The Issue An amended administrative complaint dated February 22, 1992 alleges that Respondent violated several provisions of Section 231.28(1), F.S. and Rule 6B- 1.006(5), F.A.C. Those alleged violations are based on incidents of criminal conduct in 1978 and 1989, and Respondent's failure to disclose the incidents on various employment or teaching certificate applications. The issue in this proceeding is whether the alleged violations occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Donny R. McCoy (McCoy) currently holds teaching certificate number 431066, in the areas of childhood education, mental retardation, elementary education and English as a second or other language. His recently- renewed certificate is valid through June 30, 1998. McCoy submitted applications for extension of his Florida teacher's certificate, signed and notarized October 1, 1982 and December 8, 1987. He also submitted an application for addition to his Florida teacher's certificate signed and notarized July 30, 1985. McCoy's application for a professional position with the Brevard County School District was dated September 1, 1990. In each of these applications, he responded "no" to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" McCoy was hired as a kindergarten teacher at Gardendale Elementary School in the Brevard County School District from July 15, 1991 until September 20, 1991. As a result of his employment, the school district ran a background check and through the Federal Bureau of Investigation (F.B.I.) learned that McCoy had been involved in two criminal proceedings, one involving illegally importing parrots and the other involving charges of indecent exposure. McCoy resigned from his position effective September 20, 1991, and the Department of Education, Office of Professional Practice Services was notified. That office commenced an investigation consisting primarily of gathering court documents regarding the criminal cases. The investigation addressed three issues: the arrest and conviction for importing parrots, the arrest for indecent exposure, and McCoy's failure to acknowledge the incidents on his applications described above. McCoy was twenty-three years old on January 29, 1978 when he and a friend were arrested and charged with illegally shipping two parrots from Mexico to the United States. The Judgement Order of the U.S. District Court for the Southern District of Texas, Brownsville Division, reflects that McCoy had counsel, pled guilty and was adjudged guilty. A fine of $100.00 was imposed. McCoy was scared and remembers only going to court and leaving. Discussions were held between the attorney and the magistrate and McCoy has no recollection of the guilty plea. He felt the case was dismissed; someone else, his friend or the friend's father must have paid the fine. From 1979 until 1991, McCoy worked as a teacher in various places, including Broward County, Florida; Tokyo, Japan, for the Department of Defense; Alachua County, Florida; and St. Louis, Missouri. He claims he has been fingerprinted and had background investigations for these positions and never before has he been informed of the smuggling conviction on his record. He has told people about the parrot incident, but never put it on his application forms because he believed the case was dismissed. The application forms clearly inquire about convictions or adjudications withheld, not arrests. After the Brevard County background check, McCoy's attorney obtained an F.B.I. identification record on Donny McCoy. That record, dated 9/3/91, and provided to McCoy after he resigned from his Brevard County teaching position, reflects that the parrot charge was dismissed. On January 25, 1989 in Tazewell County, Illinois, McCoy was charged by information with three counts of "public indecency" in that he publicly "exposed his sex organ in a lewd manner." (Petitioner's Exhibit 6) Two of the counts were dismissed and the third was reduced to disorderly conduct. McCoy pled guilty to the count of disorderly conduct and adjudication was deferred on February 27, 1990. He was placed on twelve months supervision, was required to attend counselling, and was fined $100.00, plus $80.00 in court costs. After he complied with all the conditions of supervision, the case was dismissed on February 5, 1991. The case had not been dismissed as of September 1, 1990, the date of McCoy's Brevard County School District application. As of that date, he was still under supervision and adjudication was deferred. His "no" response described in paragraph 2, above, was untruthful. At some time prior to the hearing in this proceeding, McCoy, or his attorney sent to the Department of Education an affidavit that he had executed on February 7, 1992 and the copy of a polygraph report dated April 3, 1989. The polygraph report is referenced in the affidavit. The substance of these documents is an admission by McCoy that he had exposed his underwear and, at most, his pubic hair, but not his penis, to a high school youth he encountered on the street. He had done this on more than one occasion for the purpose of determining whether the individual might be gay. He did this because someone had done it to him. He participated in counselling and understood the reason for his behavior. He disavowed any desire to repeat the behavior. Throughout his teaching