Findings Of Fact Based upon the prehearing statement, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent is the holder of a teacher's certificate, number 617425, for the area of social studies. Such certificate is valid through June 30, 1996. During the 1990-91 school year, Respondent was employed by the Orange County School District as a teacher at Union Park Middle School (Union Park). All allegations material to the case against Respondent occurred during his employment at Union Park and involved female students who were either enrolled in his class or members of the social studies club Respondent sponsored. During 1990-91 school year, Respondent placed telephone calls to female students. The purpose of such calls was to convey school-related or social studies club information to the student; however, Respondent frequently allowed the subject matter of the telephone conversations to extend to private, non- school topics. These private topics included discussions regarding who liked who for boyfriends and girlfriends as well as the personal appearance and conduct of various students. Additionally, the length of time involved in such conversations varied from a matter of minutes to almost an hour in length. Also during the school year, Respondent participated in the completion of a "slam book." A "slam book" is an unauthorized school activity in which students are not to participate. In general, a "slam book" is a book wherein students make comments about others. In many instances such comments may be unflattering or uncomplimentary. If discovered, teachers generally confiscate such books and admonish students regarding them. In Respondent's case, when he was asked to sign a "slam book" belonging to Karen McCue, Respondent completed many of the headings with personal comments about others known to the students completing the book. The completion of the book by a student, much less a teacher, was against school policy. On one occasion, Respondent wrote on a student's hand by drawing an eyeball, a heart, followed by the letter U. The student interpreted, and Respondent intended, the message to mean "I love you." As a result, the student became self-conscious and went to the restroom to wash the message off. While Respondent did not intend the message to embarrass the student, such action, nevertheless, made her uncomfortable. On several occasions, Respondent made female students uncomfortable by touching them. None of the touches were intended or interpreted by the students as sexual in nature. None of the touches involved inappropriate parts of the body. All such touches occurred in full view of the class or others. None of the touches made the students uncomfortable at the time they were made; only later, in retrospect, did the students feel uncomfortable. Such touches included playing with a female student's hair, holding a female student's hand, or a side-to-side hug. After Respondent confiscated a Gloria Estefan concert program book from one of the female student leaders, the allegations of impropriety at issue in these proceedings were raised. Prior to that incident, Respondent had enjoyed considerable popularity with the students in his classes and the social studies club. Rumors of improper touchings, not substantiated or alleged in this case, were rampant. Understandably, parent concern and administrator involvement as a result of the complaints followed. On March 28, 1991, the Orange County School District issued a letter of reprimand to the Respondent based upon the alleged inappropriate verbal and written comments to students. Additionally, at the conclusion of the school year, Respondent's teaching contract was not renewed for the 1991-92 school year. Because he engaged in behaviors that interfered with the student/teacher relationship, Respondent's effectiveness as a teacher was substantially reduced. Respondent failed to maintain a proper, professional distance between himself, as the teacher, and the female students. By engaging in personal telephone conversations and the "slam book," Respondent failed to establish his role as the disciplinarian and authority figure inherent in being their teacher. Respondent enjoyed a good teaching reputation among his fellow teachers and received favorable recommendations and evaluations from his principal. Respondent did not commit any act reflecting gross immorality or an act involving moral turpitude. Respondent did not commit any act that resulted in a failure to make reasonable effort to protect students from conditions harmful to learning or to health or safety. Respondent did not intentionally expose students to unnecessary embarrassment or disparagement. Respondent did not intentionally exploit his professional relationship with students for personal gain or advantage.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Education Practices Commission enter a final order reprimanding the Respondent for the conduct set forth above. DONE and ENTERED this 20th day of October, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1992. APPENDIX TO CASE NO. 92-0175 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 5 are accepted. With regard to paragraph 6, the last sentence is accepted; otherwise rejected as argumentative or contrary to the weight of credible evidence. Paragraph 7 is accepted. Paragraph 8 is rejected as contrary to the weight of credible evidence or argument. The first sentence of paragraph 9 is accepted; the remainder is rejected as recitation of testimony or unnecessary. It is accepted that a slam book is an inappropriate activity for students as well as teachers. Paragraph 10 is accepted. Paragraph 11 is rejected as recitation of testimony, irrelevant or unnecessary to the resolution of the issues of this case. Paragraph 12 is rejected as recitation of testimony and/or argument. Paragraph 13 is rejected as repetitive, irrelevant, or contrary to the weight of credible evidence (except as addressed in the foregoing findings of fact). Paragraph 14 is rejected as repetitive and irrelevant. It is accepted that Respondent's informal conversations with students did not maintain an appropriate level of professional distance; otherwise rejected as indicated. Paragraph 15 is rejected as contrary to the weight of evidence or irrelevant to the extent not addressed in the findings of fact. Paragraph 16 is rejected as repetitive and irrelevant. Paragraph 17 is rejected as recitation of testimony, irrelevant, or unnecessary. To the extent not addressed in the findings of fact, paragraphs 18 through 32 are rejected as unnecessary, irrelevant, contrary to the weight of the evidence, or recitation of testimony. For the most part, the allegations suggested by the findings proposed constitute much ado about little. Respondent clearly did not maintain an appropriate distance from students; however, his conduct did not rise to a level to reflect a lack of moral character or be grossly immoral. In essence, Respondent's error was to try to be the student's friend more than their teacher. As a result, his role as their teacher was compromised. Paragraph 33 is accepted with the deletion of the word "embarrassment." Respondent experienced a breakdown in the student/teacher relationship, he did not intend to embarrass the students. The first sentence of paragraph 34 is accepted; otherwise rejected as contrary to the weight of the evidence. The first sentence of paragraph 35 is accepted; the remainder rejected as contrary to the weight of the evidence. Paragraph 36 is rejected as irrelevant. With regard to paragraph 37 it is accepted that Respondent's behaviors seriously undermined his effectiveness at Union Park; otherwise rejected as contrary to the weight of the evidence. Further, it has not been shown that such behaviors were widely known in the community or that his effectiveness in another location would be compromised. Clearly, the incidents of this case were fairly minor, isolated, and impacted but one school. Since the Respondent has been appropriately disciplined, such prior conduct should not prohibit the Respondent from teaching in another location where his effectiveness has not been questioned. It might be concluded that Respondent has learned from the errors of his past. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: To the extent not accepted and addressed by the findings of fact above, Respondent's proposed findings of fact are rejected as irrelevant, repetitive, contrary to the weight of the evidence, argumentative, or unnecessary. Respondent was well-liked and considered a "good teacher" by many of his students. In that his principal did not know of Respondent's informal relationships with students, he considered Respondent a "good teacher." Respondent's ability to maintain an appropriate professional distance from his students is the only violation established by this record. COPIES FURNISHED: John F. Gilroy, Esquire Attorney Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Joseph Egan, Jr. P.O. Box 2231 Orlando, Florida 32802 Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 0400
Findings Of Fact The Respondent holds teaching certificate number 069548, Rank 3, being certified in the area of art education. At times pertinent to the Administrative Complaint and the Notice of Charges herein, the Respondent was an instructional employee with the School Board of Dade County at Rainbow Park Elementary School or Norland Elementary School. The Petitioner, School Board of Dade County, is an agency of the government of Metropolitan Dade County, a political subdivision of the State of Florida, which is charged with employing and regulating the terms and conditions of employment and conduct and practices of instructional personnel employed in its public schools in Dade County. The Petitioner, Education Practices Commission, is an agency of the State of Florida charged with the enforcement of licensure standards for teachers and regulation of the professional conduct and practices of teachers under its licensure jurisdiction. During times pertinent to Counts I through IV of the Administrative Complaint, the Respondent was assigned to Rainbow Park Elementary School in Dade County as an art teacher. Patrick Outler was a 12-year-old student in the Respondent's art class at that school. On May 1, 1978, an altercation occurred between the Respondent and Patrick Outler in Respondent's classroom. The Respondent grabbed that student by the arm, stating that he was going to take the student to the office. When they were outside of the classroom in the open hallway, and while remonstrating with the student because of the student's conduct in class, the Respondent jerked or shook the student back and forth while holding on to his shoulders near his neck, also pushing him against the wall. The student was not noticeably injured in this episode. Sarah Bullard, a teacher's aide in an adjoining classroom, heard the disturbance, caught up with Patrick Outler, who was fleeing the Respondent's grasp and held him in her room pending the arrival of the principal. She heard the Respondent make a profane statement to the student during the course of this episode. On May 9, 1973, the Respondent was involved in a disciplinary-related incident with a student, Tashanika Melvin. Tashanika Melvin was 5 1/2 years of age and a student at Rainbow Park Elementary School. The Respondent was her art instructor. On that date, while the student was seated at her desk during one of her classes with the Respondent, he summoned her up to the center of the blackboard, apparently to impose discipline for some departure from standards of department (the nature of which does not appear of record). The student went to the front of the class, whereupon the Respondent struck her on the knee with a ruler. This caused the student to become upset and to cry as a result of this disciplinary measure, although she was not physically injured. Another such incident took place on September 28, 1979, involving a student by the name of Edgrena Roberts, a student in the Respondent's fourth grade art class at Rainbow Park Elementary School. The first incident occurred when the student was standing around a table with other students and a student threw a piece of clay at or in the direction of the Respondent. The Respondent, believing that Edgrena Roberts was the culprit in the clay-throwing incident, proceeded to where she was standing, accused her of throwing the clay, which she denied, at which point the Respondent pushed the side of her head with his hand such that her head hit the wall or window frame. The next incident involving this same student occurred when she was walking by the classroom with a friend and the friend threw a pencil into the Respondent's class. The Respondent rushed out into the corridor, seized Edgrena Roberts and shook her and then took her to the principal's office. There is no evidence that she was physically injured by this contact. On February 12, 1979, student Frank Freixas and a friend were standing outside the Respondent's classroom. That student and his unidentified friend were uttering the phrase "Heil Hitler" in a loud tone of voice. The Respondent, upon hearing these exclamations, ran out of his classroom and across the small courtyard to where the student was standing. The Respondent grabbed Freixas by his arm and began swinging him around before releasing his arm, causing the student to fall. In falling, the student struck a sprinkler head in the lawn of the courtyard, sustaining a minor scratch. A number of other persons on the staff, as well as students, observed this incident: Edna H. Armstrong, Willie Mae Williams, Justine Wilcox, Gloria Williams and Mary Sabb. The Respondent served in the United States Armed Forces during World War II and was wounded by hostile German fire in the European Theater in 1945. Dr. Michael Gilbert, who examined the Respondent after the hearing and testified by deposition, established that veterans, especially those who have been wounded, often react emotionally because of their war experiences. As a result of these altercations with students, Mrs. Andel Mickens, the principal at Rainbow Park, initiated an internal investigation concerning the Respondent's suitability to remain as a teacher at her school. She ultimately recommended his termination from employment. She