The Issue Whether Respondent's educator's certificate should be sanctioned for an alleged violation of section 1012.795(1)(b), Florida Statutes, in that Respondent knowingly failed to report actual or suspected child abuse as alleged in Petitioner's Amended Administrative Complaint. Whether Respondent's educator's certificate should be sanctioned for an alleged violation of section 1012.795(1)(j), in that Respondent violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules as alleged in Petitioner's Amended Administrative Complaint.
Findings Of Fact Based on the evidence presented and the record as a whole, the undersigned makes the following findings of material and relevant facts: Parties' Statement of Agreed Facts Respondent holds Florida Educator's Certificate 632878, covering the area of elementary education, which is valid through June 30, 2017. At all times pertinent hereto, Respondent was employed as a part-time interventionist teacher at Brownsville Middle School ("BMS"), Miami-Dade County School District. Respondent has been a certified teacher for 25 years. On March 9, 2015, Respondent was informed by Y.H., a sixth-grade female student, that her stepfather comes into her room and lays on top of her with his clothes on without touching her in any inappropriate way, when her mother was not present. On March 9, 2015, Y.H. also informed Respondent that her stepfather pushed her toward a wall causing her to fall into a chair and then he pulled her by the hair. Respondent went to Counselor Sonya Durden's office on March 9, 2015, to discuss what she had heard from Y.H. and the other two students. Respondent did not immediately report the student's accusation on March 9, 2015, to the Department of Children and Families or the Child Abuse Hotline. Facts Adduced at the Hearing The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates under section 231.2615, Florida Statutes. During Castella's 25 years of teaching, she testified that she had never received training concerning suspected child abuse or related reporting requirements. This testimony is rejected. The more persuasive and credible evidence revealed that all school employees at BMS, with no exceptions, received regular training at the beginning of each school year, which includes their reporting duties when child abuse is suspected. The more persuasive evidence also demonstrated that various posters on child abuse reporting were posted around the school to remind teachers at BMS of their reporting requirements in cases of suspected child abuse. Respondent's Exhibits B and C are examples of those posters. Respondent's Exhibit B is a colorful poster with the title Child Abuse Look for the Signs. The poster gives information on various signs of physical and sexual abuse, as well as the procedure to follow when a child speaks of abuse. The evidence revealed that this poster was posted at the designated faculty sign-in area at BMS at all times relevant to this incident. Principal Ebony Dunn testified that "all of the employees have to sign-in whether they're hourly, whether they're full-time, non-instructional." Thus, Castella would have been required to sign in at this designated area at the beginning of each day where the poster was prominently displayed. The undersigned finds that based on the more persuasive evidence, Respondent was aware of the poster's content. Respondent's Exhibit C is another poster with the title Reporting Child Abuse is Everyone's Responsibility. This poster details various signs of child abuse and how someone can report an instance of child abuse. The undisputed evidence indicated that this poster was also displayed at the student services building/main learning center at all times relevant to the incident. The more persuasive evidence and reasonable inferences drawn from the evidence indicate that Respondent was aware of both of these posters and knew of her duty to report suspected child abuse. March 9, 2015, Incident On March 9, 2015, Castella was approached by three girls at lunch, one of whom was Y.H., a sixth-grade female student. Castella observed that the other two girls were prodding Y.H. to speak to Castella. During this encounter, Castella was informed by Y.H. that her stepfather comes into her room and lies on top of her with his clothes on without touching her in any inappropriate way, when her mother was not present.2/ Y.H. also informed Castella at lunch that her stepfather pushed her toward a wall causing her to fall into a chair and then he pulled her by the hair. After lunch, Castella went to another teacher, Philogene, to report the incident because "she wasn't sure what to do," and she wanted to know the other teacher's thoughts on Y.H.'s statement.3/ Castella contends that she was not aware that what Y.H. told her amounted to child abuse. However, when asked why she told Philogene about the incident, Castella responded, "I wanted to ask Ms. Philogene what she thought because what Y.H. told me was odd, weird." The record indicates that after hearing about the incident, Philogene told Castella to report the incident to Counselor Durden.4/ Castella testified that on March 9, 2015, she went to Counselor Durden's office to discuss what she had heard from Y.H. and the other two female students. However, Castella asserted that despite her efforts, she was not able to report the incident to Counselor Durden because she was not in her office. Significantly, Castella left the school that day without reporting the incident to any administrator on campus.5/ Inexplicably, Castella did not immediately report the female student's information on March 9, 2015, to the Department of Children and Families or to the Child Abuse Hotline. Respondent claims that she did not know the protocol for reporting child abuse. The undersigned rejects this claim as incredible and spurious. Rather, the credible and more persuasive evidence shows that it was common knowledge among the school staff, based on training and posted notices, that an incident of child abuse should be reported immediately. March 10, 2015, Incident The next day, Castella went to Counselor Durden's office immediately upon arriving at the school to report what Y.H. had told her the day before. According to school policy, Castella was mandated to report the incident to a school administrator. Counselor Durden was not an administrator, nor was she Castella's supervisor. After disclosing the nature of her visit, Counselor Durden questioned Castella about the incident and why Castella did not report the incident when she became aware of it the day before. Counselor Durden testified that, "[Ms. Castella] said a young lady, a sixth-grader, had told her during lunch that the stepfather comes into the room every night drunk and holds her down and climbs on her. So I said, 'She told you when?' And she said, 'Yesterday during lunch.' And I said, 'You didn't call it in?' And she said, 'No I didn't.' And I think she was talking about like, you know she's friendly with the kids, and she didn't want to lose her confidence, they trusted her." Castella testified that she was reluctant to immediately report the incident because she did not want to violate the female students' trust. Counselor Durden proceeded to call the Department of Children and Families while Castella was still in her office. Both joined in reporting to the Department of Children and Families what had occurred. Later that afternoon, the Department of Children and Families held a meeting at the school with Y.H., the other two girls who were with Y.H., and Castella to gather details of the suspected child abuse and to determine how to proceed with the incident. Contact With News or Media Outlets Castella contacted and voluntarily appeared on a number of local news broadcasts. She detailed the suspected child abuse incident and proceeded to give the name of the school. Petitioner's Exhibit 8, which is a Notice of Investigation signed by Castella and delivered to her, states that a faculty member may be terminated if they speak to a number of subjects about a pending investigation. The document specifies, "You are not to discuss this matter with any witnesses, parents, staff, students, or the complaining party to avoid interference with the investigation." Castella asserts that she did not violate the notice because it did not specify she could not speak to news stations. However, Principal Dunn testified that anyone, including the listed parties, had the ability to watch the news broadcast. Therefore, the undersigned finds that her appearance on the news stations violated the spirit and intent of the notice because it could have had an indirect, adverse impact on witnesses and interfered with the internal investigation by the school district.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Diana Castella in violation of Counts 1, 2, and 3 of the Amended Administrative Complaint and placing her license on a one-year probationary status, during which time she be ordered to attend and successfully complete, at her expense, training related to her reporting obligations under section 1012.795(1)(b), Florida Statutes. DONE AND ENTERED this 17th day of March, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 17th day of March, 2017.
The Issue Does Petitioner, Manatee County School Board (Board), have just cause to terminate the employment of Respondent, Gregg Faller, based upon the conduct involving Mr. Faller's alleged failure to respond appropriately to information he had about the conduct of his subordinate, Rod Frazier, toward females, including students, as alleged in the Administrative Complaint dated October 14, 2013?
Findings Of Fact Stipulated Facts The Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Manatee County (District). § 1001.32, Fla. Stat (2013). The District has employed Mr. Faller since December 8, 2009. Mr. Faller was an administrative parent liaison at Lakewood Ranch High School from December 2009 to May 2009.2/ He served as assistant principal at Manatee High School from July 2010 through July 2013. Mr. Faller served temporarily as an assistant principal at Palmetto High School from July 2013 until he was placed on paid administrative leave on August 1, 2013. At all times, Mr. Faller was required to abide by all Florida Statutes that pertain to teachers and educators, the Code of Ethics and the Principles of Conduct of the Education Profession in Florida (Code of Ethics), and the Policies and Procedures Manual of the Manatee County School District. On August 15, 2013, Respondent was charged with: (1) Failure to Report Child Abuse (sections 39.201(1) and 39.205(1), Florida Statutes (2011)(misdemeanor)); (2) Felony Failure to Report Child Abuse (section 39.201(1) and (2) and 39.205(1), Florida Statutes (2011)(third degree felony)); and (3) False Reports to Law Enforcement Authorities (section 837.05(1), Florida Statutes (2011)(misdemeanor)). The prosecutor dismissed the charge of providing false information to a law enforcement officer. On September 25, 2013, the superintendent notified Mr. Faller in writing of the District's intent to recommend his termination from employment. The superintendent issued an Administrative Complaint against Mr. Faller that same day. On October 14, 2013, during a Board meeting, Mr. Faller was suspended, without pay, pending the outcome of an administrative hearing that he requested. On October 24, 2013, Respondent served a Request for Administrative Hearing and Respondent/Employee's Answer to Administrative Complaint. Additional Facts Florida law imposes a duty to report upon any person who has reasonable cause to suspect child abuse by a person responsible for a child's welfare.3/ The Board emphasized the importance of this obligation in Board Policy 5.2 of the Policies and Procedures Manual of the School District of Manatee County. That policy provides in part: All school employees have a serious affirmative duty to report suspected child abuse and neglect and shall do so pursuant to the guidelines developed. * * * Mandatory Duty to Report Suspected Child Abuse All employees or agents of the district school board who have reasonable cause to suspect abuse have an affirmative duty to report it . . . . * * * Complaints of Child Abuse Reported to an Employee An employee receiving a complaint or report of child abuse shall inquire of the reporting party as to the details of his/her concern but shall not investigate further. If the employee has reasonable cause to suspect that child abuse has occurred based upon the description by the reporting party, the employee must report . . . [to the Florida Child Abuse Registry]. * * * Employee Responsible for Reporting It is the responsibility of the first employee who has "reasonable cause" to suspect abuse to report it to the hotline and to do so immediately. It is unacceptable and violation of the law to simply report suspicions to any other individual (including law enforcement or your supervisor) and ask or expect them to make the report to the hotline. After making a report, the school board employee must inform the principal, supervisor, or other building administrator. If the suspected abuser is a district employee, the supervisor of the reporter will notify his/her director who will notify the Office of Professional Standards. * * * (6) Penalties for Failure to Report Any employee who is required to report and fails to do so may be found guilty of a misdemeanor . . . . Failure to report child abuse as required will also subject the employee to disciplinary action. Mr. Rod Frazier, a subordinate of Mr. Faller, was a person responsible for the welfare of female student, D.K. Mr. Faller was trained in the duty to report child abuse. He has been present with people who have called to report child abuse. He understood that if he learned of something that causes concern from another employee, he may be responsible for reporting the concern