career, McCoy has received a series of excellent recommendations and commendations. He admits that none of the authors of those letters is aware of the Illinois incident. A criminal record does not automatically reduce a teacher's effectiveness or make him ineligible for licensure. The Department of Education, Office of Professional Practices Services looks beyond the criminal charge and disposition to the underlying incident and circumstances. In this case, it had McCoy's own explanation of the Illinois incident and it had the applications which he had submitted. These documents and the agency's long- standing policy of taking very seriously any sexual charges involving teachers, a policy reasonably based on the expectations of the public that children should be safe with people employed in schools, resulted in the agency's determination that McCoy is unfit to hold a teaching certificate in Florida.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that a final order be entered finding that Respondent, Donny McCoy violated Sections 231.28(1)(c), (f) and (h), F.S., and Rules 6B-1.006(5)(a), (g) and (h), F.A.C., and imposing the following penalty: three years suspension, followed by two years probation, under terms to be specified by the Educational Practices Commission, which terms should assist in insuring that Respondent does not represent a threat to the safety or well-being of students under his responsibility. DONE AND RECOMMENDED this 9th day of December, 1993, 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 9th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, DOAH CASE NO. 93-2250 The following constitute rulings on the findings of fact proposed by each party: Petitioner's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 3. Adopted in paragraph 5 to the extent that the referenced exhibit reflects those findings. However, other evidence conflicts with, or supplements the disposition of the case. Adopted in paragraph 9. and 6. Adopted in paragraph 2. Adopted in paragraphs 3 and 4. Rejected as unnecessary. Adopted in paragraph 13. Adopted in paragraph 11. Adopted in paragraph 4. Respondent's Proposed Findings 1. and 2. Adopted in paragraph 1. Adopted in paragraphs 3 and 4, except that it was not established the resignation was "forced". Rejected as unsubstantiated by evidence. Reflected in the Administrative Complaint and unnecessary. Adopted in paragraph 5. Rejected as to the Illinois incident; adopted as to the Texas incident, see paragraph 6. Rejected as contrary to the weight of evidence. Adopted in paragraph 7. Rejected as unnecessary. Adopted in paragraph 9. Rejected as contrary to the weight of evidence. Adopted in paragraph 12. Rejected as contrary to the weight of evidence. COPIES FURNISHED: Gregory Chaires, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jill M. Boyd, Esquire Bond & Boyd, P.A. 411 East College Avenue Post Office Box 26 Tallahassee, Florida 32302 Thomas H. Lanham, Esquire 1900 South Harbor City Boulevard Melbourne, Florida 32901 Karen B. Wilde, Executive Director Education Practices Commission Florida Education Center, Room 301 Tallahassee, Florida 32399 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Since on or about September, 1980, the Petitioner has been a full-time employee of the Florida State University System, and up until the 1987-88 academic year a participant in the state of Florida health insurance program offered through the Florida State University by the Respondent, Department of Administration. During the 1987-88 academic year, the Petitioner was granted an unpaid leave of absence so that he could pursue a teaching assignment in the National Republic of China. Since the 1983-84 academic year, the Petitioner had been a participant in the Capital Health Plan Health Maintenance Organization (HMO) offered in Tallahassee, Florida under the Respondent's insurance program. Since the Petitioner could not avail himself of the benefits of the HMO in which he was enrolled in Tallahassee, Florida during the time he anticipated being in the National Republic of China, at or about the time the Petitioner commenced his unpaid leave of absence, he notified the personnel office at Florida State University that he wished to discontinue his participation in the HMO. During the 1987-88 academic year, the Petitioner did not make payments to continue his coverage during his period of leave of absence in the HMO. Immediately upon his return to employment on or about August 4, 1988, the Petitioner inquired of the personnel office at Florida State University of the steps to be taken to obtain coverage under his previous HMO for the 1988-89 academic year. The Petitioner was given certain forms to complete and return to the Florida State University personnel office. Petitioner completed and returned those forms as instructed but was informed that he could not reenroll since no open period of enrollment was available to him at that time. By letter dated July 8, 1988, Ronald G. Meyer, representing the United Faculty of Florida , FTP-FEA, corresponded with Mr. Carl Ogden, Director, Division of State Employees' Insurance, concerning a group of university faculty members who would not be on campus during the open enrollment period effective June 22, 1988 through July 15, 1988, and the need for a special open enrollment period upon them