acknowledges that the Respondent has a favorable record as a teacher and exhibits a great deal of talent in the area of art education and is an excellent teacher from a skills standpoint. Her basis for recommending his termination was because of the incidents described above and her view regarding their reflection on the Respondent's emotional suitability to occupy a classroom instruction position. As a result of this recommendation, Dr. Patrick Gray, Executive Director of Personnel Control of the Dade County School Board, conducted an investigation regarding these charges or incidents and as a result of that investigation, required a medical evaluation of the Respondent and issued a formal reprimand. The Respondent was admonished to avoid all future such occurrences and was transferred to another work location at Norland Elementary School. In the course of this investigation, the School Board had the Respondent evaluated by a psychiatrist before his reassignment. On February 12, 1981, while the Respondent was an art instructor at Norland Elementary School, an incident occurred involving student Jeffrey Green. Jeffrey Green was playing with a friend after school and threw a paper airplane into Mr. Parker's classroom. He came in the classroom to retrieve it and, Mr. Parker, apparently being angry at the student, seized his fingers and bent them back, such that the student's fingers hurt for several hours thereafter. The last incident charged, involving physical contact with students, occurred April 30, 1981, involving a student named James Moore. During this incident, James Moore was repeatedly interrupting the Respondent's class and causing disruption to the orderly conduct of the class. The Respondent called him to the front of the class evidently to remonstrate with him concerning his behavior. The student at that point continued to exhibit disruptive behavior and the Respondent pushed him out of the door of the classroom. James Moore fell to the ground or floor of the corridor outside of his own volition after only a gentle push designed to remove him from the chair. He did not fall as the result of any physical contact by the Respondent. The Respondent merely lightly pushed him out of the door to avoid further disruption of his class and told James Moore to remain outside until he could come and take him to the principal's office for disciplinary action. Ms. Andel Mickens was the Respondent's supervisor during his tenure at Rainbow Park Elementary School. During his tenure there, the Respondent was warned on a number of occasions regarding his improper corporal punishment procedures or improper physical contact with students. Mr. Leo Strausberg was the Respondent's supervisor and principal at Norland Elementary School. On three occasions during his tenure at Norland Elementary School, the Respondent was counseled and warned regarding the necessity of and consequences of engaging in improper physical contact with students while attempting to impose discipline upon them. Dr. Michael Gilbert, a psychiatrist, examined and evaluated the Respondent subsequent to the hearing with his deposition being stipulated into evidence. The doctor's testimony is the only testimony or evidence resulting from a psychiatric or psychological evaluation of the Respondent in evidence in this proceeding. It was thus established that the Respondent is a man of high moral and professional standards. The nature of his personality tends to be that of a perfectionist and "somewhat of a martinet" in terms of his experience and personal functioning. He tends to be a compulsive, conscientious person with a high level of aspiration and a strong compulsion to adhere to the high standards he sets for himself and others. As a result of his high standards of behavior, he tends to be less tolerant of aberrational behavior by his students and such behavior which does not comport with his own high standards presents a greater incidence of stress for the Respondent than it might in other persons or teachers who are more tolerant of substandard behavior in students. There is no evidence of an emotional or personality disorder. He is not an emotionally unstable person so as to be unfit to deal with children. The provision of a modicum of counseling or psychotherapy would enable him to gain insight into his needs, and to learn to be more tolerant of the behavior of adolescents. The Respondent is not an overly violent or routinely physically abusive individual, but rather his behavior arose from frustration in dealing with department by his students which did not measure up to his high standards. The Respondent has never been the subject of a disciplinary proceeding such as this in the past. His evaluations and ratings in the past have been uniformly of a high order and he has been described as an excellent art teacher in terms of knowledge of subject matter and his abilities as an artist. His only difficulties in exercising his responsibilities, which culminated in the instant prosecution, have been these described altercations with students.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, as well as the pleadings and arguments of counsel, it is RECOMMENDED: That the Respondent be dismissed from employment by the Dade County School Board and forfeit all back pay. It is, further RECOMMENDED: That the Respondent's teaching certificate be suspended for a period of one year and thereafter be reinstated, and that the Respondent, during that period of time, obtain an appropriate course of psychological counseling designed to enable him to cope with stressful situations and to control his frustration and aberrant conduct when dealing with problems involving student behavior. DONE and ENTERED this 8th day of March, 1984 in Tallahassee, Florida. P. MICHAEL RUFF 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 8th day of March, 1984. COPIES FURNISHED: Craig R. Wilson, Esquire Suite 294, 315 Third Street West Palm Beach, Florida 33401 Jesse J. McCrary, Esquire 3050 Biscayne Boulevard, Suite 300 Miami, Florida 33137 Phyllis O. Douglas, Esquire 1410 North East 2nd Avenue Miami, Florida 33132 William DuFresne, Esquire Suite 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131 Donald L. Greisheimer, Director Education Practices Commission Department of Education Knott Building Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools School Administration Building 1410 North East Second Avenue Miami, Florida 33132 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA RALPH D. TURLINOTON, as Commissioner of Education, Petitioner, vs. DOAH CASE NOS. 81-2107 82-2741 ROSS PARKER, JR., Respondent. /
Findings Of Fact Clarence Dixon, Respondent, holds Teacher's Certificate No. 435879, Rank III, covering the area of physical education, which expires on June 20, 1984. At all times material hereto Respondent was employed by The School Board of Broward County at its facility known as Piper High School located at 800 Northwest 44th Street, Sunrise, Broward County, Florida. In that cause of action styled School Board of Broward County v. Clarence Dixon, Division of Administrative Hearings Case No. 81-1223, the Honorable R. T. Carpenter, Hearing Officer for the Division of Administrative Hearings, entered his Recommended Order directing [sic] that the Respondent, Clarence Dixon, be discharged as a teacher by The School Board of Broward County. Before the Broward County School Board acted on the Recommended Order of the Hearing Officer, Respondent submitted his resignation, further proceedings against him were terminated and no final order was entered by the Broward County School Board regarding the charges that had been preferred against Respondent. Exhibit 2, the Recommended Order in Broward County School Board v. Clarence Dixon, was admitted into evidence over objection by Respondent, for the limited purpose of showing that the hearing was held. Respondent's stipulation of admitted facts (Finding No. 3 above) admits more than that for which Exhibit 2 was admitted into evidence. The investigation of Respondent's conduct started when Sandra J. Brown, a security officer at Piper High School, overheard some students in the hall discussing Respondent. She then called one of these girls to her office to inquire into any contacts she had with Respondent. When it became evident that Respondent's statements or conduct towards the student may have been inappropriate, the student was taken to the Assistant Principal who, after hearing the story, directed Brown to investigate. As a result of this investigation, the School Board brought charges against Respondent, and, after those charges were disposed of, the proceedings here involved were instituted. Although Respondent disputes the testimony of the three complaining witnesses, McGee, Johnson and Snelling, their testimony was credible and believable, Some testimony was presented to show that Ms. Brown was carrying out a vendetta against Respondent in conducting the investigation; that at least one of the complaining witnesses had a "bad" reputation, meaning that she "came on to men"; that Dixon had told Ms. Brown about a dream he had about her involving sex; that Respondent, like other coaches specifically, was looked up to and frequently approached by students to discuss their problems; and that these incidents had been blown out of proportion to their seriousness. Evidence of misconduct unrelated to the specific charges involving McGee, Johnson and Snelling, has been disregarded as irrelevant to the charges here under consideration. On one occasion during the 1980-1981 school year at Piper High School Respondent approached Lesia McGee, a 16-year-old sophomore, in the hall between classes and commented on the clothes she was wearing and said the next time he saw her in purple slacks he would, as she testified, "tongue me to death." By that, McGee understood that he meant to kiss her. Valynda Johnson was a junior at Piper High School during the 1980-1981 school year and she had no classes under Respondent. She and Respondent talked on campus about how she dressed and various things unrelated to school. On several occasions he sent passes to her to leave class to come talk to him. Some of these times she was excused by her teacher and the conversation did not relate to school work. On one occasion Respondent asked Johnson when she was going to let him do it to her. When she replied "What do you mean?," he responded "You know what I mean." Johnson understood him to be talking about sex. Respondent asked Johnson to meet him at the 7-11 store down the street from the school and called her at her home on one or two occasions. She never went out with Respondent and no physical contact was made between Respondent and Johnson. Respondent had a gold chain delivered to Johnson from him by one of the football players. Respondent's testimony that he found this chain under a garbage can at school and, when he held it up in class to ask whose it was, Johnson claimed it, is not believed. The Amended Administrative Complaint alleges Respondent gave a gold bracelet to Renee Snelling and this complaint was amended at the close of the hearing to change the bracelet to a chain to conform to the evidence. No evidence was submitted that Respondent gave Snelling either a chain or a bracelet. Renee Snelling was an 18-year-old student at Piper High School during the 1980-1981 school year. On one of the first occasions she talked to Respondent he told her she should be a model. Her career as a model was the dominant theme of most of their subsequent conversations. Respondent suggested she go to college and become a model. On one occasion he asked if they had sex would she tell anybody. On another occasion he told her he had a necklace for her. He never cave her the necklace but showed it to her one time when he removed it from his wallet. He called Snelling at her home on one or more occasions to ask her to go out. When Respondent returned from a trip to Moorhead College in Kentucky with some of the football players he took there in his own car to increase their interest in college, he brought back a T-shirt which he had delivered to Snelling by one of the football players. On one occasion Respondent sent a pass to Snelling but she does not recall if she left class to see him in response to the pass. The only occasion Respondent mentioned sex to Snelling was when he inquired if she would tell. The policy at Piper High School regarding passes is that they are used only with respect to school business, and rarely. If a student is in a class he cannot leave that classroom without the permission of that classroom teacher even if he receives a pass from another teacher. Respondent graduated from Pahokee High School in 1974 where he was a football star and a campus leader. With the ecouragement of his coaches, Respondent obtained a football scholarship at Bethune-Cookman College, from where he graduated in 1979. He is appreciative of the help and encouragement he received from his coaches and teachers and desires to repay that debt by helping others as he was helped. In doing this, he encourages all of the kids he talks to to go to college and get an education. When Respondent resigned from Broward County School System, he obtained a job at Pahokee High School in the Special Education Department teaching students with learning disabilities. His principal feels Respondent is doing an excellent job at Pahokee and that he is an asset to the school. During his year at Pahokee Respondent volunteered to coach and led the girls' track team to runner-up position in the state championships. He also took over the cross-country track team, which had been cancelled, and led this team to the district championship. He has continually encouraged students to continue their educations throughout high school and has gone out of his way to help them get scholarships, grants and other assistance towards this goal. Both Respondent and his wife have taken students, with parental consent, to out-of-town games, have had students over for dinner, have driven them to athletic contests, have provided transportation home from football practice which extended beyond the bus schedule, and generally have devoted considerable after-school-hours time to helping and encouraging students to attain higher standards in life.
