The Issue At issue is whether the respondent committed the violations alleged in the Notice of Specific Charges filed by the Dade County School Board and in the Administrative Complaint filed by the Commissioner of Education, and, if so, the appropriate penalties.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: The respondent currently holds Florida Teaching Certificate 409549, issued by the Florida Department of Education, Bureau of Teacher Certification, covering the areas of physical education and middle grades general sciences. This certificate is valid through June 30, 1996. The respondent has been employed by the School Board since 1974 and has been assigned to American High School since 1976. Until April 23, 1993, when he was placed on alternate assignment at the Dade County school system's Region I office, he taught at American High School and coached the girls' basketball team. 2/ Teacher/student sexual relationship. While he was a teacher at American High School, the respondent engaged in a sexual relationship with A. C., a student, which began when the student was under 16 years of age, and he fathered a child born to the student on January 13, 1987. A. C. attended the 9th through 11th grades at American High School, from 1983 through 1986. She was at the school one night when the respondent approached her and asked if she would consider having a sexual relationship with him. She agreed, and they entered into a relationship which lasted approximately one and one-half years. A. C. and the respondent would meet at school during school hours, toward the end of the school day, and he would drive her to his apartment, where they would engage in sexual intercourse. In June 1986, A. C. learned she was pregnant. She believed that her pregnancy was the result of her relationship with the respondent, and she told the respondent that he was the father of her child. She also told her mother about the relationship and about her pregnancy, and her uncle notified the school authorities. An investigation was conducted by school authorities, but no action was taken against the respondent. A. C. gave birth to a daughter on January 13, 1987. A paternity blood test, including a Human Leukocyte Antigen test, was performed in the context of the paternity action brought by A. C. against the respondent in November 1987. The results of this blood test demonstrated a 99.19 percent probability that the respondent is the father of A. C.'s child. 3/ On May 1, 1989, a Final Judgment of Paternity was entered determining that the respondent was the father of the child born to A. C. on January 13, 1987. The judgment directed the Bureau of Vital Statistics to amend the child's birth certificate to reflect that the respondent was the child's father. The court also ordered the respondent to pay child support and found that, as of October, 1989, the respondent owed $8,500 in retroactive child support. On March 16, 1994, an article was published in the Miami Herald newspaper regarding the adjudication of paternity and the action taken by the School Board on March, 9, 1994, suspending the respondent. Sexual advances and improper touching of a student. E. T. was a student at American High School, and a member of the American High School girls' basketball team during her sophomore and junior years, from September 1991 to June 1993. She graduated from Dade Christian in June 1994 and has attended the University of Florida since that time. Between 2:00 p.m. and 3:00 p.m. on a Sunday afternoon in the fall or early winter of the 1992-1993 school year, the respondent telephoned E. T.'s home. 4/ Her father answered, and, because E. T. was not yet home from church, he took a message from the respondent reminding her about her appointment that afternoon for a back treatment. Mr. T. gave his daughter the message as soon as she arrived home, and she immediately changed clothes and left the house. E. T. drove to the school and parked in the back. After the respondent arrived, they went into the gym, and the respondent went into the boys' locker room to call security to let them know he was in the building. They walked upstairs to the training room, where the whirlpool was located. The respondent told E. T. she needed to spend thirty minutes in the whirlpool, and she got into the whirlpool wearing boxer shorts and her basketball shirt. When E. T. got out of the whirlpool, the respondent offered to help her dry off; she told him that would not be necessary. The respondent then told E. T. she needed a back massage. Although she initially refused, she eventually acquiesced and lay on the table. The respondent persuaded her to remove her shorts so he could massage her lower back. The respondent massaged E. T.'s thighs and buttocks in addition to her lower back. When he told her to turn over, she hesitated but then did as he said. He proceeded to massage her legs and thighs, then moved to her inner thighs. When he touched her genitalia, she jumped up, grabbed her things, and ran out of the training room into the girls' locker room. The lights were not on in the locker room, and she ran into lockers and chairs until she finally found her way outside. During this episode, she felt helpless and afraid, embarrassed and violated. She drove home and immediately took a shower. 5/ E. T. did not tell anyone about this incident for some time. When her parents learned of the incident some months later, in March or early April 1993, T. and her parents went to school and told one of the school administrators, Mike Dupree, about the incident. Mr. Dupree passed the information on to Robert Snyder, American High School's principal, who requested that the School Board police initiate an investigation. As a result of the complaint, the respondent was placed on alternate assignment at the Region I office. Financial irresponsibility. The coaches at American High School, including the respondent, were reminded at the beginning of each school year of the requirement that pre- approved purchase orders be obtained for all orders for athletic equipment for the school teams. Vendors doing business with American High School were advised of the purchase order requirement and were advised that American High School would not be liable for any purchases made without a purchase order number and that the individual coach would be responsible for payment. On or about December 8, 1989, respondent ordered twenty-four pairs of athletic shoes from Midway Sporting Goods at a cost of $1,257. The invoice bears the name of the 'American High School Girls Basketball Varsity and J.V.,' but it does not contain a purchase order number. The respondent knew at the time he placed the order that a purchase order number was required in order for the bill to be paid out of the internal account of American High School girls' basketball team. 6/ The respondent also knew at the time he placed the order that he had no alternate source of payment for the shoes. 7/ The respondent received the shoes, and they were used by the American High School girls' basketball team. The respondent did not, however, pay for the purchase even though he knew he was required to do so under school policy. The bill for this order was not paid until November, 1992, when Mr. Snyder authorized payment from the internal account of the American High School girls' basketball team at the urging of the School Board's attorney and in response to a letter dated February 2, 1991, from Midway Sporting Goods' attorneys threatening to sue the school and the School Board unless the invoice was paid. Mr. Johnson has not repaid the school the $1,257. American High School also received copies of two other invoices, one from Miami Lakes Sports Shop for $839.40, dated December 4, 1991, and one from Matty's Sports for $392.83, dated November 28, 1992, both showing that sports equipment, primarily shoes, was 'Sold to' American High School, to be shipped to the respondent. Neither invoice contains an approved purchase order number. Respondent placed these orders knowing that a purchase order number was required in order for the bill to be paid out of the internal account of American High School girls' basketball team. The respondent also knew at the time he placed the order that he had no alternate source of payment for the shoes. He received the equipment he ordered, and it was used by the American High School girls' basketball team, but the respondent has not paid the amounts owed for the purchases. The vendors have asked American High School for assistance in collecting the monies owed. The respondent asked that American High School pay for the purchases, but Mr. Snyder refused. On May 4, 1992, American High School received a letter from a representative of Florida International University requesting assistance in collecting $450 from the respondent. The letter charged that the respondent wrote a personal check in this amount to pay the fee for students from American High School to participate in a basketball camp during the summer of 1991, that the check was returned for insufficient funds, and that attempts to collect the $450 had not been successful. On July 22, 1993, the respondent wrote a check for $495 payable to SOYSA (South Orlando Youth Sports Association), and, on July 23, 1993, he wrote another check payable to SOYSA for $100. The checks were written on the 'American Basketball Booster Club' account, and the address stated on the face of the checks is the same address as that of American High School. The respondent knew at the time he wrote the checks that there were not sufficient funds in the account to cover them. In September, 1993, Robert Snyder, American High School's principal, was asked by the Association for assistance in collecting the funds. In July, 1993, when the respondent and members of the American High School girls' basketball team were in Orlando, Florida, at a basketball tournament, the respondent telephoned a fellow teacher and asked if he would send $500 to help pay expenses. The respondent promised to pay the money back. The teacher, Kevin Van Duser, sent an American Express MoneyGram. The respondent received the money, either in Orlando or, on his return, in Miami. He has not repaid Mr. Van Duser. The import of the respondent's conduct. The respondent's behavior in engaging in a sexual relationship with a fifteen-year-old student and in making sexual advances to another student is, of itself, sufficiently outrageous to constitute gross immorality and misconduct in office and to impair irretrievably his effectiveness as an employee of the Dade County school system. The respondent breached the special relationship of trust existing between a teacher and a coach and his students; he fostered conditions likely to be harmful to the mental and physical health and safety of A.C. and E.T.; he caused E. T. extreme embarrassment and distress; and he exploited his position as teacher and a coach for his own personal advantage. The respondent's financial irresponsibility constitutes misconduct in office because it is in contravention of a teacher's obligation to the profession to be honest in all professional dealings. The repeated acts of financial irresponsibility committed by the respondent reveal a course of conduct so serious that it impairs the respondent's effectiveness in the school system and as an employee of the school board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, in Case No. 94-1467, the School Board of Dade County enter a Final Order concluding that Frank Johnson is guilty of immorality and misconduct in office and terminating his employment with the School Board of Dade County, sustaining his suspension of March 9, 1994, and denying back pay for the period of suspension. RECOMMENDED that, in Case No. 94-3575, the Education Practices Commission enter a Final Order concluding that Frank Johnson is guilty of gross immorality, personal conduct which seriously reduces his effectiveness as an employee of the school board, and violation of rules of the State Board of Education which carry a penalty of revocation and revoking permanently his teaching certificate. DONE AND ENTERED this 9th day of August 1995, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 9th day of August 1995.
Findings Of Fact Respondent, Otis J. Fells, has been an employee of the Petitioner, School Board of Dade County, since 1975. At all times material hereto, he was a teacher and basketball coach at American Senior High School. On September 8, 1981, Paulette Brown was fifteen years of age, a student at American Senior High School, and a student in Respondent's sixth period physical education class. Monday, September 7, 1981, was Labor Day. Since classes for the 1981- 82 school year had commenced the week prior to Labor Day, American Senior High School was closed on Monday and reopened on Tuesday, September 8, 1981. On September 8, Respondent reported to American Senior High School to carry out his teaching and coaching duties. Since the floor of the gym was being painted, and since the school year had just begun so that not all physical education students had their gym clothes, the physical education classes were held in either the auditorium or the gym as study-halls, and the students wore their regular clothing. Between 9:30 and 10:30 the morning of September 8, Norman Blanco, a volunteer assistant basketball coach, came to American High to talk to Respondent about holding tryouts for the basketball team for the new school year. Since Respondent was with a class, Blanco told Respondent he would return after school to discuss that matter. Both the sixth period classes and the school day ended at 2:15 P.M. Respondent's sixth period physical education class had been held in the auditorium. James Lee, one of Respondent's sixth period students, asked Respondent for a ride home after school, and Respondent agreed to give Lee a ride home. Respondent left the auditorium and went to the main office to sign out and check his mail. He started to walk toward the boys' locker room, but stopped to speak to the art teacher about the eagle emblem to be placed on the gym floor by the art students. He then went to the gym to get the paint for the floor and took the paint to the art teacher's room, where he left it, although the art teacher was no longer there. Respondent then went to the coaches' office, where Blanco was waiting. From past experience, Blanco knows that if he arrives at American High at 2:15, he cannot find a place to park. He usually arrives about fifteen minutes after school lets out so that all the cars are gone and he can park wherever he wishes. On September 8, he arrived at American High at approximately 2:20 P.M. He went to the coaches' office to talk to Respondent. By the conclusion of their ten-to-fifteen minute meeting in the coaches' office, Blanco had talked Respondent into holding tryouts for the basketball team rather than simply using last year's team, as Respondent had intended to do. Blanco left Respondent in the coaches' office at approximately 2:35 P.M. There are two doors in the coaches' office: one opening into a hallway, and one opening into the boys' locker room. During Respondent's meeting with Blanco, the doors were open. After school on September 8 in the hallway outside the coaches' office, band members were going out to the football field, members of the flag corps were assembling for practice, and the cheerleaders were practicing approximately fifteen yards from the door into the coaches' office. In the boys' locker room, members of the cross-country team, the football team, and the soccer team were using their lockers or changing their clothes for practice. Additionally, the coaches' office is not Respondent's private office; rather, it is also used by the cross-country coach, the baseball coach, and the soccer coach, who are also involved with their students, their team members, aides, and managers. Inside the boys' locker room is a small room used for storing basketball equipment. The door to that room is kept locked. There are only three keys for that room: Respondent possessed one, Assistant Coach Jones possessed the second key, and the third key which traditionally was kept in the main office had never been returned after the girls' basketball team borrowed it one night the previous school year. After his meeting with Blanco, Respondent went to the main office, where he left his handwritten announcement concerning tryouts for the basketball team on the public address system. He then saw James Lee out in front of the school, directly in front of the main office. At approximately 2:45, from the main office, Respondent went to his car and left school with James Lee. When Lee arrived at his home, he told his mother that it was 3:00 and that Coach Fells had given him a ride home. After dropping off James Lee, Respondent went to Mr. B's Package Store and Lounge to see A. J. (Arnold) Johnson, one of the owners. Over the Labor Day holiday, Bobby Hunter, Assistant Basketball Coach from Boston College, visited Respondent and left sneakers for A. J. Johnson at Respondent's house. Respondent took the sneakers into Mr. B's and gave them to Johnson, who was waiting for the bank to open at 3:00 so he could transact some business at the bank. Johnson left Mr. B's to go to the bank at approximately 3:05, and when he returned from the bank, Respondent was still there. While Johnson was gone from Mr. B's, Respondent visited with Roscoe Large, the sales representative from Southern Wine and Spirits, and several other persons whom he also knew. After Respondent had been at Mr. B's for approximately thirty minutes, he left and drove to Coconut Grove to pick up his son at the baby-sitter's. On the following day, Respondent went to school and spent a normal day. After he arrived home on Wednesday, his wife told him that someone had been calling on the telephone accusing Respondent of raping Paulette Brown. The next morning, Respondent called the principal of American Senior High, and the principal advised him to stay home. On September 8, 1981, Paulette Brown stayed after school rather than leaving the school grounds when school adjourned for the day at 2:15. Between 2:30 and 2:45, she visited with Agnes Pitts and William Hopkins in the vicinity of the coaches' office and boys' locker room. When Agnes Pitts again saw Paulette Brown, it was approximately 3:00, and Brown was walking toward the front of the school. Brown told Pitts that she was going home. At approximately 3:00, Brown called her father and asked him to pick her up at school. After he picked her up and pursuant to her suggestions, they first picked up fried chicken for dinner and then picked up Paulette's brother when he got out of school at 3:30. Mr. Brown then took Paulette and her brother home and then went to pick up Paulette's mother, Pauline Brown, at 4:00 at her place of employment. Between 5:00 and 6:00 P.M. on September 8, 1981, Paulette Brown called her godsister, April Clark, and told Clark that Respondent had raped her. She also told her story to George Richberg that same evening. She also told her story twice to Jeffrey Clark. During her second relating of the story to Jeffrey Clark, she included mention of a janitor with a key to the boys' locker room. On Wednesday, September 9, Paulette Brown stayed home from school. After taking a nap, she called her boyfriend's sister and told her that Coach Fells had raped her. When the boyfriend's sister threatened to tell someone in a position of authority if Paulette refused to, Paulette told a neighbor, who told Mrs. Brown. Paulette Brown was tested at the Rape Treatment Center on September 9, and the investigators for the police department examined the equipment room on September 12. To gain entry to the room, the police drilled through the deadbolt lock. Five non-mobile sperm were found within Paulette Brown by the Rape Treatment Center. Testing by the Miami-Dade Police Department Crime Lab established that the sperm came from an individual that was an "O-positive secreter." This is the most common blood type. Forty percent of the American population falls in this category. Respondent is a member of this category, that is, Respondent is an "O-positive secreter." The Miami-Dade Police Department's fingerprint experts examined and dusted the equipment room at American Senior High School and found identifiable fingerprints of the Respondent. They found no identifiable fingerprints of Paulette Brown. The parties have stipulated that simply because one touches an object, one does not necessarily leave fingerprints. The sheet, which Paulette Brown claims she lay upon while having sexual intercourse with Respondent, was impounded from the equipment room and examined. Nothing of serological value was found. Respondent, Otis J. Fells, did not commit sexual battery upon Paulette Brown on September 8, 1981, and Respondent, Otis J. Fells, did not engage in any sexual activity with Paulette Brown on September 8, 1981.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Respondent not guilty of immorality and misconduct in office, as set forth in the Amended Notice of Charges filed in this cause, and reinstating Respondent as an employee of the School Board of Dade County with back pay. RECOMMENDED this 16th day of July, 1982, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 1982. COPIES FURNISHED: Jose E. Martinez, Esquire Leib I Martinez, P.A. 201 Alhambra Circle, Suite 1200 Ponce de Leon Plaza Coral Gables, Florida 33134 Phyllis O. Douglas, Esquire Assistant Board Attorney Dade County Public Schools Administrative Office 1410 N.E. Second Avenue Miami, Florida 33132 Elizabeth J. du Fresne, Esquire du Fresne & du Fresne, P.A. 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Dr. Leonard M. Britton Superintendent of Schools Dade County Public Schools Administrative Office 1410 N.E. Second Avenue Miami, Florida 33132
The Issue The issue is whether Respondent is entitled to an athletic coaching certificate, as described in section 1012.55(2), Florida Statutes, and Florida Administrative Code Rule 6A-4.004(4).