returning to their respective campus. By letter dated July 19, 1988, Mr. Ogden responded to Mr. Meyer's letter of July 8, 1988 and informed Mr. Meyer that the employees identified in his letter would be accommodated, and set out the procedure for that to be accomplished. The group of employees referred to in Mr. Meyer's letter and addressed by Mr. Ogden are those employees referred to as being "employed less than year round" and identified in Rule 22K-1.054(7), Florida Administrative Code, but does not include an employee such as Petitioner who was on an authorized leave without pay during this open enrollment period. The employees covered by the memorandum dated August 12, 1988 from Harriette A. Hudson, Manager, Insurance and Benefits, Florida State University, advising the "salaried Faculty Off Summer Payroll" of the special open enrollment period does not include employees such as Petitioner who was on an authorized leave without pay until August 4, 1988. Additionally, there was no evidence that this "open enrollment period " was designated by the Department of Administration or that the Department of Administration had authorized Florida State University to designate this open enrollment period. There was no open enrollment period available to Petitioner during August 1988. The first open enrollment period available to Petitioner after returning to work in August 1988 was in December 1988, at which time he reenrolled and became eligible for benefits on March 1, 1989. Only the Secretary of the Department of Administration has authority to determine an open enrollment period which is accomplished by numbered memorandum.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that Respondent enter a Final Order denying Petitioner's request for coverage under the state of Florida Health Plan and any costs he may have incurred as a result of not being covered under the state plan. RESPECTFULLY submitted and entered this 29th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 this 29th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0277 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings Submitted by Petitioner 1.-2. Adopted in Findings of Fact 2 & 4, respectively. Immaterial to the conclusion reached herein. Adopted in Finding of Fact 5. 5.-6. Subordinate to facts actually found in the Recommended Order. 7. Adopted in Finding of Fact 10. Specific Rulings on Proposed Findings Submitted by Respondent 1.-6. Adopted in Findings of Fact 1 - 6, respectively. 7.-8. Subordinate to facts actually found in the Recommended Order. 9. Adopted in Finding of Fact 10, but modified. 10.-11. Immaterial to the conclusion reach herein. 12. Rejected as being a conclusion of law rather that a finding of fact. COPIES FURNISHED: Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikins, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Ronald G. Meyer, Esquire MEYER, BROOKS AND COOPER, P. A. P.O. Box 1547 Tallahassee, Florida 32302 William A. Frieder, Esquire Department of Administration 440 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Petitioner was employed by Florida State University during the 1979- 1980 academic year as a tenured professor of chemistry at an annual salary of $22,819.00. Petitioner submitted an Application for Service Retirement Benefits dated May 2, 1980, to Respondent, which application reflected Petitioner's intention to terminate his employment at Florida State University effective May 30, 1980. Previously, Petitioner had advised the Chairman of the Chemistry Department of Petitioner's intention to retire effective June 5, 1980. However, in submitting the aforesaid application dated May 2, 1980, Petitioner determined to relinquish four days of employment salary in June in order to become eligible for retirement benefits begin to accrue on the first day of the first month following termination of employment. Petitioner's request to terminate his employment effective May 30, 1980, was approved by both his department chairman and by the Retirement Coordinator at Florida State University. As a result of his notification of intent to terminate his employment effective May 30, 1980, Petitioner was removed from the payroll of Florida State University effective May 30, 1980. However, Petitioner continued to perform his duties as a professor of chemistry at Florida State University until the end of the academic school year on June 16, 1980. Petitioner continued actual classroom and laboratory instruction until the end of classes on June 6, 1980. Petitioner continued actual classroom and laboratory instruction until the end of classes on June 6, 1980, and, following the end of classes, he conducted final exams, graded examinations, issued grades and, on June 16, 1980, briefly attended a faculty meeting. Although Petitioner's contract of employment provides for a faculty appointment from September 7, 1979 through June 5, 1980, these dates relate only to pay periods, since a faculty member's contractual duties and responsibilities, unless specifically altered by mutual agreement between the contracting parties, extend through the end of the academic school year in this case, June 16, 1980. The academic school year at Florida State University is nine months long and is comprised of three academic quarters, during which approximately one-third of a faculty member's annual