to his principal. At Manatee High School, Mr. Faller served as assistant principal. His duties included supervising four parent liaisons: Mr. Gulash, Ms. Torres, Rod Frazier, and Randy Smith. Parent liaisons handle everyday suspensions and the discipline of students. They also handle communication between parents, staff, and students and assist in the classroom. Parent liaisons also mentor some students. Mr. Faller summarized the parent liaison duties as: Their main job is to deal with referrals written by staff members that had issues with student behavior, deal with parents, phone call parents and let them know what their child was doing, basically be a mentor to some of the students if they saw students were struggling and had a relationship with them and could make an impact and try and make them get back on the right track. (Tr., pp. 319-320). The parent liaison job description identifies responsibilities that include: handling routine discipline referrals; referring serious offenses to the assistant principal; supervising students, including bus duty, parking lot, and school events; meeting and dealing effectively with staff members, students, and parents; and modeling and maintaining high ethical standards. During the 2011-2012 school year, Mr. Faller received several reports describing inappropriate conduct and improper relations with female students by Mr. Frazier. He also received a report of sexual harassment of a female parent liaison. Harassment of Adinah Torres Adinah Torres worked at Manatee High School as a parent liaison from November 2010 to July 2012. Mr. Faller was Ms. Torres' sole supervisor during that period of time. During that period, Mr. Frazier trained Ms. Torres on how to enter referrals into the District's data system. During one training session, she sat at his desk using his computer. Mr. Frazier sat on the desk with his feet and crotch toward Ms. Torres. Mr. Frazier rubbed his foot up the side of Ms. Torres' leg during the training session. She pulled away and looked at him. Mr. Frazier smirked at Ms. Torres. She left the room. Mr. Frazier's acts were inappropriate, unwelcome, and unwarranted. They made Ms. Torres uncomfortable. The acts were harassment of Ms. Torres. The following day, Ms. Torres told Mr. Faller about the incident. Mr. Faller agreed that the described conduct was inappropriate. He told Ms. Torres that he could not have these sorts of problems in the office because she might one day need someone to help her with a student disciplinary issue. "You got this?" he asked. Ms. Torres interpreted Mr. Faller's statements to mean that she should deal with the problem.4/ Mr. Faller's version of their conversation is that he told Ms. Torres he would take action if she wished to file a written complaint. Nothing in the policies and procedures of the Board requires an employee to make a written complaint of harassment. In fact, Board Policy 2.19, which establishes procedures for complaints about discrimination and harassment, requires a diametrically opposite approach. Board Policy 2.19(4) sets out an investigation, review, reporting, and appeal process that begins with a written complaint. However, the policy begins with a clear statement that imposes a specific duty upon an administrator, such as Mr. Faller, who learns of an alleged incident of discrimination or harassment. The policy states: The following complaint/grievance procedures are established to receive complaints. However, when any administrator learns of an alleged incident of discrimination/harassment, they are required to report complaints immediately to the Equity Coordinator and will not conduct an investigation. Nothing required a written complaint like Mr. Faller required of Ms. Torres. An immediate report by him is what was required. Ms. Torres spoke to Mr. Frazier and told him the behavior was unacceptable. He denied that it occurred and stormed away from her. Mr. Faller did not note the complaint in Mr. Frazier's file. He did not speak to Mr. Frazier about it or take any disciplinary action. Mr. Faller also did not report the incident that Ms. Torres alleged to anyone, including the school's equity coordinator. Ms. Peebles' Reports of Conduct of Mr. Frazier With Female Students, A.P. and D.K. In the 2011-2012 school year, Manatee High School teacher, Jacqueline Peebles, developed concerns about Mr. Frazier's conduct with two female students. One was A.P., who told Ms. Peebles about Mr. Frazier approaching her at a tiki bar one night and later texting her about the encounter. Another was D.K. and Mr. Frazier's frequent calls to the classroom asking Ms. Peebles to have D.K. report to his office. Ms. Peebles was also concerned about a text message to D.K. that appeared to be from Mr. Frazier telling D.K. to come to his office, that he had heard she was wearing short-shorts. Ms. Peebles told Mr. Faller about all these incidents in one conversation after A.P. told her about the tiki bar encounter. Ms. Peebles told Mr. Faller that she knew A.P. was a troubled student with some discipline issues, but she felt A.P. was being truthful. Ms. Peebles provided the following information to Mr. Faller. She told him that A.P. had reported that Mr. Frazier approached her at night at a tiki bar, where she was drinking illegally. Ms. Peebles told Mr. Faller that A.P. told her that a man approached her from behind and rubbed his erection against her buttocks. A.P. said she turned and saw that it was Mr. Frazier. A.P. questioned him and told him he knew she was a student. Mr. Frazier replied, according to A.P., that she had a "nice ass" and was fair game because she was in the bar and must, therefore, be legal. The record establishes that A.P. was a student. It does not, however, establish her age. No party has asserted she was 18 or older. It is reasonable to infer from A.P.'s student status, the fact that she returned to school the following year, and the absence of dispute that she was under 18. Ms. Peebles said that she told A.P. "that sounds odd." A.P. insisted it was true. Ms. Peebles also told Mr. Faller that A.P. said that she was leaving regular school for an alternative program because Mr. Frazier would not leave her alone. A.P.'s comments and her change of schools indicate that Mr. Frazier's conduct was harmful to A.P.'s mental and emotional health. Ms. Peebles went on to tell Mr. Faller that A.P. then showed Ms. Peebles text messages on her telephone that were marked as coming from Mr. Frazier. The messages referred to the bar encounter saying, "'Oh, you have a hot ass, I really wanted you.'" After reporting the above information to Mr. Faller, Ms. Peebles told him that she believed A.P. In order to help Mr. Faller understand why she thought A.P.'s reports were credible and significant, Ms. Peebles then told Mr. Faller about an incident with Mr. Frazier that occurred before Mr. Faller assumed the position supervising Mr. Frazier. Ms. Peebles had walked into Mr. Frazier's office looking for him. She found Mr. Frazier sitting at his desk with a female student, D.K., sitting in his lap feeding him cake. She told Mr. Faller that she had reported the incident to the acting principal, Mr. Kane, and thought it had been dealt with. Finally, Ms. Peebles told Mr. Faller about her experiences with Mr. Frazier frequently calling the same female student, D.K., from class. The frequency became so great that it was disruptive to D.K.'s education. Ms. Peebles began not answering the telephone or refusing to send D.K. to Mr. Frazier's office. Later, Ms. Peebles saw D.K. texting and took D.K.'s telephone from her and placed it on her desk. D.K.'s phone buzzed with an incoming text message. Ms. Peebles told Mr. Faller that the message said something "along the lines of 'come up to my office. I hear you're wearing short-shorts again.'" D.K. was wearing short-shorts. Ms. Peebles told Mr. Faller that the telephone indicated that the message was from Rod Frazier. This event preceded the conversation with A.P. that Ms. Peebles reported to Mr. Faller. Ms. Peebles told Mr. Faller that Mr. Frazier's texting students frequently was a problem. With D.K., it was especially troublesome because she was missing so much class time. Mr. Faller acknowledges texting is not the proper way for the parent liaisons to contact students during school hours. Mr. Faller said he would talk to Mr. Frazier about the texting. Mr. Faller denies that Ms. Peebles told him about the tiki bar incident. The undersigned finds the testimony of Ms. Peebles credible and persuasive on this issue. A day, or a day and a half, later, Mr. Faller passed Ms. Peebles in the hall. He said, "Hey, I took care of that." After that, Mr. Frazier was unfriendly to Ms. Peebles and rarely spoke to her or handled her referrals. But Mr. Frazier's personnel records contain no indications that Mr. Faller spoke to Mr. Frazier about these incidents or took any action. The credible persuasive evidence proves that Mr. Faller did not report these assertions to the child abuse registry to the administrators or law enforcement, investigate them, or act upon them. Ms. O'Dell's Reports of Mr. Frazier's Conduct With Female Students, D.K. and D.W. Another teacher, Keltie O'Dell, told Mr. Faller of similar problems with Mr. Frazier texting two female students, D.K. and D.W., asking them to leave her classroom. When she would not release them, he called to have the students sent to his office. Ms. O'Dell told Mr. Faller that D.K. and D.W. confirmed to her that they had texted Mr. Frazier asking him to get them out of class. Ms. O'Dell told Mr. Faller of a time when Mr. Frazier brought lunch to D.K. in her classroom so that Mr. Faller would not see her out of compliance with the dress code in the cafeteria. The conduct of Mr. Frazier that Ms. O'Dell reported to Mr. Faller was unprofessional, inappropriate, and improper. Mr. Faller did not report these concerns to any other administrators or to law enforcement authorities. He also did not speak directly to Mr. Frazier about the issues. Mr. Faller only spoke to all of the parent liaisons as a group, generally, about the inappropriateness of texting students to come from class. The file contains no information or notes indicating that Mr. Faller spoke to Mr. Frazier about the incidents, disciplined, or counseled Mr. Frazier. Concerns Reported by Steve Gulash Steve Gulash, an administrative parent liaison in Manatee High School's discipline office, brought similar, but much more general concerns about Mr. Frazier to Mr. Faller. He once told Mr. Faller that he should take note of the fact that Mr. Frazier only signed up as an administrator on duty for female games. He also told Mr. Faller that "this damn guy's probably done some stuff that could put him in jail." Mr. Gulash did not identify specific incidents. Mr. Faller did nothing to inquire into Mr. Gulash's concerns. Mr. Faller's Approach to the Multiple Reports of Mr. Frazier's Improper Behavior The following excerpt, with emphasis added, from the transcript of Detective Marines' interview of Mr. Faller, articulates Mr. Faller's view of responsibility and his method for avoiding responsibility for the supervision of Mr. Frazier and caring for the female students of Manatee High School. Q: Okay. Now is it, is it, uh, you said you were over discipline. A: Uh hum. Q: Is it common for the parent liaison's to text students to get them out of class when they have an issue, they, they A: Is it common? Q: Yeah. A: No. Q: No? A: No. Q: Okay. So what, what is the common uh, like if, if Mr. Frazier wants to see you soon, and talk to him about a referral, I'm assuming that's what you guys do, right? A: We call the classroom. Q: Call the classroom? A: Yeah. Q: Talk to the teacher? A: That would be the norm. Um, Q: How long would he have been? A: You know? Q: How long had he been doing that for? Like texting students out of class? A: I don't know. Q: You don't know? Okay. Uh, did you ever talk to him about it? A: Didn't know about it, except for through a teacher. Q: Through Ms. O'Dell? A: Never witnessed it myself, never had a kid come to me. Yeah, other than that one incident, um, that supposedly took place in her class, you know, she saw the kid using the phone, and then all of the sudden, you get up and say I have to go to Frazier. So she's putting two and two together, so I can't, I mean I can't say, you know, that it definitely happened. Q: Uh hum. A: Um, that's a, that's a teacher, um, believing that it may have occurred. Um, and I'm not in the business of, of, figuring those things out. You know? Q: No, I A: I mean the bottom line is Q: know. I completely. [sic] A: Um, Q: Did you ever talk to him about it or no? He just didn't bother. A: There's nothing to address. If I don't know for sure that he's doing it, then I'm not gonna address it. I mean, uh, Q: Okay. A: You know? But, I mean if it was happening, um, I had no direct knowledge. Nobody's ever told me directly that they know for a fact that this is going on. (emphasis added). (P. Ex. 18, 2/11/13, pp. 7 & 8). Mr. Faller chose to ignore the information. Eventually, through the efforts of people other than Mr. Faller, the reports of Mr. Frazier's activities with female students reached responsible authorities triggering an administrative and criminal investigation of Mr. Frazier. Those investigations subsequently expanded to examine the actions and inactions of Mr. Faller, Principal Gagnon, former Assistant Principal Matt Kane, and assistant superintendent for District Support, Scott Martin, when they received complaints about Mr. Frazier. Ultimately, Mr. Frazier resigned from Manatee High School.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Manatee County School Board, enter a final order terminating the employment of Respondent, Gregg Faller. DONE AND ENTERED this 29th day of August, 2014, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 29th day of August, 2014.