Findings Of Fact Early Life: 1960-1978 Petitioner was born on December 22, 1960. Petitioner is the youngest of five sons born to a Bahamian mother, who worked as a beautician, and a Jamaican father, who worked as a custodian. Petitioner's four older brothers have all earned college degrees. Petitioner's oldest brother served as an Army psychiatrist. Two other brothers also served in the military: one as a comptroller and the other as a Navy pilot. Petitioner's youngest brother is the executive director of a well-known hotel on Miami Beach. Petitioner grew up in the Liberty City section of Miami and graduated from Miami Beach Senior High School in 1978. Liberty City was a dangerous area in which to live with gunfire a familiar sound to residents. Two years after Petitioner graduated, Liberty City and other parts of Miami were torn by race riots. Unlike all of his siblings, Petitioner has never attended college. After high school, Petitioner worked as a washer and cook at a local hospital, but continued to pursue his real interest, which was performing as a disc jockey (DJ). Interning nights at a local radio station, Petitioner acquired enough experience to start a mobile DJ business in Liberty City and Miami Beach, where he worked on weekends. Criminal History: Essentially 1979-1986 Respondent's characterizations of Petitioner's criminal history as "extensive," in the Amended Notice of Reasons, or, worse, "storied," in his proposed recommended order at page 7, are unsupported by the record. As explained in the Conclusions of Law, only two criminal incidents are relevant, and they are misdemeanors that occurred over 25 years ago. The rest of Petitioner's criminal history consists entirely of arrests for which the charges were later dropped, except for a 1986 case in which the court withheld adjudication on a felony weapon charge to which Petitioner's plea is not in the record and a 2009 arrest for unpaid child support for which the purge amount was about $10,000. On August 28, 1979, Petitioner, then 18 years old, was arrested in Dade County for reckless display of a firearm and possession of over five grams of marijuana, both felonies. The marijuana charge--Petitioner's only arrest for drugs or alcohol--was dismissed, but Petitioner was convicted of improper exhibition of a firearm, a misdemeanor, and fined $25. This incident will be referred to as the "1979 Misdemeanor." In a letter dated May 7, 2009, to the Miami-Dade School Board Executive Director of Fingerprinting, Petitioner stated that he was in the backyard of his parents' home with one of his brothers and in possession of a bb gun. The small fine corroborates Petitioner's explanation. It is therefore found that a "bb gun" was the weapon in question, although Petitioner's letter misstated that all charges were dropped. On February 12, 1985, Petitioner was arrested in Dade County for loitering and prowling and carrying a concealed weapon, the former a misdemeanor and the latter a felony. By operation of a deemed admission to Respondent's Requests for Admission, Petitioner, while a passenger in a vehicle, was found in possession of a semi-automatic weapon concealed in a ski mask. The misdemeanor charge was dismissed, but the court withheld adjudication of guilt on the felony charge and imposed a fine of an unspecified amount. The record does not disclose Petitioner's plea to this charge. In his May 7, 2009, letter, Petitioner explained that, while he was DJing in a park without a permit, he had a concealed weapon without a permit, but misstated that both charges were dropped. On November 18, 1985, Petitioner was arrested in Dade County for inciting rioting, a felony. This charge was dismissed. In his May 7, 2009, letter, Petitioner explained that he was DJing in a park and was arrested because the music was too loud. On October 4, 1986, Petitioner was arrested in Hillsborough County and charged with grand larceny with a firearm, a felony. Based on a guilty plea, Petitioner was convicted of improper exhibition of a firearm, a misdemeanor, and sentenced to time served. This incident will be referred to as the "1986 Misdemeanor." In his May 7, 2009, letter, Petitioner stated that he was DJing a party in Tampa when a group of men started to beat a young woman in the parking lot. When security refused to intervene, Petitioner displayed a firearm to break up the crowd. Petitioner's letter misstates that the charge was dismissed. His explanation fails to account for the portion of the charge involving grand larceny, but makes sense when applied to the charge of which Petitioner was convicted. On December 13, 1987, Petitioner was arrested in Dade County for two or three counts of aggravated assault with a weapon and possession of a weapon to commit a felony, all felonies. These charges were dismissed. In his May 7, 2009, letter, Petitioner explained that a large fight broke out at a skating rink, but surveillance video revealed that he had not been involved in the fight, nor had he possessed a weapon. On or about June 15, 1993, Petitioner was arrested in Cook County, Illinois, and charged with disorderly conduct. This charge was dismissed. In his May 7, 2009, letter, Petitioner stated that he was staying at the Ritz in Chicago. While shopping along the riverfront, a law enforcement officer asked him if he could afford to shop there. A confrontation ensued, and the officer arrested Petitioner, but the charge was later dropped. On May 17, 1994, Petitioner was arrested in Dade County and charged with aggravated assault with a weapon, a felony. The charge was dismissed. In his May 7, 2009, letter, Petitioner explained that a fight had broken out at a house party, and the police arrested everyone in attendance. There is no record of a 1997 arrest for battery. There is an arrest in July or October 1996 for battery in Louisiana, but Petitioner pleaded not guilty, and the charge was dismissed. In his May 7, 2009, letter, Petitioner mentioned a 1997 case involving a nightclub fight with which he had not been involved. A week later, a complainant claimed that Petitioner had hit him, but the charge was dismissed. On July 5, 1999, Petitioner was arrested in Dade County and charged with battery, a misdemeanor, which may have been raised to aggravated battery, a felony, by the prosecutor. Either way, the charge was dismissed. In his May 7, 2009, letter, Petitioner explained that a fight broke out at a nightclub, but witnesses verified that Petitioner had not hit the complainant, who originally said that another person had hit him. On October 6, 2002, Petitioner was arrested in Dorchester County, South Carolina, and charged with aiding or procuring a person to expose private parts in a lewd and lascivious manner--namely, the insertion of a soda bottle by two strippers into the vagina of a member of the audience who climbed onstage during a performance, as well as several acts of unspecified obscenities by two male members of the audience with the aforesaid strippers. The charge was that these unlawful acts were in the presence of and with the encouragement of Petitioner. The South Carolina documentation is contradictory as to disposition. The most plausible rendering of the disposition comes from the general sessions docket, which reports that, on October 13, 2003, this charge was dismissed with leave to restore, if Petitioner violated an agreement not to appear in South Carolina for five years at a revenue-producing event. Another document completed by the court clerk states that Petitioner was sentenced to six months in the state Department of Corrections, based on a plea not otherwise described, but the sentence was suspended for five years, pursuant to the agreement identified above. A partial transcript of the October 13, 2003, court proceeding quotes the judge as saying that the state was nolle prossing two charges, and the court was sentencing Petitioner to six months on apparently a third offense, even though nothing in the other documents describes three charges, but the judge suspended the sentence for five years, subject to the above-identified agreement. As noted in the Conclusions of Law, the burden of establishing what took place in South Carolina falls on Respondent. Nothing in the record supports the judge's reference to three charges, which renders the judge's description of events unreliable. The most that can be said of the South Carolina incident is that a lone charge was dropped, subject to reinstatement, if Petitioner made a revenue-producing appearance in South Carolina for five years. The evidence fails to establish any finding of guilt by the court, plea of guilty by Petitioner, or subsequent reinstatement of the charge. In his May 7, 2009, letter, Petitioner stated that the club owner had performers on stage, but Petitioner had nothing to do with their performance. Petitioner testified that he had been paid merely to appear at the club and sign autographs. On February 17, 2009, Petitioner was arrested on a writ of bodily attachment in connection with a finding of contempt of court for failing to pay child support. The purge amount was $10,223.36. The disposition of this matter is unclear, although it is obvious that Petitioner was arrested for an unpaid child-support obligation and was released, presumably after paying the purge amount or such lower amount as the court deemed fit. Luke Records and 2 Live Crew: 1987-1992 After graduating from high school, Petitioner grew his DJ business to the point that, by 1987 or 1988, he had started Luke Records, Inc., a record company devoted to the production and sale of hip-hop music. Using funds provided by his brothers, Petitioner eventually employed over 40 persons in Miami and elsewhere around the United States. The growth of Luke Records was largely the result of its association with 2 Live Crew (2LC), a hip-hop group known for its sexually explicit songs. Not yet under contract with a record company, 2LC visited Petitioner in Miami, where the parties agreed to a recording contract. Petitioner appears to have quickly assumed substantial business and performance roles with 2LC and wrote some of the songs that the group performed. Serving as the frontman for 2LC, Petitioner was prominent in the group's performances, which, according to Petitioner, featured dance music informed by the twin themes of sex and comedy. Clearly, 2LC's songs were dance music that featured sex. Regardless of the role of comedy in 2LC's music, Petitioner himself acknowledges that its sexual themes rendered the music inappropriate for minors. The evidentiary record does not include the lyrics to 2LC's songs, but the more offensive titles include vulgar references to male and female genitalia and a reference to women as "hoes," meaning "whores, as well as at least one album cover featuring Petitioner surrounded by scantily clad women. Given the explicit sexual content of the titles and lyrics, Petitioner helped promote the use of parental advisory stickers to be applied to albums, tapes, and CDs, including those of 2LC, that contained lyrics inappropriate for minors and thus constituted a form of adult entertainment. On the other hand, two unimpeachable sources--the United States Supreme Court and the Eleventh Circuit Court of Appeals--found serious elements in at least certain of the 2LC songs of this era. In a copyright infringement case that arose after Luke Records had sold over 250,000 copies of 2LC's adaptation of Roy Orbison's, "Oh, Pretty Woman," the Supreme Court held, in a case of first impression, that commercial parody could be protected under the fair-use exception to copyright law. Describing the song itself, the Supreme Court opinion states: While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works. Campbell v. Acuff-Rose Music, 510 U.S. 569, 583 (1994). In Luke Records v. Navarro, 960 F.2d 134 (11th Cir.) (per curiam), cert. denied, 506 U.S. 1022 (1992), Petitioner and others won a reversal of a district court declaratory judgment that the 2LC musical recording, "As Nasty As They Wanna Be," was obscene under state and federal law. In another case of first impression--this time applying the obscenity test in Miller v. California, 413 U.S. 15 (1973), to a musical composition containing instrumental music and lyrics--the appellate court relied on the testimony of two newspaper music critics that the subject music possessed serious musical or artistic value. More interestingly, the court relied on the testimony of a Rhodes scholar who was soon to undertake employment as an assistant professor of political science at Columbia University. This testimony, which focused on the lyrics, traced "As Nasty As They Wanna Be" to three oral traditions of African-American music: the "call and response," "doing the dozens," and "boasting." Noting that the lyrics of "As Nasty As They Wanna Be" reflected many aspects of poor, inner-city blacks, this witness added that some of the lyrics contained statements of political significance or used literary devices, such as alliteration, allusion, metaphor, rhyme, and personification. Assuming without deciding that the trial judge had correctly determined that "As Nasty As They Wanna Be" met the first two prongs of the Miller test--i.e., the work as a whole appeals to prurient interest based on contemporary community standards and the work depicts in a patently offensive way sexual conduct specifically defined by state law--the appellate court rejected the trial court's determination that "As Nasty As They Wanna Be" fails the third prong of the Miller test--i.e., that it "lacks serious artistic, scientific, literary or political value." 960 F.2d at 138 (citing Miller, 413 U.S. at 24). After 2LC: 1992-2008 Petitioner and 2LC parted ways in 1992. Three years later, Petitioner and Luke Records, Inc. filed for bankruptcy, which resulted in the assignment of all masters and copyrights owned by Petitioner or Luke Records, Inc., to a company formed by a former in-house counsel of Luke Records. Thompkins v. Lil' Joe Records, Inc., 476 F.3d 1294, 1299-1301, and 1314n.22 (11th Cir. 2007). To some extent, perhaps due to the bankruptcy, Petitioner lost exclusive use of names associated with him, such as "Uncle Luke." As an asset of Petitioner, the Luther Campbell brand suffered a loss in value. The evidentiary record provides an incomplete picture of what Petitioner did during the ten years following his departure from 2LC. The arrests and Petitioner's explanations suggest that he DJed at house parties, made paid appearances at autograph-signing events, and attended nightclubs, although whether as a performer, audience member, or promoter is not clear. Petitioner released four hip-hop albums from 1992-2006. As always, Petitioner remained in Miami. In 1991 or 1992, Petitioner was among the persons who started the Liberty City Optimist youth football program. Competing with the local John Doe gang, Petitioner and other founders of the Optimist youth football program got kids off the dangerous streets and onto the football field. During the early years of his involvement with the youth football program, Petitioner invested considerable time and money, contributing at least $80,000. Petitioner helped lobby the Miami-Dade County Commission for what was eventually an expenditure of an estimated $14 million in facilities to serve organized football at local parks. Now, the Liberty City Optimist youth programs serve 6000 boys and girls, from 4-16 years of age, through a variety of sports and academic programs. Petitioner's wife, a local attorney and former FSU cheerleader, chairs the Liberty City Optimist youth cheerleading program. Although there have been some football-famous graduates of the program, such as Chad Johnson, the program's larger success is that 90 percent of the first group of youth to complete the program started college. Until 2005, Petitioner was not directly involved with the children in the Optimist youth programs. In 2005, realizing that his entertaining career had "taken a turn," Petitioner began coaching an Optimist youth football team. As he dialed up his involvement with youth, Petitioner tapered off his performances and appearances. Petitioner's two most recent albums are Somethin' Nasty, which was released in 2001, and My Life and Freaky Times, which was released in 2006. In contrast to the earlier cover art of 2LC, the cover art for the last album depicted Petitioner surrounded by fully clothed women. But some of Petitioner's titles would fit easily among the oeuvre of 2LC in its heyday. Somethin' Nasty includes "Suck This Dick," "We Want Big Dick," and "Hoes," and My Life and Freaky Times includes "Pop That Pussy" and "South Beach Bitches." In 2008, Petitioner made his last appearance, to date, with 2LC, at what was limited to an autograph-signing event. At the beginning of this period of Petitioner's life, in 1993, he became acquainted with James Harbor, Jr. Mr. Harbor was working for a state representative and met Petitioner through Congressman Alcee Hastings. Mr. Harbor later did an internship with Petitioner. Still later, Mr. Harbor was elected as a state representative from Palm Beach County and enlisted Petitioner in get-out-the-vote campaigns throughout Florida. Interestingly, Mr. Harbor testified that, as part of a voter-recruitment campaign, Petitioner appeared "in character." Mr. Harbor stressed repeatedly the distinction between the public persona of Petitioner and his private personality. Not a party person, during the time that Mr. Harbor has known him, Petitioner has always been "structured," hard-working and responsible, respectful toward women, and a firm disciplinarian when it came to his children. Mr. Harbor's testimony about the distinction between Petitioner's public persona and private personality finds support throughout the record, including a careful examination of the timelines. The 1979 Misdemeanor and 1986 Misdemeanor both involved weapons, not sex, and 2LC's main theme appears to have been sex, not violence or weapons. Whatever image of garish defiance that Petitioner may have cultivated during his 2LC-era, by the start of that era, he was never arrested again on charges that resulted in an admission of guilt, a no-contest plea, or a finding of guilt, except for the child-support arrest. Although the certification of Petitioner must take into consideration his public persona, to the extent that it still derives from his short-lived career with 2LC, there is no indication over the past 20 years that, outside of his performances and appearances, Petitioner has resembled the sex- song impresario, whom he portrayed with 2LC and in his later albums. High School Football: 2009-Present Starting in the 2009-10 school year, Petitioner turned from coaching Optimist youth football to coaching local high school football. During the 2009-10 and 2010-11 school years, Petitioner served as an assistant football coach at Miami Central Senior High School, where his wife teaches a law class. For the 2011-12 school year, Petitioner served as an assistant football coach at Miami Northwestern Senior High School. Although he would be willing to work as an unpaid volunteer, Petitioner has been required, due to insurance requirements in the school district, to accept the pay of a part-time contract football coach, which is $1000-$1200 per year. No longer living in Liberty City, Petitioner lives closer to another Miami-Dade County high school whose students are less exposed to violence and less at-risk than the students attending Miami Central or Miami Northwestern. Nearby Broward County public high schools do not require an athletic coaching certificate