the texts were sent or copies of the pictures. Her father had discovered her actions and the pictures earlier in the year, and had deleted the photos and confiscated her telephone. Respondent also was interviewed as a consequence of the internal investigation. Consistent with the information he gave during his interview, he denies asking for the photos and claims E.B.H. sent them to him on her own volition. Whether he asked for the pictures is not particularly relevant. There is no dispute that E.B.H. sent and Respondent received at least two pictures of E.B.H. in which E.B.H. was wearing little or no clothing. Respondent claims that, while he received the pictures and looked at them, he did not know they were pictures of E.B.H., and therefore a minor, because the pictures did not include her face. However, he knew that the pictures were received from E.B.H.'s telephone number. Respondent did not report receiving the pictures to either his supervisors or to E.B.H.'s parents. Respondent also claims that upon receiving the pictures, he simply deleted them. His testimony to this effect is not credible. E.B.H. testified credibly that while she had sent inappropriate photographs to a former boyfriend on a separate occasion, she had sent these photographs to Respondent only. Regardless of the possible motives involved for complaining, it makes no sense that anyone would be able to complain to the police department and that the photos could be described in sufficient detail for Sergeant Ebberson to be able to locate E.B.H. unless Respondent either talked about receiving the photos or showed the photos to someone else. The photos, however, are not in evidence. E.B.H. knew she was either completely nude or only partially dressed, but could provide very little other information about the photos. No evidence was presented to indicate that the photos included a depiction of sexual conduct.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 14th day of December, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2010. COPIES FURNISHED: Kerra A. Smith, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ernest M. Page, IV, Esquire Post Office Box 167 Perry, Florida 32348 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Petitioner committed the violations alleged in the Administrative Complaint dated October 25, 2004, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Education Practices Commission ("EPC") of the Department of Education is the state agency with the authority to suspend or revoke the teaching certificate of any person holding such a certificate in the State of Florida. § 1012.795(1), Fla. Stat. The Commissioner of Education is the state official responsible for making a determination of probable cause that a teacher has committed statutory or rule violations based on the investigation conducted by the Department of Education. § 1012.796, Fla. Stat. Mr. Mitchell holds Florida Educator's Certificate No. 715339. At the times material to this proceeding, Mr. Mitchell was employed as a teacher by the Palm Beach County School Board.3 T.P. was born on March 19, 1984, and she was a student at Palm Beach Lakes High School in January 2000. T.P. met Mr. Mitchell in January 2000. At the time, Mr. Mitchell was 29 years old and was a teacher at J.F.K. Middle School. T.P. withdrew from school in June 2000. Mr. Mitchell and T.P. applied for a marriage license on July 28, 2000, and were married on September 25, 2000. On May 29, 2001, T.P. gave birth to a son, who was Mr. Mitchell's child.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing all charges against Michael Mitchell. DONE AND ENTERED this 1st day of June, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2007.