The Issue The issue posed for decision herein is whether or not the Respondent, Henry L. Penia, engaged in acts of immorality or immoral conduct, in that during the month of July, 1978, he improperly touched a female student in an indecent or improper manner on school grounds during school hours in violation of Sections and 231.09, Florida Statutes, and Section 6B-1, Rules of the State Board of Education. Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, the documentary evidence received and the entire record compiled herein, I hereby make the following:
Findings Of Fact Respondent, Henry L. Penia, holds Florida Teaching Certificate No. 044411, Graduate, Rank III, which by its terms is valid through June 30, 1981, for the areas of elementary education, history and political science. Respondent began his employment with the Hillsborough County School Board in February, 1952, and continued to be so employed until he was discharged on May 10, 1979. Respondent was assigned to LaVoy Elementary School (LaVoy) in 1974, where he taught nursery operations for the trainable mentally retarded (TMR) classified students. By way of background, the Florida Professional Practices Council, Petitioner, received a report from Hillsborough County school officials on May 24, 1979, indicating that Respondent had been charged with immoral conduct with a female student. Pursuant thereto, and under authority contained in Section 6A-4.37, Rules of the State Board of Education, staff of the Department of Education conducted a professional inquiry into the matter, and on September 10, 1979, reported the matter to the Petitioner's Executive Committee. The Executive Committee found that probable cause existed to believe that Respondent is guilty of acts which provide grounds for revocation of his teaching certificate. The Commissioner of Education found probable cause on October 1, 1979, and directed that Petitioner file a petition to revoke Respondent's teaching certificate pursuant to the authority contained in Rule 6A-4.37 of the State Board of Education and the guiding authority in Section 231.28, Florida Statutes. The material allegations of the Petition as filed by Petitioner are that during the month of July, 1978, Respondent committed an act of immorality in that he improperly touched a female student in an indecent manner during school hours on the school grounds of LaVoy. Concluding, the Petition alleged that the Respondent had violated Sections 231.28 and .231.09, Florida Statutes, and Rule 6B-1, Rules of the State Board of Education, in that based on the above-cited alleged conduct by Respondent, he committed acts of immorality which were inconsistent with good morals and the public conscience and failed to set a proper example for students. The Petition adds that Respondent's conduct as alleged was sufficiently notorious to bring the education profession into public disgrace and disrespect and seriously reduced his (Respondent's) effectiveness as a School Board employee. Michael Sails, presently the head custodian at Foster Elementary School, Hillsborough County, was, during times relevant herein, a custodian at LaVoy. During a school day in July of 1978, Mr. Sails, while standing at the rear of Mrs. Evans', a teacher at LaVoy, portable observed Respondent's arm around the neck of Irene (last name unknown) while Respondent and the other students were standing around the agricultural area at LaVoy. Kennedy Watson, the head custodian at Dickinson Elementary School, was, during times material herein, employed as a custodian at LaVoy. During July of 1978, Messrs. Watson and Sails were seated in Mrs. Evans' portable where they could view the agricultural area at LaVoy. Mr. Watson was situated a distance of approximately seven feet from Respondent and Miss Martin when he observed Respondent with his hands and arms around student Irene Martin's breast and crotch areas. Student Martin, according to Watson, is a "very developed teenager". Watson's view was not obstructed when he observed Respondent's hands draped around Miss Martin's crotch and breast. (See location "X" on Petitioner's Exhibit 1.) Mr. Watson, to get a better view of the acts by Respondent toward student Martin, situated himself at the rear of Mrs. Bennett's pod. Mr. Watson observed Respondent and student Martin for approximately ten minutes. Mrs. Bennett, who was in her classroom at the time, observed that something unusual was happening outside her classroom and inquired of Mr. Watson as to what was occurring. Mr. Watson declined to discuss the incident then but agreed to do so later since he was, at that time, very upset about what he had observed. On July 13, 1978, Mrs. Sandra Kilpatrick, a staffing specialist for exceptional education for the Hillsborough County School System and formerly a teacher at LaVoy, sent Mrs. Bennett a message that student Irene Martin was in Respondent's class. Mrs. Kilpatrick confirmed that Irene Martin is a TMR student with an I.Q. of less than 50. Mary Bennett, an employee of the Hillsborough County School System for approximately thirteen years, is presently the Director of the Mentally and Profoundly Handicapped Program for students. Mrs. Bennett serves as diagnostician for student placement. Mrs. Bennett knows Kennedy Watson and recalled the day that Mr. Watson entered her room in July, 1978, when he appeared to be upset. Mrs. Bennett observed Respondent from a distance of approximately sixty feet from her pod with his body closely against Miss Martin in a "bumping, grinding manner" which lasted approximately several minutes. She observed Respondent touch Miss Martin in a few places in the breast area with one of his hands down along side Miss Martin's. Mrs. Bennett emphasized that no training was taking place while Respondent and student Martin were engaged in the conduct as described herein. When questioned specifically about the incident, Mrs. Bennett made certain the fact that no instructional activity was taking place and that Respondent made no attempt to free himself of Miss Martin if indeed that was his claim. She also indicated that no shovel was being used by Respondent for a training activity. After observing the incident, Mrs. Bennett discussed it with Mrs. Kilpatrick later that afternoon and made an attempt to contact Ms. Davidson, the Principal at LaVoy. Mrs. Bennett was sure that the date was July 13 because she left for Ohio to celebrate her parents' fiftieth wedding anniversary on Friday, July 14, 1978. Mrs. Bennett has great distance vision and was not mistaken as to what she observed by Respondent relative to student Martin. Conceding that she was not an expert on guessing distances and that she could be mistaken as to the exact distance that her pod is situated from the area in which she observed Respondent and Miss Martin, Mrs. Bennett was unequivocal in her testimony charging that what she witnessed was not any attempt by Respondent to train or otherwise instruct student Martin. Millicent Davidson, the Principal at LaVoy, is familiar with student Irene Martin. Principal Davidson was formerly a teacher at LaVoy and noted that student Martin has an I.Q. range of a four year old. Student Martin is unable to judge "right" from "wrong" and reacts to physical stimuli differently than a person with a normal I.Q. Principal Davidson also confirmed that student Martin has a habit of grabbing the wrists or hands of persons to gain their attention. (Testimony of Millicent Davidson.) On July 24, 1978, Principal Davidson contacted school security as she observed Respondent in the agricultural area from portable No. 371. (See Petitioner's Exhibit 2.) On that date, while she observed Respondent and Miss Martin, Principal Davidson's view was not obstructed. Irene Martin and the other students were potting plants with Respondent when Respondent grabbed one female student on her buttocks. Principal Davidson observed Respondent's arm draped around student Martin from the time that they left the agricultural area until they reached the portables, at which time the hugging ceased. Principal Davidson related (during the hearing) that physical contact with students was banned at LaVoy. On that day, July 24, 1978, Principal Davidson had a conference with Respondent and security employees Dossinger and Tyrie, wherein Respondent denied that he engaged in any physical touching of students. He was at that time suspended pending the outcome of the School Board hearings which ultimately resulted in Respondent's dismissal from employment. Based on Principal Davidson's observance of Respondent on July 24, and subsequent unfavorable press accounts of the incident relative to the school, she would not want Respondent to return as a teacher at LaVoy. S. E. Dobbins, the Personnel Services Director for the School Board, read several newspaper articles in the "Tampa Times", the "Florida Sentinel Bulletin" and other local newspapers respecting the subject incident between Respondent and student Irene Martin. Veda Bird, the former Principal at LaVoy and a teaching professional for more than forty-seven years, retired from the Hillsborough County School System during 1978. Principal Bird recommended Respondent for employment by the School Board. She observed him on a daily basis and was unaware of any character charges having been leveled against Respondent during his tenure of employment. Principal Bird is also familiar with student Irene Martin. She recalled that student Martin had a habit of grabbing teachers and was generally very vocal and hyperactive while at school. Principal Bird remembered student Martin as being a very strong student who constantly had to be counselled about grabbing instructors and other students to gain their attention. Finally, Principal Bird recalled that Respondent and Mr. Kennedy Watson had personality clashes and that she considered that Mr. Watson thought that Respondent was "out to get his (Watson's) job." RESPONDENT'S DEFENSE Respondent appeared on his own behalf and generally denied all of the material allegations of the Petition for Revocation filed herein. Specifically, Respondent denied that student Irene Martin attended his class on the date of July 13, 1979. He related his policy of not permitting students to attend his classes when they were not assigned to be there. Respondent recalled one occasion wherein he was showing a student how to dig with a shovel. At that time, he stood in front of the student and demonstrated how to dig a hole with a shovel. Respondent denied that there was any body contact between himself and the female student while he gave the digging instructions. Respondent also denied that there was any body contact between himself and a female student during July of 1978, as testified by Mrs. Davidson and Mrs. Bennett. He related that on one occasion he struggled to get Irene Martin back to the classroom area and that he had to, in essence, pull her back from the agricultural area to the class pod. Respondent believed that Mr. Watson's testimony herein was motivated and stemmed from a disagreement he had with Watson concerning the disappearance of approximately two hundred azalea plants that Respondent had given Watson to plant for the school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's Teaching Certificate No. 044411, be REVOKED. RECOMMENDED this 28th day of August, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1980.
The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1999), to terminate Respondent's employment as a non-instructional employee for alleged misconduct consisting of sexual harassment, inappropriate touching, and inappropriate comments. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner employs Respondent as a security guard at the Alternative Learning Center High School (the "ALC"). Petitioner has employed Respondent in the capacity since November 21, 1995. The ALC includes a High School and Middle School. At all times material to this proceeding, Petitioner employed Respondent at the High School. Respondent has also worked continuously for the Department of Juvenile Justice from July 16, 1993. The Department employs Respondent as a group leader at the Price Halfway House. The Price Halfway House is a level six facility for delinquent youths between the ages of 14 and 18. Before Petitioner suspended Respondent from his employment with the Board, Respondent worked at the ALC from 7:00 a.m. until 2:30 p.m. each school day. Respondent then worked at the Price Halfway House from 3:00 p.m. until 11:00 p.m. Petitioner gave Respondent good performance assessments throughout Respondent's employment at the ALC. Respondent attained a rating described as an "effective level of performance observed." The ALC principal never had cause to question Respondent's professional conduct. The principal described Respondent's position as a "very tough position." Respondent deals with students who have discipline problems, and Respondent rarely has occasion to deal with students in a positive manner. Students at the ALC have violated the rules or code of conduct at their geographic school or have been arrested for a criminal felony offense. The ALC is an alternative to expulsion from the geographic school. The ALC is a "lock-down facility." Classrooms are locked while class is in session. Students are not allowed to move outside the classroom without permission. A student who has obtained permission to move outside the classroom cannot do so before personnel outside the classroom are notified by two-way radio of the student's movement. Group movement to and from school and during lunch is closely monitored by school personnel. Respondent's duties at the ALC consisted of monitoring activity on the school campus to ensure that students and faculty enjoyed a safe environment. Respondent's duties required him to monitor students for weapons, drugs, fights, gang behavior, and similar activity. Respondent interceded disruptive behavior by students, including fights and escorted students to the administrative offices for discipline and other matters. Petitioner maintains a policy that prohibits employees from engaging in sexual harassment of another employee or student. The policy defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other inappropriate verbal, nonverbal, or physical conduct of a sexual nature. Sexual harassment includes conduct that has the purpose or effect of unreasonably interfering with a student's educational performance or creating an intimidating, hostile, or offensive school environment. The policy lists examples that include repeated remarks with sexual or demeaning implications and unwelcome or inappropriate physical contact such as unnecessary touching. Respondent was aware of the policy. The Allegations On June 28, 1999, two female students at the High School reported to the principal at the Middle School that Respondent made inappropriate sexual comments to them and touched them in a sexual manner. The two students are Kimberly Battle and Stephanie Day. The principal of the Middle School is Mr. Charles Dailey. Ms. Battle and Ms. Day told Mr. Dailey that toward the end of the 1998-1999 school year and during summer school Respondent touched them on their buttocks and made inappropriate sexual comments to them. However, Ms. Battle is the only complainant who testified at the hearing. Ms. Day did not testify at the hearing. A representative from a home for unwed mothers represented that Ms. Day did not want to testify in the action and preferred to "drop the charges." The ALJ excused Ms. Day from her subpoena on the basis of a note from Ms. Day's physician recommending that she not be required to testify until she is "six weeks postpartum." Ms. Battle claims that Respondent violated the school policy prohibiting sexual harassment through repeated incidents of inappropriate comments and unnecessary touching. The incidents allegedly occurred during the regular school year and during the summer school session. Respondent allegedly made inappropriate sexual comments to Ms. Battle in the hallway of the high school towards the end of the 1998-1999 school year. Respondent allegedly said "look at that butt" and "I'm going to get that." Ms. Battle claims that Respondent made similar comments to her during the 1998-1999 school year while she was on the bus ramp before and after school. Respondent allegedly continued to make inappropriate comments throughout the 1999 summer school session. Ms. Battle also claims that Respondent repeatedly touched her buttocks with his hand and said it was a mistake. On June 23, 1999, Ms. Battle and Ms. Day told Ms. Elsa Rosado, the school bus aide, that Respondent was "a pervert or something, and he was all nasty." Ms. Rosado told the bus driver and spoke with Ms. Day's mother. On Friday, June 25, 1999, Ms. Battle claims that Respondent pulled up her skirt on two separate occasions in the high school. She claims Respondent pulled up her skirt the first time in the break room at approximately 12:18 p.m., and did so the second time in the office of the School Resource Officer after 1:00 p.m. During the second alleged incident, Ms. Battle claims that Respondent pulled out the waistband of her underwear and looked inside her underwear. On Friday, June 25, 1999, Ms. Battle rode the school bus to the Middle School. She intended to report Respondent to Mr. Dailey. Mr. Dailey was not at school that day. On Monday, June 28, 1999, Ms. Battle and Ms. Day reported the alleged incidents to Mr. Dailey. Mr. Dailey reported the allegations to Petitioner. Petitioner investigated the allegations, and this proceeding ensued. The Hallway and Bus Ramp Petitioner failed to show by a preponderance of the evidence that Respondent made inappropriate comments to Ms. Battle or touched her unnecessarily while she was in the high school hallway or bus ramp. Ms. Battle claims that Respondent engaged in those incidents when "everybody was around" including students, teachers, the principal, and assistant principal. Ms. Battle could not say whether any of the people around at the time heard the alleged comments or saw any unnecessary touching. Petitioner did not call any witnesses that verified the alleged comments or touching. The school principal testified that repeated