Findings Of Fact At approximately 11:30 p.m. on the evening of October 9, 1982, the Respondent Erwin McQuown, in the company of the Respondent Richard Scarberry and Scarberry's wife, arrived outside the Brass Rail Restaurant in Largo, Florida. Mr. McQuown exited the vehicle, leaving the Scarberrys inside with the intention of entering the restaurant to see if several out-of-town police officers and a local campus police officer named Sue Wiley, whom they had referred to this place earlier, were inside. Mr. McQuown has been a policeman for over thirteen years and has been employed by the Pinellas County School Board as a campus policeman for over eight and a half years. Mr. McQuown had been to the Brass Rail Restaurant approximately ten times prior to the evening in question and was known to the owner to be a policeman. As he approached the entrance, Mr. McQuown saw a white male individual subsequently identified as Douglas Parks lying on his back on the ground outside the entrance to the restaurant surrounded by a group of other individuals, one of whom was the owner of the Brass Rail, Izaac Azoulay. At this point, Mr. Azoulay, who had just been involved in a dispute with Mr. Parks over Parks' attempted reentry into the Brass Rail after being ejected, requested Respondent McQuown to talk to Parks and show Parks his police badge. McQuown agreed and advised Parks that he, McQuown, was a police officer, that Parks should leave, and that Azoulay could have him arrested if he did not leave. At no time did McQuown state that he, McQuown, would arrest parks. Notwithstanding McQuown'S advice, Parks, who was substantially intoxicated at the time, again attempted to get back into the restaurant and attempted to pass by McQuown. At that time, it appeared to McQuown that Parks and Azoulay were again going to get into a physical altercation, so he inserted himself between Parks and Azoulay in the door. At this time, Respondent Scarberry, who had observed what was transpiring from the McQuown car, where he had been waiting with his wife, recognizing that his friend McQuown could possibly be getting into a dangerous situation, came over to the area and interjected himself by grabbing Parks by the shoulder, spinning him around, and giving him a shove, telling him to get out of the area. Parks resisted, and Scarberry again grabbed him, gave him a push, and told him to "get the hell out of [there]." At no time did either McQuown or Scarberry knock Parks to the ground, strike him, beat him, kick him, or in any other way molest him other than the push by Scarberry that was mentioned above. On his own two feet and without any assistance, Parks crossed the Brass Rail parking lot to Roosevelt Boulevards a distance of approximately 75 feet, without either McQuown or Scarberry accompanying him; crossed Roosevelt Boulevard; and went to the Pix Quick store on the other side of the street. In the meantime, McQuown and Scarberry went into the lounge with Scarberry's wife and sat down at a table. During their second drinks, the owner came over and said there was a deputy sheriff outside who wanted to talk to McQuown. McQuown went outside and talked with Pinellas County Deputy Sheriff Janice Shine, who was accompanied by Pinellas County Sheriff Department Sergeant David Van Leeuwen. Shine and Van Leeuwen advised McQuown that Parks had accused him of assault and battery. In response to that, McQuown advised the deputy that there were additional witnesses inside who would be willing to discuss with them the alleged assault. McQuown did not, however, tell the deputy that Respondent Scarberry had in fact pushed Parks. In response to his comment about other witnesses, Sergeant Van Leeuwen said that he should bring them to court with him. Van Leeuwen also advised McQuown that this matter would be reported to the Pinellas County State Attorney and that he, McQuown, should either orally or in writing report the incident to his supervisor. When the deputies left, McQuown went back into the restaurant and discussed the matter with the Scarberrys. Respondent McQuown was not arrested; and, in fact, he did not report the incident to his supervisor the following day, Sunday, October 10, primarily because he did not think that it was of a serious nature that needed reporting. On Monday, October 11, he was home sick with a sinus attack. However, while he was resting at home, Respondent Scarberry brought over a copy of the deputy's report concerning the incident; and when McQuown read it, he immediately went out and hired an attorney. However, even on October 11, he did not report the incident to his supervisor because after having discussed the matter with his attorney, his attorney advised him not to say anything about the incident until he could get back with him further. On Tuesday, October 12, 1982, Respondent McQuown was called into his supervisor's office at the Pinellas County School Board and asked about the incident in question. At first, he declined to answer, upon advice of counsel, and requested an opportunity to speak with his attorney. This was given him; and when he ultimately did get in contact with his attorney, his attorney advised him to go ahead and tell the authorities what they needed to know, which McQuown in fact did. That same day, Deputy Chief Joe Seraca and Officer M. A. McCrimmon, both of the Pinellas County School Board campus police, initiated an internal affairs investigation of the alleged incident at approximately 11:30 a.m. The investigation was to continue for several days. However, after talking with both Respondents Scarberry and McQuown, Deputy Chief Seraca advised them that they should agree to go on leave or vacation until the matter could be fully investigated and resolved. Both agreed to take time off, both gave their deputy cards directly to Deputy Chief Seraca, and turned in their vehicles and equipment until further notice. On October 13, 1982, the Assistant Superintendent, Mr. Tom Dillon, based on a memorandum relating to the incident prepared that same day by Chief Gene Howell, recommended to Dr. Scott Rose, the Superintendent of Schools, that both Respondents be suspended without pay effective October 20, 1982, and that they be recommended to the full school board for dismissal from employment with the Pinellas County Schools. Chief Howell's memorandum, referred to above, outlined eight separate "violations" in the conduct of both McQuown and Scarberry in that McQuown used poor judgment in intervening in the altercation, that he attempted to obstruct the proper administration of justice by not divulging all information pertinent to the investigation, that Scarberry committed a battery on an intoxicated person, that Scarberry did not consider the safety of an intoxicated person by ordering him to leave the area and allowing him to cross a major highway, that Scarberry failed to come forward and relate his involvement in the matter, that Scarberry improperly handled evidence and diverted it for personal use, that both officers failed to notify their supervisor, and that both officers conspired to make a mockery of the justice process by intending to allow the investigation to focus on a charge of battery against McQuown and a subsequent coming forth by Scarberry to discredit the State Attorney. There is no evidence of any conspiracy of any nature and certainly not that as alleged in this memorandum. With regard to Officer Scarberry and the radio, when, on October 12, 1982, Officer Scarberry was asked to turn in his state car, which he had been using in the performance of his duties, it was found to contain in the trunk thereof a small AM/FM radio which was subsequently identified to be a piece of evidence in an investigation run by Officer Scarberry from nine months previously. At the time the investigation was underway, Scarberry placed the evidence in the trunk of the car and, as he relates, logged it into the file in accordance with the procedures in existence at that time. However, subsequent to the time of the confiscation of the property, sometime in May 1982, the policy regarding evidence was changed to require evidence to be logged with proper paperwork and turned in to the evidence custodian. This policy was to pertain also to all evidence currently in the custody of investigating officers. This piece of evidence, along with two boxes of other evidence relating to another offense, had been in the back of Scarberry's state car for a substantial period of time. At the time of the changeover, the two boxes of other evidence were properly released to school board officials, since the property in question was school board property. Scarberry forgot to take the radio back to the person to whom it belonged or to turn it in at the time of that changeover. He admits he should have turned it in, that he overlooked it, and that he forgot about it. Both Scarberry and McQuown have received excellent evaluations by their supervisors over the past seven or eight years. Scarberry has never had any disciplinary action taken against him in the entire time he has been with the Pinellas County School System. McQuown had one minor reprimand several years ago for a minor offense. Aside from that, he has a completely clean record, and both individuals have the high esteem of their co-workers, principals, and deans throughout the Pinellas County School System.
Recommendation As to Respondent McQuown, from the foregoing it is RECOMMENDED: That he be reinstated in his former position as of October 20, 1982, with reimbursement of back pay from that date. As to Respondent Scarberry, from the foregoing it is RECOMMENDED: That he he reinstated in his former position as of October 20, 1982, with back pay from that date, but that he be administratively reprimanded for failure to inventory and report his possession of the AM/FM tape player/radio. RECOMMENDED this 16th day of February, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1983. COPIES FURNISHED: Usher L. Brown, Esquire Associate General Counsel School Board of Pinellas County 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 33518 Brian C. Harrington, Esquire Fisher & Sauls, P.A. 501 Florida National Bank Bldg. Post Office Box 387 St. Petersburg, Florida 33731 Ky M. Koch, Esquire Bauer & Koch 15201 Roosevelt Boulevard Suite 102 Clearwater, Florida 33520 Scott N. Rose, Ed.D. Superintendent School Board of Pinellas County 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 33518
Findings Of Fact Respondent, Ronald H. Youmans (Youmans), was born July 28, 1948. Educated in Tennessee with a Bachelors degree in Music Education, he moved to Titusville, Brevard County, Florida in 1972 with his wife, Frances (Fran) and his then two-year-old daughter, Lisa. He assumed the position of music teacher/band director at Jackson Middle School in Titusville, for the Brevard County School District, for the 1972-73 school year. Youmans continued as a music teacher/band director under a continuing contract in the Brevard County School District for twenty-three years, until his suspension or reassignment in 1995. He moved from Jackson Middle School to Titusville High School in 1981, and then to Cocoa High School in 1987. Throughout his twenty-three year career Youmans received excellent performance ratings from his superiors. He participated actively in band- related programs: taught summer recreation band and jazz band, served as judge in state-wide band competitions, led the Bicentennial Band in 1976, and taught private music lessons along with his wife, Fran, at Jack's Music Store in Titusville. His bands and his students excelled; they marched in parades, participated in band contests and won awards and high praise from parents and peers. From witnesses for both parties in this proceeding there was an outpouring of appreciation of Youmans' talent as a band director. The Youmans family expanded to include a second daughter, Karen, born in 1976 and a son, Mark, born in 1977. The family was well-known and well-liked in the community. A simple visit to the mall would become a social event as former and existing students or their parents would greet and chat with the Youmans. The position at Jackson Middle School was Youmans' first teaching job. While band director there, Youmans was in his 20's and early 30's and "related" to his students. A coterie of adoring and particularly talented students, mostly girls, gravitated to his band room to "hang out" before and after school. Some helped out by filing music or performing similar clerical tasks; they were called "band-aides." Early on in his term at Jackson Middle School, Youmans became known as "Yogi" to his students. He did not view the nickname as a sign of disrespect and he enjoyed his obvious popularity, which popularity plainly contributed to the success of his music program. To the students, "Yogi" made band fun; he also made them work hard and they were successful. Band was like a big family; parents became loyal supporters and provided valuable volunteer services. The inner circle of students was known as the pet group. At some point Youmans got upset about the notoriety of the "pet situation" and he made up a pet application form and told students if they wanted to apply they would be instantly admitted into the "Pet Club." Fran also interacted with the students. She and the Youmans children attended band events; Lisa, starting around four years of age, marched in parades and practiced marching with the band. Fran taught private lessons to some students and was a youth leader at church. Some students, therefore, gravitated to the Youmans' home as well as to the band room; they dropped in to visit the family, sometimes baby-sat, ate dinner or spent the night. They visited Fran and gave her a baby shower when she was undergoing a difficult pregnancy with daughter, Karen, in 1976. Some of the interaction between the students and their band director was overtly physical: they gave him back rubs and back scratches and sat on his lap, gestures which Youmans avowed were directed to an avuncular or "Santa" figure and nothing more. Youmans was then, and still is, short and heavy-set. Some verbal interaction, or banter, between Youmans and his students was sexual in nature. A heavy-bosomed girl was called "Boom-Boom." "Twanging" was coined as the term for a girl going bra-less. To a girl named Jeannie, Youmans said, "I dream of Jeannie in a cellophane bikini." To another girl who had said that her glands were swollen, Youmans responded, "It's about time." Other interaction with the students was simply jejune. Youmans signed some yearbooks with his nickname, "Yogi", with a small valentine in lieu of the dot over the "i." One comment by Youmans in a girl's yearbook was "We're still going steady." The students bought him a pair of red socks with the word "sex" in small white letters which enlarged when the socks were worn. He wore the socks at the students' urging and the band was awarded "superiors" at the band festival. Thereafter, he wore them every year for the contest. Shelley Michelle Kerr (now, Michelle