The Issue Whether or not Respondent is guilty of misconduct and/or immorality in office (in the nature of suggestive and degrading sexual innuendoes and remarks to several female students) pursuant to Section 231.36(6)(a) F.S. and Rules 6B- 1.001, 6B-1.006, and 6B-4.009 F.A.C. so as to be subject to dismissal by the Nassau County School Board. Although some evidence of other years was presented, the August 8, 1991 Statement of Charges herein covers only the 1990-1991 school year. Accordingly, only evidence from that school year may be considered for purposes of discipline in this proceeding.
Findings Of Fact At all times material, Respondent was a teacher at the Hilliard Middle- Senior High School and the holder of a professional services contract with Petitioner Nassau County School Board. He is certified by the State of Florida in the areas of mathematics, psychology, and broad field social studies. Respondent had been employed by Petitioner for the nine years immediately preceding his suspension for the charges involved in this case. During the whole of that time he received good job evaluations. He has had no prior disciplinary charges against him. On or about May 9, 1991, Petitioner, pursuant to the recommendation of the Nassau County Superintendent of Schools, suspended Respondent without pay. This followed the Superintendent's suspension of Respondent with pay on May 2, 1991. During his employment with Petitioner, Respondent has taught geometry, algebra II, trigonometry, one class of general math, and a class of compensatory mathematics. Respondent has had a practice of greeting his students at random as they enter the classroom each day and while they are taking their seats and settling down to work. At all times material, these greetings were offered in the presence of students of both genders. Respondent teased the boys about sports and commented on the girls' appearance. The comments made most frequently by the Respondent to the football players were that they had not done well in the immediately preceding game. The comments made most frequently by the Respondent to all the female students were, "You're looking good; you're looking fine; you're looking hot;" or, more simply, "you're fine; you're hot." None of the comments were exclusive to any particular female student. All comments were made out in the open, without any physical touching or aggression on Respondent's part. He made these comments with no intended sexual connotation, and no female student ever expressed to him directly that she objected to these greetings either because they sounded sexual in nature, were too familiar, or were made in the presence of the female students' male peers. Generally, Respondent's comments were recognized as kidding and not taken seriously or considered objectionable by the students. There is no evidence that the Respondent's comments delayed the commencement of class, caused disruptive behavior on the part of either the male or the female students who heard them, or inhibited any student learning the academic material. One female student who testified that she found the foregoing practice objectionable was Shannon Lysitt, a student of Respondent's during both the 1989-1990 and the 1990-1991 school years. Ms. Lysitt testified at formal hearing that she "took [these comments] to be sexual but not as in a sexual manner." She considered the comments embarrassing and a display of inappropriate conduct by a teacher but knew Respondent was being friendly and joking. Ms. Lysitt admittedly never told Respondent she felt embarrassed or asked him to stop making such comments. Although she was used to his comments from the previous school year, Ms. Lysitt did not request to be assigned to another class for the 1990-1991 school year. In one isolated conversation, Respondent told Ms. Lysitt that, due to her poor math grades, she would probably wind up as a secretary being chased around a desk by her boss instead of achieving her desired career of psychiatrist. The Respondent denied making that comment specifically, but testified that he had made chiding or derrogatory comments about career plans of college preparatory students to motivate them to do better on tests when they had been doing poorly. By all accounts, Ms. Lysitt was doing all right in Respondent's course but could have done better. Ms. Lysitt's testimony was credible as to what was said, but Respondent's testimony was equally credible as to why he said it. Upon the evidence as a whole, it is found that the Respondent's comment may have been temporarily embarrassing to Ms. Lysitt, and may have, as she testified, made her feel bad or stupid for a short time, but that it did not degrade or humiliate her or adversely affect her classroom performance or overall self-image. Sherry Meziere was a student in Respondent's fourth period general math II class during the 1990-1991 school year. She also was embarrassed by Respondent's compliments to her, but she never told him so. When Ms. Meziere complained to Respondent that her semester grade was a "C" rather than the "B" she wanted, he told her she could stay after school and she would get her "B". Ms. Meziere is a particularly sensitive and shy teenager, and she took offense at the Respondent's comment because she interpreted it as a sexual come-on. Respondent denied having any sexual intent behind his comment to Ms. Meziere. At formal hearing, he explained that Ms. Meziere would have been entitled to a "B" if she had turned in all her homework, as required, but she had not. Because her grade was borderline due to the missing homework, Respondent had meant by his remark to Ms. Meziere that if she would come to the classroom after school and work the homework problems in his presence, he would retroactively give her credit for doing the homework and turning it in and this would accordingly alter her semester grade to a "B". Respondent's explanation for why he took this approach is reasonable: he would not accept students bringing in the homework