inappropriate comments or touching by Respondent in the hallway or on the bus ramp would have been observed by either the principal, assistant principal, or some other staff member. The school principal, assistant principal, guidance counselor, school resource officer, and the classroom teacher for Ms. Battle each testified that Respondent consistently conducted himself in a professional manner for more than five years. None of those individuals observed the comments or behavior alleged by Ms. Battle. Ms. Battle was uncertain of the frequency of the alleged comments and touching. She first estimated that Respondent made inappropriate comments on approximately 10 occasions but revised that estimate to "about three or four, two or three, somewhere around there." Ms. Battle's testimony was vague and inconsistent regarding the content of the comments allegedly made by Respondent and the specifics surrounding on alleged touching. Lifting the Skirt Petitioner failed to show by a preponderance of the evidence that Respondent touched Ms. Battle unnecessarily by lifting her skirt and committing the other acts and comments alleged by Ms. Battle. Respondent was not present in school at the time of the second alleged touching. At the time of the first alleged touching, Respondent was either not at school or was in the process of leaving school. Ms. Battle claims that Respondent lifted her skirt the first time in the school break room while she was on break at approximately 12:18 p.m. She claims that the second incident occurred later the same day in the office of School Resource Officer sometime after 1:00 p.m. The school principal authorized Respondent to leave school with Mr. Eugene Robinson between 12:00 noon and 12:30 p.m. to perform plumbing repairs in Mr. Robinson's home. Respondent did so and worked on the repairs continuously until after 3:00 p.m. when Respondent left for his second job. Mr. Robinson was well known to the principal. Mr. Robinson had been an employee of Petitioner for over 40 years including 32 years as an administrator. Before retiring, Mr. Robinson was an assistant principal for the ALC. Mr. Robinson had an emergency plumbing problem in his home on June 25, 1999. He knew that Respondent had skills as a plumber and that the school resource officer, Mr. Robinson's son- in-law, had used Respondent as a plumber previously. Mr. Robinson went to the ALC High School between 12:00 noon and 12:30 p.m. on June 25, 1999. Mr. Robinson requested that the principal authorize Respondent to leave campus, and the principal granted the request. Respondent left school immediately with Mr. Robinson. The two drove separate cars to Mr. Robinson's house. After leaving school, Respondent took 15 minutes to stop at his house to pick up his tools and proceeded directly to Mr. Robinson's house where he worked until approximately 3:30 p.m. Respondent then went to his second job. Respondent did not sign the "sign-out" log when he left school on June 25, 1999, in violation of school policy. Although the policy required staff to sign the log when they came and left school, staff occasionally failed to do so. The guidance counselor, for example, was in school from June 22 through June 30, 1999, but failed to sign in. Even if Respondent were present after 12:00 noon on June 25, 1999, Petitioner failed to show by a preponderance of the evidence that Respondent committed the acts alleged by Ms. Battle. The allegations are inconsistent with several aspects of the evidentiary record. Students began summer school at 8:30 a.m. and ended their day at 1:30 p.m. The same classroom teacher had the same students all day. Students took a 15-minute break sometime around noon to get a drink and a snack at the break room. Ms. Battle's class took their break from 12:00 noon until 12:15 p.m. Two other classes took their break at the same time. Each teacher escorted his or her class to the break room. The principal dispensed change at the vending machines that were in close proximity to the break room. Students purchased drinks and food from the vending machine and then went into the break room to eat and drink. The break room door remained open. The principal located himself by the doorway in the hall. The assistant principal and Respondent positioned themselves inside the break room to monitor the students. Ms. Battle testified that the assistant principal gave her permission to remain in the break room for a couple of minutes after the other students left because she was about three minutes late getting to her break. Ms. Battle's regular break was over at 12:15 p.m. Between 12:15 p.m. and 12:30 p.m., Respondent had either already left school with Mr. Robinson or was involved in the process of obtaining approval from the principal and preparing to leave with Mr. Robinson. Ms. Battle testified that she "distinctly remembered" the assistant principal allowing her to remain in the break room after others had left. She also claims that the assistant principal and principal were outside of the break room the first time that Respondent allegedly lifted her skirt. Ms. Battle claims that she could hear the principal and assistant principal talking in the hallway outside of the break room. However, the assistant principal was in Massachusetts attending a wedding and was not present at school on June 25, 1999. Ms. Battle did not tell anyone of the alleged incident in the break room at that time. She returned to her classroom. She later obtained permission from her classroom teacher to go to the principal's office to request permission to go to the Middle School to speak with Mr. Dailey. The principal was not available, and Ms. Battle returned to her classroom. Ms. Battle claims that her classroom teacher later excused Ms. Battle to go to the bathroom. Ms. Battle claims that before she entered the bathroom Respondent signaled for her to come over to him by the office of the School Resource Officer. It was between 1:00 p.m. and 1:30 p.m., and classes for the day were almost over. Inside the office of the School Resource Officer, Ms. Battle claims that Respondent stood between the closed door and Ms. Battle. Ms. Battle claims that Respondent held the door handle with his left hand behind his back and indicated that the elbow of Respondent left arm was bent at more than 90 degrees. However, there was insufficient distance between the door handle and the wall to accommodate Respondent's elbow. Respondent allegedly lifted Ms. Battle's skirt with his right hand, pulled back her underwear with a finger of his right hand, and then released the door handle and placed his left hand on his groin while he looked at her "private area." Ms. Battle claims that she told Respondent her teacher would be mad at her and that she needed to return to class. Respondent allegedly allowed Ms. Battle to leave. Ms. Battle claims she returned to her classroom, sat in the back of the class, put her head down and cried. Ms. Battle claims Respondent relieved Ms. Battle's classroom teacher for the final 15 minutes of class because the classroom teacher had to attend to some other business. According to Ms. Battle, Respondent sat in the back of the classroom. Ms. Battle turned around to look at him and claims that Respondent "made his private area jump" without thrusting his hips or pelvis. Contrary to Ms. Battle's testimony, Ms. Battle's classroom teacher made Ms. Battle sit directly in front of her desk at all times to control her behavior. The teacher never allowed Ms. Battle to sit in the back of the class. Ms. Battle's teacher personally taught class on June 25, 1999. Ms. Battle sat directly in front of her desk at all times. Ms. Battle never appeared disturbed the entire day. The teacher never observed Ms. Battle put her head down on her desk, cry or otherwise appear distraught. Although Respondent did sit in for the teacher occasionally, it was never for more than two or three minutes. Whenever a student is not in class, staff maintain radio contact with each other concerning the student's location. When Ms. Battle left her classroom to go to the bathroom, her classroom teacher notified the front office, and staff monitored her movement by radio. The bathroom is in plain view of the front desk of the administrative offices. The door of the office of the School Resource Officer is visible from the front desk of the administrative office. Staff members would have known by radio contact of Ms. Battle's movement from her classroom and would have monitored her movement closely. Procedural Deficiencies Petitioner's investigation of the charges made by Ms. Battle and Ms. Day suffered from several deficiencies. The investigation did not include statements from either Mr. Dailey, Mr. Robinson, or Ms. Battle's classroom teacher. When Mr. Dailey told Mr. Robinson of the charges against Respondent, Mr. Robinson informed Mr. Dailey that Respondent was working on a plumbing problem at Mr. Robinson's house on June 25, 1999. Mr. Dailey did not tell Mr. Robinson to disclose the information to anyone else and did not relay the information to Petitioner's investigator. A statement from Mr. Dailey presumably would have uncovered the information from Mr. Robinson and led to a statement from Mr. Robinson. When Respondent disclosed in his predetermination conference that he was with Mr. Robinson on June 25, 1999, Petitioner did not obtain a statement from Mr. Robinson. Mr. Dailey was not friendly with Respondent. Their friendship had ended in 1998 over a disagreement concerning a female teacher. Mr. Dailey "banished" Respondent from the Middle School where Mr. Dailey was principal. On Monday, June 28, 1999, Ms. Battle and Ms. Day informed Mr. Dailey of the charges against Respondent. Mr. Dailey interviewed the two together rather than separately. Ms. Battle and Ms. Day had discussed the matter together the preceding weekend and that Monday morning before meeting with Mr. Dailey. On Monday morning, June 28, 1999, Ms. Battle and Ms. Day obtained permission to leave the High School to talk to Mr. Dailey in the Middle School. The guidance counselor at the High School observed the two students sign out. They obtained a pen from Respondent to sign out and did not display any apprehension in Respondent's presence. Rather, they exchanged "high fives." Ms. Battle and Ms. Day completed written statements for Mr. Dailey in the same room. They later gave collective statements to Petitioner's investigator and police investigators.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of the underlying factual allegations; finding that there is not just cause to terminate Respondent's employment; and reinstating Respondent with back pay from the date of his suspension. DONE AND ENTERED this 28th day of September, 2000, in Tallahassee, Florida. DANIEL MANRY 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 September 2000. COPIES FURNISHED: Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. Bruce Harter, Superintendent Lee County School Board 2055 Central Avenue Boulevard Fort Myers, Florida 33901-3916 Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman and Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Background Information The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Dillard High School, Thurgood Marshall Elementary School, and Deerfield Park Elementary School) and for otherwise providing public instruction to school-aged children in the county. Respondent is employed by the School Board as a professional service contract teacher. He has worked as a teacher for the School Board since 1982 (except for a year's leave of absence following the 1994- 1995 school year). He has an unblemished disciplinary record as a School Board employee. Respondent taught music at Dillard High School (Dillard) from 1982 until the end of the 1994-1995 school year, at Thurgood Marshall Elementary School for the 1995-1996 school year, and at Parkview Elementary School from the beginning of the 1996-1997 school year until early 2005, when he was placed on administrative reassignment pending the outcome of an investigation of an allegation of sexual misconduct made against him by a former student, T. H. At Dillard, Respondent was the director of the school band and a popular teacher. Allegations of Sexual Misconduct T. H. graduated from Dillard in 1989. In her ninth, tenth, eleventh and twelfth grade years at Dillard, she was in the school band and a student of Respondent's. T. H., who lived in a fatherless household, looked up to Respondent and considered him to be a "father figure" and "role model." A personal relationship developed between the two. They began conversing with one another on a daily basis, talking "about people and about the world and different things like that." Respondent did most of the talking, with T. H. "listen[ing] to [the] the things he had to say." During "summer band," before the beginning of T. H.'s tenth grade year, the conversations between T. H. and Respondent became more intimate in nature and their relationship evolved into a physical one. The first physical contact they had that summer was in the music library adjacent to Respondent's office, when Respondent walked up to T. H., "embraced" her, and gave her an "[i]ntimate, on-the-mouth kiss." Later that summer, Respondent started driving T. H. home (but not always straight home) in his Toyota Camry after band practice. In the car, there was intimate touching between the two, including Respondent's penetrating T' H.'s vagina with his hand. Thus began the sexual relationship between T. H. and Respondent, which lasted until after she had graduated from Dillard. "[N]umerous times," after school and on weekends, Respondent drove T. H. in his car to various hotels, where they had sexual relations. They also had "dozens" of sexual encounters on school grounds, usually after school hours, in a "little back room," near the school auditorium, that was used as a dressing area. As a result of her having been intimate with Respondent, T. H. was able to observe that Respondent's penis was uncircumcised and that he had a "branded tattoo on his chest." Respondent sometimes set up a video camera to tape his sexual liaisons with T. H. He would also "send [T. H.] home with the camera" on weekends, requesting that she tape herself fondling herself and "and then bring the camera back to him on Monday" (which T. H. did). One day while T. H. was in Respondent's office, Respondent handed her a piece of "notebook paper" on which he had written the following poem: How then, can I tell you of my love? Strong as the eagle, soft as the dove, Patient as the pine tree that stands in the sun and whispers to the wind you are the one!!!![2] On another occasion when T. H. was in Respondent's office, she had a tape recorder with her and asked Respondent to "say something" that she could record. What Respondent said in response to this request was: "I love you baby, suck my dick," and "I love you baby, sit on my face."3 T. H. ended her relationship with Respondent during her first year as a student at the International Fine Arts College in Miami. It was not until 2003, approximately 14 years after she had graduated from Dillard, that T. H. decided to come forward and tell authorities about the sexual relationship she had had with Respondent when she was a student at the school. She had not come forward sooner because she did not have the courage to do so. Only after receiving "church counseling" was she able overcome her fear and become sufficiently emboldened to report what had occurred years earlier between her and Respondent. T. H. first went to the Fort Lauderdale Police Department, but was told that Respondent could not be criminally prosecuted because the limitations period had expired. In January 2005, the School Board's police unit was advised of the allegation that T. H. had made against Respondent and commenced an investigation into the matter, which included interviews with both T. H. and Respondent. On January 28, 2005, Respondent was placed on administrative reassignment with pay pending the outcome of the investigation. T. H. has "hired an attorney to pursue a civil claim against the School Board" for damages she allegedly suffered as a result of her relationship with Respondent when she was a student at Dillard. Allegations of Residing with Students From 1985 to 1987, Respondent resided in Dade County, Florida, with his wife4 and two minor daughters. For at least a portion of that time, two Dillard students stayed with Respondent and his family. One of these students was P. R., who was in the school band. When Respondent learned that P. R. was living in a residence with "no running water [and] no mom or dad," he invited P. R. to move in with him, an invitation that P. R. accepted. "Eventually," Respondent was able to make contact with P. R.'s mother and obtain her approval to "keep" P. R. P. R. lived with Respondent and his family for a year and a half. He moved out after he graduated and joined the military. The other student that stayed with Respondent and his family was C. M. Respondent's oldest daughter and C. M. both played flute in the school band and were close friends. C. M. stayed at Respondent's house on weekends and when school was not in session. C. M.'s mother never had any problem with these living arrangements. Respondent did not notify the School Board that P. R. and C. M. were staying with him inasmuch as he did not know that he was required to do so. Allegations of Corporal Punishment From 1982 to 1985, Respondent administered corporal punishment to students contrary to School Board policy (hitting female students on the hand with a ruler and male students on the buttocks with a paddle). He did not "seek permission from anyone in the [school] administration before administering [this] corporal punishment," nor did he administer this corporal punishment in the presence of another School Board employee, as required by School Board policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment as a professional service contract teacher with the School Board for having had a sexual relationship with T. H. when she was a student of his at Dillard. DONE AND ENTERED this 23rd day of August, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 23rd day of August, 2006.