Kerr Stallings, or Shelley) was born March 3, 1963. At the end of her sixth grade in Titusville, she was in Youmans' summer recreation band. As a seventh grader at Jackson Middle School she enrolled in Youmans' band class. She was a quiet and attentive student, a very good clarinet player and one of the inner circle of students who hung around Youmans before and after school. Shelley also took private lessons from Fran at the music store and was in Fran's youth group at church. Shelley "bonded" with the Youmans family and spent time with them at their house, or in the early days - trailer, and on family outings. She baby-sat and sometimes spent the night. In 1976, in the second semester of Shelley's seventh grade, when she was in Youmans' office, usually after school and alone, the back rubs and lap- sitting escalated to kisses. At some point at the end of the seventh grade, Shelley and another band student, Barbara Kaufman, were visiting the Youmans' trailer. They had eaten dinner and the two girls were doing the dishes. Fran was not around. Youmans took turns with the two girls, taking one, then the other around the wall partition and hugged and kissed them. During the summer of 1976, Youmans kissed and fondled Shelley's breast or vagina on several occasions, at school or at the Youmans' home. She felt scared and confused, but trusted and loved him. Shelley knew Barbara Kaufman had a crush on him as well and she believed Youmans was also hugging and fondling Barbara. At the end of the summer when Barbara returned from her vacation, the two girls were at the playground at Coquina Elementary School near where they both lived. Shelley wanted to know how far Youmans had gone with Barbara. She tried to ask Barbara whether he ever lifted up her shirt, but had a hard time saying it and just gestured with her hands until Barbara insisted that she explain what she was asking. Shelley continued in band in the eighth grade. After school started in the fall, on an occasion after school hours, Youmans told Shelley he wanted to show her something. He took her to the band office and removed her pants and underwear and performed oral sex on her. Fondling and oral sex between Youmans and Shelley continued through her eighth grade year. The first act of sexual intercourse between Youmans and Shelley occurred when she was sixteen, in high school and driving a car. They met at a Burger King out by the beach and drove in her station wagon to the beach. She wore a bathing suit with shorts and a shirt over it. They had intercourse after oral sex, with the seats down in the station wagon. Afterwards they returned to the Burger King where Youmans left in his own vehicle. Sexual intercourse between Youmans and Shelley occurred approximately six times over the years until 1984. The occasions included a time when Shelley was spending a week in her parent's recreational vehicle parked out at Jetty Park at the beach. Youmans visited her the first night, and after that night Lisa Youmans came out to spend the week with Shelley. On another occasion around 1982, Youmans suggested that he and Shelley drive to Daytona Beach so he could take her out in public to dinner. They drove to Daytona but the restaurants were crowded so he checked into a Howard Johnson's motel, where they had intercourse. Other occasions included when Youmans was alone in his home and when Shelley was staying out at the beach in a motel. During this period, particularly during the earlier years, Shelley remained close to the Youmans family and was included in family outings, sometimes overnight trips. She loved Youmans and he told her he loved her. She also loved Fran and the kids and felt part of their family. The end of the sexual relationship between Youmans and Shelley occurred in 1984. Karen Youmans was having a birthday party and Shelley brought her a present. The party was winding down and Youmans announced he had to go pick up something at the band room. To Shelley, this was a cue for her to call him or meet him there. She left the party a short while later and found him in the band room. They hugged and kissed and Youmans suggested they leave the band room because a family friend, John Kuntz, was the security guard and lived in the security trailer at the high school. They left the school and drove around. As they returned to the high school parking lot, Fran was parked in the lot. She drove her car really fast toward the couple, then squealed her tires and left. Shelley knew Fran was upset. She got in her car and went to the house of her friend, a co-employee at a bank where Shelley was working. Shelley was distraught and told her friend that Fran Youmans had accused her of having an affair with Mr. Youmans and had tried to run into them. Later that evening Youmans appeared in his car outside the friend's house. Shelley went out to talk to him and he told her Fran had thrown his clothes out and he was going to spend the night at a hotel. She did not go to meet him there. By this time Shelley had started dating, having had, at age eighteen, a several-month sexual relationship with a fifty-year-old man, Fran's boss at a printing company and a friend of the Youmans family, a man Fran described as a "Don Juan." In 1985 Shelley dated Scott Schuler, a person she liked and trusted. After dating him approximately five or six months she confided in him about the relationship with Youmans. Scott Schuler noted that Shelley was very upset when she told him about Youmans. She was shaking and agitated, and hesitated to share the information. He spoke to a priest about her and she also spoke to the priest at Schuler's urging. She did not pursue counselling at this time because she was not ready. After 1985 Shelley had intermittent contact with the Youmans family. Fran was invited to Shelley's wedding shower held by Shelley's mother and sister in 1986. Fran called Shelley and said she wanted to be back in her life, to watch her kids grow up. Fran printed the birth announcement for Shelley's first child at Fran's print shop. The family came to visit Shelley at the hospital when she had her first child in 1989 and sat behind her in church at her second child's baptism in 1992. Barbara Barbara Kaufman was very different from Shelley Kerr, although Barbara, too, was a talented clarinet player in Youmans' band. The same age, or a few months older than Shelley, Barbara was in the same grade as Shelley. Barbara was outgoing, fun-loving and even brash, but a well-focused music student. She was a drum major. Although Barbara and Shelley were both in the close pet circle, they had different best friends. Barbara also took music lessons from Fran and sometimes Youmans at Jack's Music Store. Youmans commenced a sexual relationship with Barbara around the same time as with Shelley, at the end of the girls' seventh grade. Once in the school cafeteria she burned her tongue on hot food and commented on this when the pets were gathered after lunch in the band room. Youmans told her to stick out her tongue and he would kiss it. Barbara's account of the kissing and hugging at the Youmans' trailer after dinner is very similar to Shelley's. Barbara felt Youmans cared very deeply for her and he told her she was special to him and that he loved her. She also loved him. During the summer of 1976 Youmans French-kissed Barbara in his band office when they were alone. This became a regular activity. Before she left for vacation he gave her three five-by-seven photographs of him directing the band or posing with the Jackson Middle School drum. She put them in frames and took them with her to Michigan because Youmans told her to think of him while he was gone. When she returned from vacation at the end of the summer, Barbara saw Shelley at the swings on the playground at Coquina Elementary School. After Barbara learned that Shelley's involvement had gone beyond the kissing and hugging, Barbara was very jealous. She rode her bicycle home and called Youmans at the band room. When she learned he was there she rode her bike to the school to confront him with what she learned from Shelley. Youmans reassured her that Shelley meant nothing to him. He hugged and kissed Barbara and fondled her breasts. He told her he loved her and someday they would get married. As drum major, Barbara was sometimes required to direct the band in parades and at school. She spent time with Youmans, in practice or alone. During Barbara's eighth grade at Jackson Middle School the relationship with Youmans developed into oral sex, in the band room, in the band office and sometimes in the back room of the music store when she was having a lesson. Barbara confided to Kerry, one of her close girlfriends, that she and Youmans were having a relationship, oral sex, but no intercourse. Kerry was a year younger than Barbara and is the sister of Barbara's current fiance. On several occasions Kerry observed Youmans drive by on his motorcycle or other vehicle and visit with Barbara in the back yard. When Barbara confided in Kerry, Kerry felt that Barbara was happy with the relationship and proud of Youmans. Youmans specifically told Barbara not to tell another girlfriend, Brenda Probst, of the relationship. Brenda was Barbara's best friend and Barbara believes Brenda would have immediately told her father. Brenda was aware that Barbara spent a lot of time with Youmans but at the time she assumed it was because Barbara was so involved with the band and was the drum major. Barbara told Brenda that Barbara would go back to the band room in the late evening or that Youmans stopped by her house on the way home sometimes, but Brenda did not see this herself. The relationship between Barbara and Youmans ended shortly after she entered high school and the opportunity for getting together diminished. Unlike Shelley, Barbara did not visit the Youmans family and was at their home on only a few occasions. In 1992, after high school, and after Barbara left and returned to Brevard County and was working with a church choir, she went to Cocoa High School to visit Youmans and to try to get some trumpet players for her choir's Memorial Day celebration. They discussed their lives generally; Barbara showed him pictures of her new house; they compared cars and she bragged about her cellular phone; he talked about his daughter, Lisa. Barbara got to the point of discussing her mother's death in an automobile accident and she started to cry. Youmans also cried and told her he was sorry if he ever caused her any emotional problems. This, Barbara believed, was a reference to their prior relationship, which she still considered a love situation, a special thing and a bond between them. Youmans' apology upset her and confused her. She left the band room and called her friend, Brenda, on her car phone, very upset and crying hysterically. Barbara told her friend about the encounter with Youmans and about the sexual relationship that she had believed was a love relationship. Brenda tried to calm her, but commented, "He molested you." In a subsequent conversation Brenda urged Barbara to go to a counselor. The "Hidden Camera" Jamie Lee Robinson was born March 16, 1979. In January 1994 she was a band student in Youmans' Cocoa High School band. She was a talented clarinet player and attended the all-state band festival in Tampa, Florida with Youmans and other band students. Jamie shared a hotel room with Jessica Sweeney, a band student from Cocoa Beach High School. On the morning of the first day, Youmans rang Jaime's room to make sure she was awake and getting ready. Jessica answered the phone and handed it to Jaime. Youmans told her that he had a camera in the room to find out whether the kids were behaving and he could see everything she did and wore. This troubled her but she was still half-asleep. She told her roommate about the call and Jessica tried to reassure her that there could be no such camera in the room. Later, Youmans called again as Jaime was getting dressed and buttoning her blouse. He told her to button her blouse because he could see everything. This completely unnerved her and she began looking for the camera. At some point she and Jessica discussed whether the fire or smoke alarm apparatus with a blinking light was really a camera. Still later, Youmans called the room again. This time Jaime was fully dressed, and when Youmans told her that he could still see everything and she needed to get dressed, she realized she had been duped. The episode embarrassed Jaime and for the rest of the trip she dressed in the bathroom or under the covers. She did not consider the calls a joke and was terrified that she would be ridiculed by the other band students. Weighing the Evidence Youmans vehemently denies having had a sexual relationship with Shelley or Barbara. He also denies that the phone calls to Jaime were any more than a big joke, enjoyed enormously by all of the students, including Jaime and her roommate. Youmans and his wife, Fran, admit there was a cataclysmic domestic dispute the night Fran found him with Shelley in the high school parking lot. Youmans admits accepting and wearing the "sex" socks; he admits the back rubs and lap-sitting (although he insists the students only sat on his knees); he admits having signed yearbooks on occasion with a valentine over the "i;" and he admits at least tolerating an atmosphere where off-color jokes, slang and nicknames were exchanged. It was also a fun and exciting atmosphere for his students, particularly those in his inner circle, the "pets" or "pet club." He was young, creative and very popular; the students sought his attention and affection. He was "teacher of the year" in 1975-76. Based on the overwhelming evidence in this proceeding, none sought his attention and affection more relentlessly than Shelley and Barbara, two very different adolescent girls. The overwhelming evidence in this proceeding establishes that he took advantage of their devotion and committed the alleged sexual acts. Their devotion and loyalty insured that they would not "tell" or otherwise jeopardize their privileged status. In making the ultimate finding of guilt the hearing officer has considered the credible testimony of the myriad witnesses who saw no sign of any impropriety in Youmans' twenty-three years of teaching in Brevard County. Many of these witnesses and even some who were called to testify on behalf of the school board failed to see some of the practices admitted by Youmans. The fact that the sexual misconduct allegations took approximately twenty years to reach the school board has also been considered. Evidence that both Barbara and Shelley disclosed their experiences to several confidants, male and female, at times over the twenty years has been credited. There is no evidence that this is a situation in which two girls individually fabricated or conspired in a vicious lie about a beloved teacher. Finally, Youmans has admitted that his "hidden camera" call or calls to Jaime were bad judgment. His version of the incident as a well-appreciated joke was not substantiated by any credible testimony.