because school district policy allows a volunteer to coach. But Petitioner has decided to help the most vulnerable, most at-risk students from the inner-city neighborhood where he grew up. Petitioner has served these students in ways that other persons would find difficult, if not impossible, to replicate. Trying to combat the sense of hopelessness that sometimes afflicts at-risk youth, Petitioner has worked at both schools to install a sense of school pride in football and academics. When he arrived at Miami Central, the school was an F school, but Petitioner joined a school-wide effort to improve learning conditions, and, when he left two years later, the school was a B school. Similarly, when Petitioner arrived at Miami Northwestern, it was a D school, but it earned a B during the most recent school year. Miami Northwestern is located directly across the street from housing projects, and its students are regularly the targets of violence, often involving weapons. About one-quarter of its students are required to attend gun programs. The football team includes many homeless children and children with children. In the month preceding the hearing, two Miami Northwestern students had been killed. On a positive note, about 70 percent of the 95 students on the Miami Northwestern football team are graduates of the Optimist youth football program. Also, as many as 90 percent of the students who played on the high school football teams that Petitioner has coached are attending college. The students with whom Petitioner works appreciate his dedication and hard work. They know that Petitioner has spent his entire life in Miami and has known some hard times. Generally, they know that, before they were born, Petitioner had been a celebrity as a member and promoter of a hip-hop group, itself known for its frank defiance of convention, at least in terms of graphic sexual language. As Petitioner testified, his students' mothers know Petitioner from when he was a DJ on a streetcorner, through his association with 2LC and discovery of new talent, such as the hip-hop artist Pitbull, and now from his work with youth. This familiarity presents unique mentoring opportunities to Petitioner. For instance, Petitioner knew one student's father, who later went to prison where he was murdered. One day, the student's mother approached Petitioner and asked him to tell her child about the good things that his father had done before he went to prison and died. Reflecting Petitioner's dedication to at-risk youth, for at least the past four years, Petitioner has rented one or two 15-passenger vans and, at his expense, transported interested players to schools in the southeast where they might be able to attend college. Petitioner does not reserve his attention to potential stars; instead, he tries to find colleges and junior colleges at every level that might be interested in admitting an individual student. Steven Field, the head coach of the Miami Northwestern football team, testified on Petitioner's behalf. Coach Field, who has most recently coached at University of Miami and Hampton University in Virginia, also coached at Miami Central from 2000- 2004. Coach Field testified that Petitioner is an "essential" member of his coaching staff, not for his name or past career, but for his way with the students. Petitioner leads by example and always fulfills any promises that he makes to the students--things that may otherwise be lacking in the lives of some of these inner-city youth. According to Coach Field, Petitioner's "no-nonsense, professional" style of dealing with the students commands their attention and respect. For example, as the coach in charge of the weight room, Petitioner does not allow swearing. When one student became disrespectful to another coach, Petitioner ordered the student to leave the premises. Neither Petitioner nor Coach Field would allow 2LC music to be played in the weight room due to its inappropriate adult content. Petitioner testified that, in trying to save students, he will "talk 'till I'm blue in the face," revealing not only the necessary dedication, but, more importantly, the insight that that there are no shortcuts or quick fixes in trying to communicate with at-risk children. Reinforcing the realism evident in Petitioner's testimony, Coach Stevens described his and Petitioner's efforts with the students as not much more than reinforcing the notions of living right at home and "getting your books at school." Coach Stevens stressed that he and Petitioner do not concentrate exclusively on the students who are talented enough to play football in college. At least a half dozen students are in felony programs. With these students, Coach Stevens testified that he and Petitioner do not speak about "getting into Georgia Tech"; they speak about finishing high school and getting a job. Coach Stevens has never heard Petitioner speak to the students about mistakes that he has made, nor does he wish Petitioner to do so. Coach Stevens, Petitioner, and the other coaches try to set a positive tone, so they talk to the students about what they need to do, not about mistakes that the students--or coaches--may have made in the past. However, if the school resource officer tells Petitioner about problems that an individual student is having, Petitioner will talk to the student one-on-one. In such conversations, Petitioner does not shy away from relating personally to what the student is going through. The Application Received on April 27, 2010, the Application answers "yes" to the following questions: Have you ever been found guilty of a criminal offense? Have you ever had adjudication withheld on a criminal offense? Have you ever pled guilty to a criminal offense? The Application answers "no" to the following questions: Have you ever been convicted of a criminal offense? Have you ever pled nolo contendere to a criminal offense? The Application lists the following arrests and states that the disposition of all charges was dismissal, except for the South Carolina charge, which is reported as "guilty/adjudication withheld": Miami--8/79--reckless display of firearm Miami--2/85--loitering/prowling Miami--11/85--inciting riot Miami--12/87--aggravated assault Hillsborough--12/87--aggravated assault Miami--5/94--aggravated assault Miami--7/99--battery Dorchester County--10/22--"dissem promote" The Application is flawed in its disclosure of Petitioner's criminal history. As alleged in the Amended Notice of Reasons, the disclosure of the "loitering/prowling" arrest fails to mention the felony weapons charge, which was part of the same incident, and thus fails to note that the court withheld adjudication on this charge. Also, as alleged in the Amended Notice of Hearing, the Application fails to disclose the 1986 Misdemeanor, which occurred in Hillsborough County. Although the Application discloses a Hillsborough County arrest, it seems to confuse the incident with a later arrest in Dade County, but, more importantly, omits mention of the finding of guilt on this misdemeanor weapon charge. However, these flaws do not prove that Petitioner intentionally concealed information or was less than honest in completing the Application. Obviously, he has had many arrests, so the potential for confusion or even omission exists, and there are comparatively few inaccuracies. On these facts, it is found only that Petitioner filed an inaccurate application, but not that he filed an application with fraudulent or dishonest intent. Petitioner: At Present Petitioner does not pose a risk to the safety of the students entrusted to him. For the past seven years, Petitioner has had significant direct contact with vulnerable youth without any reported problems. In light of this critical fact, the 1979 Misdemeanor, 1986 Misdemeanor, and Petitioner's former involvement with 2LC and the adult entertainment industry lose whatever contrary predictive value that they might otherwise have. Simply put, Petitioner does not resemble the youth who committed the 1979 Misdemeanor or 1986 Misdemeanor or the man who performed with and promoted 2LC 20 years ago. Petitioner resembles the middle-aged man who released sexually explicit songs in 2001 and 2006, but this is addressed below. As noted in the Conclusions of Law, good moral character requires consideration of a person's honesty, fairness, and respect for the rights of others and the law, so consideration of student safety, although important, is not sufficient. But the 1979 Misdemeanor and 1986 Misdemeanor, as old misdemeanors, provide insufficient support for a finding that, today, Petitioner lacks honesty, fairness, or respect for the rights of others and the law. Nor do these criminal offenses support findings that Petitioner has been guilty of gross immorality or moral turpitude, as those terms are defined in the Conclusions of Law. Likewise, Petitioner's 2LC career 20 years ago and even his more recent releases of 2LC-like albums in 2001 and 2006 do not support a finding that he lacks honesty, fairness, or respect for the rights of others and the law or that he is guilty of gross immorality or moral turpitude. For the reasons noted above, the redeeming value to be found in the releases means that they do not violate the law, provided they also conform to any laws restricting their dissemination, such as not to minors or not on television during certain hours of family viewing. Absent an attempt to market the offensive material in some broadly accessible fashion, such as on billboards or the sides of public buses, such non-obscene works similarly do not violate the rights of others. As noted above, the flaws of the Application do not support a finding of dishonesty or fraud. But, in his proposed recommended order, Respondent fairly questions Petitioner's initial refusal to identify his Application at the hearing. This failing of Petitioner, as well as the two others discussed in the succeeding paragraphs, cannot serve as standalone grounds for denial because: 1) they arose at the hearing and thus were not available as grounds in the Amended Notice of Reasons and even if alleged, they do not rise to the level of a lack of good moral character, as in a lack of honesty or fairness. But they do provide part of the justification for adding conditions to any certificate issued to Petitioner. Petitioner's failure at the hearing initially to identify his Application was not due to any confusion. There were not multiple versions of applications from which to choose. There was one Application on the table, and Petitioner initially testified, more than once, that he could not identify it. The temptation appeared palpable for Petitioner to off-load the responsibility for an obviously flawed application onto someone else who may have completed it for Petitioner, who nonetheless signed it. Cannily, Respondent's counsel moved for a summary order. The Administrative Law Judge warned Petitioner that the Division of Administrative Hearings lacked jurisdiction in the absence of an application. Petitioner and his attorney made good use of a short recess to confer. After the recess, Petitioner identified Respondent Exhibit 1 as the Application that he had filed for an athletic coaching certificate. Petitioner's second failing of this type, also noted in Respondent's proposed recommended order, consists of his unwillingness to own up to his role or roles in any of the salacious songs that he has performed or produced. While it is possible that Petitioner might not have been responsible for the more salacious songs performed by 2LC, he clearly was responsible for the five sexually graphic titles on the two most recent, post-2LC albums, which, as discussed above, were released in 2001 and 2006. Petitioner's third failing of this type occurred when he testified about his bad period from 1979 to 1986. Petitioner admitted only to not living a "perfect" life and associating with bad persons. This seems a little lean for two misdemeanor weapons convictions and a withholding of adjudication of guilt on a felony weapon charge--all in the span of seven years. As Respondent points out, Petitioner has displayed minimal contrition for the bad choices that he made during this period. At minimum, he missed an opportunity to describe how he has changed when he "admitted" only that he was not perfect or implied that his legal problems were caused by bad associations. In these three instances, Petitioner sought to escape personal responsibility by claiming or implying that other persons prepared the flawed Application that he was somehow compelled to sign, other persons forced him to perform songs with five salacious titles in 2001 and 2006, and other persons got him into trouble during the bad period over 25 years ago. Although not evidence of a lack of honesty, Petitioner's failure to affirmatively own up to these acts suggest a lack of self- insight and perhaps even a misapprehension of the extent to which he must subject himself to the regulatory oversight that is imposed on applicants for certificates and, later, certificateholders. The other justification for adding conditions to any certificate issued to Petitioner is the prospect of his return to adult entertainment. In addition to part-time coaching at Miami Northwestern, Petitioner also owns a company, Luke Holdings, which deals in movie scripts and produces elements of television commercials, among other pursuits in the entertainment industry. In recent years, extreme examples of adult entertainment, such as pornography, have emerged bearing the Luther Campbell brand, but Petitioner denied that he has been involved in the production of such material. His denial is credited, although it would have been more persuasive, absent Petitioner's failings described in the preceding paragraphs. As noted above, Petitioner lost exclusive control of his brand after the bankruptcy in 1996, and, presumably, given the shadowy nature of the pornography industry, illegal use of his name is not out of the question. The distinction between past and present involvement in adult entertainment is an important one. In a recent case, EPC did not treat past involvement in the adult entertainment industry the same as involvement while a certificateholder. See In re: The Denial of the Application for Teacher's Certificate of Shawn J. Loftis, EPC Case No. 11-0464D (April 5, 2012) available at http://www.myfloridateacher.com/discipline/icmsorders/101-2590- FO-040512155402.pdf). In Loftis, Respondent denied Mr. Loftis's application for a Florida Educator's Certificate on the grounds of a lack of good moral character, gross immorality, and moral turpitude, as well as personal conduct that seriously reduces one's effectiveness as a school board employee, which violates section 1012.795(1)(g). The factual bases for the denial was that, between 2006 and 2008, Mr. Loftis had appeared in over 20 pornographic films featuring him engaged in explicit sexual activity, and the films were still available for viewing, including on the internet, although this employment had ended prior to Mr. Loftis's temporary employment as an instructor in Miami-Dade County public schools. After an informal hearing, EPC ordered that Mr. Loftis be allowed to continue to pursue certification. EPC stated that, if "found qualified," Mr. Loftis would be issued a Florida Educator's Certificate, subject to the conditions that he obtain from an approved, Florida-licensed provider written verification that he poses no risk to children and is capable of assuming the responsibilities of an educator and that, upon employment that requires possession of a Florida Educator's Certificate, Mr. Loftis be placed on probation, subject to the following conditions: 1) he immediately notify the DOE investigative office upon employment or termination of employment requiring a Florida Educator's Certificate; 2) his immediate supervisor send annual performance reports to the DOE investigative office; he pay EPC $150 for the costs of monitoring his probation; and 4) he violate no law or rules, satisfactorily perform all assigned duties in a professional manner, and bear all costs of compliance with the final order. The Loftis final order illustrates EPC's ability to issue a conditional certificate, even without a finding that the applicant had failed to meet the qualifications for certification. In considering the requirement stated in section 1012.795(1)(g) concerning personal conduct that seriously reduces the effectiveness of the certificateholder as a school board employee, the Notice of Reasons in Loftis, when compared to the Amended Notice of Reasons in the subject case, more closely approaches the most elastic requirement of Florida Administrative Code Rule 6B-1.006(3)(a) that a certificateholder (or applicant) "[s]hall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety." Juxtapose this broader, objective requirement of protecting the student from conditions harmful to learning or harmful to the student's mental health with: 1) Petitioner and Coach Field's efforts to inculcate in their at-risk students such values as strength of character, perseverance, dedication, and hard work in the pursuit of ambitious goals and 2) the future release of more artistic or entertainment efforts along the lines of "Suck This Dick," "We Want Big Dick," "Hoes," "Pop That Pussy," and "South Beach Bitches." Consider the bewildering effect on students if, one afternoon, in the weight room and on the field, Coach Campbell were to promote rectitude and grit and, that night, the same man were to don the garb of the sex-song impresario and promote the escapist pursuit of sexual gratification. The addition of music or elements of African boasting and literary allusion in, say, "Pop That Pussy" or "Suck This Dick," which would rightfully spare these works from successful prosecution as obscenity, would not have any bearing on the extent to which the superficial appeal of this form of adult entertainment could undermine the hard, patient work of these students' coaches, teachers, and parents in trying to shape them into responsible young men. Impressionable inner- city youth might be easily confused by these competing messages, as they compared the paltry sums paid their contract coaches and modest sums paid their regular coaches and teachers with the riches lavished upon the producers of adult entertainment. Although the Loftis final order emphasizes that the applicant no longer is engaged in the making of pornographic films, neither that authority nor the record in this case provides a sufficient basis for attaching a condition to Petitioner's certificate prohibiting his engaging in the adult entertainment industry. Such litigation awaits another day and, one hopes, another certificateholder than Petitioner or Mr. Loftis. However, conditions attached to Petitioner's certificate could focus his attention on the ethical obligations that he has assumed as a certificateholder and the very real possibility that that his return to the performance or production of adult entertainment, while a certificateholder, would be at crosspurposes with the broad mission of education and expose his certificate to suspension or revocation. Petitioner should receive an athletic coaching certificate because he generally meets the substantive certification requirements that call for consideration of such broad criteria as good moral character and the absence of gross immorality and moral turpitude, he possesses unique attributes for reaching at-risk, inner-city youth, and he has demonstrated his commitment to, and effectiveness with, working with these children for at least seven years.