The Issue Is the Respondent unable to practice medicine with reasonable skill and safety to patients by reason of illness or as a result of any mental or physical condition? If yes, what is the appropriate disciplinary response to that impediment?
Findings Of Fact The Petitioner, in accordance with Chapters 20, 455, and 458, Florida Statutes, regulates the practice of physician's assistants in Florida. The Respondent practices as a physician's assistant in Florida. His license number is PA002355. PRESENT EMPLOYMENT At present, the Respondent works as a physician's assistant for Michael Dulaney, M.D. Dr. Dulaney is a board- certified family practitioner. The Respondent has worked for Dr. Dulaney for approximately one year. Dr. Dulaney has been satisfied with the Respondent's work. Dr. Dulaney has had no reports of problems with the Respondent's conduct reported by patients or other office staff. In particular, Dr. Dulaney does not have any specific knowledge concerning complaints made about Respondent related to sexual misconduct from the period February, 1992 forward. At present, the Respondent's practice in Dr. Dulaney's office is limited to treatment of adults; however, Dr. Dulaney would not be opposed to having the Respondent treat minors and adults. Dr. Dulaney is aware of the reasons for the present restrictions on the Respondent's practice, limited to care of adults. These limits are as had been imposed by the Physicians Recovery Network (PRN) based upon the Respondent's mental health status. The controls that are in place by Dr. Dulaney to limit the Respondent's present practice to adults include an inquiry by office staff when an appointment is made by a patient as to the age of the patient and another check when the patient arrives for the appointment as to the patient's age. The Respondent is also required to check the patient's age before rendering care. The protocol followed by Dr. Dulaney in his practice is to the effect that no female patient is examined by a doctor or a physician's assistant without a second staff member being in attendance. The second staff member would be a female. Should the Respondent not be allowed to provide care to minors in the future, Dr. Dulaney would allow the Respondent to remain as a physician's assistant and treat adults only. HISTORY On or about June 18, 1992, following allegations regarding custodial sexual battery of his 14-year-old stepdaughter, K.B., the Respondent entered into a monitoring contract with the PRN. The Respondent had also sexually abused his six or seven-year-old daughter from his first marriage. The Respondent was sexually abused by male and female siblings as a child. Raymond Pomm, M.D. specializes in general psychiatry, as well as addiction psychiatry. Among other duties, Dr. Pomm is a staff psychiatrist for the PRN. While under the terms of the monitoring contract in connection with the State of Florida Department of Business and Professional Regulation's Impaired Practitioner's Program, Dr. Pomm consulted the Respondent's physician employers on occasion to determine the Respondent's conduct as a physician's assistant. Dr. Pomm never received a report from the employers that the Respondent was acting inappropriately. On these occasions, the employers would indicate that they were satisfied with the Respondent' s work. When the Respondent signed the monitoring contract with the PRN, he agreed not to see patients under 18 years of age; to have a supervising physician report to the PRN on a quarterly basis regarding his behavior. The Respondent's supervising physician was responsible to make sure that patient information forms were handed out to patients to allow the patients to give immediate feedback concerning their perception of the Respondent's behavior. The supervising physician was to review 10 percent of the Respondent's charts on a quarterly basis. The Respondent was to receive ongoing therapy from John Vallely, Ph.D., a psychologist. On December 28, 1993, Dr. Goetz, the Director of the PRN, wrote to the Secretary of the Department of Business and Professional Regulation to advise the Secretary that Dr. Goetz was convinced that the Respondent's impairment seriously effected the public health, safety and welfare. This was followed by action by the State of Florida, Department of Business and Professional Regulation, Board of Medicine, to bring the Administrative Complaint, under Case No. 93-07340, charging the Respondent with being unable to practice his profession as a physician's assistant with reasonable skill and safety to patients based upon his illness and mental status. The Administrative Complaint makes reference to the opinion of Dr. Vallely. The opinion of Dr. Vallely which promoted the complaint was that the Respondent carried an Axis II Diagnosis of Mixed Personality Disorder with Obsessive- Compulsive, Anti-Social and Paranoid Features, and that the Respondent would need long-term therapy. The Administrative Complaint makes reference to a recommendation by Dr. Vallely that the Respondent's practice be limited to patients 18 years of age and older. Dr. Vallely did not testify in this proceeding to render his opinion concerning the Respondent's fitness to practice. Testimony on this subject was presented by Barbara A. Stein, M.D., testifying for the Petitioner. She is board-certified in general psychiatry and forensic psychiatry. In opposition to that testimony, the Respondent presented the testimony of Keith R. D'Amato, Ph.D., who is a clinical and forensic psychologist, who treated the Respondent. The Respondent also presented the testimony of Gini Fort, M.A., in counseling psychology, who worked with Dr. D'Amato in treating the Respondent. The Administrative Complaint makes reference to findings by George Bernard, M.D., who examined the Respondent and diagnosed the Respondent as suffering from pedophilia, opposite sex, non-exclusive type. Dr. Bernard did not testify in this proceeding. The Administrative Complaint makes reference to a determination on July 8, 1993, when the Respondent was evaluated by Gene Abel, M.D., of the Behavioral Medicine Institute in Atlanta, Georgia, in which Dr. Abel recommended that the Respondent not be in a medical setting, where the Respondent had proximity to girls under 18 years of age, nor in proximity to his former victim, taken to mean the Respondent's stepdaughter, until the Respondent had further treatment. Dr. Abel did not testify in this proceeding. Finally, the Administrative Complaint makes reference to the reference by Dr. Vallely, on December 16, 1993, in which Dr. Vallely described the Respondent as "a highly dangerous sex offender with pedophilic desires and attractions". The Respondent was also seen by Michael J. Herkov, Ph.D. at the time the Respondent was seen by Dr. Bernard. Dr. Herkov is a psychologist. Dr. Herkov did not testify in this proceeding. The treatment and evaluations performed by Drs. Vallely, Bernard, Herkov and Abel were all in association with the monitoring performed by the PRN. Although the health care providers associated with the Respondent that have been mentioned in the prior paragraph did not testify in this proceeding, their insights assisted Drs. Stein and D'Amato and Ms. Fort in arriving at their opinions concerning the Respondent's condition. Consequently, it is to some advantage to describe the history of treatment and evaluation by those health care providers, notwithstanding the inability to rely upon their independent judgment in determining the Respondent's present ability to render care with reasonable skill and safety. The Respondent began seeing Dr. Vallely in June, 1992 and received treatment off and on until December, 1993. For the benefit of the PRN, Dr. Vallely indicated that the Respondent carried a diagnosis of pedophilia and mixed personality disorder with obsessive- compulsive, antisocial and paranoid features. Dr. Vallely tried to address these conditions. Other attempts were made by the PRN to assist the Respondent. On December 9, 1992, the Respondent saw Drs. Bernard and Herkov. They diagnosed the Respondent as having pedophilia, opposite sex, non-exclusive type. At that time, according to a report by these health care providers, there was no information indicating that the Respondent was being presently sexually inappropriate with patients or any indication that he would engage in that behavior in the future. The recommendation by Drs. Bernard and Herkov was that the Respondent continue to be restricted in seeing children under the age of 18, be they male or female, until such time as the Respondent's treating therapist felt that the restriction was no longer necessary. The Respondent was initially treated by Dr. Vallely through June 18, 1993, at which time, Dr. Vallely suspended the Respondent's care. At that juncture, Dr. Vallely expressed the view to the PRN that the Respondent was manipulating therapy in attempting to gain closer contact with his stepdaughter. At that time, the Respondent expressed the view to the PRN that he did not believe that he was being heard by Dr. Vallely and that Dr. Vallely was overreacting. The Respondent requested another therapist to resolve this conflict. The PRN recommended that another evaluation be performed by a professional. This led to an evaluation by Dr. Abel in Atlanta, Georgia. The evaluation by Dr. Abel took place on July 8, 1993. Dr. Abel is recognized as an expert in the treatment of child sexual abusers. Although Dr. Abel did not arrive at a formal diagnosis, he summarized his belief of the continuing existence of pedophilia on the Respondent's part and a concern about the Respondent's manifest symptoms of arousal in relation to minor females. That concern was addressed through a penile plethysmophgraphy performed on the Respondent, in which the Respondent evidenced arousal to young girls. In his conclusions, Dr. Abel recommended that the Respondent should not be allowed to treat girls under 18 years of age. The Respondent then returned to receive therapy from Dr. Vallely. The Respondent and Dr. Vallely continued to have conflict concerning the Respondent's relationship with his stepdaughter and the Respondent's intention to remarry his ex-wife. Eventually, the Respondent was expelled from the program administered by Dr. Vallely. This expulsion took place on December 16, 1993 and was followed by the correspondence of December 28, 1993 by Dr. Goetz recommending that the Department of Business and Professional Regulation find that the Respondent's condition seriously effected the public's health, safety and welfare. The Respondent was referred to Dr. D'Amato from the State Attorney's Office. This was in association with the case of State of Florida v. Stephen Allan Newbern, in the Circuit Court of Duval County, Florida, Case No. 92-3347CF CR-C, as agreed to by the Respondent's counsel. The day Dr. D'Amato first saw the Respondent was February 10, 1994. The case described was the case in which the Respondent was accused of custodial sexual battery directed to his stepdaughter, K.B. Following the Respondent's decision to remarry his ex-wife, the Respondent was arrested in association with the aforementioned Circuit Court case, in which he had previously been allowed probation to participate in the program conducted by Dr. Vallely. The reason for the Respondent's arrest was premised upon a report by Dr. Vallely concerning the Respondent's decision to remarry his ex-wife. The Circuit Court case was then disposed of on June 24, 1994, in which an order was entered by the court following the Respondent's plea of guilty to a lesser included offense in Count I, lewd and lascivious act. For that plea, the Respondent had his guilt withheld; the Respondent was placed on community control for a period of two years, followed by eight years probation; and the Respondent was ordered not to have contact with his stepdaughter, directly or indirectly, without consent from his counselor or the Community Control Officer. The Respondent was ordered to pay for his stepdaughter's counseling or treatment through a treatment facility or counselor to which the stepdaughter had been referred, as directed by the Community Control Officer. The Respondent was ordered to continue his psychosexual counseling through Dr. D'Amato, who had substituted for Dr. Vallely. In this connection, the Respondent, in February of 1992, had voluntarily hospitalized himself based upon panic attacks and depression. Subsequently, an investigation was conducted by the State of Florida, Department of Health and Rehabilitative Services and the INS of the Navy; and the Respondent was arrested and incarcerated for 21 days for sexually abusing his stepdaughter. As a consequence, he was referred to the KIDS Sexual Offender Program, in Jacksonville, Florida, and directed to receive treatment from Dr. Vallely. In March or April of 1992, the Respondent was advised by his Naval Preceptor, Dr. Carrierre, to refer himself to the PRN. The Respondent accepted that advice and took the referral in May, 1992 and signed a contract in June, 1992 to monitor his mental health status. The Navy found him guilty of the sex offense and allowed him to remain in the service on active duty until his retirement on October 31, 1992. During this time, he served as a physician's assistant but was limited in his practice to adults only. When the Respondent attempted to reunite with his ex-wife in February, 1993, Dr. Vallely suspended him from the KIDS Program. In June, 1994, the Respondent was accused of violating his probation associated with the case in which he was a participant in the KIDS Program. The allegation of violation of probation was in relation to the Respondent's decision to stay with his ex-wife and stepdaughter in January, 1994. The Respondent was not prosecuted for this violation because he agreed to enter Dr. D'Amato's sexual offender program. In turn, he entered a nolo contendere plea to lewd and lascivious act and had the order entered on June 24, 1994 setting the terms of continued probation. The Respondent received treatment from Dr. D'Amato and Ms. Fort for approximately two years. In his practice, Dr. D'Amato specializes in the treatment of sexual offenders and has treated 500-700 persons with those conditions. Of those persons, two to three percent have been referred for a jail sentence and another two to three percent have been terminated from the treatment program. To deal with the Respondent's pedophilia, Dr. D'Amato conducted an initial clinical interview. Dr. D'Amato performed a number of tests to gain an impression of the Respondent's condition, to include the Minnesota Multiphasic Personality Inventory, the Beck Depression Inventory, the Columbia Sexual Screening Questionnaire, the Jackson Incest Blame Questionnaire, the Wilson Sex Fantasy Questionnaire, the Sexual History Questionnaire, and the Sexual Interest Card Sort. Following the initial assessment, Dr. D'Amato entered the Respondent into a treatment program, which had four levels. Level I was designed to insure safety of the community by restricting movement and by insuring that the Respondent owned up to and took responsibility for the sexual offense that had been committed against his stepdaughter. Levels II and III were devoted to psycho-educational activities, where the Respondent was expected to learn to identify antecedents to the sexual misconduct that had been committed. Level IV was a relapse-prevention process to allow the Respondent to develop a comprehensive plan that could "offshoot" any problems, stresses or arousals that would lead the Respondent to re-offend in the future. During the first phase of the treatment received by the Respondent, an abuse letter was written, a meeting was held with the victim to confront the abuse, history of the abuse was taken, and an apology letter was written. During the second and third phases, the Respondent learned to identify stresses that may lead to problems and to develop empathy for the victim. The emphasis of Dr. D'Amato's program that he administered to the Respondent was cognitive in nature. The program was anticipated to last between two and five years, depending on the person receiving the therapy. Patients in the program are seen in group treatment and, in some instances, receive marital or family therapy individually. The Respondent had polygraphs administered to him to attempt to determine if there was ongoing sexual abuse and to determine if the types of fantasies that the Respondent was entertaining when he entered the treatment program were still in evidence. In treating the Respondent, Dr. D'Amato did not use behavioral therapy to any large extent. This choice was made because having the Respondent undergo polygraphs and looking at the Respondent's psychological assessments which were done over the years, led Dr. D'Amato to believe that the primary problem that the Respondent had was in distorting information. It was observed, through the polygraph examinations, that the Respondent was not showing deviant sexual arousal. Therefore, it was not deemed necessary to offer treatment to deal with that form of problem. It was deemed more important to deal with cognitive restructuring of the Respondent and his view of life and people and interpersonal relationships. The Respondent did receive