The Issue Should discipline be imposed on Respondent's Florida Educator's Certificate No. 611934, based upon the allegations in the Administrative Complaint, Case No. 990-1149-R, before the State of Florida, Education Practices Commission?
Findings Of Fact STIPULATED FACTS Respondent holds Florida Educator's Certificate No. 611934, covering the areas of History and Physical Education, which is valid through June 30, 2004. At all times pertinent hereto, the Respondent was employed as a social studies teacher at Sandalwood High School (Sandalwood) in the Duval County School District. ADDITIONAL FACTS Morgan King was a female student at Sandalwood at times relevant to the inquiry. Following her marriage she is known as Morgan Hall. Although Ms. Hall was not a student in Respondent's classes at Sandalwood, she became acquainted with Respondent. Ms. Hall's involvement with Respondent was principally during sixth period of the school day. At that time Ms. Hall would routinely leave her history class at the end of the period and go to Respondent's classroom where she had many friends. When Ms. Hall arrived at Respondent's classroom Respondent and the students, to include Ms. Hall would "hangout and talk." Some of the conversations that Ms. Hall participated in with Respondent and other students in his classroom were of a sexual nature. These conversations followed an earlier conversation in a prior year when Respondent told Ms. Hall a story about a girlfriend that he had when he was a young teenager. He explained that he and the girlfriend would stay up all night together. The girlfriend had kids. Respondent told Ms. Hall about the sexual relations which he had with the girlfriend while Respondent was a teenager. Beyond that conversation, while in his classroom at Sandalwood Respondent followed the theme in his discussion with Ms. Hall concerning sleeping with numerous women, so many women that he could not remember how many he had slept with. He went on to comment to Ms. Hall that when you are married you could not do that, but it was acceptable conduct before marriage. Respondent's comments to Ms. Hall about having sex with a girlfriend before marriage and about the number of women he had slept with before marriage were voluntarily remarks made to Ms. Hall. She did not begin the discussions. Respondent told Ms. Hall about another female student that had come to his classroom after other students had left and flipped up the backside of her skirt revealing the thong underwear she was wearing. While in this classroom in sixth period, friends of Ms. Hall would make fun of her by talking about her "backside," saying that she had a "big butt." Respondent would participate in the conversation, remarking in what Ms. Hall considered to be a joking manner, about Ms. Hall's "butt being big." This comment was made by Respondent a few times. Ms. Hall had conversations with Respondent that insinuated discussion about his penis. As Ms. Hall perceived it, part of what he said was something to the effect that Respondent "could suck his own penis." Ms. Hall in response to Respondent's remarks of a sexual nature would tell him that, "You are a sick old man. That's gross." She would make these comments in a joking manner, but at the same time recognizing that this was a serious matter. She did not want to be rude and offend Respondent, thus the lighter nature of her remarks. On one occasion while in Respondent's classroom, Ms. Hall was sitting on the floor next to his desk against a cabinet. Ms. Hall asked Respondent why it was so cold in the room. He replied, "You know why I like it to be cold, you know why I want it to be cold," while raising his eyebrows. Ms. Hall described how other girls would sit hanging over Respondent's desk with their "boobs are like right there in his face. And everybody's nipples are hard." That was the circumstance that caused Respondent to raise his eyebrows. On the subject of female students being around Respondent's desk in his classroom, Ms. Hall perceived that those students felt comfortable around Respondent. Respondent created the impression that he was like a friend to Ms. Hall and other female students. He was enjoyable company, according to Ms. Hall. She described his conduct as being disgusting a little of the time, but not all of the time. In these exchanges Respondent allowed the female students to act disgusting in their own right. The discussions of a sexual nature at times were promoted by Respondent, at other times they were promoted by the students. Ms. Hall discussed a computer website entitled "Banged Up.com" with Respondent in the classroom. That website contains subject matter with sexual connotations. Debra Coleman was another student at Sandalwood during the relevant time period. She was in Respondent's tenth grade world history class. She had conversations with Respondent of a sexual nature. Ms. Coleman went to Respondent to talk to him about her sex life. Other students talked to Respondent about sex in her presence. Respondent was open to those conversations. Respondent made a comment to Ms. Coleman and other female students, that if they did not do their work he was going to spank them and that they would like it. On one occasion Ms. Coleman was allowed to have an extended lunch period following a discussion in which Respondent asked her if he could bite her lip. She said, "No." Respondent then reached up and pinched her bottom lip. On another occasion when Ms. Coleman was in Respondent's class, Brandie Brinksma, a female student was sitting next to her. Respondent pulled out a money clip. In addressing the female students he said, "I'll give you $500 if you, Brandie, turn to your right and kiss Carrie on the cheek. And, Carrie, I want you to then turn around and act like you are going to kiss her on the cheek and instead of just kissing her on the cheek like, Brandie will turn her head." And beyond that point the students would "start making out." Ms. Coleman was offended by those remarks from Respondent. She got mad and walked out of class. She had never walked out of class before. What Respondent said to the two students was stated in front of the entire class. During one instance when Ms. Coleman was at Respondent's desk in the classroom, a Coke can was on the end of Respondent's desk. Respondent told Ms. Coleman to pick up the Coke can. Respondent placed a measuring ruler next to the Coke can and stated "Imagine 9 1/2 inches of that, going up you," while indicating the measurement on the ruler. Ms. Coleman turned red and responded something to the effect "O.K." and went back to her seat. That measurement was perceived by Ms. Coleman to refer to Respondent's penis. In classroom, in Ms. Coleman's presence, Respondent made a comment about his ability to "Suck his own penis" in the shower, to the effect that "He was able to go down on himself." Some of the male students in the class commented that this physical dexterity was not possible. Respondent commented that he was able to perform this act on himself, but that he had not done it in a while. In April 2000, Aron Muse was the affirmative action supervisor/equal employment opportunity coordinator for the Duval County School Board. He was assigned to investigate Respondent's conduct on the subject of Respondent's conversations with the students concerning sexually related topics. Respondent told Mr. Muse that he was a friend of the students and he was trying to assist them in life in discussing subjects of a sexual nature and that he intended to direct the students in a proper way. Respondent told Mr. Muse that some of his conversations involved sexual jokes. These discussions with students pertain to a bond which the students and Respondent had, according to Respondent. As Respondent told Mr. Muse, the discussions about sexual matters were "nothing personal." Brandie Brinksma was a student of Respondent's at Sandalwood. She is referred to in the Administrative Complaint as B.B. One of her friends was worried about her while she was attending school, concerning Ms. Brinksma's use of drugs and having sex. It is reported that the friend of Ms. Brinksma went to Respondent and asked that Respondent say something to Ms. Brinksma to let Ms. Brinksma know that those were not good choices on her part. Respondent took Ms. Brinksma aside and asked if he could talk to her. Respondent remarked that the other student was worried about Ms. Brinksma's conduct. Respondent advised Ms. Brinksma to think about the consequences of her acts. Although this discussion concerning drugs and sex was not at the instigation of Ms. Brinksma's parents or the school district, Ms. Brinksma was not offended by the discussion with the Respondent. More specifically, in the conversation between Respondent and Ms. Brinksma, Respondent mentioned that he had heard that Ms. Brinksma had been "trippin." This is a term attributable to the other student who had arranged the conversation between Respondent and Ms. Brinksma. Ms. Brinksma told Respondent that she had been having sex and that she had tried the drug Ecstasy once. At times relevant Susan Tidwell, formerly Susan Tabor, was a teacher at Sandalwood. She was acquainted with Respondent. Respondent said "a lot of sexual things" to Ms. Tidwell. One of the Respondent's actions would be to show his bicep by flexing it in Ms. Tidwell's presence. He would say, "If this is this big, guess what else is." This was perceived by Ms. Tidwell as an insinuation that was sexual in nature. Respondent said to Ms. Tidwell on more that one occasion that he wanted to "See Ms. Tidwell in black straddling . . . " and then he would pause for the effect, and add, "a Harley," referring to a motorcycle. Respondent told Ms. Tidwell that he wanted her to lose her "good girl image" and that black leather would be what he wanted to see her in. Respondent told Ms. Tidwell one time that he wanted her to advertise for his lawn service business and that all she had to do was to sit in the back of his pickup truck with a bikini top and that would drum up business. Respondent told Ms. Tidwell at school, "Hey Susan, do you know why God gave women vaginas." She responded that she did not want to hear his joke. As she left a workroom at the school when the bell rung, Respondent continued to insist that Ms. Tidwell listen to the punch line of the joke. While in the hall he delivered the punch line which was "So men would talk to them." Ms. Tidwell was not amenable to hearing the ending to the joke either. Respondent, while Ms. Tidwell and another female teacher Christie Allen were in a school workroom with him, told the two female teachers that he had a fantasy about being stranded on a desert island with the two of them, so that they could be on an island full of "little cookies." Ms. Tidwell was bothered by Respondent's remarks that have been reported and somewhat embarrassed to that point in time. Later in Respondent's classroom, Respondent told Ms. Tidwell that he had talked to the class about her pending divorce. In this conversation he said, "I guess it has been a long time since you had any, so let me know if you need something." Another part of the discussion at that time involved some reference by David E. McConnell, a former teacher at Sandalwood who was visiting the school and was in Respondent's room. Mr. McConnell brought up Respondent's lawn business and commented that Ms. Tidwell needed her lawn done. In response Respondent said to Ms. Tidwell "You know I have something you need, you have something I need." Then he grabbed his crotch. Ms. Tidwell considered the circumstances that took place in Respondent's room on that occasion to be intolerable. Ms. Tidwell reported Respondent's conduct to her school department head and to the assistant-principal at the school, which led to an investigation by the Duval County School District.