Recommendation It is RECOMMENDED that EPC issue an athletic coaching certificate to Petitioner, subject to the following conditions: The certificateholder shall be placed on probation for five years, immediately upon issuance or, if later, employment that requires a certificate. Upon issuance of the certificate and on each anniversary of issuance, during the term of probation, EPC or its agent shall contact the Department of Revenue and inquire if Petitioner owes any child support arrearages. Upon receipt of written notice of such arrearages from the Department of Revenue or a circuit court, EPC shall immediately suspend the certificate until the arrearages are paid in full. The payment of a purge amount that leaves an arrearage owing does not satisfy this condition. Within six months of issuance of the certificate and within six months of each anniversary of issuance, during the term of probation, Petitioner shall complete 10 hours in coursework in the area of ethics with emphasis on the Principles of Professional Conduct, Florida Administrative Code Rule 6B-1.006 and shall deliver to the DOE investigative office written proof of such coursework. At the start of every school year, during the term of probation, Petitioner and his immediate supervisor will sign a statement certifying that each has read the Principles of Professional Conduct and deliver the signed statement to the DOE investigative office within 20 days of the first day of school. The supervisor's statement shall confirm that he or she understands that his or her professional obligations include the obligation of Rule 6B-1.006(5)(l) that he or she "shall not assist entry into or continuance in the profession of any person known to be unqualified in accordance with these Principles of Professional Conduct for the Education Profession in Florida and other applicable Florida Statutes and State Board of Education Rules." Petitioner's statement shall confirm that he understands that his professional obligations include the obligation of Rule 6B-1.006(3)(a) that he "shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/ or physical health and/or safety." If Petitioner's immediate supervisor changes during the school year, the new supervisor shall sign a supervisor's statement within 30 days of his or her assumption of supervisory duties over Petitioner and deliver the signed statement to the DOE investigative office within 60 days of his or her assumption of supervisory duties over Petitioner. Within 30 days of the preparation and delivery of an evaluation to Petitioner, during the term of probation, he shall submit a copy to the DOE investigative office. During the term of probation, if Petitioner becomes actively involved in the adult entertainment industry, in any manner, he shall notify the DOE investigative office, in writing, within 30 days of first involvement. For the purpose of this paragraph, the performance or production of a sexually explicit song that would be inappropriate for the football team weight room or the appearance at an autograph- signing event promoted on the basis of Petitioner's former involvement with 2LC is active involvement in the adult entertainment industry. During the term of probation, the certificateholder shall reimburse EPC or its agent its reasonable costs of monitoring. If any of these conditions, except for the condition stated in paragraph 2, are not timely performed by Petitioner or, if applicable, his supervisor, EPC may suspend the certificate until Petitioner demonstrates compliance (or the term of the certificate expires) or, at its discretion, revoke the certificate. DONE AND ENTERED this 15th day of May, 2012, 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 15th day of May, 2012. COPIES FURNISHED: Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Charles M. Deal, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael John Carney, Esquire Kubicki Draper, P.A. Wachovia Bank Building, Suite 1600 One East Broward Boulevard Fort Lauderdale, Florida 33301 mjc@kubickidraper.com Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. Suite E 300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316 charles@ctwpalaw.com
Findings Of Fact This case was presented for consideration based upon the Administrative Complaint and subsequent amendment presented by Ralph D. Turlington, as Commissioner of Education, State of Florida, against Michael H. Deis, holder of teaching certificate No. 356436, Rank II, post graduate valid through June 30, 1987. The accusations set forth in the Administrative Complaint and its amendment are as indicated in the Issues statement to this Recommended Order. The remaining facts found result from a formal Subsection 120.57(1), Florida Statutes, administrative hearing held upon request of the Respondent. The Respondent was born March 7, 1945, and is married and has three children, ages one and one-half, four, and eight. The Respondent has been married since June 17, 1972. Respondent has a Bachelor of Science degree, a Masters Degree in Business Administration and fifty-five hours' credit toward a Doctorate of Philosophy in Education. The Respondent has been employed with the Collier County School System in the State of Florida since February, 1974. Prior to that time, the Respondent had been employed in management for General Motors Corporation and with General Development Corporation for a period of three years in Miami, Florida. After becoming an employee of the Collier County School System, the Respondent taught math in the sixth through eighth grades at East Naples, Florida, Middle School. The range of ages for those students was twelve to fourteen years old. Beginning in the January term of 1975, the Respondent taught adult education in the Collier County School System. In 1976, Respondent moved to Everglades High School where he coached boys' basketball, varsity basketball and girls' basketball. His academic responsibility at that school included the teaching of basic math and other subjects to boys and girls whose ages ranged from fourteen to twenty. The Respondent then moved to Barron Collier High School in September, 1978, as a daytime adult education instructor. The age range for those students was from sixteen to eighty-three. In the school years 1978-79 and 1979-80, the Respondent coached girls' softball, girls' junior varsity basketball and assisted with the track program for girls. The ages of the girls Respondent coached or assisted were fourteen through eighteen. During the school year 1978-79, the Respondent met one Lori Tomaselli, a member of the girls' basketball team. This initial introduction was followed by correspondence of August 1979, addressed to the Respondent from Lori Tomaselli in which she made comment about her summer vacation and related that she had "missed" the basketball program. At that time Tomaselli was fifteen years old. The letter of August, 1979, was followed by an act on the part of Tomaselli on December 20, 1979, in which she walked up to the Respondent, turned him around and gave him a kiss. Deis' reaction was one of sunrise, followed by a comment to the effect that she was his favorite basketball player. She replied that she had cared for him since the first basketball meeting in October, 1978, when she was fourteen years of age. On December 30, 1979, Tomaselli wrote Deis while she was vacationing in the State of New York. The Respondent did not write in return or contact her. Respondent next saw Tomaselli on January 5, 1980, after she had returned from her vacation and was a participant in a basketball game which the Respondent coached. From the time of this basketball game forward through the basketball season, the Respondent would sit next to Tomaselli on the bus used to transport the basketball team. Approximately two weeks beyond January 5, 1980, the Respondent selected Tomaselli as his classroom assistant or aide. Tomaselli served in this capacity for a period of approximately two months, one hour each day. In the initial part of 1980, the Respondent would also assist Tomaselli with her math and science lessons. Beginning in February 1980, Tomaselli kept the statistics for the girls' softball team which was coached by the Respondent. At the time, Tomaselli was also participating on the girls' track team. The relationship between the Respondent and Tomaselli escalated and on March 7, 1980, Tomaselli kissed the Respondent and gave him a hug. The occasion for this display was that of the Respondent's birthday. Also in the month of March, the Respondent indicated that he began to feel an "interest" in Tomaselli. Prior to the spring school break for 1980, the Respondent paid Tomaselli $50.00 to assist in painting his home. During that same vacation, the Respondent met Tomaselli at a local beach, he coincidence. At one of the track events at which the Respondent was assisting and the young woman Tomaselli was participating, Tomaselli hugged Deis in the presence of her parents. During the time period of the track season, the Respondent drove Tomaselli to her home after school on three occasions and explained his reason for doing so as being one, that a girl friend of Tomaselli's car had broken down; two, that her parents would not pick her up and three, that Tomaselli had asked him for a ride. These rides took place before April 14, 1980. On Sunday, April 13, 1980, the parents of Lori Tomaselli had a discussion with Deis and through this conversation expressed the desire that Deis cease his relationship with their daughter to the extent of not associating with her. Among his responses, the Respondent indicated to the parents that if their daughter were eighteen years old and single, he would ask her out. On that same date, the Principal at Barron Collier High School called the Respondent to inform Deis that the Tomasellis had complained to the Principal. Deis then indicated that he would resign his coaching position effective the next morning. On Monday, April 14, 1980, the Respondent met with the Principal and a Mr. Munz, Assistant Superintendent of the Collier County School System, and as a result of that conference, was given a memorandum which instructed him to have no further contact with Lori Tomaselli. At that meeting, Respondent explained to the school officials that he had a strong emotional attachment for Lori Tomaselli. On the next morning, April 15, 1980, Tomaselli went to Deis' classroom and was shown a copy of the aforementioned memorandum and Deis told her "they would have to cool it." After Tomaselli left his classroom, the Respondent immediately went to see the Principal and told the Principal that he had shown the memorandum prohibiting contact to Tomaselli. As a result of this conversation with the Principal, the Respondent received a second memorandum from Assistant Superintendent Munz which reminded Deis that he was under direct order not to talk to Tomaselli and telling him that the conversation which Deis had had with Tomaselli about the meeting of April 14, 1980, was, by its terms, a violation of the Assistant Superintendent's instructions. The Respondent became angry about the second memorandum in that he thought it was unnecessary. He felt that he was being harassed. As a result of this attitude Respondent began to write to Tomaselli, and she in turn would reply. This letter writing activity continued on a daily basis. In some of these letters, the Respondent instructed Lori Tomaselli, when questioned by the Principal, "to keep cool" and further instructed Tomaselli that when she met with her mental health counselor that she should not indicate that she had been with the Respondent. The letters also indicated to Lori Tomaselli that the Respondent intended to divorce his wife and marry Tomaselli. In addition to the letter writing, Tomaselli began to call the Respondent as much as twice a day, using the cafeteria phone in the school to speak to the Respondent. In May, 1980, the Respondent accidentally saw Tomaselli at a local skating rink while there with his daughter. On May 14, 1980, Deis met with the School Superintendent, Dr. Thomas Richie, and through that conversation agreed to take personal leave. This leave was taken and the Respondent sought psychiatric counseling from Dr. Frank Dennis at the behest of school officials. The leave of absence was from the period May 15, 1980, through May 29, 1980. Dr. Dennis' fees were paid by the Collier County School Board. (During the month of April, 1980, the Respondent had had another meeting with Dr. Richie in which he expressed the opinion to Dr. Richie that he realized his relationship with Tomaselli had become too personal and that he had failed to take steps to correct the situation, and further that he was personally responsible for continuing the development of this relationship.) On May 16, 1980, Tomaselli mailed a letter to the Respondent expressing her affection for him. Around May 18, 1980, Tomaselli ran away from her home and a friend of hers took her to a location where the Respondent, acting as a real estate salesman, was showing a model home. At that time, the Respondent did not want Tomaselli to come into that location and resisted this encounter. The follow-up to the May 18, 1980, meeting was a series of calls from Tomaselli to the Respondent at a residence of a friend of the Respondent's, in view of the fact that Deis had moved from his home. On May 30, 1980, Respondent was called by Tomaselli to ask him to pick her up. The Respondent agreed and after picking up Tomaselli and being afraid of being detected with Tomaselli in his automobile, a circumstance developed in which Tomaselli exited his van and was slightly injured. The Respondent left the area where Tomaselli had jumped from the van and he then removed her property from his automobile. Sometime during the 1979-80 school year, the Respondent had returned Tomaselli's affection by kissing her and expressing his affection for her to the extent of telling Lori Tomaselli that someday she would be Lori Deis, meaning that she would be the Respondent's wife. On July 29, 1980, the Respondent resigned his teaching position in the Collier County School System. After his resignation, there have continued to be letters and telephone communications between tie Respondent and Lori Tomaselli. Those communications were as recent as March 24, 1981, at which time a letter was received by the Respondent from Lori Tomaselli. The relationship between the Respondent and Lori Tomaselli took place at a time when the Respondent was having marital problems and Lori Tomaselli was having difficulty with her parents. Those circumstances continued to exist at the time of the hearing. Nonetheless, the relationship was contrary to the expressed prohibition by the School Administration. The existence of such a relationship was such that it reduced the effectiveness of Deis as a teacher in the Collier County School System and did not provide a proper example for the students, nor allow the Respondent to practice his profession at the highest ethical standards.
The Issue Whether there is "just cause" to terminate Respondent, Edward Starcher, from employment as a teacher in the Collier County School District.
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: Respondent is a teacher certified by the State of Florida in the areas of physical education, recreational dance, and driver's education. On August 18, 1986, the School Board hired Respondent as a teacher. Since being hired in 1986, Respondent taught continually in the Collier County public school system, except for a one-year leave of absence. Respondent began his career at Highland Elementary School and taught there for approximately two to three years. He then taught for nine years at Village Oaks Elementary School. Respondent, subsequently, taught at Gulf Coast High School, where he also served as a basketball coach. In the 2000-2001 school year, Respondent was employed at NHS as a physical education teacher, driver's education teacher, and head basketball coach for the boys' varsity basketball team. At all times relevant herein, Respondent was a driver's education teacher and head coach of the boys' basketball team at NHS. Throughout his teaching career with the School Board, Respondent received positive evaluations and was recognized for having a passion for coaching. Prior to the disciplinary action at issue in this proceeding, there is no evidence that Respondent has been previously disciplined by the School Board. At all times relevant herein, A.K., a female, was a high school student in her senior year at NHS. In January 2003, A.K. was enrolled as a peer tutor under the direction of Respondent, along with two other students--A.D., a female, and A.F., a male. A.K., A.D., and A.F. were enrolled as peer tutors during the fourth block, which commenced at 12:45 p.m. As peer tutors, they assisted Respondent with doing the laundry, folding towels and T-shirts, and delivering them to the storage closet. At the beginning of fourth block, the peer tutors would typically meet Respondent in his coaching office or outside of it, and he would give them their assignment for the day. On Monday, February 10, 2003 (February 10), A.K. reported to Respondent's office during fourth block for her peer tutor responsibilities. A.D., another peer tutor, was absent that day, but A.F. and K.C. were present. K.C., an NHS student, was not assigned as Respondent's peer tutor, but he sometimes assisted Respondent and his peer tutors during the fourth block. On February 10, as Respondent and the peer tutors were exiting Respondent's office to walk to the laundry room, Respondent "put [A.K.] in a little bit of a headlock," in a playful manner. After arriving at the laundry room, Respondent and the peer tutor folded laundry. At some point, Respondent handed A.K. a pile of towels and told her to take it to the storage closet. Respondent also took a pile of towels or jerseys and both A.K. and Respondent proceeded from the laundry area across the gym to the boys' locker room. On this trip to the storage closet, only A.K. went with Respondent across the gym to the storage closet area. A.F. remained in the laundry room because Respondent told only A.K. to come with him. The storage closet was located in the boys' football locker room on the opposite side of the auxiliary gym from the laundry room. On February 10, there was a physical education class with at least 20 students and an instructor on the gym floor playing volleyball. The physical education class was divided into two groups at the opposite ends of the gym so that when the peer tutors and Respondent took the laundry across the gym floor to the storage closet, they would pass between the two groups. Respondent and A.K. entered the boys' locker room area and proceeded to the storage closet to drop off the towels and/or jerseys. A.K. entered the storage closet area first followed by Respondent. After A.K. put the towels down, she noticed Respondent shutting the door quickly, turning the lights off and on, and then opening the door. A.K. asked Respondent what he was doing, and he replied that he was just joking around. During the first trip to the storage closet, as A.K. was walking through the locker room, she saw J.C., a NHS student, near his locker. Some time after Respondent and A.K. walked through the locker room, J.C. walked around to the bench near the storage closet doorway to put on a knee brace. Thereafter, J.C. saw Respondent in the doorway of the storage closet, and Respondent introduced him to A.K. J.C.'s locker was adjacent to the storage closet wall, and he had to walk to the end of the wall and around the corner to get to the doorway of the storage closet. Due to the location of his locker, there was a period of time when J.C. was not near the doorway of the storage closet and could not see that doorway. At some point while A.K. and Respondent were in the storage closet, Corporal Ronald Byington (Coach Byington), the NHS youth relations deputy and an assistant football coach at the school, walked through the locker room from the adjacent coaches' room. Coach Byington stopped and talked to Respondent about a minute and a half. During his very brief conversation with Respondent, Coach Byington did not observe anything out of the ordinary. After briefly talking with J.C., Respondent and A.K. returned to the laundry room. After a short period of time, Respondent handed A.K. a bag of jerseys to take with her to the storage closet and proceeded alone with her back across the gym to the boys' locker room. J.C. was not in the locker room when Respondent and A.K. returned to the storage closet. When A.K. and Respondent returned to the storage closet with laundry a second time, Respondent again followed her into the storage closet, closed the door, and turned off the lights. Respondent then kissed A.K. on her neck and lips, grabbed her leg, and pushed it up against his side. A.K. pushed Respondent away from her, after which he turned on the lights, grabbed himself and remarked, "This is what you do to me." As A.K. approached the door to walk out, he placed A.K.'s hand on his groin. A.K. described the manner in which Respondent kissed her on the neck as "more of a sucking" than a kiss. After the incident described in paragraph 16, A.K. returned to the laundry room followed by Respondent. Upon returning, A.F. and K.C. noticed that A.K.'s neck was red and told her so. When A.F. and K.C. commented about the red mark on her neck, Respondent stated that it was because he had put her in a headlock. After the brief discussion about the red mark on A.K.'s neck, A.K. returned to the boys' locker room a third time, this time with A.F. and Respondent. A.K. had to wait outside the locker room since there were football players in there changing for weight training. Because A.K. could not enter the locker room, she handed the laundry she was carrying to A.F. and/or Respondent. Upon returning to the laundry room from the third trip to the storage closet, Respondent "kind of stopped [A.K.]" as they were walking across the gym floor. He then had A.K. hold her hand up while he did the same and intertwined his little finger with hers while he asked her to "pinkie swear" (promise) she would not tell anybody, and she agreed to do so. However, Respondent then told A.K. that he could not promise that it would not happen again. This brief exchange took place out of A.F.'s earshot. Moreover, given the considerable activity in the gym, it is reasonable that A.F. did not hear this conversation. A.K. returned a fourth time to the locker room to get her book bag and left school. She was in a state of