some behavioral training in his treatment by Dr. D'Amato, referred to as covert desensitization and role playing. Dr. D'Amato believes that cognitive therapy is the best approach to treating pedophilia, non-exclusive type, which the Respondent evidenced. Non-exclusive pedophiles, as defined in DSM-IV, have age-appropriate relationships, whereas fixated pedophiles focus exclusively on children. The Respondent was last seen by Dr. D'Amato in March, 1996. At that time, Dr. D'Amato diagnosed the Respondent as having a mixed personality disorder, NOS., with slight depression, not of a clinical nature, that the Respondent still suffered from post-traumatic stress disorder and pedophilia, non-exclusive type in remission. Dr. D'Amato does not believe that the Respondent needs to undergo further treatment to address the Respondent's condition, in that the Respondent is not showing any active symptoms, has acted in a responsible manner in his work and life, and has integrated back into his family. To require therapy when it is not needed would cause the Respondent to be more resistant, and the Respondent would not grow from the experience, according to Dr. D'Amato. Dr. D'Amato believes that the Respondent has good relapse prevention skills and has shown that he is implementing those skills in his life. Dr. D'Amato relied upon the polygraph examinations to determine whether the cognitive therapy received by the Respondent was successful. In doing so, Dr. D'Amato recognizes that the polygraph measures physiological responses following the subject's answer to a question. Dr. D'Amato did not refer to the prior penile plethysmophgraphy testing to confirm the Respondent's status and did not administer that test. He sees the latter test as being a measurement of sexual response to pictures, which is less important to Dr. D'Amato than the question of whether the Respondent is having sexual fantasies or acting out in a sexually-inappropriate way, which Dr. D'Amato believes the polygraph examination would uncover. Dr. D'Amato has experienced 95 percent success in the treatment of sexual offenders. Nonetheless, he recognizes that this success does not establish that persons who are pedophiles, who have not been known to re-offend, are cured. Dr. D'Amato is not aware of any reports concerning misconduct by the Respondent in treating patients. Dr. D'Amato does not believe that the Respondent should have his practice restricted to adults only. Dr. D'Amato was impressed with the Respondent's ability to deal with stress in relation to a death within the Respondent's family, various legal problems associated with the Respondent's sexual abuse of his stepdaughter, his work load, and the re-unification of the Respondent's family, without committing further sexual abuse based upon the stress. Dr. D'Amato saw the experience which the Respondent had in re-unifying his family as being helpful to his treatment by giving the Respondent the opportunity to deal with the realities of those relationships and to reconstruct those relationships in a positive manner. Dr. D'Amato observed that the Respondent's religious convictions assisted the Respondent in his rehabilitation by sharing the experience with his family and providing a code of conduct to follow. Dr. D'Amato recognized that the Respondent's character structure would not change over time but believed that the Respondent would change his behavior based upon new strategies and coping lessons that he had learned in the treatment. Dr. D'Amato expressed the opinion that if the Petitioner automatically revoked or suspended the Respondent's license to practice as a physician's assistant, the Respondent would not come forward and seek treatment in the future if he experienced a problem, and the result would be more sexual abuse. Ms. Fort expressed the opinion that the Respondent was a low or no- risk candidate for recidivism. Further, she indicated that the Respondent had successfully handled stress related to his older son coming home and financial difficulties. Ms. Fort expressed the belief that given the Respondent's successful completion of therapy, the Respondent could be in close contact with children in private. In performing her evaluation of the Respondent, Dr. Stein spoke to Dr. D'Amato and Ms. Fort concerning the care they rendered to the Respondent. Dr. Stein saw the Respondent on referral from the Physicians Resource Network, formerly known as the Physicians Recovery Network. Dr. Stein examined the Respondent in February, 1996. Dr. Stein's evaluation included an interview with the Respondent and preparation of a history. Dr. Stein also had access to collateral information from other treatment professionals who had seen the Respondent. Dr. Stein contacted individuals who were familiar with the Respondent's professional and private life. Dr. Stein arranged for Flora Zaken- Greenberg, Ph.D., a clinical psychologist, to perform a clinical interview, record review, and psychological testing by use of a WAIS-R, Beck anxiety inventory, Beck depression inventory, MMPI-2, MCMI-III, and Roschach. Dr. Stein took all of these matters into account in preparing a report of her forensic psychiatric examination. That report was rendered on March 9, 1996. Dr. Stein, in her report, and at hearing, expressed the opinion that the Respondent suffers from pedophilia, non-exclusive type, DSM-IV 302.2, and personality disorder, not otherwise specified, which includes narcissistic, antisocial and dependent personality traits. Dr. Stein pointed out that pedophilia is a type of sexual deviant disorder, which lasts for at least six months, in which setting, the individual has strong urges, behaviors or fantasies of having sex with a prepubescent child, and this impairs the life of the pedophile. In a non-exclusive type of pedophilia, the individual may also have relationships with adults. Dr. Stein described the Respondent's personality disorder as being a circumstance in which the Respondent has difficulty viewing and interacting with the world. The Respondent sees the world through a distorted view, thinking in a distorted way, interacting in a distorted way, being impulsive and having a tendency to have mood problems from time to time. Those traits endure and impair him. That disorder does not necessarily mean that the Respondent could not work. In Dr. Stein's opinion, pedophilia cannot be cured and is a disease that has a very high relapse rate, notwithstanding that there are periods in which the pedophile does not have urges or behaviors or fantasies directed to prepubescent children. Dr. Stein holds the opinion that the Respondent will, given his condition of pedophilia, be at greater risk of sexually acting out inappropriately regardless of whether it is in the workplace or elsewhere. Dr. Stein expresses this opinion with the knowledge that the Respondent has learned a great deal from his sexual offender treatment and that the experience that he has had in participating in the treatment has lowered the risk for him to re- offend. Nonetheless, according to Dr. Stein, his psychological testing shows an underlying character structure that creates a potential for sexual deviance, impulsivity, antisocial acts, and impaired interpersonal relations, particularly so when under stress; and that set of circumstances has not changed overtime. Dr. Stein believes that the Respondent should have his practice as a physician's assistant restricted to adults only and the practice monitored. Dr. Stein believes that the monitoring should include biannual polygraph examinations, in which the following questions are asked: (1) have you had sexual feelings towards children under the age of 18 accompanied by your adult patients?; (2) have you concealed any relevant sexual history from your therapist?; (3) have you attempted to access those or other children under the age of 18?. Finally, Dr. Stein believes that the Respondent should participate in a relapse prevention group for the next 12 months and at least at quarterly intervals beyond that point for an indefinite period. She believes that this would assist the Respondent in relapse prevention, to build a repertoire to decrease his risk for re-offending and to protect society from a professional in his position of trust who has a disorder which cannot be cured. Dr. Stein believes that the additional 12-month therapy, followed by quarterly therapy for an indefinite period, is necessary to preserve a degree of continuity and to reinforce the skills achieved by the Respondent in addressing his condition and promotes the further recognition by the Respondent that he knows that he has to answer to people, and that there are external controls in a setting in which his internal controls are not as good as they need to be. The use of a polygraph on a biannual basis would be a means to aid in the process of exerting controls over the Respondent's conduct. Dr. Stein does not believe that it is necessary to revoke or suspend the Respondent's license completely to address his condition and protect the public. From the views held by Drs. Stein and D'Amato and Ms. Fort, it is clear and convincing that the Respondent has a mental condition which effects his practice as a physician's assistant and the ability to render care with reasonable skill and safety to his patients. According to the evidence, the Respondent has performed his practice in an acceptable manner when limited to treating adults only. Dr. D'Amato and Ms. Fort believe that the Respondent could practice as a physician's assistant in contact with children. Dr. Stein disagrees with that opinion. The experts also disagree concerning recidivism rates for pedophiles. Dr. D'Amato and Ms. Fort believe that the rate is low for their program. Dr. Stein does not generally hold that opinion. Given the seriousness of the Respondent's illness and the risk it presents to children, the lack of ability to cure his condition, and the possibility of relapse, however slight, there is a real concern about patient safety should the Respondent be allowed to practice as a physician's assistant treating children. To that end, Dr. Stein's opinion is more compelling when she urges restrictions on the Respondent's practice. Although Dr. D'Amato does not believe that a relapse prevention program is needed for the Respondent, if determined to be needed, he is persuaded that a program should only extend for six months. Having considered the views held by Drs. Stein and D'Amato, a further relapse prevention program of six months provided by Dr. D'Amato, together with quarterly therapy for an indefinite period beyond that point, with biannual polygraph tests of the sort recommended by Dr. Stein, is appropriate to insure that children, who are treated in the office where the Respondent practices, remain safe. No evidence was produced which would suggest that the Respondent should be completely denied the privilege to practice as a physician's assistant based upon concern that he would not proceed with reasonable skill and safety by reason of his mental illness. The restrictions that are discussed above adequately protect the public without depriving the Respondent of his livelihood.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Thaw, it is RECOMMENDED that a Final Order be entered finding the Respondent in violation of Section 458.331(1)(s), Florida Statutes, restricting his practice as a physician s assistant to adults only, requiring the Respondent to undergo an additional six months of relapse prevention therapy, followed by quarterly therapy sessions for an indefinite period and biannual polygraph examinations. DONE AND ENTERED this 27th day of November, 1996, in Tallahassee, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1996. COPIES FURNISHED: Joseph S. Garwood, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Terry D. Bork, Esquire 200 West Forsyth Street, Suite 1100 Jacksonville, Florida 32202-4308 Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street1 Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
Findings Of Fact During the 1993/1994 school year, the Respondent, Alan Davis, was in his 12th year teaching eighth grade science at Meadowlawn Middle School in St. Petersburg, Florida. He is on a professional services contract. He has a good record and reputation as science teacher at the school and no prior disciplinary problems (or even accusations against him.) The Respondent's classroom was located on the east wall of the school building, at the intersection of two interior hallways to the north and west of the classroom. There is a classroom door to the outside to the east, and the entire east wall of the classroom consists of windows looking across a walkway directly onto portable special education classrooms. There are vertical blinds that can be drawn across the windows and closed. The blinds usually are drawn but not closed. There is a classroom door to the hallway to the west of the classroom. Immediately across the intersecting hallway to the north of the classroom is the door to the teachers' lounge. Immediately past the intersecting hallway to the north is the door to the office of the school resource officer. Immediately past the resource officer's office, only approximately 25 feet from the door to the Respondent's classroom, is a suite of offices belonging to the school principal and other school administration personnel. Kim Wilder was an eighth grader at Meadowlawn during the 1993/1994 school year. She was in the Respondent's fourth period science class. Through about half of the year, she enjoyed a good record and reputation as a pupil of the school. Her grades were A's and B's, and she was not a disciplinary problem. However, several people noticed a change in her behavior in the middle of the school year. Her relationship with her parents deteriorated somewhat, and she sometimes displayed an attitude of not caring about family or school. The beginning of these changes in Kim roughly coincided with her friendship with a boy named Gilbert, who was a poor student, both in academics (he had to repeat grades) and in conduct. Gilbert also later began to spread rumors that he and Kim allegedly were sexually active. Such rumors came to the attention of interested and concerned teachers, one of whom alerted Kim's parents. Kim's parents became convinced that Gilbert was a bad influence on Kim and that she would be better off not seeing him. They refused to allow him to visit at their home, and they insisted that she stop seeing him. This created a conflict between Kim and her family. In the course of conversations with some girl friends approximately the end of March or beginning of April, 1994, Kim disclosed that she had been sexually assaulted by the Respondent. Initially, she told one of her friends only that the Respondent had "felt on" and "kissed" her. She told others additional details. But the first three friends she told did not recall any allegation that the Respondent performed oral sex on Kim. In later retellings, Kim added that allegation. In one later retelling, she added the allegation that the Respondent felt her breasts. Kim forbade her friends to tell anyone about her allegations. But one of her friends disclosed the allegations, and school authorities were informed on or about April 8, 1994. When Kim learned that the school authorities were investigating her allegations, she was very upset and angry at the friend who disclosed her confidences. When the school authorities confronted Kim, she maintained that her allegations were true, and the school authorities brought her home from school. Kim's parents were not home but her sister-in-law, who lived next door, was home and spoke with Kim. Based on the sister-in-law's testimony, it does not appear that Kim's statement to her was very detailed. Although Kim and her parents reported that they generally have an open and communicative relationship, Kim refused to discuss the allegations with them when they came home from work. Instead, she referred her parents to her sister-in-law. Through at least August 26, 1994, Kim had not discussed the details of her allegations with her parents. (They have, however, read statements she has written concerning the allegations.) Law enforcement interviewed Kim at her home on April 8, 1994, and memorialized the interview in a written statement. On June 21, 1994, Kim wrote an account of the alleged assault by the Respondent. Kim also recounted the entirety of the alleged assault twice during testimony at final hearing, once on direct and again on cross; parts were repeated once more on redirect. All of these statements are replete with rich detail, making them seem real. However, with one noteworthy exception, the consistent precision with which the details are repeated seems unnatural and could give the impression of being recited from a memorized script. Before her fourth period science class on Friday, December 10, 1993, the Respondent told her that her mother had telephoned the Respondent earlier that morning to inquire about the C on her report card for the second grading period (after getting an A for the first grading period) and that the Respondent had told Kim's her mother that Kim was missing seven assignments. The Respondent told Kim that she could get the assignments, together with