salary is paid in each of the three academic quarters. Petitioner was paid through May 30, 1980, by Florida State University, and received no payment for services rendered during the month of June, 1980. However, when Florida State University officials were advised by respondent's personnel that Petitioner's request to establish May 30, 1980 as his termination date for retirement purposes would not be honored, Petitioner was advised that the University stood ready to pay him the $468.08 which he would have received for his work in June, 1980, had he not chosen the May 30, 1980 employment termination date. The record reflects that Petitioner made the decision to choose May 30, 1980, as his employment termination date, rather than the later date of June 5, 1980, during counseling sessions with representatives of Respondent, when it became apparent to them that he could receive $1,554.64 in retirement benefits for the month of June, as opposed to the $468.08 he would receive in June in salary had he chosen to continue to receive his salary for services performed at Florida State University. Petitioner was correctly advised by Respondent's personnel that by working through June 5, 1980, and earning salary for that time period, he would be ineligible to begin accruing retirement benefits until the end of June, 1980.
The Issue The issues are whether Respondent violated Section 231.2615, Florida Statutes (2000), and Rule 6B-1.006, Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida Educator Certificate No. 711503, covering the areas of elementary education, varying exceptionalities, and pre-kindergarten handicapped. Respondent's certificate was valid at all times material to this proceeding. Respondent began teaching in 1995. There have been no complaints against Respondent prior to the allegations in this case. Over the years, Respondent has attempted to help students over and beyond her classroom duties. On at least two occasions, she temporarily has taken students into her home in time of need. Flagler County School Board employed Respondent as an exceptional student education (ESE) teacher at Flagler Palm Coast High School (FPC) in the Flagler County School District during the 2000-2001 school year. That school term was her first year on the faculty at FPC. J.E. was a 17 year-old male student who attended FPC during the 2000-2001 school year. J.E. was classified as an 11th-grade ESE student because he suffered from attention deficit disorder. J.E. also worked as a part-time firefighter with the Flagler Beach Fire Department. J.E.'s employment as a firefighter was sponsored by the Boy Scouts of America Explorer Program. At some point during the month of October 2000, J.E. transferred into Respondent's math class. Initially, J.E. was unable to make a passing grade in math due to his learning disability. J.E.'s academic problems were aggravated by several in-school and out-of-school disciplinary suspensions, which caused him to miss class. Toward the end of November or the beginning of December 2000, J.E. was arrested for fighting with his sister. He was in the custody of the juvenile authorities for several days before being placed on juvenile home detention. When J.E. returned to school, Respondent contacted J.E.'s mother, D.B. Respondent requested permission to tutor J.E. after school to help him make up missed assignments. After receiving the approval of the juvenile authority staff, D.B. agreed that Respondent could tutor J.E. Respondent and D.B. agreed that, after each tutoring session, Respondent would transport J.E. to the place where D.B. was employed. Respondent then informed the assistant principal that she would be assisting J.E. after school in her classroom. The tutoring sessions began on December 12, 2000, and lasted for almost two weeks. The sessions terminated when FPC recessed for the holidays. During the tutoring sessions, Respondent and J.E. spent time working on J.E.'s math assignments. However, as time passed, they progressively spent more time discussing personal issues. These conversations included discussions regarding J.E.'s problems and history of abuse, as well as the physical abuse that Respondent experienced during her marriage to her ex-husband. Respondent revealed that she had been molested as a child, a fact that Respondent had shared only with her long-term boyfriend, her sister, and her closest friends. Respondent told J.E. about her two children and her relationship with her boyfriend. At times, Respondent spoke negatively about her boyfriend, referring to him as an "asshole." Respondent and J.E.'s student-teacher relationship became more personal as they spent more time together. J.E. began visiting Respondent during her planning period, during which they would discuss personal issues. Occasionally, J.E. would visit Respondent during her science class even though he was scheduled to be in another class. The personal conversations continued during the time that J.E. waited in Respondent's car for his mother at the school bus compound, sometimes for 20 to 30 minutes. Prior to one tutoring session, Respondent allowed J.E. to ride with her to a fast-food restaurant. She then took J.E. by the fire station before returning to the school. Respondent did not have anyone's permission to transport J.E. off campus. Sometime before the holiday