Recommendation Based upon the Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Counts 2 through 5, dismissing Count 1, and permanently revoking Respondent's educator's certificate. DONE AND ENTERED this 7th day of November, 2003, in Tallahassee, Leon County, Florida. S __ CHARLES C. ADAMS 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 7th day of November, 2003.
The Issue The issue in this case is whether the district school board has just cause to dismiss the Respondent from employment, pursuant to section 1012.33(1)(a), Florida Statutes.
Findings Of Fact Petitioner first hired Respondent in January 1990 as a substitute teacher. In 1992, Petitioner changed Respondent's status to a permanent teacher. Respondent began teaching at Miami Coral Park Senior High School in January 1996, but left from 2000 to 2004 to teach in Collier County. Upon return to Petitioner's school system for the 2004-05 school year, Respondent was assigned to a different high school, but later transferred to Coral Park when this school needed a basketball coach. In addition to coaching basketball during the 2008-09 school year, Respondent co-taught a math class. One of Respondent's math students was J. V., who was born on April 10, 1991. She started attending Coral Park Senior High School mid-way through her sophomore year in 2008 after moving to Miami in August 2007. She turned 18 in the spring of her junior year and graduated from Coral Park on June 10, 2010. After graduating, J. V. enrolled in a local community college and published a novel that is sold by Barnes & Noble bookstores. During the 2008-09 school year, J. V.'s contact with Respondent involved typical student-teacher interactions in the classroom, hallways, and other school settings. They had exchanged cell phone numbers and spoke on the phone once or twice per month and texted each other with the same frequency. The record does not describe the nature of these communications, but the record fails to suggest any impropriety in the relationship during J. V.'s junior year. During the 2009-10 school year, J. V. was not assigned to any of Respondent's classes, but she began to visit him in his classroom in the morning before school started. The frequency of these visits varied from zero to three times per week. During these visits, J. V. and Respondent talked about her family, her social life, and some of her medical issues, including the fact that she was being treated for depression. J. V. also told Respondent that she might have ovarian cancer, although she later learned that she merely had a cyst. While attending Coral Park, J. V. was living with her aunt, who had become her legal guardian. J. V.'s relationship with her aunt was strained at times. J. V.'s mother was living in the Dominican Republic, and her father, with whom her mother did not wish her to live, resided in New York. During the 2009-10 school year, J. V. and Respondent exchanged numerous cell phone calls and texts, at nearly all hours of the day and night. Although J. V. initiated most of the calls and texts and Respondent did not respond to all of her calls and texts, Respondent never asked her to stop calling and texting him. Their relationship intensified in October or November of J. V.'s senior year. J. V. has testified that she and Respondent had sexual intercourse. Respondent testified that they did not. Neither witness is a model of veracity. J. V. embellished her story with dates that did not occur and was not perfectly clear in her recollection of the details of Respondent's condominium and tattoo. As noted below, Respondent repeatedly encouraged J. V. not to testify, to avoid being served with a subpoena, and, if served, to ignore the subpoena. Regardless whether sexual intercourse took place, the relationship between J. V. and Respondent, by the end of 2009, became excessively intimate for what is appropriate between a teacher and a student and included some form of sexual activity. A series of texts from Respondent to J. V. in late March or early April 2010 reveal the intimacy that had arisen between them: "I wanted 2 jump u," "2 many eyes!," "Muah," "Im in da gym if u can pass by," "It would have been hard," and “I'l b here." The time devoted to remote communications between Respondent and J. V. provides some basis for assessing the nature of their relationship: from October 2009 through November 2010, Respondent and J. V. exchanged over 1600 texts and consumed over ten hours in phone conversations. Without success, Respondent tried to explain the more incriminating of the texts sent in March or April 2010 from his cell phone. Respondent testified that these texts were sent by an unauthorized user of his phone, probably a member of his basketball team. It is difficult to understand why a player would risk the wrath of his coach, but the absence of any response from J. V.--either to the principal or Respondent-- following receipt of the first of these texts suggests that the relationship of Respondent and J. V. had already involved some form of sexual contact. One also finds indirect proof of an intimate relationship in the conduct of Respondent following Petitioner's decision to initiate dismissal proceedings against him. To credit Respondent's version of events, for the sake of discussion, he was confronted by a student's accusations of sexual intimacy that were a total fabrication. His response was to encourage her to engage in more dishonesty, rather than merely to tell the truth. Even if Respondent's version of events concerning the lack of intimacy were credited--and it is not--his subsequent conduct, as amply documented by numerous texts discussed in detail below, constitutes a startling lack of honesty in professional dealings and disregard for the mental health of a former student. Shortly after receiving an allegation that Respondent was engaged in a sexual relationship with J. V., on April 9, 2010, Petitioner removed Respondent from Coral Park and placed him on alternative assignment in a district office. By letter dated April 9, 2010, Petitioner advised Respondent of the nature of the charges, including the initials of the student, and ordered Respondent not to have any contact with the complainant or witnesses with an intent to interfere with the investigation. On April 10, 2010, Respondent and J. V. met at a club known as Mama Juana's; according to both of them, the meeting was by chance and little was said. However, ignoring the directive not to speak with witnesses, Respondent told J. V. that he was being investigated for having a relationship with her and showed her a letter from Petitioner that, supposedly, Respondent happened to have with him at the time of this chance meeting. There is insufficient evidence to find that Respondent and J. V. are lying about the circumstances leading up to the meeting or what was said during it. By letter dated June 4, 2010, which was delivered to Respondent during a conference-for-the-record held on that date, Petitioner again ordered Respondent not to contact any of the parties involved in the investigation. By letter dated August 25, 2010, Petitioner advised Respondent that the Superintendent would be recommending to the School Board, during its meeting of September 7, 2010, that it suspend Respondent without pay and initiate dismissal proceedings against him. By letter dated September 8, 2010, Petitioner advised Respondent that the School Board had taken these actions. Upon receipt of the September 8 letter, Respondent testified that he resumed communicating with J. V. who, by this time, had graduated from high school. In fact, Respondent had received a call from J. V. on September 5 and had spoken with her for 70 minutes until nearly midnight that night. On October 5, J. V. again called him, and they talked for 41 minutes. Other lengthy calls--each about 15 minutes--were initiated by J. V. on October 16, 2010, and January 6, 2011. However, there were few, if any, communications between Respondent and J. V. for five months following their meeting at Mama Juana's on April 10. On September 11, 2010, Respondent texted J. V.: "I got suspended w/o pay. Basically fired!" J. V. replied, "Whoa! Wait, now what?! Hon?" After a couple of more exchanges, in which Respondent stated that he would have to go to trial, J. V. asked, "Is there anything that I can actually do to help you out?" Respondent's reply: "Of course. No matter what happens dont show up if they talk 2 u. Not even if they suebpena [sic] u. They cant do anything if [sic] 2 u dont go." J. V. replied, "Anything there is to do, I suppose, i'll do to help you out. I dont want you to stay in this mess. . . . I still care about you tons, I just wanted you to know that :p." This is a remarkable exchange of texts. Respondent baldly asked J. V. to ignore a subpoena. J. V. scrupulously conditioned her willingness to help with "I suppose." Here, Respondent was asking J. V. to behave dishonorably, and J. V., his former student, displayed some misgivings, as she apparently was wrestling with her loyalty to Respondent and her desire to behave honorably. This is a repulsive perversion of the role of the educator. Although J. V. was no longer a student in