Recommendation Based on the foregoing, it is recommended that the School Board of Brevard County enter its final order granting the Petition for Dismissal and terminating the continuing contract of Ronald H. Youmans. DONE and ENTERED this 13th day of June, 1996, in Tallahassee, Florida. MARY CLARK, 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 13th day of June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4242 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. The findings of fact proposed by Petitioner are adopted in substance, with the exception of certain numbered paragraphs which constitute more argument or discussion of the evidence than findings of fact. These paragraphs are excluded as being largely argumentative: 5.h, 15.F., 21-23. Respondent's Proposed Findings of Fact. The findings of fact by Respondent are all argument and discussion of the testimony. They have been considered, but the theories advanced in the argument, the proposed interpretations of the testimony, are rejected as contrary to the greater weight of evidence. COPIES FURNISHED: Benjamin B. Garagozlo, Esquire ANDERSON and GARAGOZLO, P.A. 33 Parkhill Boulevard West Melbourne, Florida 32904 Virginia B. Townes, Esquire Peter L. Pollock, Jr., Esquire AKERMAN, SENTERFITT and EIDSON Post Office Box 231 Orlando, Florida 32802 Dr. David Sawyer, Superintendent Brevard County Schools 2700 St. Johns Street Melbourne, Florida 32940-6699 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue presented herein concerned the Respondent's appeal of the School Board's assignment of her son, Joseph Robinson, to an alternative school placement.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant findings of fact. By letter dated March 4, 1983, Petitioner, the, School Board of Dade County, Florida, by its Director of Alternative Education Placement, William R. Perry, Jr., advised Mrs. Alfreda Robinson, parent of Joseph Robinson, date of birth July 8, 1971, that her son was being administratively assigned to Youth Opportunity School-South due to the child's, Joseph Robinson, disruption of the educational process in the regular school program. During the 1982-3 school year, Joseph Robinson was a sixth grader at Campbell Drive Middle School in Dade County, Florida. He attended Campbell Drive Middle School up through March 4, 1983, the date that he was administratively assigned to Youth Opportunity School-South. At the outset of the 1982 school year, Joseph Robinson was the subject of repeated incidents of disruptive behavior consisting of defiance, physical altercation with other students, physical threats to instructors, verbal outbursts in class, refusal to perform class assignments and repeatedly attending classes tardy. As example, on September 9, 1982, Joseph Robinson defied an order of his instructor. On October 11, 1982, he was engaged in a physical altercation with two other students which resulted in an indoor suspension. On October 18, 1982, he refused to allow two other students to complete their class assignments. Again, on that same date, October 18, 1982, he physically threatened his instructor which resulted in a three- day outdoor suspension. From the period November 3, 1982 through March 11, 1983, Joseph Robinson was the subject of approximately seven referrals and/or suspensions for disruptive behavior. During early March, 1983, a screening committee of the Department of Alternative Education Placement recommended that Joseph Robinson be administratively assigned to Youth Opportunity School-South based on the repeated acts by him of the disruption of the educational process in the regular school program. Mrs. Alfreda Robinson, the mother of Joseph Robinson, alleged that her son was the subject of disparate treatment by the school board. No evidence was offered by Mrs. Robinson in support of her claim in that regard. It is therefore rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Respondent's appeal of the school board's assignment of Joseph Robinson to an alternative school placement be DENIED. RECOMMENDED this 9th day of December, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 9th day of December, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire & Mark Valentine, Esquire 3050 Biscayne Blvd., Suite 800 Miami, Florida 33137 Mrs. Alfreda Robinson 934 NW 2nd Street Florida City, Florida 33034 Leonard Britton, Superintendent Administrative Office Lindsey Hopkins Building 1410 NW 2nd Avenue Miami, Florida 33132
The Issue The issue in this case is whether Respondent is guilty of misconduct in office.
Findings Of Fact Respondent has been employed as a physical education teacher at Avon Park Middle School in Highlands County since 1978. He holds a teaching certificate and at all material times was on continuing contract with Petitioner. Normally, middle school consists of sixth through eighth grades. However, during a portion of the relevant time period, Avon Park Middle School included fifth through eighth grades. Student 2 is C. B., who is now 17 years old and in 10th grade. C. B. entered fifth grade at Avon Park Middle School in the fall of 1988. At this time, C. B. first encountered Respondent and soon developed a crush on him. Late the following school year, C. B. wrote two notes to classmates that indicate the strength and persistence of her infatuation with Respondent. The first note is dated April 9, 1990. The note states that she has been "day dreaming" about "me and C. J. [Coach Jarvis]." The second note, which is dated May 29, 1990, mentions a dream that C. describes as "so real." C. B. wrote that she was going to recount the dream to Respondent and the female physical education coach, Ms. Dixon, although there is no evidence that she ever did. In the note, C. B. wishes that Respondent would get a divorce and marry and "have sex with me." C. B. also stated in the note that she wishes that Respondent "would give me a kiss before school is out." C. B. signed the note as "[C. B.] or [C.] Jarvis." At the end of sixth grade, C. B. signed the yearbooks of at least two classmates, "C. Jarvis." The signatures reflected her desire to marry Respondent. The crush continued while C. B. was in seventh grade. In an undated note probably written in sixth or seventh grade, C.B. writes: . . . Have you ever seen Coach J['s] house[?] If you hadn't seen it, the house must not be very far. You know for me to get Coach J. I'm going to have to go to his house and punch his wife [out?] & then she'll die & I'll have Cochy pooh to my self. . . . During seventh grade, C. B. developed crushes on two other adults. The first was Deputy Keith Starling, who is a 25 year old coworker and friend of C.B.'s father. Although Deputy Starling never did anything to encourage C. B., she wrote, "I [love] Keith Starling" in a classmate's yearbook at the end of seventh grade. A more serious incident took place the summer following seventh grade. B. babysat five days a week from about 8:30 am to 2:30 pm for the children of Mike and Bonnie Brown. Mr. Brown, who is in his 30s or 40s, began to find letters from C. B. in his underwear drawer. Although he had never spoken to her except to say hello, the letters addressed highly personal matters, such as that he had a nice body, his wife did not dress him well, and C.B. would like to dress him like he should be dressed. The letters started the first week after C. B. began babysitting for the Browns. Mr. Brown showed the first or second one to his wife, but they dismissed the letters as unimportant. They did not discuss them with C. B. or her father. After two months, the Browns quit asking C. B. to babysit after she pulled the hair of one of their young children. C. B. was assigned to Respondent's physical education class in eighth grade, which was the 1991-92 school year. This was the first time that Respondent was C. B.'s teacher. Respondent had been indirectly aware that C. B. had developed a crush on him in fifth grade, but he paid it no attention. Respondent and Ms. Dixon had had direct contact with C. B. in sixth grade when C. B. paid them regular visits while they had hall duty. C. B. told them that she was having serious problems with her stepmother, who she felt favored C. B.'s younger stepsister. C. B.'s biological mother had died when C.B. was only one year old. C. B.'s older sister had become pregnant outside of marriage and at a young age. Respondent had some special insights into teenage pregnancies as a family member had gone through the same problem. There is no evidence that Respondent had any significant contact with C.B. during the following school year, which was when C. B. developed crushes on Deputy Starling and Mr. Brown. Early in the 1991-92 school year, as C. B. was now in eighth grade and taking Respondent for physical education, she began to be more obvious in making Respondent the object of her attentions. She became more vocal. She approached Respondent in the hall and said that she really liked the way he looked. She went out of her way during physical education class to say hello to Respondent. By Thanksgiving, C. B.'s infatuation had worsened. She told Respondent that she had a goal for her birthday--a kiss from Respondent. Respondent tried to laugh off the inappropriate comments. Like Mr. and Mrs. Brown, Respondent did not take the infatuation seriously, so, like them, he did not discuss it with anyone. Sometime before Christmas break, Respondent received a note from C. B. that said she really liked him and her goal was a kiss. Respondent threw the note away. About a week or so later, Respondent received another note saying that she cared about him. Again, Respondent discarded the note and assumed that he would have no trouble if he stayed away from her. Just prior to Christmas break, C. B. began stopping in to see Respondent. He began to become aggravated and started to evade her. However, he figured that the crush would cease during Christmas break. At Christmas, Respondent received a Christmas card from C. B. The card featured three bunnies--one marked "[C. B.]," one marked Respondent, and one marked "[R.]," who is Respondent'sson. The situation took a turn for the worse when school resumed in January. After a few days of relative inattention from C. B., Respondent received two notes within four days of each other. The first note is dated January 6, 1992. C. B. gave the note to Respondent on that day or perhaps the following day. The note reads: Hey or hi, oh let's get to the point. Over the Christmas break I thought about you a lot. Even had dreams. I have thought about everything that could go wrong, but I want to go all the way with you. You may think this is just a crush but it's more than a crush. I really LOVE you. And I don't use that phrase unless I mean it. I know I could get preg. or something but that is why they invented condoms. Just tell me when and where and I'll be there in my birthday suit. Well, that's enough for now & bells gonna ring so Chow Baby for now! LOVE YA ALWAYS, [C.] [B.] Jarvis I wish! On the same day, C. B. wrote a note to a classmate. The note states in part: Today I'm going to tell Coach "J" that I want to go all the way, Now I'll probley won't but I just want to see want he saids. It's going to be embarracing!!!!!! Now should I say it. Well write Back! On January 10, C. B. wrote Respondent another note, which she delivered the same or following day. The note states: O.K. Look, I'm sorry your name got mention this morning. I just wish I could crawl underneith a whole. Season told her mom about me having a crush on you. So my mom questioned me this morning about it, and I told her that I still kinda. If she asks me again tonight I'm going to tell her no! I'm also going to [tell] everyone at school the same thing. But, I still love you, and I wouldn't want to do anything that would hurt you. . . . It's just everything is coming all at once and I'm beginning to feel I can't handle it. It's just everything is happenin so fast and at once. At this point right no I wish I was dead! I mean all of my emotion is going crazy right now. But, today at A/ [?] your class better watch out! Well enough of boring you with my problems better go!!!! *Love ya Always & Never won't stop! [C.] [B.] Jarvis Oh, you want to hear a joke-- In 1998, your moma tried to skate, She hit the pole, her titties roled, in 1998. *NOTE: The word "Love" has been substituted in this ACCESS document for the heart symbol which is typed on original document on file in the Clerk's Office. There is a third note dated January 13, 1992. It is of the same nature as the two preceding notes. However, C. B. never delivered the note to Respondent. After getting the second note, Respondent discussed them with Ms. Dixon and asked her advice. From her conversations with C.B., Ms. Dixon was aware that C. B. was upset that her father did not trust her after her sister had gotten pregnant. Ms. Dixon and Respondent agreed that he needed to take the notes to the guidance counsellor. Respondent immediately took the notes to the guidance counsellor at Avon Park Middle School, Patricia Jackson. Ms. Jackson read the notes and arranged for a meeting among her, Respondent, and C. B.'s father. At the meeting, C. B.'s father was cooperative, explaining that C. B. had started to develop an interest in boys. Respondent said that he had asked C. B. to stop this behavior, and he needed the father's help in this regard. The father expressed his appreciation that the matter was brought to his attention, but asked why he had not been told about it sooner. Respondent explained that he had not previously taken the infatuation seriously. The meeting closed with an assurance from the father that he would take C. B. to a friend at church for counselling. He left with the two notes. At this time, Respondent and Ms. Dixon transferred C.B. to Ms. Dixon's physical education class. C. B. was quite upset at this action, and she became more upset when she learned that Respondent had told her father about the notes. Her father had disciplined her by restricting her social activities. About one to two weeks later, someone brought C. B. to Ms. Jackson because C. B. had been crying in the hall. C. B. explained that she was upset because her father had placed restrictions on her and she was embarrassed by the notes. After about 15-20 minutes, C. B. quit crying, seemed comfortable, and returned to class. At no time did she mention any other reason for