break, J.E. told Respondent that he liked the music of a certain rap artist. The last day of school before the holiday break, Respondent gave J.E. a gift bag containing a compact disk (CD) of the artist's music. The gift bags that Respondent presented to other students contained only cookies and trinkets. On the afternoon of December 27 or 28, 2000, J.E. invited Respondent to visit the fire station with her children, a 9-year-old son and an 11-year-old daughter. Respondent and her children spent approximately one hour at the station while J.E. showed them the facility and firefighting equipment. Next, J.E. told Assistant Fire Chief Shane Wood (Chief Wood), that he was going to a nearby park with Respondent and her children. He advised Chief Wood that he would return to the station if it received a call. J.E. rode to the park in Respondent's vehicle. Francis Abramczyk, another student firefighter and J.E.'s friend, rode a bike to the park at J.E.'s request. When the group arrived at the park, Respondent asked Mr. Abramczyk to watch her children so she and J.E. could talk in a nearby gazebo. About 45 minutes after Respondent and J.E. left to go to the park, Chief Wood got off from work. Chief Wood then rode his motorcycle to his parent's house near the park. Chief Wood visited his parents for 10-15 minutes before riding his motorcycle to the park where he spoke briefly to J.E. Respondent and J.E. were sitting in the gazebo when Chief Wood came by on his motorcycle Once in the gazebo, Respondent and J.E. spent at least 30 minutes talking about Respondent's recent trip to North Carolina, among other things. During this time, Respondent and J.E. sat side-by-side. At one point in time, Mr. Abramczyk saw Respondent's hand resting on J.E.'s hand, which was resting on his leg. Respondent jerked her hand back when she made eye contact with Mr. Abramczyk, who was retrieving a ball from the far side of the gazebo. While sitting in the gazebo, Respondent asked J.E. if he was willing to baby-sit for her that evening while she went out with a girlfriend. Respondent told J.E. that she would not be returning home until late and suggested that he spend the night at her residence. J.E. did not think his mother would approve of Respondent's suggestion. In the meantime, Mr. Abramczyk decided to walk to a nearby store to get some ice cream. Respondent's son tagged along with Mr. Abramczyk. When Mr. Abramczyk returned to the park, Respondent and J.E. were sitting in Respondent's vehicle. While J.E. was sitting in Respondent's vehicle, two or three girls came to the park in a car. One of the girls was J.E.'s former girlfriend. At first J.E. did not want the girls to see him, but eventually he got out of Respondent's vehicle and talked to Mr. Abramczyk and the girls. During this conversation, J.E. was teased about hanging out with his teacher. Mr. Abramczyk rode the bike back to the fire station after this conversation. At approximately 5:00 p.m., J.E., Respondent, and Respondent's children went back to the fire station. J.E. then called his mother to ask permission to baby-sit for Respondent. D.B. told him that he could baby-sit. In a later conversation between Respondent and D.B., Respondent stated that she would not be home that evening until approximately 2:00 a.m. Respondent asked D.B. if J.E. could spend the night at her residence. D.B. responded negatively, telling Respondent to take J.E. home or to the fire station where there was adult supervision at all times. After leaving the fire station, J.E. rode with Respondent and her children to a convenience store where Respondent purchased soft drinks and snacks for her children. She also purchased several wine coolers for herself. At approximately 6:00 p.m., Respondent, her children, and J.E. arrived at Respondent's residence. J.E. changed out of his work uniform before walking to a nearby beach with Respondent and her children. The children played on the beach and in the clubhouse area while Respondent talked to J.E. During this time, Respondent consumed one of her wine coolers. J.E., Respondent, and her children returned to Respondent's home after spending about an hour at the beach. Next, Respondent prepared dinner for J.E. and her children. She then got dressed to go out while J.E. played video games with the kids in the living room. The evidence is not clear and convincing that Respondent walked out of her bedroom into the living room wearing only a skirt and bra during this time. Between 8:00 and 9:00 p.m. Respondent left her residence to meet her girlfriend, taking her wine coolers with her. The girlfriend was not at home, so after waiting for a while, Respondent returned to her home between 9:30 and 10:30 p.m. The evidence is not clear and convincing that Respondent was heavily intoxicated when she returned. Respondent's long-term boyfriend was spending time that evening with one of his male friends. The boyfriend usually stayed with Respondent but decided that evening to stay at his separate residence in St. Augustine, Florida, because he had consumed some beer and did not want to risk driving back to Respondent's residence. However, Respondent did not know that the boyfriend would not come to her house later that evening. When Respondent returned to her residence, her children were asleep and J.E. did not want to go home. Without checking