Respondent's school, Respondent was still a member of the education profession, and, in his dealings with J. V. and Petitioner, he was continuing to deal with a matter that involved the discharge of his professional duties. On September 18, 2010, Respondent initiated another series of texts, but these involved unremarkable matters, such as how J. V. liked college and a job that she had recently started. On September 24, 2010, J. V. initiated a series of texts with "Hello lost :p." Respondent answered, "Hey, me? Cabrona since now u have a bf [boyfriend] u dont have time 4 me!" When J. V. texted that she was "not afraid of the dark, im just afraid of staying alone, period," Respondent responded, "I m not offering any services any more." Respondent testified that he was referring to math services, but, given the circumstances, this explanation is impossible to credit. On the other hand, the services were as likely those of a trusted counselor as of a sexual partner. The text of J. V., however, displays the vulnerability of Respondent's former student, even though nearly one year had passed since the intensification of their relationship to inappropriate levels. The next day, Respondent renewed the texting exchange. J. V. texted that a certain singer "literally places you in my head." Respondent answered, "Thats a good place 2 b. I thought u didnt anymore." J. V. declaimed that she thinks too much, and Respondent answered, "Then why havent u let me c u [see you]?" J. V. replied, "Because i know that is all I am gonna be allowed to do, just see you. And I don't know if that's okay with you." Respondent responded, "It be nice 2 cu though. Even 4 a short while." J. V. agreed, and Respondent replied, "Since now u r da complicated 1 u let me know when." J. V. promised she would and quickly asked what Respondent was up to. Respondent texted, "Let me know if they try 2 get in cotact [sic] w/u? They should b setting a date 4 da hearing soon." Injecting the same element of doubt that she had raised when she offered, on September 11, to help Respondent, J. V. texted, "I seriously doubt that [they will get in contact with me]. But i'll let you know in case they do, i suppose (emphasis supplied)." These texts lend support to the finding that the relationship between Respondent and J. V. was inappropriately intimate during her senior year. It appears that one of them broke if off, possibly over the objection of the other. J. V.'s second use of "I suppose" revealed again her ambivalence about the situation in which Respondent had placed her in asking her not to cooperate with Petitioner's prosecution of its case against him. As J. V. continued to wrestle with her loyalty toward Respondent and unwillingness to behave dishonorably, Respondent steadfastly toyed with her emotions, such as by saying that it felt good to be in her thoughts, and he did not think she thought of him anymore. The next day, after midnight, Respondent renewed the text exchange again by texting, "143." He explained that this was beeper code for "i love you." J. V. replied with a beeper code consisting of the less-intense message, "thinking of you." Except for a congratulatory text, probably for the publication of J. V.'s novel, the next text exchange took place on October 13, 2010, in which J. V. apologized for calling so late, but wanted to know if Respondent could meet her the following night. They agreed to meet instead after lunch on the following day. The following day, they agreed to postpone the meeting until the following week. On October 15, 2010, the Administrative Law Judge issued a Notice of Hearing, setting the final hearing for January 26, 2011. As noted above, a lengthy telephone conversation between Respondent and J. V. took place the next day. On October 26, 2010, Respondent texted J. V.: "My lawyer friend said that 4 da subpoena they have 2 give it in ur hand. So if y dont answer the door if they show up, they cant leave it there. Nd if someone asks y if y r [J. V.] simply say no." As they exchanged texts about a basketball game that was being played, J. V. texted that she preferred baseball, and Respondent replied, "Bat nd balls huh?" J. V. answered "Lol [laughing out loud] :p silly!" She accused him, in Spanish, of a bad thought, and Respondent disingenuously asked, "What did i say?" Then he texted, "Lol." This series of texts represent a remarkable confluence of Respondent's inducing J. V. to dishonesty and engaging in sexual teasing. The remark about a bat and ball was a reference to male genitalia. Surprisingly, Respondent did not deny the sexual connotation of this text, but somehow tried to dismiss it merely as a joking "sexual innuendo." The freedom that Respondent felt to engage in sexual innuendo with a former student betrayed the inappropriate intimacy of the relationship that they once shared--while she was still a student. J. V. initiated a text exchange of Halloween greetings on October 31. On November 8, 2010, J. V. initiated another text exchange by asking how Respondent was doing. He asked how school, work, and her boyfriend were. J. V. typed that all were fine, and Respondent replied, "I m happy 4 u!" However, J. V. texted that there "are certain things that i have to deal with." Respondent texted her to call him. On November 17, 2010, Respondent initiated another text exchange in which he again asked about work, school, and her boyfriend. J. V. replied that all was fine, but her father was in the hospital. The next day, J. V. texted Respondent: "I really have to speak to you but i'll do it after i get out of class:( im so sorry." When Respondent texted her to explain, J. V. responded, "Because im really placed against the wall." Respondent answered: "What do u mean. I m the 1 that has lost everything. Nothing could happen 2 u if u say nothing happened! What r u thinking about doing? Destroying my [rest of message lost]." J. V. replied, "Omg [Oh, my God]! Screw you for saying that as if you'd know me that little to ever think that's something i'd consider doing to you!" She added, "I'll call you once i get home, at 9." Respondent added that he was watching a football game in a bar and "This is killme though. Please let me know!" J. V. responded that, when Respondent had some time to call, he should do so. With this text of apology, J. V. was informing Respondent that she had resolved the dilemma in which Respondent had placed her, and she had decided to tell the truth, rather than behave dishonorably. Casting his professional obligations aside, Respondent tried to dissuade her from telling the truth by turning the focus to himself and his need for her to lie and cover up. Obviously, Respondent's plea for J. V. to say that nothing happened implies that something happened. And the something had to be substantial--i.e., sexual contact, rather than merely excessive texting between a teacher and student--for Respondent to have felt the need to have J. V. conceal the truth. The next day, Respondent initiated a text exchange by stating: "Sorry 4 my reaction but please put urself in my shoes 4 da past 7 mos. I've lost everything that i valued nr u r worried about ur fam finding out. Idk wh [sic]." J. V. did not respond to this text. Obviously, this text was not an apology for asking J. V. to behave dishonorably. Instead, Respondent asked J. V. to identify with his situation. He was sorry merely for having lost his composure and possibly alienating J. V. On November 26, 2010, J. V. initiated a text exchange about holiday shopping. The next day, evidently in response to a telephone call, Respondent texted: "I cant get mad at u. I m just scared out of my mind about what the outcome could be! Thank you 4 assuring me." Three days later, Respondent texted birthday wishes to J. V. On November 30, 2010, J. V. suggested that they get together and have lunch "one of these days." Respondent agreed, but no date was set. On December 1, 2010, J. V. texted Respondent, as well as a number of others, that her book was available for purchase, and he texted congratulations. On December 14, 2010, J. V. texted a friend: "I'm alright most of the times lol. Having a bf has helped me a lot. I'm not alone anymore missing the teacher :(" What this text lacks in detail it makes up for in candor. It is the most direct evidence of the emotionally vulnerable condition of J. V. immediately after Respondent insisted that they stopped seeing each other in April 2010. J. V. initiated the next text exchange on January 4, 2011, when she sent new year's greetings to Respondent. When she asked how he was doing, Respondent replied, "I m ok but getting very anxious over the hearing coming up soon!!" J. V. texted that no one had been in touch with her, but Respondent assured her that she would get something soon. He asked her, "Do you have any idea what you are going to do for the hearing?" J. V. answered, "I'm not gonna do anything." Respondent replied, "We'll talk before then." On January 5, J. V. called or texted Respondent, who replied for her to call him that night. She texted that she would, and he responded, evidently in reference to a phone message, "What are you fuzzy about?" J. V. answered: "The lawyer that always calls from the school board called me not too long ago, that's all." When it became apparent that J. V. could talk then on the phone, the texts ended, evidently so Respondent and J. V. could talk on the phone. As noted above, a lengthy telephone conversation took place between Respondent and J. V. the next day. Sometime during January 2011, J. V. and Respondent spoke by telephone, and Respondent warned her that the authorities would be able to retrieve her text messages. One may safely infer that Respondent was unaware previously of the availability of such data or the ability of Petitioner to supplement its pleadings to add as grounds for dismissal acts and omissions taking place after the initiation of the case against him.