the book she needed to do them, after school. (The required book would not be available until after school because the Respondent's classes shared the use of the same books during class.) Meanwhile, in the detailed versions of her allegations, Kim stated that she was jokingly bantering with a friend and the Respondent about whose "man" the Respondent was, as they did from time to time. She stated that, on this occasion, the Respondent informed them that he was "a dirty old man." She stated that she and her friend did not take the Respondent's statement seriously. Kim stated that, after school ended at about 3:50 p.m. on Friday, December 10, 1993, she went to the Respondent's class room to get the make-up assignments. She testified that she would have arrived at approximately 4 p.m. She said the Respondent was straightening desks and that she helped him finish before sitting in one of the desks. She stated that he then asked her if she had come by to see if he really was a "dirty old man." She made an off-hand comment to the effect, "I guess," or "whatever." He then walked to the classroom door and shut it. Several of the witnesses, including her friends and her sister-in-law, testified that, when Kim first told them what happened, she said that the Respondent locked the classroom door. The report of the law enforcement interview on April 8, 1994, also indicated that Kim told law enforcement that the Respondent locked the door. In fact, the classroom door does not lock from the inside. In her June 21, 1994, statement and in her testimony at final hearing, Kim stated that she thought the Respondent locked the door. Kim alleged that, after shutting (and, in the early versions, locking) the door, the Respondent put a poster with a monkey on it over the window portion of the door and dragged an easel with a flip chart in front of the door, apparently to block access to the classroom or, at least, to serve as an alarm to give him some time to react in the event someone tried to enter the classroom. There was indeed a poster of a monkey (or chimpanzee) on display in the Respondent's classroom that year, and there also was an easel in the classroom that would have been at the Respondent's disposal. But, in fact, the classroom door opens into the hallway, not into the classroom, and the placement of the easel in front of the door would not have been very effective. It is possible that it was the Respondent, not Kim, who overlooked the manner in which the door opened. But, even if the classroom door had been locked or blocked, the Respondent's classroom was adjacent to another science classroom, and there is a door between the two classrooms that does not lock. Ordinarily, it would not be uncommon for the Respondent's fellow science teacher, as well as a few students, to be in the adjacent classroom from 3:50 p.m. until as late as 4:05 p.m. In addition, administration personnel in the suite containing the principal's office and the other administration offices generally are occupied until 4:30 p.m., or later, even on a Friday. Custodians also circulated through the building after school (although they generally did not clean the Respondent's classroom until later.) Fortuitously, it has been possible to deduce, from some of the details provided in Kim's allegations, the precise day on which the alleged assault occurred--Friday, December 10, 1993. It so happens that Friday, December 10, 1993, was the last day of the school science fair. There were approximately 200 projects on display in the school gymnasium, which was just down the hall from the Respondent's classroom. Entrants in the fair were required to dismantle and remove their projects after school that day. As a result, although both students and teachers generally leave the school building promptly on Fridays, and fewer after school activities usually are planned for Fridays, more than the normal number of students would have been in the hallway during the time immediately after the end of school on that particular Friday. In addition, the Respondent's fellow science teacher in the connecting classroom adjacent to the Respondent's had arranged with a handful of his students to allow them to dismantle their projects earlier in the day and store them in his classroom. These students would have been in the connecting adjacent classroom between approximately 3:50 and 4:05 p.m. picking up their science projects. Kim alleged that, after securing the classroom door, the Respondent returned to her and asked whether she thought he was a "dirty old man." She stated that, when she answered, "no, I think you are a nice guy," he suggested, "maybe you should go now," and went over to remove the easel and open the door. But, she alleged, when she insisted that she had to stay in order to get her assignments, he again went to the door and repeated the steps he had just taken to secure the door. This time, when he returned to her, he backed her into a corner of the classroom, using gentle pressure on the shoulders, and (in each telling, "putting his arm around her neck") began kissing her. Kim stated that she did not resist the Respondent or call for help because the Respondent was not being violent, and she was afraid that he would become violent if she was not compliant, so she kissed him back. She alleged that he proceeded to lift her ankle-length "peach and black floral print skirt" (which she was wearing with a "black, long sleeve V-neck shirt"), remove her panties (and, in each telling, she stepped out of the panties "with [her] right foot" while he held her panties) and insert his finger into her vagina. She alleged that he pressed down on her shoulders until she was in a squatting position, lay on his back on the floor and positioned his head under her, and initiated oral sex. After this, he allegedly stood her up, and resumed kissing her, while unbuckling his belt and unzipping his pants. She alleged that he took her hand and placed it on his penis. She alleged that, when he removed his hand from hers, she removed her hand from his penis. When she allegedly thwarted his attempt to have intercourse with her, he allegedly turned her around to face the wall, bent her over (somehow, towards the walls she was facing), again pulled up her skirt, and (as best she could tell) again attempted intercourse, this time from the rear (she alleged that she "felt something hard against her vagina"). Then, she alleged, she detected movement from behind her and assumed that he was masturbating and ejaculating because, when she turned around after the movement stopped, he was wiping something off the floor with a yellow towel. (A yellow cloth, from which a piece had been torn or cut, was found in one of the closets in the Respondent's classroom during the School Board's investigation of the allegations. But it was not proven that the cloth which the Respondent allegedly used to clean the floor on the afternoon of Friday, December 10, 1993, had come from the cloth found in the closet in the Respondent's classroom.) Kim alleged that the Respondent apologized to her for what he did and begged her both never to come back to his classroom alone after school and not to tell anyone. She alleged that the Respondent made reference to a teacher who was being disciplined for sexual misconduct with a student 20 years ago and stated that he always would be afraid that she would disclose what he had done. (In fact, such a story had been reported in the local newspapers on December 8, 1993.) Kim alleged that she promised the Respondent she would not tell anyone. According to Kim, after the incident, which lasted a total of 20-30 minutes, she and the Respondent calmly and amicably left the school together. They allegedly exited through the classroom door into the hallway to the west of the classroom, crossed the intersecting hallway, immediately down which is located the door to the teachers' lounge, and continued walking down the hallway. Immediately past the intersecting hallway, they would have had to pass both the office of the school resource officer and the suite of offices belonging to the school principal and other school administration personnel. A little further down the hallway, they would have passed between the school cafeteria and the school gymnasium (the site of the science fair). Just past the cafeteria and gymnasium, they would have come to the door leading to the parking lot. Kim stated that no one saw them and that they did not see anyone on their way out of the building. Kim alleged that, before she left the building to walk home, she watched the Respondent walk across the parking lot and get in his pickup truck. The Respondent testified that, after learning the date on which it was deduced that the assault allegedly occurred, he realized that it would have been impossible for Kim to have witnessed him getting into his pickup truck on the day in question. He testified that he was having mechanical problems with the truck that week and was driving his wife's car across the bay bridge to work after dropping her off at her place of employment in Tampa, where they lived, while his truck was being repaired. He produced a cancelled check and was able to secure a computer printout from the bill he paid for the repairs when he picked the truck up the next day, Saturday, December 11, 1993. Kim also testified that the Respondent left the "monkey poster" on the door covering the window when they left the classroom. But the custodian who cleaned the Respondent's classroom each evening did not recall ever seeing the "monkey poster" anywhere but on the wall. The Respondent denied engaging in any of the alleged inappropriate behavior. He was able to reconstruct that he had bus duty on Friday, December 10, 1993, and would not have returned to his classroom until 4 p.m. He recalled that there was an unusual amount of activity in the hallways, especially for a Friday, but that probably was attributable to the school science fair. He recalled that, as he approached his classroom, he noticed several students in the adjacent connecting classroom with his fellow science teacher. He thinks he saw Kim there, too. In any event, Kim followed him into his classroom shortly after he unlocked it, opened the door and turned on the lights. He remembered that she helped him straighten desks and that he sat at a desk with her to go over the assignments. He did not recall whether he or she actually wrote the assignments down. He then gave her the book she needed, and she left. He testified that the entire process took approximately five minutes and that the door to the classroom never was closed during that time. Kim alleged that, although she never completed the missing assignments, the Respondent raised her grade from a C to a B. The Respondent testified that Kim completed four of the seven missing assignments. The Respondent normally would not either keep the make-up assignments nor, to prevent other students from copying them, return them to the student. Kim alleged that the Respondent gave her special privileges, like library passes, after the assault. But it was not proven that the Respondent gave more privileges to Kim after the alleged incident than before, or that he gave her privileges that he did not also give to other good students like Kim. Kim alleged that the Respondent often complimented her appearance. The Respondent admitted to affirmatively answering occasional direct questions from Kim as to whether she was pretty. He also recalled occasions when he told Kim and other female students that they were "pretty enough already" and did not need to (and should not) comb their hair and apply makeup in class. Kim alleged that, on one occasion, the Respondent commented that a low-cut blouse she was wearing was distracting. The Respondent recalled once reprimanding Kim for wearing a blouse that was revealing and in violation of school dress code. He admitted that he may have told her that it could be distracting to other students. The Respondent admitted to making an inappropriate comment to or about Kim on one occasion. The school assembled in the gymnasium one day for the introduction of a fund-raising campaign that featured a "money machine." The money machine consisted of a transparent booth with dollar bills inside. As part of the fund-raising campaign, students would be allowed to enter the booth while fans blowing air through holes in the floor of the booth blew the dollars bills off the floor and around inside the booth. The student inside had a limited period of time to grab as many dollar bills as possible. When volunteers were requested to demonstrate the "money machine," Kim thought better of it since she was wearing a skirt. The next day, in the Respondent's class, the Respondent asked Kim why she hadn't volunteered. When she answered that she was wearing a skirt and was concerned that air in the booth would have lifted her skirt, the Respondent commented aloud to the class, "that would have been interesting," or words to that effect. The Respondent was trying to be funny but admitted that the comment was not appropriate. It is noteworthy that, when the Respondent was told that Gilbert was spreading rumors to the effect that he and Kim had an intimate sexual relationship, the Respondent warned Kim to take appropriate steps to protect her reputation. It was revealed during the course of the investigation into Kim's allegations against the Respondent that Kim also has made allegations that, during the summer of 1993, she was forcibly raped at two in the morning, in the bathroom of a restaurant, by a 24-year old male acquaintance. Although Kim's mother thought she remembered Kim returning home upset after the alleged incident, she also testified that she may have learned about it after the allegations against the Respondent surfaced--long after the alleged rape. (Kim's mother, who has been terminally ill and on several medications for some time, seemed confused on this point.) Regardless when Kim revealed the alleged rape, both she and her mother agreed that Kim asked her mother not to tell anyone because Kim could "handle it" by herself. Kim did not receive any treatment or counseling for the alleged rape. Kim also did not mention the alleged rape to law enforcement during the investigation into the allegations against the Respondent. Although it is possible that the alleged rape or the Respondent's alleged sexual assault actually happened, both seem improbable. Yet, it is troubling that no obvious motivation for Kim to fabricate the allegations against the Respondent appears from the evidence. It is possible that she was seeking attention. It is possible that her mother's medical condition could have played a role in motivating such action. On the other hand, it could have had something to do with the relationship between Kim and Gilbert. Maybe she was upset with the Respondent for his role, minor as it was, in turning her parents against Gilbert. Maybe she was trying to deflect her parents' attention away from the bad influence that Gilbert might have represented by trying to make the point that acquaintances or even teachers could pose a worse threat. Maybe the alleged rape and the allegations against the Respondent arose from apprehension about how to explain feared consequences of sexual activity with Gilbert, as irrational as it might seem. Maybe there are other possible explanations in the nature of mental or emotional instability. Perhaps the most likely explanation is that Kim was simply making up a story to impress her girl friends and found herself committed to the story when one of them disobeyed Kim's command not to tell anyone. One can only speculate as to what the actual motivation could have been.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order dismissing the charges and reinstating the Respondent with back pay. RECOMMENDED this 1st day of March, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 1st day of March, 1995. APPENDIX TO RECOMMENDED ORDER To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-8. Accepted and incorporated. Rejected as not proven. Accepted and incorporated. First sentence, accepted and incorporated; the rest is rejected as not proven. Accepted and incorporated. 13.-29. Rejected as not proven. Accepted and incorporated. Rejected as not proven that she "volunteered." (She decided not to volunteer.) Rejected as not proven that he told Kim (privately, as opposed to as part of the class). Otherwise, accepted and incorporated. 32.-33. Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13.-17. Accepted and incorporated to the extent not subordinate or unnecessary or argument. COPIES FURNISHED: Keith B. Martin, Esquire School Board of Pinellas County 301-4th Street S.W. Post Office Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Kelly and McKee, P.A. Suite 301 1718 East Seventh Avenue Post Office Box 75638 Tampa, Florida 33675-0638 J. Howard Hinesley Superintendent Pinellas County School System Post Office Box 4688 Clearwater, Florida 34618-4688
The Issue The issues are whether Mr. Verdiner should be dismissed from employment as a continuing contract teacher with the Dade County School Board for immorality, misconduct in office, and gross insubordination and whether his certificate as a Florida teacher should be revoked.