with J.E.'s mother, Respondent decided to let J.E. stay. J.E. listened to music in Respondent's bedroom while she straightened up the house and did the laundry. Respondent took time to talk to J.E. and to listen to some music with him. Sometime during the evening, Respondent spoke to her boyfriend on the telephone. During this call, Respondent learned for the first time that her boyfriend probably would not be returning to her home that night. Respondent talked to her boyfriend a second time that night from her garage. When she went back into the house, J.E. pretended to be asleep but when Respondent approached him, he sat up and appeared to have been crying. Respondent assumed that J.E. was upset because he was jealous of her boyfriend. The evidence is not clear and convincing that Respondent provided J.E. with alcohol or engaged in inappropriate sexual conduct with him while he was in her home. However, Respondent admitted during the hearing that J.E. might have consumed beer kept in her refrigerator while she was gone because she found one beer can in her closet weeks later. At approximately 2:00 a.m., Respondent drove J.E. to the fire station. The lights were off in the station. After waiting a few minutes to see if any of the adult firemen were going to return to the fire station, Respondent drove J.E. home, arriving there between 2:30 and 3:00 a.m. On the way to J.E.'s house, Respondent made J.E. promise not to tell anyone that he baby-sat at her residence. She paid J.E. $20 for baby-sitting. When J.E. got home, his mother was asleep on the couch. D.B. woke up as J.E. entered the house. She did not smell any alcohol on him or see any signs of intoxication. Respondent went with her children to the fire station two days later on December 29, 2000. The purpose of the visit was to return one of J.E.'s CDs that he had left at her house. Respondent visited with J.E. for about 15 minutes. During the visit on December 29, 2000, J.E. appeared upset. He told Respondent that he was worried because a man from his past was about to be released from jail. He also stated that he had been fighting with his mother. J.E. told Respondent that he was afraid the fire chief would not like him having visitors. He wanted Respondent to leave, telling her that he would talk to her later. By the end of December, Respondent knew that the other students were teasing J.E. about their close relationship and that he was embarrassed about the situation. J.E. and Respondent had agreed that they would not continue with the after-school tutoring and that they would not socialize at school or at the fire station. Despite this agreement, Respondent returned to the fire station on December 31, 2000. The purpose of the visit was to give J.E. a six-page handwritten letter that included references to Respondent's personal experiences. Several of J.E.'s friends from FPC were at the fire station when Respondent arrived. When J.E.'s friends told him that Respondent was in the lobby area, he told them he did not want to see her and hid in a back room in an effort to avoid her. Two of J.E.'s friends then told Respondent that J.E. was not at the fire station. Respondent started to leave when she realized that her son, who had been waiting in the car, had probably gone into the fire station through the open bay doors. Respondent then went into the station through the bay doors to look for her son. Upon entering the bay, Respondent noticed that J.E. was at work. Instead of asking about her son, Respondent approached J.E. holding the letter. As Respondent walked toward J.E., his friends began to tease him again. J.E. was visibly upset and demanded to know what Respondent was doing at the station. Respondent knew or should have known that she was giving the other students reason to pick on J.E. J.E. was angry and embarrassed by Respondent's presence. He told Respondent to come back later just to hasten her departure. He shredded the letter as soon as she left the station. Notwithstanding J.E.'s extreme displeasure during Respondent's visit, Respondent returned to the fire station later that day about 5:00 p.m. J.E. was not there when Respondent arrived. At that time, Chief Wood told Respondent that J.E. was gone and that she needed to stop visiting him at the station because it did not look right for her to be there "hanging all over J.E." The relationship between J.E. and Respondent dropped off beginning in early January 2001. Shortly after the holidays, J.E. became angry with Respondent. He told her to go screw her boyfriend. Respondent just ignored this comment. On another day during the first week of January, J.E. attempted to leave Respondent's class on a pretext that he was required to go to the school attendance office. J.E. became angry when Respondent would not let him leave the classroom. A short time later, during the same class period, two of J.E.'s friends walked by and looked into the classroom through the window in the door. J.E. noticed his friends, went to the door to speak with them, and asked them to help get him out of class. Respondent again refused to let him leave, causing him to be even more angry. Respondent told J.E. that if he left the class without permission, she would write him up. He then said, "You're gonna write me up? Well, I could do something about that." The first semester ended on