Recommendation It is RECOMMENDED that the School Board enter a final order dismissing Respondent from employment on the ground of misconduct in office. DONE AND ENTERED this 3rd day of August, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 3rd day of August, 2011. COPIES FURNISHED: Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Lois Tepper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Lynn Abbott, Agency Clerk Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Christopher La Piano, Esquire School Board Attorney’s Office School Board of Miami-Dade County 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 Teri Guttman Valdes, Esquire 1501 Venera Avenue, Suite 300 Coral Gables, Florida 33146
The Issue This is a case in which the Petitioner seeks to suspend and terminate the Respondent's employment on the basis of allegations of misconduct set forth in a Notice of Specific Charges. The allegations of misconduct charge the Respondent with immorality, misconduct in office, incompetency, and conviction of a crime involving moral turpitude.
Findings Of Fact At all times material to this proceeding, the Respondent, Wilfredo D. Rivera-Carde, was employed by the School Board of Dade County pursuant to a professional service contract as a JROTC Instructor assigned to Miami Jackson Senior High School. During the course of his employment as a JROTC Instructor, the Respondent's students in the JROTC program included the following: T. F., S. G., I. R., E. P., and B. V. Of these, all but B. V. were females. At all times material hereto, the JROTC Instructors had their offices in a large room that was divided by large cabinets and other furniture into two offices. The back office was the Respondent's office. The back office was accessible via a passage way from the larger office occupied by the other two JROTC Instructors. The passage way was formed by tall cabinets on both sides. During the 1992-93 school year, I. R., who was at that time a female student enrolled in the JROTC program, was one of the JROTC clerks. In her capacity as clerk she was required to perform clerical duties in the Respondent's office on a frequent basis. When I. R. was performing those clerical duties, often the only other person in the back office was the Respondent. At all times material hereto, the School Board's employee conduct rule was in effect at Miami Jackson Senior High School. The rule provides that teachers must maintain a proper relationship with all of their students and prohibits inappropriate touching of students by teachers. The employee conduct rule is incorporated in the teacher handbook, a copy of which is provided to each teacher each year. Moreover, it is the practice of the Principal at Miami Jackson Senior High School to review the employee conduct rule with all teachers during orientation at the beginning of each school year and at faculty meetings throughout the year. During the course of the Petitioner's investigation of this matter, the Petitioner provided the information it had gathered to police authorities. In March of 1993 the Respondent was arrested on criminal charges filed by female students, T. F. and I. R. The criminal charges against the Respondent have since been dismissed by the Office of the State Attorney. For the reasons mentioned in the Preliminary Statement, in the Endnotes, and in the Appendix, the evidence in this case is insufficient to prove any of the allegations of misconduct set forth in the Notice of Specific Charges.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Dade County School Board issue a Final Order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 5th day of October, 1994, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1994.
Findings Of Fact Respondent, Michael B. Smith (Smith), has been continuously employed as a teacher by Petitioner, School Board of Dade County (School Board) since 1977. During the 1985-86 school year, Smith was employed under a continuing contract as a work experience teacher at Miami Norland Senior High School. The Assault and Loan Among the students in Smith's second period work experience class was Colleen Ann Dougherty (Colleen); a 15 year old female and 10th grade student. Colleen had been a student of Smith's since September 1985, and they enjoyed a good student- teacher relationship until the events which gave rise to these proceedings. 1/ On February 10, 1986, Smith asked Colleen to remain after class. Once the other students had left the classroom, and Colleen and he were alone, Smith engaged Colleen in a brief conversation concerning the progress of her outside employment. Gauging the conversation at an end, Colleen picked up her purse and book bag preparatory to moving to her next class, but was distracted when Smith asked her what was in her purse. As Colleen looked into her purse, which was hanging from her right shoulder, Smith placed his left hand on her right hip and his right hand on her left shoulder. When Colleen looked up, Smith pulled her toward him, and kissed her on the lips. Smith's conduct was uninvited and unexpected; Colleen, disconcerted, left the classroom. On February 11, 1986, Smith was covering Colleen's first period class for her regular teacher. After the class had started, Smith asked Colleen into the hall and, exhibiting his divorce papers and a sense of urgency, asked to borrow $50.00 by the end of third period. Colleen informed Smith that she did not know if she could get the money by then since she would need to go to her boy friend's house for the bank book. Thereupon, Smith gave Colleen a pass to visit her friend Jessica to see about transportation. After arranging for transportation with Jessica, Colleen returned to Smith, who was still standing in the hall outside the classroom, and informed him that Jessica and she could get the money. At this time, Smith told Colleen that he liked her and suggested that they meet at school one night so he could repay the money. When Colleen expressed a lack of understanding concerning Smith's comments, he told her to look down and said, "even standing next to you excites me." On looking down, Colleen observed that Smith had an erection. Colleen quickly changed the subject and left with Jessica to get the requested $50.00 from the bank, which she later gave to Smith. Colleen was troubled by what had transpired and was afraid that if she reported the incident the administration would not credit her statements over those of a teacher. However, on Wednesday, February 12, 1986, Colleen told her boss what had transpired between Smith and her, and on the evening of February 12, 1986, she informed her grandmother. On February 13, 1986 Colleen, together with her boss and grandmother, informed the principal of Miami Norland Senior High School concerning the events of February 10-11, 1986. Smith was subsequently suspended from his teaching position, and this administrative proceeding duly followed. In choosing to credit Colleen's recollection of the events of February 10-11, 1986, as opposed to Smith's, I am not unmindful of minor discrepancies in the proof. However, the candor and demeanor of Colleen, coupled with the corroborating proof, compels the conclusion that Smith did commit, without invitation or provocation, the acts set forth in paragraphs 3-5, supra. Smith's conduct was inconsistent with the standards of public conscience and good morals, and was sufficiently notorious to bring himself and his profession into public disgrace or disrespect. Due to the notoriety of his conduct, Smith's service in the community, as well as his effectiveness in the school system, has been severely impaired. The Excessive Absences The proof establishes that Smith was absent from his employment on 26 days during the 1985-86 school year. Five of those days, and possibly six, were for personal reasons, rather than illness. While teachers are generally allowed only 4 personal days each school year, the School Board offered no evidence to rebut the proof that the additional 1-2 days were authorized by Smith's supervisor, or that all time off was duly approved.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the School Board enter a Final Order sustaining the suspension of Respondent, Michael B. Smith, from his employment, and dismissing Respondent, Michael B. Smith, from his employment with the School Board. DONE AND ENTERED this 21st day of November, 1986, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 21st day of November, 1986.