shock, drove home, changed, and left for work. That evening A.K. did not tell her parents about the incident with Respondent because she was embarrassed and uncertain as to how they would react. The next morning, Tuesday, February 11, 2003 (February 11), A.K. was sitting in her car in the NHS parking lot waiting for the first-block bell to ring when her friend, E.W., a senior at NHS, approached her. E.W. noticed that there was something wrong and asked A.K. what was the matter. A.K. started to cry and told E.W. that Respondent had kissed her. As they walked to class, A.K. told E.W. more of what happened. A.K. told E.W. that on the first visit to the storage closet Respondent shut the lights off. A.K. asked him what he was doing and he turned them on. A.K. also told E.W. that on the second visit, Respondent shut the lights off and imposed himself on her, including kissing her on the neck and lips and grabbing her leg. Sometime during the course of the day, A.K. told E.W. about Respondent's having her touch his penis area. On the morning of February 11, soon after A.K. told E.W. about the incident, E.W. asked A.K. whether she had told anyone. A.K. replied that she had not. E.W. then told A.K. that she needed to report the incident to Mary Ellen Bergsma, the school guidance counselor. Although A.K. agreed to do so, she was hesitant and embarrassed to discuss the incident with Ms. Bergsma or anyone. At the beginning of the first block, E.W. accompanied A.K. to Ms. Bergsma's office. Ms. Bergsma invited both girls into her office and shut the door. Initially, when she went into Ms. Bergsma's office, A.K. was visibly upset, choked up, and unable to speak. After being encouraged by E.W., A.K. told Ms. Bergsma about the incident with Respondent. A.K. told Ms. Bergsma that Respondent had "hit on her," meaning that he had kissed her. In response to her question, A.K. told Ms. Bergsma that the event occurred in the storage closet area and then explained what happened in more detail. During this time, A.K. continued crying and had a hard time talking. After A.K. told Ms. Bergsma about the incident, Ms. Bergsma informed A.K. that she would have to talk with Gary Brown, the principal of NHS, about the incident. Later that morning, Ms. Bergsma accompanied A.K. to Mr. Brown's office. Although A.K. appeared uncomfortable and nervous and was crying, she told Mr. Brown basically what she had told Ms. Bergsma. At the end of the day, E.W. went to Ms. Bergsma to report some of the additional details that A.K. was too embarrassed to tell Ms. Bergsma, including Respondent's putting her hand on his genital and saying, "This is what you do to me." Over the next few weeks, Ms. Bergsma had follow-up conversations with A.K. to see how she was doing. She found that A.K. was having difficulty concentrating at school, not sleeping well, and, overall, was "having a tough time." On February 11, after A.K. reported the incident to Ms. Bergsma, she decided to remove A.K. from Respondent's peer tutor class. At 9:02 a.m. that morning, Ms. Bergsma e-mailed Respondent advising the following: "FYI – A.K. is out of your class 4th block." The e-mail was opened by Respondent at 9:05 a.m. and deleted by him at 9:05 a.m. Five minutes later, at 9:10 a.m., Respondent prepared a separate E-mail stating, "Thanks for the info. Have a great day." Respondent never contacted Ms. Bergsma to find out why A.K. was no longer in his fourth-block class. Respondent testified that the e-mail was no big deal to him and that it might have meant A.K. was out just that day since the e-mail from Ms. Bergsma did not have the word "permanently" contained in it. Between approximately 12:00 to 12:30 p.m., on February 11, Mr. Brown told Respondent in person that he wanted to meet with him in Mr. Brown's office at about 2:00 p.m. When Respondent met with Mr. Brown in his office that afternoon, Mr. Brown asked Respondent if he knew why he had been called to his office. Respondent seemed to think about the question and replied that it must be a parent complaining about his basketball program. He thought up several possibilities until Mr. Brown told him it had nothing to do with basketball. Mr. Brown then told Respondent that the meeting pertained to a complaint from a female student who had peer counseling with him and related to inappropriate physical contact that Respondent had with the student. After progressing through each of his classes and being informed by Mr. Brown that it regarded a complaint from the fourth block the preceding day, Respondent stated that the complainant had to be A.K. because she was the only female present that period on February 10. After Mr. Brown informed Respondent of the allegations, Respondent's head dropped down. He had tears in his eyes and stated that he could not believe this was happening to him. Mr. Brown then asked Respondent if he could think of any reason why A.K. would make such an accusation against him. Respondent told Mr. Brown about an incident at the NHS basketball game on January 31, 2003, which involved A.K. Respondent stated that he had spoken with A.K. on February 3, 2003, about her conduct at the game. Respondent then retrieved a letter from his brief case and presented it to Mr. Brown. The letter was dated February 3, 2003, and was addressed to Coach Byington. Respondent had authored the letter and typed it on a computer. The letter stated that during half-time of the January 31, 2003, basketball game, while Respondent was outside for "a breath of fresh air," he saw A.K. and two other NHS students, K.S. and S.W., and a former NHS student, J.W., outside. In the letter, Respondent indicated that the students appeared to be intoxicated and under the influence of drugs or alcohol; that two of the students approached him; and that A.K. then began making derogatory comments about two NHS assistant football coaches, one of whom was Coach Byington. Also, the letter indicated that on February 3, 2003, Respondent spoke to A.K., during fourth block about her being intoxicated. According to the letter, Respondent told A.K. that she and those with her on January 31, 2003, were "lucky that [Respondent] was in the middle of a game and [they] had not been caught." In addition to information about A.K.'s being intoxicated at the game, Respondent included statements in the letter which were unrelated to the January 31, 2003, incident. Apparently, referring to his February 3, 2003, conversation with A.K., Respondent wrote in the letter: It was during this conversation that I figured out [A.K.] was extremely bitter about coaches at NHS. After further research, it was determined that [A.K.] need not be trusted. [A.K.] on several occasions accused Byington and the football staff of starting rumors about her . . . and she claimed people had given her a hard time about being a senior dating a freshman. I had never heard of such rumors and felt that she was overplaying this to an extreme. After refusing to discuss any more of these matters with her, she became very irate and said that I [Respondent] was just like the others. In quotes "jerks". [sic] Just wanted you to have this information on file. Respondent told Mr. Brown that he had never given the letter to Coach Byington because he did not want to get A.K. in trouble. Coach Byington never received Respondent's letter dated February 3, 2003, nor did Respondent speak to Coach Byington about its contents. If a letter with allegations like the ones made in the letter dated February 3, 2003, were brought to his attention, Coach Byington would look into the matter or take some action. The letter dated February 3, 2003, accurately states and it is undisputed that (1) Respondent saw NHS students, A.K., K.S., and S.W., and a former NHS student, J.W., on January 31, 2003, during half-time at the basketball game that evening; (2) the students, including A.K., were intoxicated; and (3) on February 3, 2003, Respondent talked to A.K. about being intoxicated at the basketball game. The letter dated February 3, 2003, falsely and inaccurately states when Respondent saw A.K. on January 31, 2003, she talked to him about her dislike for two of NHS football coaches and said derogatory things about them. Rather, after exiting the gym at half-time, A.K. and K.S. spoke to Respondent only briefly, about a minute. During that conversation, A.K. asked Respondent about his daughter, Callie, and how the basketball game was going; she also wished him luck in the second half. A.K. and K.S., along with S.W. and J.W., continued to walk to A.K.'s friend's car to have a few shots of alcohol during half-time. On the evening of January 31, 2003, A.K. never said anything to Respondent about Coach Byington or any other coach at NHS. In light of the purpose for which Respondent claimed he wrote the letter dated February 3, 2003, there is no reasonable explanation for Respondent's inclusion in the letter of the statement that "[a]fter further research, it was determined that [A.K.] need not be trusted and that A.K. said that Respondent was jerk [sic], just like the other coaches. Since becoming a peer tutor for Respondent and prior to January 31, 2003, A.K. had talked to Respondent on several occasions and told him that she did not like Coach Byington. The reason A.K. did not like Coach Byington was that she believed that he gave preferential treatment to football players and had made A.K. the butt of jokes because she was dating a freshman football player. A.K. made no secret that she "did not care" for Coach Byington and candidly admitted her feelings about Coach Byington at hearing. There were no other coaches at NHS who A.K. disliked or told Respondent that she disliked. The letter dated February 3, 2003, also inaccurately and falsely stated that when Respondent talked to A.K. at school on February 3, 2003, about being intoxicated at the January 31, 2003, basketball game, she became irate. Respondent's testimony at hearing regarding this conversation is not credible. Contrary to Respondent's account, the conversation took place in the gym and not in Respondent's office. Moreover, during the conversation, Respondent seemed to be joking with A.K. about her being intoxicated at the January 31, 2003, basketball game. At no time during that conversation did Respondent talk to A.K. about the kind of people she should hang out with. Respondent also never indicated to A.K., during that conversation or at any other time, that he would report her to school officials or tell her parents that she was intoxicated. Respondent provided confusing and contradictory testimony in connection with the letter dated February 3, 2003. First, despite the date on the letter, it is not clear when Respondent wrote the letter. Respondent testified that he prepared the letter on Monday, February 3, 2003, but also testified that he could have finished it later that week. This testimony is consistent with a letter Respondent wrote in March 2003, in response to the report of the School Board's investigator. Respondent also testified that even if he did not finish the letter on February 3, 2003, he would not have changed the date because he did not consider the letter an official document. During the investigation of A.K.'s complaint against Respondent, the School Board's computer system technicians checked the school's computers and found no record of the letter in the system. If, as Respondent testified, he made changes to the letter over a period of time, the letter would have been saved on the system and the computer technicians would have been able to retrieve it. Respondent's testimony and representations regarding the preparation of the letter dated February 3, 2003, are confusing and not reasonable. In his March 2003 letter to the School Board in response to the investigator's report, Respondent stated that after initially writing the February 3, 2003, letter, he waited to review it before delivering it to Coach Byington. Despite all the time Respondent indicated he took to write, review, and edit the letter, Respondent never gave the letter to Coach Byington, even though Coach Byington's office was only a 20- to 30-second walk from Respondent's office. According to Respondent, the reason was that he had a busy basketball schedule. Respondent testified that the reason he prepared the letter dated February 3, 2003, was to give Coach Byington a "heads up." Yet, Respondent provided no explanation as to why Coach Byington needed a "heads up." Respondent's testimony regarding the reason he wrote the letter dated February 3, 2003, is not credible. Respondent did not prepare the letter dated February 3, 2003, to give to Coach Byington and did not deliver it to him or discuss it with him. The letter was instead prepared to give to Mr. Brown to undermine the credibility of A.K. At all times relevant to this proceeding, E.M., a male, was a student at NHS. E.M. and Respondent had a close relationship and have known each other for about five years, having first met when E.M. was in the sixth grade and was coached by Respondent. While a coach at NHS, Respondent sometimes gave E.M. lunch money and also hired E.M. to work in summer basketball camps. During the investigation of Respondent, E.M. voluntarily came forward to provide information supportive of Respondent. E.M. told Mr. Brown and testified at hearing that when he was in the boys' locker room on February 3, 2003, he overheard Respondent tell A.K. that she should hang out with better people; that he then saw Respondent leave his office; that he saw A.K. leave the office soon after Respondent left the office; and that he noticed that as she was leaving, A.K. was on a cell phone saying to someone that she hated the coaches at NHS and was going to get back at them. A.K. did not make a cell phone call from school on February 3, 2003. In fact, she does not bring her cell phone to school. Moreover, A.K.'s cell phone records show that no call was made at the time E.M. claimed the call was made. Finally, as noted in paragraph 45, the February 3, 2003, conversation between Respondent and A.K. took place in the gym, not in Respondent's office. The testimony of E.M. was not credible and was refuted by competent and substantial evidence. There is no reasonable explanation for A.K. to file false charges against Respondent. As even Respondent admitted, A.K.'s animus was directed to Coach Byington, not toward Respondent. Prior to the February 10 incident in the storage closet, A.K. liked Respondent and considered him a good friend. She had been a student in Respondent's aerobics class during her sophomore year at NHS. During the first semester of her senior year, A.K. had been an office assistant at NHS and in that capacity, she was required to hand out passes to designated or assigned teachers. Respondent was one of the teachers A.K. had to deliver passes to on an almost daily basis. When A.K. delivered the passes to Respondent, they often had conversations. The second semester of her senior year, A.K. specifically requested to be a peer tutor for Respondent because she thought he was a "cool teacher." As a consequence of the February 10, 2003, incident, A.K., in a consultation with her parents, began seeing Dr. Marta Gallego, a clinical psychologist in Naples, to help her address her fears and concerns. The counseling sessions began on or about February 19, 2003, with the initial intake session involving A.K. and her family, and continued until early May 2003. The therapy sessions with Dr. Gallego focused on A.K.'s reactions to the incident, helping her deal with her reactions, and processing the incident. During the counseling sessions, A.K. exhibited symptoms related to the trauma, was anxious at times, and was depressed. Also, after the February 10 incident, A.K. withdrew from friends and family, had difficulty concentrating at school, and felt pain over the impact that the incident had on her family. Finally, A.K. expressed to Dr. Gallego that she could not understand how a teacher that she trusted could violate her trust.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order terminating Respondent from his position as a teacher with the Collier County School Board. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 4th day of June, 2004. COPIES FURNISHED: Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Jon D. Fishbane, Esquire Roetzel & Andress 850 Park Shore Drive, Third Floor Naples, Florida 34103 Dr. H. Benjamin Marlin Superintendent of Collier County School Board 5775 Osceola Trail Naples, Florida 34109-0919 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue to be resolved in this proceeding concerns whether the Respondent committed certain alleged acts of improper conduct in the form of inappropriate statements to female students and whether he committed acts of inappropriate touching of a female student and therefore, whether the Petitioner has just cause to terminate him as a contract teacher (Physical Education teacher and basketball coach).
Findings Of Fact Wilfred Brown is a black male who was employed under an annual contract by the Jackson County School Board. He was employed in the position of a physical education teacher and as the boys' basketball head coach at Sneads High School. Sneads High School actually enrolls both middle and high school students. Wilfred Brown was generally called "Coach Brown" at school. When he assumed the head coach position, he was permitted to select an assistant basketball coach to assist him. James Taylor had previously been an assistant basketball coach, but was not selected to be an assistant basketball coach by Coach Brown. Charlsie Maphis was a white female student at Sneads High School. She was a junior during the 2000-2001 school term. She dated a black male basketball player named Jason Brown. Her father did not approve of inter-racial dating and therefore, she was unable to openly date Jason Brown. Because of this Charlsie Maphis would come to the Sneads High School gym in order to spend time with Jason Brown. On a number of occasions Jason Brown and Charlsie Maphis would demonstrate inappropriate displays of affection, in terms of the Student Conduct Code, while they were in the gym. They would, for instance, sit between each others legs, lay their heads in each others' laps and otherwise engage in close physical contact, none of which was considered appropriate student behavior. When Coach Brown observed this behavior he would make them stop. Charlsie Maphis explained to Coach Brown that due to their racial differences she could not date Jason outside of school and also stated that the gym was the only place that they could spend any time together. Coach Brown did not accept this explanation and did not respond in a sympathetic way. Instead, he continued to enforce the Student Conduct Code. He would thus not allow Charlsie Maphis and Jason Brown to "hang-out" in the gym and demonstrate inappropriate conduct. Charlsie Maphis opined that Coach Brown was a racist and treated her and Jason Brown more harshly or unjustly because of their inter-racial dating. She did not feel that Coach Brown treated other students the same way. The evidence demonstrated, however, that Coach Brown enforced the rules of conduct on other student couples as well. Other students, however, did not exhibit the anger or attitude that Charlsie Maphis exhibited against Coach Brown because he so enforced the rules of conduct. Coach Brown, at some point, told Charlsie Maphis that she was a distraction to Jason Brown and because of that and her conduct, Jason Brown was not giving the basketball program his best effort. Coach Brown eventually removed Jason Brown from the basketball team during his senior year because Jason did not cooperate with the Coach and did not "have his heart in the game." Coach Brown also removed two other black male basketball players from the team. They were Lamar Colston and Lynn Colston. Lamar and Lynn Colston were considered talented basketball players but did not get along with Coach Brown. Their step-father was James Taylor who had once served as assistant basketball coach at Sneads High School before Coach Brown became the head coach. Coach Brown selected another person to replace James Taylor as assistant basketball coach. This appeared to cause ill-feeling between James Taylor and Coach Brown as well as his step-sons, Lamar and Lynn Colston. In this regard, Charlsie Maphis claimed that she did not really know James Taylor. However, James Taylor and his step-sons lived in the same neighborhood as Charlsie Maphis and James Taylor was sometimes the umpire for the softball team on which Charlsie Maphis served as catcher and third baseperson. Charlsie Maphis' friend, Sarranda Hall, testified that she saw Charlsie Maphis talking to James Taylor after a ballgame. Kerri Maphis, the younger sister of Charlsie Maphis, also testified that their mother was a long-time friend of James Taylor. Charlsie Maphis also admitted, on cross-examination, that she gave "shoulder-rubs" to Lamar Colston and the evidence demonstrates that she must have been fairly close friends with Lamar Colston and at least to some extent with his step-father James Taylor. In consideration of the above facts and the fact that James Taylor had been the assistant basketball coach at Sneads High School, Charlsie Maphis' statement that she did not really know James Taylor is not deemed credible. Moreover, her failure to readily admit her knowledge of and acquaintanceship with James Taylor casts doubt upon her testimony concerning her motivation to conceal or testify with a lack of candor. In any event, after Coach Brown removed the Colston brothers from the basketball team, James Taylor started a campaign to get Coach Brown fired. Mr. Taylor met with the principal, administrators, the superintendent and the School Board itself in an unsuccessful attempt to have Coach Brown terminated from his position. Charlsie Maphis's father learned that she was dating Jason Brown and ordered her to stop sometime during the 2000- 2001 school year. Therefore, Charlsie Maphis was supposed to have stopped dating Jason Brown and she testified that when Jason Brown graduated in May 2001, they were no longer dating. Jason Brown, however, testified that they did not end their relationship until much later in the year 2001. When school resumed for the 2001-2002 school year, Charlsie Maphis was no longer in Coach Brown's class. Generally she would only see him in passing on the school campus or when she specifically made a trip to the gym. Nonetheless, according to Charlsie Maphis, even after Jason Brown had graduated, when Coach Brown would see her at school