her agitation. Respondent avoided C. B. for the remainder of the 1991- 92 school year. All contact between them stopped at that time until the last day of the school year. Shortly after the students were released at midday, Respondent was checking the gym for equipment, forgotten books, and lost clothing. He heard someone call, "Coach, Coachie pooh." It was C. B., who was at the other end of the gym. Respondent asked C. B. what she was doing there. Instead of answering, she climbed the stairs and entered the Future Farmers of America (FFA) room that is over the gym. Respondent followed her into the room. C. B. was misty eyed and said that she wanted to say goodbye and did not want to leave middle school. Respondent said that she needed to leave. He heard someone in the storage room adjoining the FFA room. C.B. said that a girlfriend and her boyfriend were in the storage room. At this moment, the public address system summoned Respondent to the office. A football equipment salesperson had come to the school to speak with Respondent, who was also a football coach, about repairing old helmets and ordering new ones to replace those that could not be repaired. Respondent and the salesperson visited the equipment room and inventoried the football helmets. They examined about 50 helmets in 25-30 minutes. After determining that an unexpectedly high number of helmets needed to be replaced, Respondent and the salesperson visited an assistant principal and told him of the need to purchase $1000 worth of new helmets. The assistant principal conferred with the principal, who decided to defer making a decision. At this point, the salesperson left and Respondent returned to the gym. He then found C. B. and her two friends at Respondent's desk in the locker room area. Respondent walked up to C. B. and demanded, "What the devil are you doing here?" She replied that she had to say goodbye one more time. Respondent told her to get out. He told C. B.'s two friends to get out too. The three students left the school area at that time. C. B. testified to a different version of events. She described sexual encounters with Respondent just before Christmas break in 1991 and on the last day of school in 1992. For the reasons set forth below, C. B.'s testimony has been discredited. C. B. testified that Respondent flirted with her intensely in December 1991. She testified that on one occasion he declared that he would kiss her before Christmas. She testified that Respondent gave her a pass to leave math class and go to the library. Instead, C. B. and Respondent met in his office and kissed, according to C. B. When his hand wandered toward her buttocks and breast, she testified that she left, and he said that he would show her how much he cared for her. Initially, C. B.'s testimony on direct stopped at this point in the description of the alleged December incident. Later in direct, she added that Respondent had exposed his penis, masturbated in front of her, and ejaculated. C. B. testified that Respondent gave her two or three audio cassettes of love songs by which to remember him, after he had turned in the notes in January 1992. C. B. testified that her relationship with Respondent resumed toward the end of the 1991-92 school year. She testified that she met Respondent in his office before school each morning during the last couple of weeks of school and that each meeting he would try to kiss her. She testified that Respondent promised that he would show her how much he loved her on the last day of school. C. B. testified on direct examination that she and a girlfriend went to the FFA room on the last day of school when school ended. She did not mention the boy. C. B. testified that Respondent met her in the FFA room, held her hand, and said that he loved her. She testified that, in a 45-60 minute period, Respondent exposed his penis, masturbated, and ejaculated three times--once in the FFA room, once a few minutes later on the gym floor, and once a few minutes after that in his office in the locker room. She testified that he masturbated in the FFA room after she told him her two friends were in the adjoining storage room. There are many problems with C. B.'s testimony. In her deposition given on September 22, 1993, C. B. testified that the first time she saw anyone's penis was during the alleged June encounter. She stated in her deposition that Respondent's penis remained in his pants during the December encounter. Likewise, she never mentioned in other statements the penis, masturbating, or ejaculating that she testified took place in December 1991. There are also variations concerning C. B.'s description of the alleged June encounter with Respondent. On cross-examination, C. B. admitted for the first time that a boy had accompanied her girlfriend to the storage room adjoining the FFA room. She had testified previously on direct and in deposition that only her girlfriend had accompanied her to the FFA room. C. B. explicitly mentioned only one of the three incidents of masturbation and ejaculation when she gave her statement to the school in March 1993. She clearly omitted from her statement the June office encounter, which was also omitted from her deposition testimony. C. B. also testified in her deposition that, immediately afterwards, she told her waiting girlfriend that Respondent had masturbated and ejaculated in front of her. The girlfriend testified that C. B. said only that she had kissed Respondent and implied either that more sexual activity had happened or that she had wished that more had happened. Besides these discrepancies, C. B.'s story lacks credibility due to its improbability. The last day of school is chaotic, and it is highly unlikely that Respondent would masturbate in the FFA room, after being told that two students were in the adjoining room; then on the gym floor, with unlocked doors all around him; and lastly, in his office just a few minutes later, as C. B. testified. Likewise, C. B. testified that the December encounter took place during the school day in front of a window between the office and locker room. C. B. is a spirited, sensitive young person. It is not uncharacteristic of middle school students that they engage in sexual fantasizing, and C. B. is no exception in this regard. C.B.'s sexual fantasizing has extended to two adult males besides Respondent--Deputy Starling and Mr. Brown. In the case of Deputy Starling, C. B. acknowledged the attraction at least once in a classmate's yearbook, as she did repeatedly as to Respondent. In the case of Mr. Brown, C. B. sent numerous notes, as she did to Respondent. C. B.'s reputation of truthfulness is poor among her peers and even her friends. There is no doubt that she deviated from the truth numerous times during her testimony. In addition to the matters set forth above, she testified that she never told anyone that she liked Deputy Starling and that she never left notes for Mr. Brown in his underwear drawer. At various times, C. B. said different things to her friends concerning her alleged relationship with Respondent. To a current girlfriend of hers, C. B. said that she "sucked [Respondent's] dick." She admitted to the same person that she had made up at least some things concerning her and Respondent. To another girlfriend, C. B. said that she and Respondent performed oral sex and intercourse, but later said to her that she never had sex with Respondent. For the above-cited reasons, none of the above-cited testimony of C. against Respondent can be credited. Student 3 is C. Ba., who is now 14 years old. She moved to Highlands County around February 1, 1993, while she was in sixth grade. She was assigned to Respondent's physical education class. One day during class, evidently not long after C. Ba. had entered Avon Park Middle School, Respondent named a team of crab soccer players as Ba.'s Bimbos. C. Ba. may not have known, but it was Respondent's custom to give the teams silly alliterative names, such as M.'s Maniacs. C. Ba. objected strongly to the name, claiming that she believed that it meant that she was a prostitute. According to local usage, a "bimbo" is an "airhead." According to the dictionary, a "bimbo" is a "thick-headed" person of either sex. Respondent intended the remark in this fashion, and most persons in Avon Park, including sixth grade students, would not have taken the remark to mean that Respondent was calling C. Ba. (or, strictly speaking, her team) prostitutes. Although in retrospect the name selected for the team was ill- considered, Respondent did not thereby reasonably cause C. Ba. any embarrassment or discomfort. As testified by the Superintendent, the school principal adequately handled this minor problem at the time. When asked to give a statement to the school on March 2, 1993, C. Ba. wrote that Respondent flirted with her. She specified that Respondent tickled her, placed his hands where her back and buttocks join, and called her "bimbos" [sic]. The note also adds: "There's a rumor, not really a rumor, but a girl by the name of [C. B.]. [C. B.] told [another girl] during an FFA meeting that [Respondent] and [C.B.] had screwed each other." In testifying, C. Ba. said that she could tell that Respondent was flirting with her due to the shine in his eyes-- the same look that she has seen boys get when they have tried to pick up other girls. There is no credible evidence that Respondent tickled C. Ba. or looked at her suggestively. If any contact really took place in the area of C. Ba.'s lower back, it was strictly incidental. Student 1 is S. H., who is 15 years old. She was in seventh grade during the spring of 1993. S. H. testified that Respondent touched her at the top of the buttocks while passing her in a crowded hall. Based on S.H.'s description of the circumstances, Respondent, who has no recollection of such an event, testified that he would have been trying to get through a crowd of students during a short break between classes in order to see someone in the office. There is no credible evidence of an intentional or otherwise inappropriate touching. The circumstances surrounding the reporting of S. H.'s story are pertinent. She did not report the matter, which was clearly casual contact. When the other allegations against Respondent emerged, she mentioned the "incident" to her boyfriend, who reported the "incident" to school officials. The spring and summer of 1993 was a fertile time for rumors and innuendos concerning Respondent among the minority of persons in the school and outside communities easily susceptible to suggestion or perhaps predisposed to dislike Respondent for some reason unrelated to the present case. For instance, rumors linked Respondent to at least two physical education teachers. There is no substance to these rumors, or even to allegations that Respondent inappropriately touched these teachers, such as by draping a leg over their legs in the presence of students (or at any other time). Other rumors were that Respondent entered the girl's locker room while girls were present and dressing. There is no substance to these rumors. Rumors of Respondent's flirting with numerous other students began to circulate. In the end, evidently, the only students to step forward with sufficiently substantial charges to warrant inclusion in the subject case were B., C. Ba., and S.H. As a result of the allegations of the three students, Petitioner suspended Respondent with pay in March 1993. Petitioner suspended Respondent without pay when, in the summer of 1993, the State Attorney filed criminal charges against Respondent based on the allegations of C. B. The record does not reveal much about the decision to arrest Respondent and the ensuing investigation, except that C.B.'s father never bothered to give the State Attorney the notes that his daughter had written Respondent. In any event, the criminal case was eventually dropped, presumably for lack of evidence. Petitioner's newly elected Superintendent had been a classroom teacher for 20 years. He testified that Respondent had a reputation as a flirt, although the Superintendent described this reputation as part of Respondent's personality and not anything specific. The Superintendent elaborated that the reputation was based on Respondent smiling, getting close to people, and combing his hair at halftime during football games that he officiated. More importantly, the Superintendent testified that Respondent has lost his effectiveness as a teacher, and his opinion on this matter would not change even if C. B. withdrew her charges. The Superintendent's opinion appears to be based in part on the perception that Respondent did not do what he could to stop the rumors. But if Respondent had dignified the rumors with a public denial, he would only have added fuel to the fire. The Superintendent's reasoning is also based in part on community opinion. However, media coverage of the charges has been reserved, factual, and balanced. Most of commentary against Respondent has come from a person or persons who chose to remain anonymous. By contrast, an impressive array of persons chose to appear at the hearing and publicly support Respondent and his reputation. A retired teacher, who had taught physical education with Respondent during her last 10 years of teaching, testified that she never saw Respondent touch students in the breast, buttocks, or genitals and never saw Respondent in the girls' locker room while it was occupied. A math and science teacher, who taught 12 years at Avon Park Middle School, testified that Respondent could teach effectively in Highland County if the charges were unproved. The Field Director of the Heart of Florida Girl Scout Council, who had two daughters in classes taught by Respondent and a son awaiting Respondent's return, testified that his reputation contains nothing derogatory and he never said or did anything improper. A secretary at Avon Park Middle School and wife of a local circuit judge, who had a daughter in classes taught by Respondent for four years and who has younger children not yet of middle school age, testified that she and her husband would have no problem with Respondent teaching their younger children and that Avon Park Middle School employees would have no problem with Respondent's returning. A substitute teacher and school volunteer, who has a daughter at Avon Park Middle School, testified that she would be comfortable with Respondent teaching her daughter and other children. A local attorney, who is active in local organized baseball, testified that Respondent is an honest person, good teacher, good coach, and someone involved with children and that the local community believed that Respondent was innocent until proven guilty. The Director of a local Christian preschool, who has daughters in seventh and ninth grades, testified that Respondent had a good reputation, parents wanted him back, and he could return to Avon Park Middle School and be effective. An employee of the Department of Corrections facility in Avon Park, who has had two daughter who recently finished middle school, testified that Respondent's reputation is good and that the people of the community have not prejudged his guilt, but instead want him back at Avon Park Middle School where he could return as an effective teacher. The coach and athletic director at Sebring High School for the past 25 years testified that Respondent could return as an effective teacher if cleared of the charges. Respondent also enjoys substantial support among students. On the other hand, Petitioner offered insubstantial evidence that Respondent could not return as an effective employee in the Highlands County school system or even at Avon Park Middle School, if the underlying charges were not proved. The greater weight of the evidence is that Respondent can return to teach physical education at Avon Park Middle School, or anywhere else in the Highland County school system, and enjoy the support of students, parents, teachers, administrators, and the public.