The Issue Should Respondent be terminated from his employment as a member of Petitioner's instructional staff for his alleged relationship with Kristie Lynn Smith, who at the time of the alleged misconduct was a minor student and member of Respondent's household? In particular, Petitioner accuses Respondent of a romantic involvement with Ms. Smith, to include sexual intercourse.
Findings Of Fact At times relevant to the inquiry Respondent has been employed as a classroom teacher, part of instructional staff with the Putnam County School Board. His employment has been at Interlachen High School in Interlachen, Putnam County, Florida. Respondent has taught Driver Education and Health and Life Management Skills. Respondent has also served as coach for the girls' varsity basketball team. Kristie Lynn Smith was born November 24, 1980. At the times relevant to the inquiry she was a student in the Putnam County School District. Ms. Smith met Respondent as a student in Respondent's Health and Life Management Skills class, in the second semester of her ninth grade year. In January 1997, Ms. Smith was placed in foster care in the custody of Respondent and his wife, Teresa Dorsey. Ms. Smith lived with the Dorseys in their home from January 1997 through August 1997. Other children residing in the Dorsey home were Respondent's children Mikey, Jeanny, and Raymond. Another foster child, K.W., lived in the home during Ms. Smith's residency. The expectation of foster parenting for the benefit of Ms. Smith and K.W. was that Respondent and his wife would exercise parental authority over the foster children. After Ms. Smith was placed with the Dorseys for foster care, she began to ride to her school with Respondent in his automobile. On these occasions Respondent and Ms. Smith would engage in conversation that was not unexpected. In latter May 1997, Respondent began to discuss his marital problems with Ms. Smith. In these discussions Respondent confided that Respondent's marriage with his wife, Teresa, was over and that Respondent was contemplating the formal dissolution of his marriage. Respondent's discussions with Ms. Smith extended to expressing Respondent's feelings towards Ms. Smith by telling her he cared for her. This was followed by Respondent's statement to Ms. Smith that he was in love with her. Ms. Smith replied that she had similar feelings for Respondent. Respondent and Ms. Smith in their discussions talked about having sexual relations with each other. Expression was given to their affection by flirting, hugging, and kissing each other with open mouths. The relationship between Respondent and Ms. Smith progressed to the point where Ms. Smith agreed to have sexual intercourse with Respondent. Within a few days beyond reaching the agreement to have sexual intercourse, Respondent, in their home, took Ms. Smith from the room she shared with K.W. into the bedroom shared by Mikey and Jeanny, placed a mattress on the floor, removed his and Ms. Smith's clothing and engaged in sexual intercourse with Ms. Smith. This same activity took place three or four more times in the home in the month of May 1997. While on a vacation in West Virginia that began the last week of May 1997, Ms. Smith confided in K.W. that Ms. Smith and Respondent had an ongoing romantic relationship. K.W. observed some of the contacts between Respondent and Ms. Smith that involved hand holding, hugging, and what K.W. described as "French kissing," meaning that the tongues of Respondent and Ms. Smith were in each other's mouth. Upon the return from West Virginia, in the first part of June 1997, Respondent and Ms. Smith continued their liaison, to include sexual intercourse that took place on numerous occasions either in Jeanny and Mikey's bedroom, Ms. Smith's bedroom, or Respondent's bedroom. The sexual encounters that have been described took place at night when other persons had retired to sleep. The numerous occasions of sexual relations between Respondent and Ms. Smith took place over the period from the end of May 1997 into August 1997. Those encounters were such that in June 1997, Ms. Smith believed that she had become pregnant by Respondent. To confirm her suspicion Ms. Smith went with a friend, Lisa Comeau, and purchased a pregnancy test kit. At that time Ms. Comeau was also a student at Interlachen High School. Ms. Comeau was mindful of the relationship between Ms. Smith and Respondent to the extent that Ms. Comeau had been told by Ms. Smith that Respondent and Ms. Smith were having sexual relations. Respondent had taught Ms. Comeau as a Driver's Education and Health class teacher. The results of the pregnancy test as administered at Ms. Comeau's home revealed that Ms. Smith was not pregnant. In June 1997, Ms. Smith enrolled in a Driver's Education Course that was being taught at Palatka High School, part of the Putnam County School District. Respondent taught Ms. Smith in that class and was responsible for assigning Ms. Smith's final grade. During this time period Respondent and Ms. Smith were having sexual relations. During the period May 1997 through August 1997, Respondent and Ms. Smith exchanged letters describing their affection. Those letters were passed directly from Respondent to Ms. Smith and from Ms. Smith to Respondent or on other occasions letters were being indirectly transmitted through K.W. Respondent would also leave letters for Ms. Smith in a dresser drawer in the home. The letters were being written and exchanged sometime between May 1997 and August 1997. K.W. and Lisa Comeau were aware of the contents of some of this correspondence. Through the letters which Respondent wrote to Ms. Smith he expressed his love and devotion, the anticipation of having children with Ms. Smith, the desire to be Ms. Smith's husband, and the specific statement of wanting to make love to Ms. Smith and to hold her in his arms and to lay there for hours. The contents of some of the letters are more completely described in the Petitioner's Exhibits numbered 4-13. Although Respondent expressed some reservation in testimony concerning their relationship, about first receiving letters from Ms. Smith which expressed her feelings towards Respondent, his manner of addressing his concerns was to begin writing letters back to Ms. Smith of the nature that has been described previously. While Respondent in his testimony concerning the relationship with Ms. Smith has denied the finding made here that he had engaged in sexual relations with Ms. Smith, he does not deny discussion of their intention to have sexual relations at a time in the future. Neither does Respondent deny having written the letters that have been discussed which describe lovemaking and fathering Ms. Smith's children. The July 24, 1998, edition of the Palatka Daily News reported some of the contents of correspondence from Respondent to Ms. Smith that have been described, in particular, the reference "I want to make love to you . . . and hold you in my arms and lay there for hours." The article also referred to Respondent's admission that he loved Ms. Smith at the time of their relationship and hoped the two of them would be married and have a family. As reported in the newspaper article Respondent had testified in the trial that he had "fallen" for Ms. Smith. The account of Respondent's statement that he loved Ms. Smith, as found in the newspaper was consistent with his trial testimony. Respondent's trial testimony constituted testimony for the present proceeding. Mr. David Buckles, District School Superintendent for Putnam County School District, testified concerning his opinion on Respondent's loss of effectiveness as a teacher. Before offering that testimony Mr. Buckles had been accepted as an expert to provide opinion testimony concerning loss of effectiveness in the community to teach. Upon reviewing the contents of correspondence from Respondent to Ms. Smith, Mr. Buckles opined that the authorship of that item, Petitioner's Exhibit numbered 4 and its delivery to Ms. Smith, then a 16-year- old student, followed by public admission of such contact between Respondent and Ms. Smith would cause Respondent to be less than effective in teaching. Respondent in his testimony at trial, had acknowledged writing the correspondence found in Petitioner's Exhibit numbered 4. Additionally, Mr. Buckles offered the opinion that a teacher would lose effectiveness in the instance where the teacher stated a desire to father a child by one of his students, as published in the community. Respondent in his trial testimony acknowledged that in one of the letters written to Ms. Smith, he had stated that he wanted to father Ms. Smith's children. Moreover, Mr. Buckles offered the opinion that a teacher would lose effectiveness in the community to serve as a teacher if the teacher admitted in a public forum that the teacher was in love with a 16-year-old student. Respondent in his trial testimony acknowledged that he loved Ms. Smith at the time of their relationship. Respondent in his trial testimony also acknowledged writing letters to Ms. Smith which expressed his love for her. Mr. Buckles expressed the opinion that a teacher, who in a public forum acknowledges having discussed having sexual intercourse with a student on a future date, had lost effectiveness. In the trial testimony Respondent indicated that he had talked with Ms. Smith about having sex after they were going to be married, and that it was something Respondent and Ms. Smith knew would take place as part of the marriage. Additionally, Mr. Buckles' opinion countenances the previously mentioned discussion in correspondence from Respondent to Ms. Smith, reported in the newspaper and testified about in hearing, in which Respondent acknowledged authoring the correspondence which includes the phrase "I want to make love to you . . . and hold you in my arms and lay there for hours." Eventually, the relationship between Respondent and Ms. Smith was found out. Although Ms. Smith denied their relationship initially, upon its discovery, out of fear of losing her attachment to Respondent and getting in trouble, eventually, Ms. Smith admitted to the relationship. Ms. Smith and K.W. were removed from Respondent's home. Respondent did not carry forward his stated intentions to divorce his wife and marry Ms. Smith. Respondent continues to be married to Teresa Dorsey.