he would still "get in her business" by asking her if she and Jason Brown were still together and how was Jason getting along. It became clear during that 2000-2001 school year and the 2001-2002 school year that Charlsie Maphis did not like Coach Brown, based upon her own testimony and that of other students who were aware that she did not like Coach Brown based upon things they heard her say or the way she acted when she was in his presence. Charlsie Maphis' alleges that around the month of December 2001, she went to the gym and asked Coach Brown to let her use the phone in his office to call her mother. She testified that after she came into his office she "slumped down in a chair" resulting in her abdominal area and waist being exposed to his view because her undershirt slid up when she slumped down in the chair, according to her testimony. She contends that after Coach Brown saw her stomach and waistline he made inappropriate comments about her, such as that she had a "sexy waistline" and purportedly touched her inappropriately around her abdominal area and licked her exposed stomach area and placed his hand on the waistline of her pants. Coach Brown denied each allegation by Charlsie Maphis that he made inappropriate statements to her or engaged in inappropriate physical conduct or touching toward her. In this regard Charlsie Maphis made a written statement, dated February 20, 2002, setting forth her allegations against Coach Brown, testifying in a similar manner at hearing concerning her allegations. In her written statement, Charlsie Maphis states that it was nothing out of the ordinary for her to go to Coach Brown's office. However, under the facts and circumstances of their strained relationship, as revealed by the testimony at hearing, it is apparent that she did not like Coach Brown and was not in his class that year and therefore, it is very unlikely that she would regularly go to his office for any reason. Most of her time in school she avoided being around Coach Brown and tried to avoid even speaking to him, according to her own testimony. When he spoke to her, she, by her own admission, forced herself to be cordial or publicly respectful. It thus appears very unusual for her to go to Coach Brown's office, particularly on a regular basis, as she contends. In essence, Charlsie Maphis claims that the incident in the office occurred after part of her body was exposed when her undershirt slid up because she sat slumped in a chair. However, when Charlsie Maphis first reported her allegations to Ms. Dixon, the assistant principal, she claimed that she sat on a table, not in a chair, in Coach Brown's office on the occasion in question. This is established by Ms. Dixon's testimony, which is credited. Although Coach Brown is alleged to have made inappropriate statements and acted inappropriately after Charlsie sat slumped in the chair, Ms. Maphis' bare abdominal area and waistline were not seen and could not be seen beneath her over-shirt when she demonstrated, during the hearing, dressed in the same clothing, sitting with the same posture and holding her hands in the same position as she allegedly was in on the occasion of the incident. Contrary to her allegations that Coach Brown licked her on the stomach, Ms. Maphis told two of her friends that Coach Brown had licked her ear and offered her money to lick her ear, not her stomach or waistline. These parts of the body are so far apart and different that her statements to two different people to the effect that it was her ear and not her stomach involved in the incident cannot be regarded as an inadvertent mis-statement. Under the circumstances, its probative value reflects negatively on the credibility of Charlsie Maphis. Ms. Maphis claimed to be so surprised by Coach Brown's statements and actions that she was unable to move when he allegedly touched and licked her inappropriately and she claimed that she had to find an excuse to leave the room after she told him to "back-up." Her statements are not credible because, based upon her demeanor, she is obviously an assertive person who was not and is not afraid of Coach Brown. Additionally, it is found, based upon her testimony that Coach Brown talked on the phone several times at his desk while she was allegedly sitting in the chair in his office, that she would have had ample opportunity to move or leave the office without the necessity of searching for an excuse to leave. Moreover, at the time of the alleged incident, Coach Brown had a class waiting for him outside of his office door in the gym, and his students, players and assistants were constantly coming in and out of the office. Having observed the candor and demeanor of Charlsie Maphis in testifying to these incidents and occurrences, and also observing the candor and demeanor and apparent credibility of the witnesses opposed to her testimony, it is found that the incident did not occur as alleged by Charlsie Maphis and her testimony is not credited. Ms. Maphis also alleged that Coach Brown discussed meeting her one weekend to exchange massages at his parents' home were he lived when his parents would be away. This allegation is not credible because the evidence shows that, contrary to Ms. Maphis' claim, Coach Brown's parents had a strict rule that no child of theirs, including Coach Brown, could entertain any female in their home while they were not present. Coach Brown lived in their home. They were not away for any weekend which would have allowed such an occurrence to happen during the time period in question, and it is not established that Coach Brown had any such intention. Ms. Maphis' testimony in this regard is not credited. There may have been a financial motive for the allegations by Ms. Maphis. After the allegations became public she told one of her friends that she was going to get some money out of Coach Brown and admitted consulting an attorney about a civil lawsuit against Coach Brown. In fact, Ms. Maphis told the School Resource Police Officer, Brian Stagner, that "she felt she could get some money out of this." Although Ms. Maphis claims that Coach Brown had engaged in inappropriate conduct with other students or former students, each one of these students or former students denied that any such conduct had ever occurred. In fact, each of them testified that Coach Brown was completely professional in his conduct toward them at all times. Ms. Maphis may also have been motivated out of dislike for Coach Brown. She told Office Brian Stagner, that ". . . she was going to do everything she could to fuck him up." She told Officer Stagner that "if she could not go after him criminally that she would go after him civilly" and that she felt she "could get some money out of this." This conversation took place during a school day at Sneads High School where Officer Stagner was the Police Department's School Resource Officer. In any event, after observing Charlsie Maphis and her testimony at the hearing and listening to the testimony of Officer Stagner, other witnesses, and considering all the other evidence, it is concluded that Charlsie Maphis' testimony may be motivated by some malicious intent toward Coach Brown. Due to her general lack of credibility, I also do not credit her allegations that Coach Brown asked her to meet him one weekend; that he called her into his office and offered her $75.00 to let him "lick her again"; or that he asked her to come to his home one weekend to exchange massages. Holly Roberts claims that around the month of December 2001, she went to Coach Brown's office to use the telephone and when she arrived Coach Brown asked her to input some student absentees into his computer. While she was doing this and while he was having a telephone conversation, she observed a vacation brochure on his desk related to Hawaii. Holly Roberts admits asking Coach Brown if she could go with him to Hawaii. She then alleges that he told her that he would buy her a ticket to go with him to Hawaii. It is apparent from the totality of the testimony and circumstances that she asked him if she could go to Hawaii more or less in jest or in a joking manner. Coach Brown denies that he offered to buy her a ticket to Hawaii. Holly Roberts also maintains that Coach Brown asked her to come to his home while his parents were out of town for the weekend to give him a massage. Coach Brown admits that Holly Roberts asked him if she could go to Hawaii, but denies offering to buy the ticket and moreover testified that he jokingly told Holly Roberts that she could go to Hawaii with him if she would pay $9,000.00 or $10,000.00 for tickets and costs for everybody in his party to go. He denies ever talking to her concerning her coming to his parents' home during their absence or giving him massages or shoulder rubs. The preponderant evidence establishes that Holly Roberts is not a credible witness in this regard. The totality of the evidence and circumstances related to her and to witness Montario Garrett establishes that she was dating, or in a close personal relationship with Montario Garrett. She did not tell the truth about the nature of the letter that she wrote to Montario Garrett. She maintained that she wrote it to help him break up with Lauren Faircloth, a fellow student. Montario Garrett testified contrarily, however, that it was a "love letter" and that they were in a dating relationship. The plain language of the letter clearly supports his version of its nature. It appears likely that she misrepresented the nature of their relationship due to her fear of her parents or her father's disapproval of her inter-racial dating relationship with Montario Garrett since Holly Roberts is white and Montario Garrett is black. She falsely accused Montario Garrett and Michael Reed of telling her that Coach Brown had inquired if she would date "black boys." She also falsely testified that she was afraid of Coach Brown because Montario Garrett had told her that Coach Brown had a history of "messing with other young girls." Montario Garrett categorically denied that he ever told her that story. Moreover, Holly Roberts minimizes her acquaintanship with Charlsie Maphis. However, there were numerous opportunities for Holly Roberts and Charlsie Maphis to be together and to communicate during their tenure at Sneads High School. They were both in the same DCT class for two semesters in the 2001-2002 school year. They were on the softball team together in February of 2002 when these allegations were made public. Holly Roberts rode to school everyday with one of the best friends of Charlsie Maphis' younger sister. Before the allegations against the Respondent became public the younger sister Kerri Maphis, Nicole Rabon and their other friend Samantha Wilkerson, had been discussing rumors about alleged inappropriate conduct by Coach Brown including the rumors of his alleged misconduct towards Charlsie Maphis, Kerri's older sister. During the first and second semester of the 2001-2002 school year, Charlsie Maphis and Holly Roberts were in Mr. Stoutamires' Career Development class. Charlsie Maphis and Holly Roberts testified that Mr. Stoutamire did not require students enrolled in this class to attend class everyday. Instead, students were on their own and could go and come to work or even go home, according to their testimony. Both Charlsie Maphis and Holly Roberts had an unexcused absence from two of their classes on February 20, 2002, and apparently left the campus together. During the first and second semester of the 2001-2002 school year, Charlsie Maphis and Holly Roberts played softball together, beginning in February 2002. Charlsie Maphis was the catcher and James Taylor, who also had a history of enmity towards the Respondent, was an umpire at some of those softball games. Moreover, it is significant that the most serious conduct alleged against Coach Brown is alleged to have occurred months before it was ever reported. The initial reports were not even made by the alleged victims. The manner and timing in which the allegations of Charlsie Maphis and Holly Roberts became public appears to have been planned. Kerri Maphis, Charlsie's younger sister, and Nicole Rabon, who rode to school daily with Holly Roberts and their friend Samantha Wilkerson, went to the office of Ms. Dixon, the assistant principal, together to report to Ms. Dixon the rumors concerning Coach Brown. Within a short time after they spoke with Ms. Dixon, both Charlsie Maphis and Holly Roberts voluntarily reported their allegations to the School Resource Officer, Brian Stagner. Moreover, the unrefuted testimony of Coach April Goodwin reveals that Holly Roberts did not have the best reputation in her school community for truth and veracity. Consequently, Holly Roberts' testimony regarding the facts and the nature of the interaction she had with Coach Brown, concerning which she made her complaints, is not credited. It is apparent that whatever occurred in this interaction with Coach Brown in his office concerning a trip to Hawaii was, at most, simply a joking or jesting reference to their going to Hawaii on a vacation trip. It is determined, based upon the testimony of Coach Brown and of his parents, as well as the numerous witnesses who described Coach Brown as being an instructional employee and coach who never exhibited any unprofessional or inappropriate conduct or behavior, that the incident concerning his purported invitation to Holly Roberts to come to his home on the weekend, when his parents were purportedly to be absent, simply did not occur. Wilfred Brown grew up in Jackson County and attended Jackson County public schools. His parents are respected and respectable citizens who retired from employment with the state. Wilfred Brown and his brothers participated in high school sports, and after graduating from high school, Wilfred Brown attended college. Upon graduating from college he returned home to Jackson County and ultimately was hired as the head coach of the Sneads boys basketball team. Respondent Brown primarily resided with his mother and father at times pertinent hereto. His mother and father do not allow him or his brothers to bring female companions to their home when the parents are not at home and do not allow their sons' female friends to stay overnight in their residence. Coach Brown is a Deacon in his church and a Sunday school teacher. He also works with the youth in his church and community. He provides free basketball camps for youth athletes during the summer. He has an outstanding reputation in his community for truth and veracity. He has a reputation among students at school for requiring them to abide by the rules of good conduct and of being professional and an exhibitor of good conduct himself. There is no evidence that Coach Brown has ever been previously accused or found guilty of any inappropriate, unprofessional statements or behavior towards students or young females at any time or location. Upon observing and considering the demeanor of Wilfred Brown and his testimony, carefully weighing and comparing his testimony to that of the complaining witnesses, and in consideration of the numerous witnesses as to Coach Brown's reputation in his community for truth and veracity as well as, more specifically, the testimony concerning his failure to ever exhibit any inappropriate, unprofessional conduct toward female students or others, it is determined that Coach Brown is credible as a witness. His testimony is credited over that of Holly Roberts and Charlsie Maphis. The testimony of the numerous witnesses as to his competent performance as a teacher and coach and his good personal conduct and character, including towards female students, along with and the lack of any testimony, other than that of the discredited complaining witnesses, concerning any unprofessional, inappropriate behavior on his part has been carefully considered. It is determined that preponderant evidence has been adduced which establishes that Coach Brown has not lost his effectiveness as a teacher and a coach in the Jackson County School community nor in Sneads High School in particular.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Jackson County finding that the allegations made against the Respondent Wilfred Brown are not established and that he be re-instated to his position as teacher and basketball coach with back pay and with renewal of his annual contract. DONE AND ENTERED this 1st day of November, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 1st day of November, 2002. COPIES FURNISHED: Marva A. Davis, Esquire 121 South Madison Street Post Office Drawer 551 Quincy, Florida 32353-0551 H. Matthew Fuqua, Esquire Bondurant and Fuqua, P.A. Post Office Box 1508 Marianna, Florida 32447 Daniel Sims, Superintendent Jackson County School Board Post Office Box 5958 Marianna, Florida 32447 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact Prior to the commencement of the 1977-78 school year, the position of Assistant Principal at Hardee High School became vacant. The vacancy was properly advertised, and very little interest was shown in the position. The Petitioner, Jerry Kapusta, was at that time employed at Hardee High School as a Physical Education teacher, Head Football Coach, and Head Track Coach. Kapusta applied for the vacant position. The Principal of Hardee High School recommended that Kapusta be hired as Assistant Principal. Acting in part on the basis of the Principal's recommendation, and in part upon his own independent examination of Kapusta's qualifications, the Superintendent of Public Instruction recommended to the School Board that Kapusta be hired as Assistant Principal at Hardee High School. A motion to approve the Superintendent's recommendation was defeated at a School Board meeting by a vote of 2 to 2. One member of the Commission was absent. Subsequently, the Superintendent made a decision to replace the position of Assistant Principal with the position of Dean of Students. The Superin tendent recommended that Kapusta be hired for this position. At a School Board meeting conducted approximately two weeks following the earlier meeting, the Board rejected the recommendation by a vote of 3 to 2. Members of the School Board who voted against the recommendation testified that they did so primarily because Kapusta was not properly certified by the State Board of Education in the fields of supervision and administration. School Board member Barlow testified that she voted against the recommendation because Kapusta was not certified, because she felt he was doing a good job as football coach, and that he should stay in that position, and because she felt that Kapusta's lack of certification would hinder the Board's efforts to get the schools accredited by the Southern Association of Colleges and Schools. School Board member Knight testified that she voted against the recommendation because of Kapusta's lack of certification, and because he was doing a good job as football coach. School Board member Gilliard testified that he voted against the recommendation due to the lack of certification and because be wanted Kapusta to remain as football coach. Sometime during May, 1969, the School Board adopted policies which were included in the Board's policy book. The qualifications for the position of Assistant Principal were among the policies adopted. One of the qualifications was as follows: Candidates for assistant principalships. . . must hold a rank II or higher certificate covering administration and supervision at the level for which the applicant is to be employed or covered by a special permit. Similar qualifications were adopted for other administrative positions. This policy was readopted by the School Board each time that it readopted its policy manual. Since the policy was adopted the School Board has consistently ignored it. Joint exhibits 6 and 7 list persons who were hired by the Board to fill administrative positions since the policy was originally adopted. The overwhelming majority of persons hired for administrative positions since the policy was adopted were not properly certified according to the policy. Certification of administrative personnel as administrative personnel is not among the requirements for accreditation set out In the Southern Association of Colleges and Schools' "Standards of the Commission on Secondary Schools." The Petitioner, Jerry Kapusta, has adequately performed his duties as Physical Education Teacher, Head Football Coach, and Head Track Coach at Hardee High School. Kapusta is certified as a physical education teacher and health instructor for Kindergarten through twelfth grade, and for junior colleges. He is not certified as a supervisor or administrator. He would require approximately twenty-one (21) hours of additional course work in order to obtain such certification. It is Kapusta's intention to enroll in courses that would lead to his certification as an administrator. Kapusta is the most qualified person to have applied for the position of Dean of Students at Hardee High School. Other than his lack of certification, and the desire that he remain as Head Football Coach, no testimony was presented which would establish that Kapusta is other than qualified for the position.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RRECOMENDED: That a final order be entered accepting the Superintendent's recommendation that the Petitioner/Appellant, Jerry Kapusta, be appointed to the position of Dean of Students of Hardee High School, and appointing him to that position. RECOMMENDED this 12th day of December, 1977, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John W. Burton, Esquire Burton, Patarini & Collins, P.A. Post Office Box 420 and 605 Wauchula, Florida 33073 John J. Chamblee, Jr., Esquire 341 Plant Avenue Tampa, Florida 33606