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Highland County School Board enter a final order reinstating Respondent and awarding him full back pay for the time that he was suspended without pay. ENTERED on May 4, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on May 4, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-2 (second sentence): adopted or adopted in substance. 2 (third sentence)-5: rejected as unsupported by the appropriate weight of the evidence. 6-8: adopted or adopted in substance. 9: rejected as unsupported by the appropriate weight of the evidence. 10: rejected as irrelevant. 11-13: rejected as unsupported by the appropriate weight of the evidence. 14-15: adopted or adopted in substance except that she only gave him two of the notes. 16 (first sentence): adopted or adopted in substance. 16 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 17: rejected as recitation of evidence. 18-20: adopted or adopted in substance. 21 and 23: rejected as subordinate. 22: adopted or adopted in substance. 24: rejected as subordinate. 25: rejected as unsupported by the appropriate weight of the evidence. 26-32: rejected as unsupported by the appropriate weight of the evidence. 33 (first and second sentences): adopted or adopted in substance. 33 (third sentence): rejected as unsupported by the appropriate weight of the evidence. 34: adopted or adopted in substance except for proposed contradiction in Respondent's testimony. 35 (first sentence): rejected as unsupported by the appropriate weight of the evidence except that Respondent came to the FFA room. (second sentence)-36 (first sentence): adopted or adopted in substance. (second sentence): rejected as unsupported by the appropriate weight of the evidence. 37-45: rejected as unsupported by the appropriate weight of the evidence. 46: rejected as irrelevant. 47: rejected as unsupported by the appropriate weight of the evidence and subordinate. 48-51: rejected as unsupported by the appropriate weight of the evidence. 52: rejected as irrelevant. 53-73: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, subordinate, and irrelevant at least as to anything but a few isolated, unfounded rumors. 74: adopted or adopted in substance except for the attitude of the friends who know her well, which is rejected as unsupported by the appropriate weight of the evidence, subordinate, and irrelevant. 75: rejected as unsupported by the appropriate weight of the evidence except that Respondent did refer to C. B.'s teammates as "[B.]'s Bimbos." 76-95: rejected as unsupported by the appropriate weight of the evidence. 96-148: rejected as unsupported by the appropriate weight of the evidence, recitation of evidence, repetitious, subordinate, and irrelevant. 150-58: rejected as irrelevant and subordinate. 159-71 and 173-90: rejected as irrelevant, recitation of evidence, subordinate, repetitious, and unsupported by the appropriate weight of the evidence with respect to the prevailing reputation of Respondent in the relevant communities. 172: adopted or adopted in substance as there was nothing he could say or do without intensifying the rumors. 191-311: rejected as recitation of evidence, unsupported by the appropriate weight of the evidence, legal argument, and irrelevant as Petitioner proved neither the underlying conduct nor the impaired reputation. Rulings on Respondent's Proposed Findings 1-3: adopted or adopted in substance. 4: rejected as subordinate. 5-17: adopted or adopted in substance. 18 (first three lines): rejected as unsupported by the appropriate weight of the evidence. 18 (remainder)-53 (second sentence): adopted or adopted in substance. 53 (third sentence)-54: rejected as unnecessary. 55: adopted or adopted in substance. COPIES FURNISHED: James F. McCollum James F. McCollum, P.A. 129 S. Commerce Ave. Sebring, FL 33870 Ronald G. Meyer Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, FL 32302 Dr. Richard Farmer Superintendent Highlands County School District 426 School St. Sebring, FL 33870-4048
The Issue This case is presented based upon an administrative complaint brought by Ralph D. Turlington, as Commissioner of Education, against Lloyd T. Cooper. The allegations set forth in this complaint pertain to the Respondent's conduct of serving alcoholic beverages to students and other minors below the age of 19 years. Respondent is also accused of inviting a student into his home, and while they were alone, serving an alcoholic beverage to her, which she drank in his presence. On this same occasion, Respondent is alleged to have given the student marijuana and to have kissed the student while in his apartment. These acts by Respondent purportedly are in violation of Subsection 231.28(1), Florida Statutes, in that Respondent is guilty of gross immorality and acts involving moral turpitude and has been guilty of personal conduct which seriously reduces his effectiveness as an employee of the Nassau County School Board. Respondent's acts are said to be contrary to Rule 6B-1.01, Florida Administrative Code, by his failure to achieve and sustain ethical conduct. Finally, Respondent is accused of a violation of Rule 6B-1.06(3)(a)(e) and (h), Florida Administrative Code, in that he has failed to make a reasonable effort to protect a student from conditions harmful to learning or to health and safety; has intentionally exposed a student to unnecessary embarrassment or disparagement; and has exploited a professional relationship with a student for professional gain or advantage.
Findings Of Fact This case was heard based upon Respondent's request for a formal Subsection 120.57(1), Florida Statutes, hearing to allow him to dispute the facts that underlie the administrative complaint. Respondent holds Teacher's Certificate No. 306317, which allows him to teach in secondary education in the areas of physical education, health education, and science. The teacher's certificate issued by the State of Florida, Department of Education, is valid through June 30, 1986. Respondent has been certified as a teacher in Florida since 1971. See Petitioner's Exhibit No. 1 admitted into evidence. From August 20, 1971, until his resignation in June, 1982, Respondent was employed as a classroom teacher by the Nassau County School System in Nassau County, Florida. In 1982, a week prior to the graduation of members of the senior class of Fernandina Beach High School, various graduation parties were held. Respondent held one of those parties at his apartment. That party occurred on Friday, May 21, 1982. There were no other teachers or adults in attendance at the party. A number of students who were still attending high school were invited to the party and Terri Jones, now Terri Coleman, was among those students. She attended the party, having been provided a map by Respondent to enable her to find his home. The location of Respondent's home at that time was in Fernandina Beach, Florida. This was the first occasion that Coleman had visited Respondent in his apartment. Coleman arrived at the Respondent's apartment around 8:00 p.m. on May 21, 1982. She stayed for approximately 45 minutes. When she entered, there were approximately 10 other high school students in attendance. Respondent was mixing alcoholic drinks for those students during the party. He offered to give Coleman an alcoholic beverage, but she declined. Cooper and other students were also smoking marijuana, which was retrieved from a container on a coffee table in his apartment. On the following Monday, May 24, 1982, Coleman attended another house party given by fellow students in the high school. There were approximately 50 persons at this party, including students of Fernandina Beach High School and other students. Respondent was in attendance; however, other teachers were not involved in the festivities. Coleman arrived at the party around 9:00 p.m. and stayed for approximately 30 minutes. Cooper was again observed mixing drinks which contained liquor. These drinks were served to students at the party. On Wednesday, May 26, 1982, Coleman attended another party for students in her high school. This date was prior to her graduation from Fernandina Beach High School. Coleman arrived at this party at around 7:00 p.m. Once there, she had someone purchase a six-pack of beer, and she drank two or three of those cans of beer while at the party. She remained at the party for approximately 2 hours. Later on, the evening of May 26, 1982, at approximately 9:00 p.m., she went to the home of the Respondent. She was uninvited. [In the way of background, Respondent did not teach classes in which Coleman was a student. He had coached an athletic team in which Coleman was a participant in her junior year in high school. He had also expressed his desire to ask her out for a date when she reached her majority. This had occurred while she was a student attending high school prior to May 26, 1982. On one other occasion, when Respondent had arrived at the high school under the influence of an alcoholic beverage, Respondent saw her and took her from the room where she had been observed and walked around the school grounds with her. Finally, in that instance, they went to the Respondent's classroom in the back portion of that area and he kissed her.] Respondent admitted Coleman to his apartment on the night of May 26, 1982. Once inside, she explained that she had just stopped by to "say hello for a minute". While in the apartment, Respondent and Coleman watched television, and he asked her if she wanted a mixed drink. She replied that she did not because she would drink her beer. Nonetheless, Respondent mixed a drink for Coleman which contained an alcoholic beverage. She drank part of the mixed drink. The container with the marijuana was still located on the coffee table, as was the case on May 21, 1982. Respondent removed marijuana from that container and began smoking the substance and offered it to Coleman who accepted the marijuana. The marijuana was being smoked through an apparatus containing water. Coleman also drank two more cans of beer while at the apartment. Finally, while seated on the couch, Respondent kissed Coleman as many as five times on the mouth. After staying for approximately an hour, Coleman took her leave. At no time during her visit to the apartment, did Respondent ask Coleman to leave or attempt to contact her parents. When she left his apartment, she was substantially influenced by the effect of substances consumed. Notwithstanding her condition, Respondent allowed her to drive. Coleman went home after stopping at the house where she had attended the party earlier in that evening. She stayed in that house for approximately 10 or 15 minutes on her second visit. Coleman was confronted by her mother after arriving home on the evening of May 26, 1982, and her mother found her to still be suffering from the effects of substances consumed. After questioning, Coleman's mother ascertained that her daughter had been to the home of Respondent and learned of the events that had transpired while Coleman was there. As a result, Mrs. Jones went to the high school and spoke to the Respondent. She identified herself as Coleman's mother, and gave her rendition of the events of the evening of May 26, 1982, which had been told to her by her daughter. At that time, Coleman was 18 and Respondent, in the face of that fact, did not seem impressed with the possible consequences that might occur if members of the Nassau County School Administration learned of his indiscretion. Jeanette Jones, Coleman's mother, advised Cooper that she was going to speak to the Superintendent of Schools, Craig Marsh, concerning the liaison between Respondent and Coleman. Mrs. Jones spoke to superintendent Marsh, and Marsh conducted an interview with Coleman. In that interview, Coleman related the events that transpired in the apartment of Respondent on May 26, 1982. In a subsequent conversation with the Respondent, Cooper told Marsh that Coleman had gone to his house on the night in question and he had invited her in and mixed her a drink and they smoked marijuana and sat on the couch and "smooched". Out of this conversation, Respondent submitted his resignation from his position with the Nassau County School Board. Marsh correctly asserts that Cooper's acts with Coleman have caused Respondent to lose his effectiveness as a teacher in the Nassau County School System. Furthermore, Marsh would not recommend that the Respondent be allowed to teach in high school either in Nassau County or any other school system in the State of Florida.
The Issue Whether Respondent violated Florida Administrative Code Rules 6B-1.001, 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(f), 6B-1.006(3)(g), and 6B-1.006(3)(h), and, if so, whether such conduct is just cause for dismissal of Respondent pursuant to Subsection 1012.33(6)(a), Florida Statutes (2003).