Recommendation Upon consideration of the findings of fact and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Putnam County School Board dismissing Respondent from his employment with the Putnam County School District. DONE AND ENTERED this 7th day of May, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 7th day of May, 1999.
The Issue The issue for consideration in this matter is whether Respondent should be suspended without pay for five days from employment with the School Board because of the matters alleged in the charging letter issued herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for the provision of public instruction from pre-kindergarten through secondary and adult education in Polk County, Florida, and operated Haines City High School in Haines City. Respondent had been employed at HCHS for eight years and in the last two years prior to the incidents in issue, taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. In January, 1994, Respondent was administered a verbal reprimand as a result of reports that she has been consuming alcohol in the presence of her students at an out of town conference. A part of the basis for that reprimand was her reported comments to students to the effect that her predecessor as DCT instructor had advised her not to let Black students into the program because they caused trouble. These comments by Respondent were communicated to Black students who were upset by them. At some point during the 1993-1994 school year, Respondent reportedly overheard a student, Alisha Tanner, (now, Forsythe), in a discussion with another student regarding her breakup with her boyfriend. Respondent is alleged to have stated to Ms. Tanner that, "...if you have a vibrator, you won't need a boyfriend." Both Ms. Tanner and another female student who allegedly heard the statement, claim to have been shocked and embarrassed by hearing a teacher make such a statement, and a third student, Delana Muncy, indicated Ms. Tanner was crying as a result of the comment made to her. Evidence was also presented to indicate that about the same time, Respondent was overheard by several other students to have asked a male student, Jonathan Bradley, if he masturbated. Respondent does not deny using the term, "vibrator" to the female student. Her version of the conversation is somewhat different than those of the students, however. Respondent admits that she overheard the two girls discussing one's breakup with her boyfriend and that she joined the conversation. She, however, indicates that she did so to remind them of the dangers of reckless sexual behavior and suggested that the young lady find other ways, including the use of a vibrator, to satisfy her sexual needs. Respondent denies, however, the use of the word "masturbate" to Bradley. Only two of the students in or near the conversation recall Respondent making such a comment. Notwithstanding these comments were alleged to have been made during the early or middle part of the school year, no mention of them was made by any of the students to Respondent, her immediate supervisor, parents, school administration, or Board personnel until late in the school year, just shortly before graduation. At that time, a group of the students allegedly involved met for lunch at Pizza Hut off campus and in the course of their conversation, Respondent's alleged indiscretions surfaced. Prior to leaving campus, some of these students who now testify against Respondent passed a list of complaints against her around and, though denied, there is at least some indication the students were trying to get Respondent fired. Some of the students refused to sign the list. It was only several months after the inappropriate comments were allegedly made that the first official complaint was made. Other information presented at hearing indicates that during the school year several of the students involved in the reporting of this incident became dissatisfied with Respondent's conduct of her class. Respondent was alleged by students to have used such words in class as "shit", "hell", and "pissed off", and is reported to have commented, on a hot day, "I've got sweat running down between my breasts and the crack of my ass." No specific incident was presented to explain or elaborate on this. In addition, Respondent allowed a class discussion on marketing to inappropriately discuss the sale of condoms as a demonstrative example. In this case, she allowed any student who was offended by the discussion to leave the room, but this was not a satisfactory solution, as the students' excusal served only to focus unwelcome attention on the excused students. More specifically, Respondent was alleged to have become upset with student Bradley because, contra to the instructions she had given him about picking up the DCT jerseys from the printer, he disobeyed her instructions and picked them up without her permission. Respondent chastised Bradley for this. It is entirely possible the allegations against Respondent are the result of her disciplining of Mr. Bradley, thereby antagonizing him and his clique. Another allegation made against the Respondent by the Principal is her reported permission to several of her students to grade, average and record student grades, which allowed them access to her grade book. The HCHS teacher handbook, of which Respondent had previously been given a copy, specifically prohibits teachers from making grade books available to students and proscribes allowing students to record grades. Both the principal, Mr. Partain, and the Board's Director of Employee Relations indicated, without specific examples being provided, that Respondent's sexually inappropriate comments and her failure to abide by Board rules have impaired her effectiveness as a teacher in the school system. In general, her misconduct diminished her stature as a role model for her students, and her failure to obey Board rules compromised her ability to enforce discipline, but not to the degree that her effectiveness as a teacher was destroyed. Prior to the initiation of this action, the only disciplinary action taken against Respondent since she started working for the Board in 1988 was the verbal warning, (reduced to a letter), in January, 1994 regarding the drinking in front of students at conference and the untoward reference to Blacks. Other than that, her personnel record, commencing with the teacher evaluation done during the 1988-1989 school year, reflects positive comments and no criticism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova be reprimanded for improperly allowing students to grade the papers of other students, to average grades, and to have access to her grade book. RECOMMENDED this 6th day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-4483 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. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. & 4. Accepted and incorporated herein. First two sentences accepted. Conclusions as to misconduct rejected. Accepted that a comment was made by Respondent to a student which included a reference to a vibrator. Exact wording as alleged not proven. Not proven. Accepted that condoms were discussed, but it is not established that the suggestion to use condoms as an example came from Respondent or that she agreed to the discussion other than reluctantly. In any event, this discussion was not listed as a basis for discipline. Not proven and not a listed basis for discipline. & 11. Accepted and incorporated herein. 12. Accepted as a restatement of the witnesses' testimony. FOR THE RESPONDENT: - 3. Accepted and incorporated herein. Accepted and incorporated herein with the exception of the last sentence which is not proven. & 6. Accepted and incorporated herein. & 8. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. First two sentences accepted. Third sentence a non proven conclusion. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Lane, Tron, Clarke, Bertrand, Vreeland & Jacobsen, P.A. Post Office Box 1578 150 East Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 24650 U.S. 19 North Suite 308 Palm Harbor, Florida 34684 John A. Stewart Superintendent Polk County Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830
Findings Of Fact On October 29, 1984, Bruce E. Beneby, Respondent, was on the instructional staff at Dixie Hollings Senior High School as band instructor. Dennis Hale, a detective in the Pinellas County Sheriff's Department, went to Dixie Hollings Senior High School around 5:00 p.m., October 29, 1984, to pick up his son after band practice and to ask Respondent why he had thrown Hale's son's textbook in the garbage. Upon his arrival at the school in the vicinity of the bandroom, Hale observed Beneby running around the building with his shirt off. One of the milling students told Hale that Beneby was about to fight a student. When Hale arrived at the scene he observed Beneby holding a pair of scissors in a threatening manner toward the student, Ellis Tedrick. Tedrick had a six-foot length of drain pipe. Neither struck the other. Hale told both to stop but was not obeyed until he produced his sheriff's badge. Earlier, after band practice, Tedrick asked Beneby why he had thrown some of the girls off the Re Belle squad. He and Beneby got into an argument and Beneby picked up a band stand with which he threatened Tedrick. Other witnesses testified regarding Beneby's aggressiveness on other occasions. Testimony respecting Beneby having a gun in his briefcase to protect himself from the parents of students in his class is disregarded. No charge of this nature was made against Respondent as reason for his dismissal. No evidence was presented by any witness that observed Respondent destroy or throw away school property such as textbooks.