January 8, 2001. Although J.E. was failing math in early December, he received a grade of B in Respondent's class for the semester. He then transferred to another teacher's math class for the second semester. After the transfer, J.E.'s grades began to decline again. The other students continued to tease J.E. about Respondent. On or about January 19, 2001, a rumor surfaced that Respondent was pregnant with J.E.'s child. Respondent first learned about the rumor during her science class. The class discussion involved the harmful effect of fumes from spray bottles on the environment and humans. Someone in the class stated that fumes could harm a fetus like Respondent's fetus. Another student said, "Oh, I wonder who the father is." A third student responded, "Oh, it's J.E." The class then began laughing. Respondent made no effort to report the incident to FPC's administrators. Instead, on a day when Respondent was extremely depressed and disillusioned with her career, and when she was feeling "emotionally cheated" and/or "manipulated" by J.E., Respondent wrote J.E. an e-mail message that states as follows: Hi I hope your Term 2 classes are going well so far, and life in general. I heard you're in Mr. Krenichen's class for Algebra now. If you need any help or need a place to escape to you know where to go. I still have 3rd period planning, except for lunch duty 3rd lunch. Even if you still are or stay mad at me forever, I'm still rooting for you to make it. I hope you're staying out of trouble. Well, I just wanted to say hi. I was thinking about you and my kids have been asking about you too. They think you're so cool! Yeah, I guess you're all right most of the time. Ha Ha. I miss you. I miss you talking to me every day most of all. Well, see you around. K. p.s. I also wanted to thank you for keeping your word. Means a lot. Gives me a little bit of hope the whole thing wasn't a lie all along. That helps even if that's all I'll ever have. Well, there's other things I need to talk to you about but don't want to say in an e-mail, so will just let you go now. Bye. Respondent's statement in the e-mail that she hoped J.E. was not still mad at her referred to her refusal to let J.E. leave class. She thanked him for keeping his word about not dropping out of school, not telling anyone that he baby-sat at her home, and not revealing her personal confidences. The e-mail was not specifically romantic in nature but clearly and convincingly evidences an inappropriate personal relationship between Respondent and J.E. After receiving this e-mail, J.E. asked Chief Wood to help him draft a reply that would break off his relationship with Respondent. Chief Wood declined to help but told J.E. he would proofread the message after J.E. wrote it. After reading the e-mail, Chief Wood decided that J.E. had adequately communicated his message to Respondent and did not make any changes. On or about January 24, 2001, a fellow student told J.E. that Respondent had said she was pregnant with J.E.'s child. J.E. became frightened by the false rumor. That same day, J.E. lied to his mother, stating that Respondent had given him alcohol and that, while he was in an intoxicated state, Respondent had forced him to have sexual intercourse on the night that he visited her home. D.B. immediately contacted the sheriff's office. On January 26, 2001, the principal of FPC confronted Respondent with J.E.'s allegations regarding the alcohol and sexual misconduct. During this conversation, Respondent stated that she wished she had never had J.E. baby-sit in her home. She admitted that her relationship with J.E. was inappropriate. Respondent immediately drafted and submitted her resignation effective February 6, 2001, the day of the next scheduled school board meeting. Following Respondent's resignation, J.E. continued to endure severe teasing at the hands of his classmates. Some students referred to J.E. as a "teacher fucker." Understandably, such comments caused J.E. a great deal of stress. J.E. eventually dropped out of FPC and entered the adult education program, where he admitted to one student that he did not have sex with Respondent. He told the student that he wished he could take it all back. Respondent is now employed in a real estate office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That EPE enter a final order suspending Respondent's certificate for two years followed by five years of probation. DONE AND ENTERED this 2nd day of September, 2003, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 2nd day of September, 2003. COPIES FURNISHED: Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302 Matthew K. Foster, Esquire Brooks, Leboef, Bennett & Foster, P.A. 863 East Park Avenue Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue Whether Florida Administrative Code Rule 6A-14.0411 (“challenged rule”) is an “invalid exercise of delegated legislative authority” for the reasons alleged in the Amended Petition to Invalidate Rule (“Amended Petition”) filed by Petitioner.