Findings Of Fact During the 2002-2003 school year, Gary was employed by the School Board as a band and orchestra director at James Madison Middle School (Madison). Gary had been employed by the School Board for two years previous to the 2002-2003 school year. Prior to the incidents which are at issue in this case, Gary had been thought of by the Madison school administrators, students, and parents as an excellent teacher, who was able to inspire and motivate students. Gary taught C.J., a ninth-grader, advanced band and intermediate band during the 2002-2003 school year. Sometime during that school year, Gary noticed a dead dragonfly on a window in the band classroom. The dragonfly was removed from the window and placed in a trash receptacle. C.J. said that he would eat the dragonfly for a dollar. Another student said that he would give C.J. a dollar, and Gary said, "Okay." C.J. retrieved the dead dragonfly from the trash can and ate the insect. Gary gave C.J. a dollar. C.J.'s parents learned of the dragonfly incident through a younger cousin of C.J., who also attended Madison. C.J.'s mother went to see Gary to discuss the incident. Gary indicated to the mother that he was sorry for what had happened and that it was poor judgment on his part. C.J.'s mother felt that they had addressed the issue during their conversation and left the meeting satisfied about the issue. Gary did not advise school administration about C.J. and the dragonfly. After the dragonfly incident another situation arose involving Gary and C.J.'s eating an inappropriate item. Gary and some students, including C.J., were eating lunch in the cafeteria. Gary was eating baked ziti and began chewing on a particularly hard piece of ziti. He removed the ziti from his mouth and placed it on the side of his plate. Gary offered C.J. 12 dollars to eat the ziti, saying, "I bet you won't eat this piece of baked ziti." C.J. replied, "Oh, yes, I will." Gary then told C.J. not to eat the chewed food. Other students were egging C.J. on to eat the ziti, and C.J. picked the food off Gary's plate and ate it. One of C.J.'s cousins related the ziti incident to C.J.'s mother, and C.J.'s mother paid Gary another visit. The mother was not happy about the ziti episode and spent more time discussing the issue with Gary than she did when she visited him concerning the dragonfly. Gary told C.J.'s mother that he had bet C.J. 12 dollars to eat the ziti. The mother told Gary not to pay C.J. the money. Before she left the school on the day of the ziti discussion, she went to see Gary a second time to inquire about the status of his health because C.J. had eaten food that had previously been in Gary's mouth. Gary assured her that he was in good health. Gary did not advise school administration about the ziti incident. Gary was provided a copy of the school district's "Code of Ethics" which contained a section entitled "How to Use Common Sense and Professional Judgment to Avoid Legal Complications in Teaching." On of the admonishments in this section was "[k]eep your hands and other parts of your body to yourself." During the 2002-2003 school year, Gary put his hands inside students' pockets and searched for candy, chewing gum, notes, and money. He admitted searching the pockets of D.B., S.D., M.R., N.M., D.R., and L.B. Such actions were inappropriate and caused some of the students to feel uncomfortable. If a teacher suspects that a child has candy, chewing gum, or notes in his pocket, the correct procedure is to have the child empty his pockets so that the contents can be viewed. The teacher is not to put his hands in the student's pockets. L.D. was a student at Madison during the 2002-2003 school year, and Gary was her band instructor. L.D. considered Gary to be a "really good friend" as well as a teacher. During the 2002-2003 school year, L.D. was sitting on the stairs in the band room playing her band instrument. She played incorrectly, Gary came up to her, aggressively grabbed her neck, and said "urrr." She told him to stop, and he did. She did not think that his actions were sexual in nature, but did feel that they were inappropriate for a teacher. During the 2002-2003 school year, J.W. attended seventh grade at Madison. Gary was her band teacher. J.W. has hugged Gary, and he has hugged her back. J.W. has seen Gary hug other students at Madison. D.B. was a honor roll student at Madison. During the 2002-2003 school year, she was in Gary's first period orchestra class. She played the violin, and, during a two-week period when her violin was broken, she helped Gary in his office. Gary's office was located within the band room. The office had a door with a glass window, which took up at least three-quarters of the upper half of the door. Adjacent to the door, there was a large picture window which was on approximately the same level with the door window, but which was almost twice the size of the door window. A desk with a computer on it was located underneath the picture window. The top of the computer monitor came just below the bottom of the picture window. Occupants of the office could be seen from the band room; however, the evidence does not establish that the occupants could be seen fully from the band room. Gary made inappropriate comments to D.B., including telling her that she had sexy lips and telling her that she smelled good. These comments made D.B. feel uncomfortable. Gary also inappropriately touched D.B. While she and Gary were in his office, Gary "touched her inner thigh" and "rubbed it" and asked her if she knew how beautiful she was. In a second incident, Gary held her hand and rubbed her arm while she in his office to file papers during first period orchestra. During a third incident, Gary put his fingers inside her shorts at her waist, pulled her toward him, and asked her what she wanted. This incident took place when the door to the office was open. In another incident, D.B. asked Gary to tune her violin, and he put his hand up the bottom of her shirt. All the incidents happened during first period orchestra class when students were in the band room. Gary argues that D.B.'s testimony is not credible because of a conversation D.B. had with some fellow classmates. J.D., a classmate of D.B., was talking with D.B. and another classmate K.S. during fifth period of the 2002-2003 school year while Gary was still teaching at Madison. K.S. said, "You know what's being said about Mr. Gary is not true," and D.B. said, "Yeah, it's not true, don't say anything." The evidence did not establish what was being said about Gary and whether it concerned D.B.'s allegations against Gary. Thus, the evidence does not establish that D.B. was fabricating her allegations about Gary. Gary admits that he may have touched D.B. on occasion, but that the touching was not sexual in nature or inappropriate. M.R. was enrolled in Gary's second period and sixth period band classes during the 2002-2003 school year. She alleged that beginning in January 2003, Gary inappropriately touched her person. M.R. alleged that on two occasions when she was in Gary's office with the office door open and other students were present in the band room, Gary touched the outside of her clothing in her vaginal area. She also alleged that in a third incident that Gary placed his hand inside her pants underneath her underwear and rubbed her vagina. The third incident allegedly took place in the office with the door open and while other students were present in the band room. On a fourth occasion, M.R. alleged that Gary came up behind her in the filing room, placed his hands inside her shirt, and touched her breasts. The alleged incidents supposedly happened during third period lunch when other students were in the band room eating lunch or practicing. Of the students who testified at the final hearing and spent most of their lunch periods in the band room, none saw any inappropriate contact between Gary and M.R. M.R. had wanted to be first chair flute in her band class, but Gary made another student first chair. M.R. was angry about Gary's selection for first chair and told her friend J.W. sometime after Christmas 2002 that she was going to get even with Gary for not making her first chair. K.M., who was a student at Madison, overheard M.R. tell another student that the allegations and problems facing Gary were "what he deserves for not promoting me up in chair." M.R. does not have a good reputation in the community for truth and veracity. Her testimony concerning inappropriate touching by Gary is not credible, and it is found that those incidents did not happen. The School Board established other incidents of inappropriate behavior by Gary. Such behavior included telling a student that he could not wait until she was 21 so that he could be all over her and that it was a good thing that she was pretty because her brains would not get her anywhere; tickling her at the end of class; pulling her against her will onto his lap, and placing his arms around her arms and waist. Gary would also sit with students in the same chair in his office. Gary failed to tell school administrators of possible sexual misconduct between two students in the student restroom, when he became aware that some misconduct probably occurred between the two students. Although, the School Board proved these incidents, the School Board failed to allege the incidents in the Petition for Dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order dismissing Benjamin Leon Gary for just cause from his employment as a teacher with the School Board. DONE AND ENTERED this 24th day of June, 2004, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 24th day of June, 2004. COPIES FURNISHED: Harold T. Bistline, Esquire Stromire, Bistline, Miniclier & Griffith 1970 Michigan Avenue, Building E Post Office Box 8248 Cocoa, Florida 32924-8248 Mark S. Levine, Esquire Levine, Stivers & Myers 245 East Virginia Street Tallahassee, Florida 32301 Benjamin B. Garagozlo, Esquire 3585 Murrell Road Rockledge, Florida 32955 Dr. Richard A. DiPatri, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6699 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes, against teachers holding Florida educator's certificates. Bryan Mays, Respondent in this proceeding, holds Florida Educator's Certificate 636531, covering the area of music, which is valid through June 30, 2011. Background At all times material to the allegations of this case, Respondent was employed as a music teacher in the St. Lucie County School District ("the district"). Respondent's employment with the district, which commenced in 1999, was initially uneventful. Beginning in 2006, however, Respondent began to amass a disciplinary history with the district, which included: letters of concern in May 2007 and May 2008; a reprimand for insubordination in May 2008; and placement on unpaid status in January 2009, which continued for approximately three months. With the aim of providing him with a fresh start, the district transferred Respondent from Manatee Elementary to Parkway Elementary beginning with the 2009-2010 school year. Unfortunately, and as detailed below, the evidence demonstrates that Respondent did not take advantage of this opportunity and engaged in improper classroom behavior. The Instant Allegations During the final hearing, Petitioner presented testimony from four children, each of whom was a member of Respondent's fifth-grade music class at Parkway Elementary during 2009-2010. Collectively, the students' testimony establishes that Respondent, during music class, disparaged his pupils by calling them "stupid," "retarded," and "idiots." Respondent also told his students, at least once, that they would never get "real jobs" and would not amount to more than garbage collectors, or words to that effect.3 On another occasion, Respondent yelled at student N. while standing approximately five to twelve inches from his face. Not surprisingly, Respondent's behavior and insults were not well received by the testifying students. In particular, the comments made student E.J.V. "feel bad"; Y.G.H. was both angered and saddened; W.F. felt "really sad [and] depressed"; and K.P. was "disturbed and upset." Ultimately, Ms. Charlotte Tombline, a reading and science teacher at Parkway Elementary, learned of the misconduct while leading a classroom discussion on the topic of bullying. Specifically, one of her students asked if it was acceptable for a teacher to call students "idiots." At that point, other students chimed in——some of whom were close to tears——and revealed Respondent's misconduct to Ms. Tombline in greater detail. Ms. Tombline promptly notified the administration of Parkway Elementary, at which point an investigation ensued. The principal of Parkway Elementary (Ms. Ucola Barrett-Baxter) concluded, after interviewing some of Respondent's students and receiving complaints from parents regarding the inappropriate classroom comments, that Respondent's effectiveness was reduced to the point that he needed to be relieved of his duties. Shortly thereafter, the district removed Respondent from the classroom and notified him that it would move forward with termination proceedings. On March 9, 2010, Respondent resigned his position with the district. Other Allegation – Halloween Film Petitioner further alleges in the Administrative Complaint that Respondent intentionally violated the legal rights of student Y.G.H. by not excusing her from the viewing of a film. It is undisputed that in October 2009, Respondent presented a film to his class about Halloween music. Y.G.H., who "sometimes" considers herself a Jehovah's Witness,4 advised Respondent that she did not want to watch the film due to her religious beliefs. Although Respondent continued to play the film and told Y.G.H. that she needed to pay attention, Y.G.H. put her head on her desk and either covered her eyes or went to sleep. Respondent credibly testified during the final hearing that because the Halloween film was part of the music curriculum, he did not believe it was necessary, upon hearing Y.G.H.'s objection, to contact school administration or excuse the student from class. Respondent further testified: It -- it was a musical activity . . . which was in the Silver Burdett book which - - and I showed the film in reference to the songs that were in the Silver Burdett book at the time, and there were lots of Halloween songs in the Silver Burdett books. And that's approved by the county, approved by the state. Final Hearing Transcript, p. 145. Petitioner adduced no evidence demonstrating that Respondent's playing of the film was improper,5 nor did it prove that Respondent intentionally violated any of Y.G.H.'s legal rights.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Education Practices Commission: Finding that Respondent violated section 1012.795(1)(g) and (1)(j), Florida Statutes, as charged in Counts Two and Three of the Administrative Complaint. Finding that Respondent violated rule 6B-1.006(3)(a) and (3)(e), as charged in Counts Four and Five. Dismissing Counts One and Six of the Administrative Complaint. Suspending Respondent's teaching certificate for 60 days. DONE AND ENTERED this 28th day of June, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 28th day of June, 2011.