The Issue The issues in this case are (1) whether an education paraprofessional made salacious and vulgar comments to a female student and, if so, (2) whether such conduct gives the district school board just cause to suspend this member of its instructional staff for 30 workdays, without pay.
Findings Of Fact At all times relevant to this case, Respondent Alfredo Regueira ("Regueira") was an employee of Petitioner Miami-Dade County School Board ("School Board"), for which he worked full time as a physical education paraprofessional. At the time of the events giving rise to this proceeding, Regueira was assigned to Miami Senior High School ("Miami High"), where he led exercise and fitness classes in the gymnasium. As of the final hearing, A. M., aged 17, was a senior at Miami High. She had met Regueira in the spring of her sophomore year at the school, in 2005, outside the gym. Thereafter, although never a student of Regueira's, A. M. would chat with "Fred"——as she (and other students) called him——about once or twice per week, on the gymnasium steps, during school hours. As a result of these encounters, A. M. and Regueira developed a friendly relationship. At some point, their relationship became closer than it prudently should have, moving from merely friendly to (the undersigned infers) nearly flirty. A. M. gave Regueira a picture of herself inscribed on the back with an affectionate note addressed to "the prettiest teacher" at Miami High. Regueira, in turn, spoke to A. M. about sexual matters, disclosing "what he did with women" and admitting a proclivity for lesbians. Notwithstanding this flirtatious banter, there is no allegation (nor any evidence) that the relationship between Regueira and A. M. was ever physically or emotionally intimate. As time passed, however, it became increasingly indiscreet and (for Regueira at least) dangerous. At around eight o'clock one morning in late February or early March 2006, A. M. and her friend E. S. went to the gym to buy snacks, which were sold there. Regueira approached the pair and, within earshot of E. S., made some suggestive comments to A. M., inviting her to get into his car for a trip to the beach. Later, when E. S. was farther away, Regueira spoke to A. M. alone, using vulgar language to communicate his desire to have sexual relations with her. In A. M.'s words, "Mr. Fred me dijo en English 'I want to fuck you.'" (Mr. Fred told me in English "I want to fuck you.")1 At lunch that day, while conversing with E. S., A. M. repeated Regueira's coarse comment. A. M. did not, however, report the incident contemporaneously either to her parents, being unsure about how they would react, or to anyone else in authority, for fear that she would be disbelieved. After the incident, A. M. stopped going to the gym because she was afraid and embarrassed. A few weeks later, A. M. disclosed to her homeroom teacher, whom she trusted, what Regueira had said to her. The teacher promptly reported the incident to an assistant principal, triggering an investigation that led ultimately to the School Board's decision to suspend Regueira. Thus had the candle singed the moth.2 That this incident has diminished Regueira's effectiveness in the school system is manifest from a revealing sentence that Regueira himself wrote, in his proposed recommended order: "Since this situation has been made public[,] . . . my peers have lost all respect for me." An employee who no longer commands any respect from his colleagues is unlikely to be as effective as he once was, when his peers held him in higher regard. Ultimate Factual Determinations Regueira's sexually inappropriate comments to A. M. violated several rules and policies that establish standards of conduct for teachers and other instructional personnel, namely, Florida Administrative Code Rule 6B-1.006(3)(e)(prohibiting intentional exposure of student to unnecessary embarrassment or disparagement), Rule 6B-1.006(3)(g)(forbidding sexual harassment of student), Rule 6B-1.006(3)(h)(disallowing the exploitation of a student relationship for personal advantage), School Board Rule 6Gx13-4A-1.21 (banning unseemly conduct); and Board Rule 6Gx13-4-1.09 (proscribing unacceptable relationships or communications with students). Regueira's misconduct, which violated several principles of professional conduct as noted above, also violated Florida Administrative Code Rule 6B-1.001(3)(employee shall strive to achieve and sustain the highest degree of ethical conduct). This ethics code violation, it should be mentioned, is secondary to the previously described misdeeds, inasmuch as sexually inappropriate behavior in the presence of, or directed toward, a student necessarily demonstrates a failure to sustain the "highest degree of ethical conduct." Regueira's violations of the ethics code and the principles of professional conduct were serious and caused his effectiveness in the school system to be impaired. In this regard, Regueira's admission that his colleagues have lost all respect for him was powerful proof that, after the incident, he could no longer be as effective as he previously had been. Based on the above findings, it is determined that Regueira is guilty of the offense of misconduct in office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order suspending Regueira from his duties as a physical education paraprofessional for a period of 30 workdays. DONE AND ENTERED this 11th day of April, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 11th day of April, 2007.