Findings Of Fact Yves Verdiner holds teaching certificate number 464217 issued by the Department of Education. He held that certificate at all times pertinent to the complaints filed against him. Mr. Verdiner is employed by the School Board of Dade County as a continuing contract teacher. He was an industrial arts classroom teacher at Thomas Jefferson Junior High School during the summer of 1983 and during the 1985-1986 school year. The principal at Thomas Jefferson Junior High School was Mr. Eric Parker. The summer of 1983 During the 1983 summer school session, Milagros Jimenez, a seventh grade female student, was assigned to Mr. Verdiner's class. Miss Jimenez was designated a class foreman, which meant that she was responsible for distributing wood supplies. This brought her into more frequent contact with Mr. Verdiner than other students. One day, while talking with Miss Jimenez, Mr. Verdiner used both hands to lift up her blouse and expose her bra. He also made a sexual reference to her, saying that he wanted to "jack off." A few days later, Mr. Verdiner patted Miss Jimenez on the buttocks. On another occasion Miss Jimenez climbed onto Mr. Verdiner's desk to reach some wood on a shelf above his desk. Mr. Verdiner held Miss Jimenez's leg to steady her with his hands on one ankle. When she jumped down from the desk, Mr. Verdiner left his hand in contact with her leg until it reached her vaginal area. During the 1983 summer session, Sonia Pattee was assigned to Mr. Verdiner's class. In the woodshop there is a small tool shed, of a type that is often located in a home backyard. While Miss Pattee was in the shed, Mr. Verdiner entered it, closed the door and hugged Miss Pattee. On another occasion, when Miss Pattee was sitting on one of the desks in the shop class, Mr. Verdiner put his hand on her buttocks while she was moving herself from the desk. On more than one occasion, Mr. Verdiner solicited Miss Pattee to have sex with him in his van. During the 1983 school year, Mr. Verdiner would often use improper language in addressing students during class, using such words as "shit" and "damn" and saying such things as "what the fuck is wrong with you?" or "are you fucking stupid?" After an investigation was made into the allegations of touching students and using improper language, a conference for the record was held with school administrators. Mr. Verdiner was specifically instructed both by his principal and by the district administrator of the Office of Professional Standards for the Dade County Schools that he was not to make physical contact with or touch students, and that he was not to use vulgar or profane words in the classroom. The 1985-86 School Year Mr. Verdiner taught woodshop at Thomas Jefferson Junior High School during the 1985-1986 school year. Catina Pierre-Louis was a student in his class. She was in seventh grade and approximately 13 years old. In December 1985, while in Mr. Verdiner's class, Miss Pierre-Louis received permission to leave the classroom to go to the water fountain outside in the hallway. As she leaned over to drink from the fountain, Mr. Verdiner put his arms around her and rubbed her vaginal area with both of his hands. Miss Pierre-Louis pushed him away by pushing her elbows backwards. Miss Pierre-Louis felt ashamed about what had happened and was afraid to tell her mother and the teachers and principal at school. Three or four days later, Miss Pierre-Louis was standing against one of the tables in the shop class when Mr. Verdiner came behind her and placed his hands on her buttocks and squeezed them. Miss Pierre-Louis reported the incident to her counselor, Miss Mapp and shortly thereafter was transferred out of Mr. Verdiner's class. While in Mr. Verdiner's class, Miss Pierre-Louis often heard Mr. Verdiner using profanity or vulgar language, saying things as "shut the fuck up." During the 1985-86 school year Stephanie Williams was a student in Mr. Verdiner's woodshop class. Mr. Verdiner would rub or pat her back, ostensibly to congratulate her. Mr. Verdiner engaged in this sort of physical touching only with female students, not with any of the male students in the class. While teaching, Mr. Verdiner would use words such as "fuck," "shit," and "damn" commonly during his classes. The Hearing Officer accepts the testimony of the principal at Thomas Jefferson Junior High School that there was awareness among other teachers, students and parents of Mr. Verdiner's conduct which has seriously impaired his effectiveness as a teacher. The Hearing Officer also accepts the testimony of Dr. Gray that Mr. Verdiner's touching of his female students, and his use of indecent language constitutes immorality or acts of moral turpitude, conduct which seriously reduced his effectiveness as a teacher.
Recommendation With respect to Case No. 86-2277, it is recommended that a final order be issued by the School Board of Dade County dismissing Mr. Verdiner as a continuing contract teacher, and with respect to Case No. 88-0598, it is recommended that the teaching certificate held by Mr. Verdiner be permanently revoked. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of September, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1988. APPENDIX The following are my rulings of the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985) Rulings on the proposed findings of fact made in the Amended Proposed Recommended Order of the School Board of Dade County: Covered in Procedural background. Covered in Procedural background. Rejected as unnecessary. Covered in findings of fact 8, 9, 10, and 11. Covered in findings of fact 3-7. Covered in finding of fact 12. Covered in finding of fact 12. Covered in findings of fact 13-16. Covered in finding of fact 18. Rejected as unnecessary. Covered in finding of fact 19. Covered in finding of fact 20. Rulings on Proposed findings of fact of the Commission of Education: Covered in finding of fact 1. Covered in finding of fact 2. Covered in the Procedural background. Rejected as not constituting a finding of fact. Covered in finding of fact 3. Covered in finding of fact 4. Covered in finding of fact 5. Covered in finding of fact 6. Covered in finding of fact 7. Covered in finding of fact 11. Covered in finding of fact 8. Covered in finding of fact 8. Covered in finding of fact 9. Covered in finding of fact 11. Covered in finding of fact 10. Covered in finding of fact 11. Rejected as unnecessary. Covered in finding of fact 14. Covered in finding of fact 15. Covered in finding of fact 17. Rejected as inconsistent with the Hearing Officer's evaluation of the evidence. Rejected as unnecessary. Covered in findings of fact 11, 16, and 17. 24-25.Covered in finding of fact 20. Rulings on proposed findings of fact by Mr. Verdiner: Rejected as unnecessary. Rejected as unnecessary. 3a. Rejected because the Hearing Officer accepts the testimony of Catina Pierre-Louis. 3b. Rejected because the Hearing Officer accepts the testimony of Sonia Pattee. 3c. Rejected because the Hearing Officer accepts the testimony of Milagros Jimenez. 4. Rejected because contrary testimony made in findings of fact 11, 16, and 18 has been credited. COPIES FURNISHED: Frank Harder, Esquire 175 Fontainebleau Boulevard Suite 2A-3 Miami, Florida 33172 Craig Wilson, Esquire 215 5th Street Suite 302 West Palm Beach, Florida 33401 William DuFresne, Esquire 2929 S.W. 3rd Avenue Suite 100 Miami, Florida 33129 Dr. Joseph Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 The Honorable Betty Castor The Capitol Tallahassee, Florida 32399 Karen Barr Wilde, Executive Director Education Practices Commission Room 418, Knott Building Tallahassee, Florida 32399 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street Room 3 Tallahassee, Florida 32399
Findings Of Fact Exception Number 1 is withdrawn by Petitioner. Exception Number 2 is accepted as a matter law. Section 90.803(23), F.S., permits introduction of the affidavit of Chad Johnson proffered as PE-3. Therefore the Conclusions of Law in the Recommended Order, paragraphs 27, 30-35 are modified to the extent they are inconsistent with the legal ruling on admissibility of the affidavit. Further, the Commission adds to Findings of Fact those facts adduced in the affidavit and outlined in Petitioner'S proposed findings of fact, paragraphs 19-27. It concludes these facts are supported by competent substantial evidence in the record, the affidavit of Chad Johnson. Exception Number 3 is withdrawn. Exception Number 4 is withdrawn. Exception Number 5 is withdrawn. RULINGS ON EXCEPTIONS - CONCLUSIONS OF LAW Exception Number 1 is accepted in conjunction with Exception Number 2 to factual findings that, as a matter of law, the affidavit is admissible. Exception Number 2 is accepted, having accepted the facts contained in PE-3, the affidavit of Chad Johnson, that as a matter of law Petitioner has proven that Roy Proctor is guilty of immorality. Paragraph 35 of the Hearing Officer's Recommended Order is rejected.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 5th day of January 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1993. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following constitutes my specific rulings on proposed findings of fact submitted by the parties: Petitioner's proposed findings 1. Rejected, legal argument. 2.-3. Accepted. 4. Rejected, not supported by weight of the evidence. 5.-11. Accepted. 12. Rejected, subordinate to Hearing Officer's findings on this point. 13.-18. Accepted. 19.-27. Rejected, unreliable hearsay. Accepted. Rejected, unnecessary. Rejected, unsupported by weight of the evidence, hearsay. The transcript indicates that the guidance counselor was told by C.J. that Respondent wanted to flick C.J.'s penis. Accepted. 32.-33. Rejected, subordinate to Hearing Officer's findings on this point. 34.-37. Rejected, unnecessary. 38.-40 Accepted. 41.-46. Rejected, subordinate to Hearing Officer's findings on this point. Respondent's proposed findings Respondent's proposed findings were not referenced to any particular transcript citation or evidentiary exhibit. However, the proposed findings have been reviewed, and to the extent possible, are addressed by the foregoing findings of fact. COPIES FURNISHED: Robert J. Boyd, Esquire Post Office Box 26 Tallahassee, Florida 32302 Guy D. Adkins, Esquire 2821-A Bolton Road Orange Park, Florida 32073 Karen Barr Wilde Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practice Services 352 Florida Education Center 325 W. Gaines Street Tallahassee, Florida 32399-0400 Sidney H. McKenzie, Esquire General Counsel Department of Education The Capitol PL-08 Tallahassee, Florida 32399-0400