Findings Of Fact The Parties agreed to the following findings of facts in the Prehearing Stipulation: Petitioner, United Faculty of Florida, is structurally a voluntary, unincorporated association. The UFF is the registered employee organization under section 447.305, and is the certified collective bargaining agent under section 447.307, for several bargaining units of public employees employed by the college district boards of trustees regulated by the challenged rule. UFF is legally obligated to represent the members of these bargaining units with respect to the determination of their wages, hours, and terms and conditions of employment pursuant to section 447.309(1). The State Board is the chief implementing and coordinating body of public education in Florida, and is required to focus on high-level policy decisions. The State Board has the authority to adopt rules to implement the provisions of law conferring duties upon it for the improvement of the state system to the extent compliant with the rulemaking authority standards set forth in the Florida Administrative Procedure Act. The Florida College System comprises the Florida College institutions, which are each governed by a local Board of Trustees. Each Board of Trustees is responsible for cost- effective policy decisions appropriate to the Florida College System institution?s mission, and the implementation of high- quality education programs within law and the rules of the State Board. Each Board of Trustees may adopt rules to supplement those prescribed by the State Board, and is specifically authorized to adopt rules and policies related to governance, personnel, conditions of employment, recruitment and selection, standards for performance and conduct, evaluation, promotion, assignment, demotion, and transfer, subject to the rulemaking authority standards set forth in the Florida Administrative Procedure Act. A “continuing contract” is a contract between a Florida college and a member of the college?s faculty which entitles the faculty member to continue in his or her respective full-time faculty position at the college without the necessity for annual nomination or reappointment. A faculty member who does not have a continuing contract has no assurance that he or she will be employed by the college in the next academic year. A continuing contract is similar to tenure, and is viewed by some as a form of tenure. A predecessor of the continuing contract rule has existed since at least 1979. The 1979 edition of the rule was amended in 2004; and the 2004 edition was not changed until April 23, 2013. There were no changes to Florida Statutes enacted since the adoption of the 2004 edition of the rule which mandated an increase from three to five years of satisfactory service for college instructors to qualify for a continuing contract; mandate that colleges develop criteria to measure students? success; mandate the creation of full-time college faculty positions that are not eligible for continuing-contract status; or mention the creation of full-time college faculty positions that are not eligible for continuing contract status. On April 27, 2012, the State Board published a Notice of Development of Rulemaking for the Rule, which scheduled a rule development workshop for June 5, 2012. The Notice stated that, “[t]he purpose of this rule development is to review the current process of issuing contracts to determine necessary changes. The effect will be a rule aligned with Florida Statutes.” On August 17, 2012, the State Board published a second Notice of Development of Rulemaking for the Rule. The second Notice stated, “[t]he purpose and effect of the rule change is to update the current process of issuing continuing contracts. The effect will be a rule aligned with Florida Statutes.” The Notice scheduled a rule-development workshop for August 31, 2012, but that workshop was cancelled. On November 13, 2012, the State Board published a third Notice of Development of Rulemaking, which included proposed language to amend the Rule. The third Notice stated: “[t]he purpose and effect of the rule change is to update the current process of issuing continuing contracts. The effect will be a rule aligned with Florida Statutes.” The State board held a rule-development workshop on November 29, 2012, at Seminole State College of Florida. On February 21, 2013, the State Board published a Notice of Proposed Rule to amend the Rule. The “Purpose and effect” section of Notice stated: The purpose of the rule development is to revise the current process and criteria for issuing continuing contracts. In addition, criteria for post-award performance reviews are added, and grounds for termination of continuing contracts are revised to include failure to meet the post-award performance criteria. The effect will be a rule aligned with Florida Statutes. The 2004 version of the rule did not have to be changed in 2013 in order to be aligned with any particular statute(s). The State Board held a rule adoption hearing on March 19, 2013, in Tallahassee, Florida. At the March 19, 2013, State Board meeting, the State Board unanimously adopted the proposed amendments to the Rule. The amended version of the rule became effective on April 23, 2013.
Recommendation Based on the foregoing, it is therefore ORDERED THAT: The Petition filed by Petitioner pursuant to section 120.56(3) seeking an administrative determination that Florida Administrative Code Rule 6A-14.0411 is an “invalid exercise of delegated legislative authority,” as defined in section 120.52(8) is hereby DISMISSED. DONE AND ORDERED this 23rd day of December, 2013, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 2013.