Findings Of Fact Respondent has for twelve years been an instructional employee of the School Board of Broward County, Florida. She currently holds a continuing contract as a classroom teacher, and is assigned to Perry Elementary School in Miramar, Florida. During the same time period, Harold McKahand, Respondent's husband, and Peggy Freeman were instructional employees of the Broward County School Board assigned to Perry Middle School, adjacent to Perry Elementary where Respondent taught. From as early as 1979, Respondent had suspected that her husband and Mrs. Freeman were having a love affair. These suspicions were a frequent topic of conversation between Respondent and her husband. In fact, Respondent had indicated to her husband her intention to seek a divorce. Notwithstanding Mr. McKahand's assurances that he did not want a divorce and would no longer see Mrs. Freeman, he continued to do so, and Mrs. Freeman on many occasions made telephone calls to the McKahand residence, which Respondent apparently considered harassing in nature. All of this culminated in a discussion between Respondent and Mrs. Freeman in August of 1981 in which Respondent requested that Mrs. Freeman cease making telephone calls to her home because they disturbed her and her two children. After this discussion between Respondent and Mrs. Freeman, there was little or no personal contact between them until the act which gave rise to this proceeding. On December 12, 1981, Respondent, her husband and two children attended a racquetball tournament. After the tournament, they returned to their home and Respondent busied herself with work around the home. Respondent's husband, unbeknownst to Respondent, took the family car and proceeded to Perry Middle School to obtain some work folders from his office. Upon arriving at Perry Middle School, Mr. McKahand discovered Mrs. Freeman conducting a Saturday afternoon basketball practice with the school's girls basketball team, which she served as coach. Mr. McKahand and Mrs. Freeman conversed briefly, and Mr. McKahand departed the school and returned home. Meanwhile, Respondent's oldest son had left the family home without performing certain chores which had been assigned to him by Respondent. Upon discovering her son's absence, Respondent took her bicycle and began to search the neighborhood for him. Her search carried her ultimately to the gymnasium at Perry Middle School. Respondent had no knowledge that her husband had gone to his office at Perry Middle School, nor did she know that Mrs. Freeman was conducting a basketball practice at the school. When Respondent arrived at the school, she walked into the gymnasium to see if her son was there. Upon entering the gym, she saw the basketball practice in session, and noticed Mrs. Freeman. When she did not see her son, Respondent started walking from the gym. A member of the girls basketball team advised Mrs. Freeman that Mrs. McKahand was at the door. Although there is some conflict in the testimony on this point, it appears that Mrs. McKahand did not beckon to Mrs. Freeman to follow her outside the gym, but that one of the team players told Mrs. Freeman of Respondent's presence, and indicated to Mrs. Freeman that Respondent wanted to talk to her. Upon being advised of this, Mrs. Freeman walked across the basketball court, picked up her purse from a table, and proceeded to the gym door through which Respondent had exited. By this time Respondent was outside the gym. Mrs. Freeman forcefully opened the gymnasium door behind which Respondent was standing, striking Respondent on the arm. As Mrs. Freeman exited the door, she and Respondent grabbed one another and a fight ensued. The girls basketball team members were at various positions inside the gymnasium at the time the scuffle between Respondent and Mrs. Freeman started. It is clear from the record, however, that each of the students were located behind Mrs. Freeman and, therefore, were not in the best of positions to observe the precise manner in which the conflict started. It is also equally clear that the physical confrontation between Respondent and Mrs. Freeman occurred quickly and spontaneously, and, as a result, the various eye-witness accounts contained in this record predictably contain varying and conflicting versions of the events leading up to and culminating in the scuffle between Respondent and Mrs. Freeman. During the course of their physical confrontation, Mrs. Freeman placed one of her hands on Respondent's throat and the other in Respondent's hair, and Respondent reciprocated, pushing Mrs. Freeman against the gymnasium wall. Several blows were exchanged between the two women. Although the gymnasium door had closed behind Mrs. Freeman, several of the basketball team members followed the two teachers out the door and attempted to separate them. After the fight began, there is no evidence that Respondent acted other than in defense of the actions of Mrs. Freeman. When the students were finally successful in separating the two combatants, Respondent began looking for her sunglasses, which had fallen off, and Mrs. Freeman retrieved her purse, which she had dropped during the altercation. Upon finding her purse, Mrs. Freeman called to several of the students to stand back, whereupon she removed a .22 calibre pistol from her purse, and fired at least two shots. Respondent, upon observing Mrs. Freeman to be armed, began to run from the school premises, retrieved her bicycle, and retreated to her home. Apparently unsatisfied with these results, Mrs. Freeman incredibly loaded several of the team members, including some of the students who testified in this proceeding, into her car, where she reloaded her weapon. Mrs. Freeman then proceeded to drive in a reckless manner, including running several stop signs, to Respondent's home. Upon arriving at Respondent's home, Mrs. Freeman pulled her car into the driveway, took her pistol, got out of her car, and again confronted the Respondent who was standing in her driveway with her two children. Respondent picked up a broom in her garage and got her two children to stand behind her in an attempt to shield them from Mrs. Freeman. Mr. McKahand, who was inside the home during this time, came outside, and ultimately was able to get Respondent inside their home. Mrs. Freeman then departed the McKahand residence, but shortly thereafter began making harassing telephone calls to the McKahand home. Later that afternoon, Mr. McKahand attempted to take Respondent to her part-time job in a local department store, but was prevented from doing so when Mrs. Freeman attempted to run the McKahand car off the street with her vehicle, and further fired upon the McKahands with her pistol. As previously indicated, Petitioner has charged Respondent with referring to Mrs. Freeman as a "bitch" during the course of their fight. Respondent denies making such a statement, and the only testimony in the record which would establish a finding that such a statement was made is contained in the conflicting testimony of Mrs. Freeman and Rachel Geathers, one of the student basketball players. Mrs. Freeman's testimony in this regard, which the Hearing Officer hereby finds unworthy of belief, was that Respondent referred to her as a "filthy bitch" as Mrs. Freeman exited the gymnasium door. Ms. Geathers' testimony was that Respondent referred to Mrs. Freeman as a "bitch" after the two combatants had exited the gym and enough time had passed to allow all of the basketball players to run through the door and outside the gym. Ms. Geathers' testimony in this regard is also rejected, in that several of the other students who were in a better position to observe and hear Respondent and Mrs. Freeman testified that they heard no such statement made. Accordingly, it is specifically concluded that the evidence in this case fails to establish Respondent's use of profanity in the presence of students as alleged in the Petition. There is no evidence in the record of this proceeding to indicate the Respondent's effectiveness as an employee of the Broward County School System has in any way been adversely affected by the above-described events. In fact, Respondent's principal and grade chairman both testified that Respondent is a good teacher, and they would welcome her back on the faculty of Perry Elementary School should she be absolved of the allegations involved in this proceeding. Even a cursory review of the record in this case will reveal sharp divergencies and conflicts in the testimony of several witnesses. In attempting to resolve these conflicts, the Hearing officer has observed the demeanor of the witnesses while testifying, their interest, if any, in the outcome of this proceeding, together with any motive, bias or prejudice which might affect their credibility. Further, the Hearing Officer has also taken into account the conditions existing at the time of the incident observed by the witnesses in weighing the credibility to be attached to the various accounts contained in this record. In so doing, the Hearing Officer has concluded that Respondent did not go to the Perry Middle School gymnasium seeking a confrontation with Mrs. Freeman. Indeed, the record clearly establishes that Respondent did not know Mrs. Freeman was even at the gymnasium on the date in question. Further, it is concluded, despite some evidence to the contrary, that Respondent did not summon Mrs. Freeman to follow her outside the gymnasium, but that Mrs. Freeman was induced to do so as a result of a student telling her that someone was outside the gym to see her. Finally, the quality as opposed to the quantity of the evidence in this case does not support a factual conclusion that Respondent, in fact, initiated the physical confrontation with Mrs. Freeman. Because of her conduct at the time of the incident, and further because of the inaccuracies and inconsistencies in Mrs. Freeman's testimony at the final hearing in this cause, her testimony, in its entirety, is worthy of little credibility. Because of this, her testimony that Respondent initiated the fight has been found unworthy of belief. The testimony of Mrs. Freeman's students, several of whom testified that the first aggressive gesture they saw was made by Respondent, is tainted both by their admitted allegiance to their teacher, Mrs. Freeman, and by their physical positioning which would not admit a particularly clear view of the incident. Conversely, the factual version of this incident given by Respondent in her testimony was, in every particular, more plausible than that contained in the testimony of either the students or Mrs. Freeman. At the time of the above- described incident, almost three and one-half months had passed since Respondent had last spoken in person with Mrs. Freeman. The Respondent did not know that Mrs. Freeman was at the gymnasium when she arrived there looking for her son. As a result, there could not have been any premeditated design on the part of Respondent to assault Mrs. Freeman and, due to the passage of time since her last contact with Mrs. Freeman, there is no apparent motive of record to explain a spontaneous assault. As a result, the only way to resolve the conflict in the testimony concerning how this altercation originated is to weigh the credibility of the various participants. Making such a choice is perhaps the most difficult task a finder of fact must face in a proceeding such as this, but by applying the aforementioned factors, the Hearing Officer has determined that in the areas of conflict, the testimony of the Respondent is more credible than that of either Mrs. Freeman or her students.
The Issue The issue posed for decision herein is whether or not the Petitioner's, Orange County School Board, suspension without pay of Razzi Lee Smith from his position of classroom teacher is warranted.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, posthearing briefs and memoranda, and the entire record compiled herein, the following relevant facts are found. During times material to the allocations herein, Respondent, Razzi Lee Smith, was employed by the Petitioner, School Board of Orange County, Florida, as a classroom teacher at Rock Lake Elementary School. On October 7, 1980, Petitioner suspended Respondent without pay from his position as a teacher pending a hearing. Respondent requested a hearing pursuant to the authority contained in Sections 120.57(1) and 231.36, Florida Statutes (1979). The charges upon which the suspension is based are, in summary fashion, that Respondent is guilty of gross insubordination, willful neglect of duty and misconduct in office. The specific charges are based upon the following grounds: On or about September 24, 1980, Respondent twice refused a lawful and reasonable order of his Principal. On or about September 24, 1980, Respondent threatened his Principal. During the months of August and September, 1980, Respondent evidenced in the presence of others, a continuing belligerent and hostile attitude towards his Principal. During the months of August and September, 1980, Respondent failed to follow the established written procedures for calling in if he was to be late or not present. 5. On September 2, 19, 22, 24 and 25, 1980, Respondent failed to report to the school by 8:00 o'clock a.m. as required in the Faculty Handbook. Additionally, Respondent was charged with misconduct in office and willful neglect of duty based upon the following grounds: On August 29, 1980, Respondent was absent from his assigned work location at Rock Lake Elementary School. On September 12, 1980, Respondent took sick leave for one half day claiming that he was too sick to finish the school day at Rock Lake Elementary School but later attended a football game in Tampa, Florida. On September 23, 1980, Respondent took sick leave claiming to be too sick to teach at Rock Lake Elementary School but attended football practice at Jones High School as a coach. On September 26, 1980, Respondent provided the Superintendent with a false oral statement, to wit, that he did not leave to go to the football game in Tampa on September 12, 1980, until approximately 7:00 o'clock p.m., arriving at the game around half time at 8:30 p.m., when in fact Ice left to go to the game with the Jones High School football team. Lois Begley has been the acting principal at Rock Lake Elementary School since approximately February, 1980. Upon assuming the duties of acting principal, Ms. Begley immediately advised teachers at Rock Lake to report for work at 8:00 o'clock a.m. and leave at 3:30 p.m. Petitioner has a policy whereby teachers who find it necessary to be absent must report such intentions by 6:30 a.m. by notifying either Ms. Begley or an office employee at Rock Lake, Caroline Johnson. Respondent was advised of this policy; was warned of his breach of said policy on two occasions during February and March of 1980, and admitted that he was aware of the policy. (Petitioner's Exhibits Nos. 3, 4 and 5) Ms. Begley stressed the need to know of a teacher's intended absence prior to 7:00 o'clock a.m. in order to recruit a substitute teacher. Subsequent to March, 1980, Respondent was again advised of Petitioner's policy respecting timely reporting for duty at Rock Lake Elementary School. (Petitioner's Exhibit No. 6) During a faculty meeting held during the afternoon of the last day of preplanning, August 29, 1980, Ms. Begley observed that Respondent was not present. She inquired of Respondent's whereabouts and was advised by an office employee that Respondent had called and reported that he was experiencing transportation problems. Ms. Begley observed Respondent at Jones High School later that same afternoon. During the last week of August, 1980, Respondent advised Ms. Begley that he had been leaving Rock Lake approximately one hour early each day during the preplanning week to assume coaching duties at Jones High and that this was cleared prior to Ms. Begley's tenure as acting principal at Rock Lake. Ms. Begley reluctantly agreed to Respondent's early departure during that school year, however, she made clear to Respondent that he would be expected to teach a full day the following year. Respondent and Ms. Begley made an agreement whereby he would report to work one half hour early, i.e., at 7:30 a.m., in order to make up for one half of the time lost due to his early departure from Rock Lake to coach at Jones High School. Respondent failed to report for duty at 7:30 a.m. as was his agreement with Ms. Begley. September 2, 1980, was the first school day for students at Rock Lake. Respondent reported for work at approximately 9:00 a.m. on September 2, 1980, and several students were observed milling around in the hallways attempting to find Respondent to enter their homeroom class. Respondent called the office at Rock Lake at approximately 8:30 a.m. on September 2, and advised that he was again experiencing transportation problems. Ms. Begley offered to assist Respondent in getting a ride to school. Within minutes, Ms. Begley had located a ride for Respondent. Ms. Begley called to so advise Respondent, whereupon Respondent told Ms. Begley that he had found a ride. As stated, Respondent reported for duty at 9:00 a.m. on September 2, 1980. Ms. Begley counselled Respondent regarding his claimed transportation problems again and stressed the reasons for her need to be alerted when he would be reporting late for work. Respondent generally discussed his problems with Ms. Begley on September 12, indicating that he was encountering personal problems that he did not care to divulge and that there were rumors about him being circulated around the school amongst other faculty members. Ms. Begley later discussed the problem regarding that fact that he had failed to make up 150 of the 300 minutes that he owed the School due to his early departure to coach at Jones High Sclcool during the week of preplanning. Ms. Begley did not take disciplinary action against Respondent due to his lateness in reporting for duty on the first day of school. Respondent requested the services of a substitute teacher to "fill in" for him during the afternoon of September 12, 1980, because he was ill. Respondent initially refused to divulge to school officials the nature of his illness. He attended and coached a football game between Jones High School and a local high school in Tampa that night. On September 19, 1980, Respondent reported for work at approximately 8:50 a.m. As late as 8:30 a.m. on that day, several students were unable to get in class and Respondent failed to call to advise Ms. Begley or the designated official that he would report for work late. When questioned as to the reason for his tardiness by Ms. Begley, Respondent replied that he had earlier advised her that he was having transportation problems. Ms. Begley again counselled Respondent regarding his continued tardiness in reporting to work. At that time, he was also directed not to use school supplies to photocopy football plays for use at Jones High School without proper authorization. On September 19, office aides, Ann Green and W. Oliver, work situs was in the immediate area where Respondent was counselled by Ms. Begley and were in earshot of the conversations. Respondent balked and became vocal about being counselled by Ms. Begley for reporting late. Ms. Begley reported the incident to Dr. Skaggs, Superintendent in charge of employee relations and Ron Blocker, Area Superintendent, who serves as a liaison between the superintendent and individual school principals. During the conference with Ms. Begley on September 19, Respondent voiced displeasure about the working conditions at Rock Lake and expressed a desire to transfer when Ms. Begley reported what she termed to be threatening remarks by Respondent to Dr. Skaggs. On September 19, 1980, Respondent reported for work at approximately 8:50 a.m. and was summoned for a conference with Ms. Begley and Ron Blocker. During the conference, Respondent expressed disagreement or displeasure regarding the atmosphere in which he was being questioned and indicated that he preferred to leave. Respondent was warned of the consequences that might flow from his acts and conduct which could include either disciplinary action by way of a suspension or a failure to be reappointed for another term should he not heed the advice and warnings given him by his Principal, Ms. Begley. 