Findings Of Fact Respondent, Milton Aaron Wetherington, holds Florida teacher's certificate number 035136 issued by the State Department of Education covering the areas of physical education, history and administration/supervision. The certificate is valid through June 30, 1991. This proceeding involves an administrative complaint filed against Wetherington by petitioner, Ralph D. Turlington, as Commissioner of Education. The complaint stems from various complaints lodged with the Volusia County School Board by several students and parents who alleged that Wetherington engaged or attempted to engage in improper relationships of a romantic nature with female high school students assigned to his classes. The filing of the administrative complaint precipitated the instant action. Wetherington, who is 57 years old, has been a teacher for some twenty seven years, the last seventeen in the Volusia County school system. From 1975 until 1984 Wetherington was a teacher at Spruce Creek School in Port Orange, Florida. Because of the pending disciplinary proceeding, he was reassigned to a non-instructional position as an assistant manager of purchasing and property for school year 1984-85. However, after the charges came to light in early 1984, Wetherington was allowed to continue as a teacher for the remainder of the school year, and was a chaperone on the senior class trip to Walt Disney World. In his twenty seven years of teaching, he has had no prior disciplinary action taken against him. In school year 1983-84 Wetherington taught a political systems course to first semester seniors. Two of his students were Lisa and Tammy, both seventeen years of age at the time, and the best of friends. Seven of the specific charges in the complaint involve respondent's relationship with Lisa, and to a lesser extent, Tammy. Lisa lived at home with her mother and step father for a part of her senior year. Because of problems with her stepfather, who beat her, she moved out at the end of January, 1984, to live with a girlfriend. She was involved with drugs, including cocaine and marijuana, and was experiencing financial problems. Lisa needed a social studies course to graduate, and transferred into Wetherington's class about two weeks after the semester started. She had not met or known Wetherington prior to that time. Wetherington immediately took a special interest in Lisa, and selected her to assist him during office hours with grading papers and the like. Lisa spotted an opportunity to take advantage of the situation, and began cultivating the relationship in an assiduous manner. Her testimony reveals she had two goals in mind: to obtain money from Wetherington and to get a good grade without studying. She also saw the opportunity to get her friend Tammy a good grade since she had access to Wetherington's grade book. The relationship was non-sexual, and all parties agree that Wetherington made no sexual advances or demands upon Lisa. One evening during the fall of 1983, Wetherington asked Lisa if she and Tammy wanted to get a pizza after a football game. Lisa agreed and Wetherington gave her $20 to purchase the food. The three met briefly in separate cars at a local Pizza Hut, but after the girls saw other students there, they all drove in Wetherington's car to the Breakers Restaurant and Lounge, an establishment in New Smyrna Beach. They arrived around 12:45 a.m. or so, and after being seated in a booth next to the stage on which a band was playing, they placed an order for pizza. Because of the lateness of the hour, the waitress informed there the kitchen had closed. They then departed the premises and returned to Daytona Beach where all went their separate ways. The two girls claimed Wetherington purchased them an alcoholic drink at the Breakers, but a member of the band, who happened to be a teaching colleague of Wetherington disputed this and observed the three had no drinks during their five to seven minute stay at the restaurant. His testimony is deemed to be more credible and it is found respondent did not "purchase alcoholic beverages for both students" as alleged in the administrative complaint. At some point in the first semester, Wetherington gave Lisa a key to his house in Holly Hill where he lives alone. According to respondent, he did so since he wanted Lisa to have a place to go in the event she suffered a beating from her stepfather. Lisa visited his house approximately five times in the company of a girlfriend when Wetherington was home, and an undisclosed number of times when he was not at home. One of Wetherington's sons lives at Bunnell, and visited his father regularly. The son kept a stash of marijuana at the house which the son used when he visited. Wetherington acknowledged that this was true, but maintained he did not know where it was hidden at the time. Indeed, he claimed he never used drugs himself, and objected to their use by other persons. Wetherington gave Lisa instructions to use the key only when she had problems with her stepfather, but Lisa ignored these instructions. While at Wetherington's home, she used both alcohol and marijuana on at least one occasion in his presence. The alcohol (wine) was taken from Wetherington's refrigerator while the marijuana was either brought onto the premises by Lisa, or came from the son's hidden stash. 1/ There is no credible evidence that Wetherington himself used "marijuana and alcohol at his residence with female students" as charged in the complaint. During the school year, Wetherington gave Lisa a friendship ring valued at $12, some $500 in cash, between $400 and $500 worth of clothes, and lent her an Amoco gasoline credit card for gasoline purchases to get her to and from the part-time job she held. Lisa charged some $120 worth of gasoline on the card as well as $247 in auto repairs. With her mother's consent, and after clearing it with the school principal, he also paid Lisa's mother $500 for the equity in Lisa's car, transferred the title to his own name, and financed it with a Miami bank. Lisa got to use the car with the understanding that she would pay him $125 a month, which was Wetherington's obligation on the bank note. Wetherington considered all this to be a "loan," and kept a book detailing the total amount advanced to Lisa. As a part of the social studies course, Wetherington required each student to prepare a term paper. Wetherington gave fourteen students, including Lisa and Tammy, copies of term papers written in the prior year with instructions to use them as a "format" or "guideline" in preparing their own. Lisa and Tammy simply changed the title page, and turned the papers back in as if they were their own. They each received a grade of 25, which was the highest grade in the class. Lisa claimed she simply did what Wetherington told her to do, and Tammy corroborated this claim. Although Wetherington was negligent in failing to detect that the papers turned in by Lisa and Tammy were identical to those previously given them to be used as a "formats" the evidence does not support a finding that Wetherington gave them the papers for the purpose of evading any academic requirements. The final charge concerning Lisa and Tammy is that Wetherington "[o]n at least one occasion kissed and hugged a female student." This charge apparently stems from Wetherington kissing Lisa on the cheek one day and giving her a paternal hug. Wetherington does not deny this, but contends it was not romantic in nature but done in a fatherly way. Wendy was a seventeen year old senior at Spruce Creek High School in school year 1983-94. She is the source of some four separate charges against respondent in the administrative complaint. Wetherington approached her at the beginning of the year and asked if she wanted to be his teacher's aide. She said yes, and he accordingly rearranged her schedule so that she worked in his office or classroom during first period as an aide, and was a student in his social studies class the following period. During the first nine weeks, Wetherington gave Wendy two rings, one for her birthday and the other to simply keep till the end of the school year. He also gave her $230 in cash over this period of time. He kept a log detailing each amount of money given to her, and considered the payments to be a loan. While working in Wetherington's classroom one day, Wendy walked by Wetherington who pulled her onto his lap and began rubbing her upper thigh. He also approached her one day in his office and put his arms around her waist and pulled her towards him. After she told him, "I don't want this," he released her. She then pulled away and claimed she immediately reported the incident to the principal. The principal could not recall such a conversation. The next day Wetherington apologized to her in his office, but he then turned off the lights in the room and began hugging her. She pushed him away and ran out of the room. Although Wendy again claimed that she immediately reported the incident to the school principal, the principal could not recall such a meeting. In any event, Wendy went to her parents, disclosed the various incidents and gave them the two rings given to her by Wetherington. The parents were understandably irate, and went to the principal demanding that Wendy be transferred out of Wetherington's class. A meeting was held by the principal, with Wetherington and the two parents in attendance. At the meeting Wetherington simply acknowledged that he admired Wendy very much, that she was a good student, and that the cash given to her ($230) was a loan for car payments and voice lessons because he trusted her. However, Wendy does not own a car, and her another paid for all voice lessons. Moreover, her father is a physician who has provided well for his family. The mother then wrote Wetherington a check for $230 to repay the "loan." Wendy was also transferred out of respondent's class. Wendy acknowledged that she "took advantage" of Wetherington, and characterized their relationship as simply a friendship. In a note written to him in a school yearbook at the end of the year, she apologized for "putting (him) through hell" and wished she "could erase it all." Wetherington denied any romantic involvement with Wendy, and acknowledged only that he had kissed her twice on the cheek, once at a football game and another time outside his house. He attributes Wendy's story to emotional problems she was experiencing that fall caused by her relationship with a married man. Wetherington portrayed himself as a teacher genuinely interested in his students. He estimated he has given financial aid in the form of loans and gifts to students over the years in excess of $10,000. Because he has raised seven children of his own, he vigorously denied having any illicit or sinister purpose in his dealings with Lisa and Wendy. Instead, he contended he was merely helping them overcome personal and financial problems so that they would be better persons after graduation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found GUILTY of violating Rules 6B- 1.06(3)(a) and (e), and Subsection 231.28(1)(c), as set out more specifically in the Conclusions of Law portion of this order. All other charges should be DISMISSED. It is further RECOMMENDED that respondent be placed on probation for three years and that he be retained by the school board during his probationary period only as a non- instructional employee. DONE and ENTERED this 22nd day of January, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 22nd day of January, 1985.