2/ On September 22, 1980, Respondent reported for duty at approximately 8:14 a.m. Respondent did not call to advise Ms. Begley or the other designated official. Ms. Begley spoke to Respondent about his reporting tardy at approximately 2:00 p.m. on September 22, 1980. Present during the conference were Respondent, Ms. Begley and Ron Blocker. Respondent was invited to offer and explanation or statement with reference to his continued pattern of reporting for duty late, however, he refused to make any verbal response. Ms. Begley reduced the oral reprimand to writing and delivered it to Respondent who failed to accept or verify that he was issued a reprimand. On September 23, 1980, Respondent took sick leave and, therefore, did not report for work at Rock Lake. On that same day, however, Ms. Begley observed respondent at the football field at Jones High School between the hours of 4:00 to 5:00 p.m. working with a small group of football players. On the following day, September 24, 1980, Respondent reported for work at approximately 8:07 a.m. Ms. Begley summoned Respondent to a conference, explaining to him at the outset of the possible consequences that might result from the conference. Given the gravity of the possible consequences, Ms. Begley inquired if Respondent cared to bring a witness or other representatives to be present with him during the conference. During the conference, Ms. Begley advised Respondent that she regreted having to give him a written reprimand but that his acts and conduct gave her no alternative. A copy of a reprimand was then given Respondent which he refused to sign acknowledging acceptance (Petitioner's Exhibit No. 7). The parties' Collective Bargaining Agreement requires that written reprimands respecting lateness or failure to report for work be documented by a letter to that effect (Petitioner's exhibits Nos. 8 and 9). Ms. Begley, then, during the conference, asked Respondent if she could be of any further assistance to him, whereupon, Respondent in a hostile manner advised that he did not need or want any assistance and began pointing his finger at Ms. Begley telling her to "leave him alone." Respondent was told by Ms. Begley that that kind of conduct (vocal and belligerent outbursts) could result in disciplinary action to him. Ms. Begley inquired of Respondent what type leave he took on September 23, 1980, whereupon, Respondent advised that he went to see a doctor. Ms. Begley then asked Respondent to provide her with a doctor's statement to document that claim. Respondent never provided Ms. Begley with a medical excuse for his absence as requested. Ms. Begley considered that Respondent's demeanor and mannerism during the conference of September 24, 1980, constituted a threat based on the tone of his voice and the message, i.e., "quit messing with me. Stop bothering me--I'll do more than threaten you" (when Ms. Begley asked Respondent if he was threatening her). She also considered that Respondent's failure to signify acceptance of the reprimand constituted a compromise of her authority. (See Petitioner's Exhibit No. 8, pages 22, 23). Respondent later discussed the decision to discipline Respondent and ultimately decided to recommend his dismissal to Superintendent Skaggs and Area Superintendent Blocker during the evening of September 25, 1980. The possibility of a transfer was considered by Ms. Begley but rejected inasmuch as she was of the opinion that a transfer would not serve any useful purpose in correcting the problems evidenced by Respondent's erratic work habits. Ms. Begley considered that her attempt to reprimand Respondent was ineffective and incomplete based on his refusal to sign an acknowledgement of receipt of the reprimand plus the combination of the insubordinate attitude displayed by him in the presence of his peers, his neglect of duty and tardiness in reporting for work, when combined, warranted a recommendation to the Superintendent that Respondent be dismissed as opposed to a transfer or some other lesser form of reprimand or discipline. Ron Blocker, the area administrator and liaison between the Superintendent and the Principal were summoned to Rock Lake Elementary School to assist Ms. Begley in what was once thought to be a possible teacher resignation. During the conference on September 24, 1980, Administrator Blocker advised Respondent that his failure to sign for receipt of a written reprimand could have grave disciplinary consequences in view of the gravity of the charges and Respondent's hostile conduct as manifested throughout the conference. Administrator Blocker recalled the forceful tone used by Respondent in telling Ms. Begley that he was "doing more than threatening her." Administrator Blocker also recalled Respondent's refusal to advise Begley of the reason for his absence the day prior to the conference indicating instead that she would know at the end of the work day. During the conference, Administrator Blocker recalled that he twice cautioned Respondent that his (Respondent's) refusal to follow an administrative directive may be interpreted as "gross insubordination" which could lead to possible termination or failure to be reappointed (as a teacher) the following school year. Calvin Perry is Director of Drivers Education and is the head football coach at Jones High School. As head football coach, Coach Perry is familiar with the duties of Respondent, a paid assistant coach assigned to coach the defensive team at Jones High School. Coach Perry confirmed that Respondent was present at the September 12, 1980, game in Tampa indicating that Respondent was present during the pre-warm ups and was present throughout the entire game. Coach Perry credibly testified that Respondent was present for football practice on September 23, 1980, having reported at the start of practice at approximately 3:00 p.m. and remained throughout the practice session which lasted until approxiately 5:15 p.m. However, Coach Perry also acknowledged that Respondent indicated that Respondent was ill at the game in Tampa. James L. Schott, Petitioner's Superintendent was shown copies of the letters sent to Respondent bearing the dates September 26, and October 4, 1980, respecting his suspension of Respondent without pay. Superintendent Schott explained that a conference was called to hear the nature of the charges; to hear both sides; to evaluate the evidence and determine the nature of, if any, recommended penalty he would make to the School Board, prior to making any recommendation based on the subject charges. Superintendent Schott recalled that while Respondent explained that he was ill on September 12, 1980, he was able to attend a football game in Tampa although he arrived during halftime because he was not feeling well and was uncertain as to whether he would attend the game at all. Respondent maintained his "story" to Superintendent Schott about attending the Tampa game during halftime. When Respondent advised Superintendent Schott that he also took sick leave on September 23, 1980, Superintendent Schott reminded Respondent of the similar situation by him on September 12, and, therefore, asked that he bring any documentary evidence of illness that he had so that it could be considered prior to his making any decision on the pending charges against him. Therefore, Superintendent Schott counselled Respondent regarding his failure to follow what he considered to have been lawful and reasonable requests regarding his attendance and timely reporting to work. During the Superintendent's conference with Respondent on September 26, 1980, he determined that Respondent was late approximately 50 minutes on September 19; approximately 14 minutes on September 20th and several minutes late on September 21 and 22. On September 23, respondent was absent for work claiming sick leave. According to Superintendent Schott, Respondent acknowledged that he might have made a threat to Ms. Begley during the conference on September 24, 1980. Superintendent Schott was able to independently determine from an investigation of the charges that Respondent had offered false information regarding his attendance to the football game in Tampa on September 12, 1980, inasmuch as other credible evidence indicated Respondent's presence at that game throughout its entirety. After considerable deliberation, Superintendent Schott determined that termination was the only appropriate remedy that he should recommend to the full School Board to discipline Respondent. In making this decision, Superintendent Schott reflected on the facts that Respondent had obviously been terminated for failure to report to work as assigned and that to transfer Respondent would merely pass the problem to another Administrator to grapple with. Superintendent Schott, after much consideration, made the decision to recommend Respondent's termination without animosity and with much sensitivity to the problem based on the rapport that Respondent appeared to have with the youth and his peers at Rock Lake Elementary School. Superintendent Schott offered that teaching was more by example than by class room actions and that the responsibility of a teacher included getting to work promptly and was more than the usual duties expected once a teacher gets to class such as adding columns, deciphering words, reading etc. RESPONDENT'S DEFENSE Respondent is a 1975 graduate of South Carolina State College and as stated, has been employed as a sixth grade teacher at Rock lake since the 1979- 80 school year. While so employed, Respondent has been involved in several school related activities outside his normal teaching duties, including Chairman of the Student Council; contact or liaison for Career Education; Chairman of the Safety Patrol; Scout leader and CTA representative. 3/ Respondent admits to not returning for duty on August 29, 1980, as charged. However, he exclaimed that he encountered car trouble enroute to his mother's home for lunch and consequently had to walk a distance of approximately two miles. Respondent also reported late for duty on September 2, due to transportation problems and did not arrive until approximately 8:45 a.m. Respondent also left school on September 12, 1990, at approximately 12:50 p.m. due to illness. Respondent admitted that he attended the game in Tampa on the evening of September 12, 1980. Respondent explains that this was possible because his health improved from the nauseated condition that he had suffered earlier during the day. Respondent rode to the game in Tampa with scouting coaches Smith and Robertson and arrived at the stadium in time for program warm-ups. 4/ Respondent also admitted reporting for work late on September 19 and 22, 1980. Respondent refused to sign a statement acknowledging acceptance of the written reprimand by Ms. Begley on September 24, 1980, based on his claimed "lack of trust" for Ms. Begley. In this regard, however, Respondent admits that Ms. Begley explained to him that signing the statement attached to the reprimand in no way signified agreement with the contents of the reprimand. Respondent claimed to have felt pressured to tell the Superintendent that he left Orlando at approximately 7:00 p.m. on the evening of September 12, 1980, and arrived at the game at halftime but that there was no willful attempt by him to misstate or otherwise misrepresent the facts to Superintendent Schott. The facts do not evidence a basis for Respondent's feeling. In this regard, Respondent admitted that he arrived at the game on September 12, 1980, before it started and remained for the duration of the game. Respondent did not verbally respond to inquiries by Ms. Begley during the conference with Ms. Begley and Area Superintendent Blocker because he considered Ms Begley's inquiry to be a form of harassment and an attempt by her to treat him as a "child." Finally, Respondent considered that by telling Ms. Begley that he was initially experiencing transportation problems excused his reporting requirements when he subsequently reported for work late.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That Respondent be dismissed as an instructional employee of the Orange County School System. RECOMMENDED this 17th day of February, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Respondent's educator's certificate should be subject to discipline for the violations alleged in the Administrative Complaint dated February 13, 2002.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record of this proceeding, the following Findings of Fact are made: Respondent, Mark D. Swanson (Coach Swanson), holds Florida Educator Certificate No. 585952, covering the areas of mathematics and business education, which was valid through June 30, 2003. At the hearing, Respondent testified that it was his intention to maintain his certification beyond June 30, 2003. At all times relevant to this proceeding, Coach Swanson was employed by the Collier County School District (the "District") and was assigned to Lely High School ("Lely") as a teacher and as head football coach. In 1995, Coach Swanson took over a Lely program that had fielded poor teams for several years. Within three years, Coach Swanson had guided the team to a district championship. In the 1999 season, despite a rash of injuries and discipline problems, Lely made the playoffs, though the team's performance declined after a 5-1 start. At the conclusion of the 1999 season, Lely's principal Roy Terry, himself a former high school football coach, sent Coach Swanson a memorandum expressing "concerns with the turn we took the last half of this past season." After reciting a list of the positive aspects of Coach Swanson's performance, Mr. Terry noted nine areas of concern, including "Continue to monitor language of staff with students." Coach Swanson's expectations for the 2000 season were not as high as in recent years past. He believed that a record of 6-4 would constitute a successful season. Summer practices had gone well. However, the team lost its first game to Barron Collier High School by a score of 24-0. To Coach Swanson, the manner of losing the Barron Collier game was more important than the loss itself. The game was a scoreless tie at half time, and Lely trailed only by 7-0 at the start of the fourth quarter. However, in Coach Swanson's view, the team quit in the fourth quarter and allowed Barron Collier to win the game going away. Lely's second game, on September 8, 2000, would be against Fort Myers High School. Fort Myers was one of the best teams in the area, and Coach Swanson did not seriously believe that Lely could win the game. Nonetheless, he believed that his team's effort in this game would determine the fate of the season. If his team played hard and did not give up against a clearly superior team, Coach Swanson could use that effort to motivate Lely in subsequent winnable games. Throughout the week's practices, the Lely coaching staff emphasized maximum effort and not quitting against Fort Myers. The Fort Myers game began relatively well for Lely. The team was behind only 14-0 near the end of the first half. Then, Fort Myers took over the ball on its own nine yard line and drove 91 yards to a touchdown in a little over one minute. Coach Swanson believed that his team "just laid down and quit" on that touchdown drive. On the touchdown play, Lely's defensive coordinator Steve Sapere called for a linebacker blitz. Linebacker Brandon Tyler, one of the best players on the Lely team, made a halfhearted effort on the play. As the defense came off the field, Coach Sapere told Brandon Tyler that he would not call any more blitzes unless Brandon's effort improved. Coach Sapere then walked away. William Sparacio, then the running backs coach at Lely, witnessed the scene between Coach Sapere and Brandon Tyler. After Coach Sapere walked away, Brandon told Coach Sparacio, "You better get that guy out of my face."2 After the ensuing kickoff, Coach Sparacio shouted to Brandon Tyler in an effort to get his attention, but Brandon ignored him. Coaches Sparacio and Sapere consulted and agreed that if Brandon would not accept coaching, he would not be put back into the game. Coach Sparacio reported the incident to Coach Swanson at the commencement of half time. Coach Swanson told Coach Sparacio that the decision whether to play Brandon Tyler in the second half would be left to Coaches Sapere and Sparacio, but that he would deal with Brandon during half time. Coach Swanson testified that, as the first half came to a close, he wondered what he could do to motivate his listless team. When apprised of the situation with Brandon Tyler, his first thought was that Brandon's insubordination would provide a perfect subject for a half time talk to the team. Coach Swanson thought that Brandon Tyler was the perfect person to criticize in front of the team because Brandon was one of his best players, and "calling out" a team leader would have more impact than picking on a lesser player. Brandon was a tough player, "very intense," and had always liked the fact that Coach Swanson was himself "fiery" and intense. Coach Swanson believed that Brandon would understand being used as an example in a half time speech and that Brandon would respond positively. Coach Swanson walked to the locker room with Heidi Roderick, the Lely team trainer. Ms. Roderick asked him what he was going to do about the team's performance. Coach Swanson responded that he was going to make a fool of himself and create a "spectacle" that might make the team mad enough to play hard. He told Ms. Roderick, "Maybe they'll picture my face on a guy across the line . . . and want to beat the crap out of him." He believed that the second half of this game was essential to the team's entire season and that he had to try something drastic to break the team out of its lethargy. The Lely locker room was not an open football locker room, but a typical high school locker room with rows of benches separated by rows of lockers. Thus, there was no central area where the team could gather during half time. The players would scatter throughout the locker room at half time. Coach Swanson decided that the only way to get the attention of all the players was to make a big noise and that the best way to do that was to bounce a football helmet off a metal locker. Coach Swanson took a helmet from a player and glanced down a row of lockers to make sure no one was in the line of fire, then skipped the helmet "off the floor so it'd go 'bing, bing, bing, bing,'" down the row of lockers. At the moment he let go of the helmet, Coach Swanson looked farther down the row of lockers and saw Fenwick Paul, a Lely player, sitting on a bench at the far end of the row. The helmet traveled about 40 feet down the row of lockers and struck Mr. Paul in the back. Mr. Paul was unharmed by the helmet glancing off his back. Coach Swanson apologized to Mr. Paul for hitting him with the helmet. Another player, Jim Muth, demanded to know who was throwing helmets. Coach Swanson said, "It's me. You got a problem with that?" Jim Muth, cowed, said, "No, coach." The weight of the evidence established that Coach Swanson did not push Jim Muth into a locker. Coach Swanson then loudly called for Brandon Tyler. When he found Brandon, Coach Swanson grabbed him by the shoulder pads and said, "Brandon, who the hell do you think you are talking to Coach Sapere like that?" Coach Swanson walked Brandon around the locker room by the shoulder pads, all the while shouting at the player. The weight of the evidence established that Coach Swanson did not throw Brandon Tyler into the bathroom, into walls, or down to the floor. Coach Swanson credibly testified that he held Brandon tightly by the shoulder pads both for the visual effect and to keep Brandon from slipping in his cleats on the tile floor of the locker room. He intended to intimidate the player while making an example of him in front of the team, but Coach Swanson had no intention of causing physical injury to Brandon Tyler. Coach Swanson admitted that he swore as he walked Brandon Tyler around the locker room. He admitted that he repeatedly used the word "fuck." When Coach Swanson accosted him, Brandon began shouting, "I didn't do it. Coach Sparacio, you better fix this, you better tell him," apparently meaning that Coach Sparacio should intervene on Brandon's behalf. In response, Coach Swanson told Brandon to "be a fucking man and own up to it, because that's what this game is about, is being honest and reasonable and owning up to when you make a mistake." At that point, Coach Swanson released Brandon Tyler. Coach Sparacio and Ms. Roderick heard Brandon Tyler say he was quitting the team during the altercation. Coach Swanson did not recall Brandon's saying he was quitting, but testified that "I could see myself" taking Brandon's statement to make the point to the team that its problem was quitting when the going gets tough. Coach Swanson testified that such a statement by Brandon would not have concerned him because "I knew Brandon wasn't going to quit." In fact, Brandon Tyler did not quit the football team. He played the entire second half of the Fort Myers game and played the rest of the season. After releasing Brandon, Coach Swanson spoke to the team as a whole, urging the players to fight to the end and give their best effort. He asked them, "Aren't you tired of this shit?" Some of the players chimed in their agreement. After completing his speech to the team, Coach Swanson walked into the coaches' office adjacent to the locker room. Several assistant coaches, but no players, were in the office. Coach Swanson saw two of his assistants, Kim Butts and Steven Pricer, drawing up blocking schemes on a hand-held dry-erase board. Coach Swanson took the board away from Coach Pricer, saying that the team's problem was not "X's and O's" but a lack of heart and will to win. He threw the board against a wall. The board bounced off the wall and nicked the hand of assistant coach Brian Wallace. Ms. Roderick testified that before the team left the locker room, Coach Wallace asked her to look at his hand. She stated that there was a small scratch on Coach Wallace's hand. It was not bleeding. Ms. Roderick testified that she would not have seen the mark on Coach Wallace's hand had he not shown her where it was. She gave Coach Wallace a band-aid in case the cut started bleeding during the second half. No players or students testified at the hearing. Coach Wallace did not testify. Assistant coaches Kim Butts, Steve Pricer, Jason Woodward, Steve Sapere, William Sparacio, and Mario Doria all testified as witnesses to some or all of the events in the locker room at half time of the Fort Myers game. Aside from Coach Doria, all the assistants generally agreed with the facts as set forth above. Coach Doria testified that Coach Swanson shoved Brandon Tyler into a locker and down to the ground. While Brandon lay on the ground, Coach Swanson told him to quit being "a fucking pussy," to get up and be a man. Brandon was crying and begging for help, but Coach Doria did not intervene for fear of creating a confrontation between himself and Coach Swanson. Coach Doria testified that when Coach Swanson took the dry-erase board from his assistants, he snapped it in half and threw one-half of the board across the room. Coach Doria's singular version of events cannot be credited. He was the sole testifying witness to claim that Coach Swanson shoved Brandon or called him names. His witness statement of October 24, 2000, did not mention Coach Swanson's calling Brandon a "fucking pussy." No other witness claimed to have seen Coach Swanson snap the dry-erase board in half. The board belonged to Coach Pricer, who testified that he still uses it, though it did receive a crack from Coach Swanson's toss. Whether they approved or disapproved of his actions, the assistant coaches agreed that Coach Swanson was engaged in an effort to motivate the team and that he was not out of control or acting in a blind rage. Coach Swanson himself testified that, while not scripted, his actions were a conscious effort to spark his team into giving a better effort in the second half of the Fort Myers game, which he believed key to the remainder of the season. All of the witnesses agreed that Coach Swanson's tirade began and ended in the locker room at half time. His behavior on the field during the second half indicated nothing out of the ordinary. Lely lost the game by a score of 35-0. In summary, the Department demonstrated by clear and convincing evidence that Coach Swanson threw a football helmet that struck Fenwick Paul; that Coach Swanson placed his hands on Brandon Tyler and cursed at the player while reprimanding him for his disrespectful comments to an assistant coach; and that Coach Swanson threw a dry-erase board that struck a fellow coach on the hand, causing a small cut. There were no allegations that Coach Swanson committed any improper act in his role as a classroom teacher. Roy Terry, the principal of Lely, described him as a "fine person," who did a "fine job" as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent did violate the provisions of Florida Administrative Code Rule 6B-1.006(3)(a) and (e), but did not violate Section 231.2615(1)(c) or (i), Florida Statutes (2001). It is further RECOMMENDED that a final order be issued providing that a written reprimand be placed in his certification file and placing him on a one-year period of probation subject to such conditions as the Commission may specify, to commence if and when Respondent again becomes an active teacher and/or football coach in the State of Florida. DONE AND ENTERED this 8th day of December, 2003, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 8th day of December, 2003.