later from home because it might be done anew or copied from someone else. Perhaps Respondent fell short in not clearly indicating all his reasoning and purpose to Ms. Meziere, but he also had no notice from her that she had misunderstood his offer. On balance, Ms. Meziere's explanation of why she took Respondent's neutral remark sexually is weak. She testified, A: I took it sexually. I don't know. Q: Why did you take it sexually? What is it about it that made you think that because you would agree, wouldn't you, that that could also be nonsexual the way you stated it, correct? A: Yes. Q: So what was it about the way he said it that made you think that it was sexual? A: I don't know. I just didn't feel comfortable with it. Q: But he didn't say anything explicit-- A: No. Q: --about sex or anything like that? A: No. (Exhibit P-2, page 10) Ms. Meziere considered Respondent a good teacher, not really strict, and pretty friendly. She felt he was giving her and one of her girl friends many more compliments of the nature described above in Finding of Fact 5 than he was giving other female students in their particular class. Respondent conceded that perhaps he had complimented Ms. Meziere more than some other female students in her class because he had tried to build up Ms. Meziere's self-esteem while the class was going to and from the cafeteria during the lunch recess which occurred in the middle of that class period, so that she would eat and not diet excessively. When she felt "uncomfortable" about Respondent's offering to see her after school, Ms. Meziere was not aware that Respondent frequently tutored students after school. Shanna Higginbotham, another one of Respondent's female students, confirmed that she had been tutored by him after school on several occasions, without any sexual innuendoes or overtures. Although what Respondent did not do with Ms. Higginbotham is not corroborative of Respondent's testimony that he did not intend his remark to Ms. Meziere to be sexual, it is supportive of his testimony that he was in the habit of having one or more students in his classroom after school. It also supports a reasonable inference that the Respondent's classroom was hardly the place for a private rendezvous. Respondent was approached during an inactive period in one of his classes by a senior mathematics student named Monica Adamczewski, who was simultaneously taking a college-level psychology class in child development at Florida Community College, Jacksonville, Florida. Ms. Adamczewski, knowing of Respondent's background in psychology, addressed a question to Respondent involving Freudian theory and child psychology on the issue of whether or not little children have sexual feelings, as hypothesized by Freud. Respondent responded by describing how he had handled an incident involving his own four year child's masturbation. Although the conversation was conducted in low tones with Ms. Adamczewski and Respondent in their respective desks, another student, Darlene Kelly, came up to Respondent's desk in the course of the conversation and heard only part of the conversation. Ms. Kelly was not aware of the context in which the subject arose, did not approve of certain language Respondent employed in discussing his child's activity, and felt it was an inappropriate conversation for the classroom, but Ms. Kelly also testified that the conversation did not embarrass her. There is conflicting evidence as to whether the foregoing incident occurred during the period covered by the Statement of Charges in this case. It is found that it did not occur during the period of time covered by the charges and accordingly that it cannot constitute grounds for disciplining Respondent in this proceeding. Jessica Smith testified to three incidents that allegedly occurred during the 1989-1990 school year. Because the Statement of Charges against the Respondent is silent as to any allegations of misconduct or immorality that occurred other than during the 1990-1991 school year, these incidents may not be used to discipline Respondent in this proceeding. 1/ Tammy McClamma graduated from Hilliard Middle-Senior High School in May 1990. She was not one of Respondent's students in either her junior or senior year, but she knew him from being around school. The events she described also could not have occurred during the time frame set out in the Statement of Charges and therefore cannot be used to discipline the Respondent in this proceeding. 2/ Respondent acknowledged that he may have been careless and used poor judgment in some of the statements he made to his female students. However, he never intended to harm or embarrass any of them and was simply guilty of allowing himself to get too close to the students as friends rather than maintaining the appropriate distance required of the student-teacher relationship. All the student witnesses, including those who were offended by isolated remarks they regarded as inappropriate, agreed that Respondent has a friendly and jocular manner in and out of the classroom. Respondent's classroom clearly has a "laid back" style. Overall, his students seem to appreciate and enjoy his familiar manner and to learn well in his classes. The consistent testimony of the students was that he is generally well-regarded and "everybody's favorite teacher." Superintendent Marshall opined as a professional educator that the Respondent's effectiveness as an educator had been undermined and eliminated by a continuing pattern of serious misconduct. However, no evidence of lost effectiveness beyond the temporary embarrassment and self-doubt experienced by Ms. Lysitt appears of record, and Mr. Marshall's opinion as rendered at formal hearing was based in part upon incidents outside the dates alleged in the Statement of Charges and also based in part upon the total investigation of this case, which investigation clearly included material not in evidence here.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Nassau County enter a final order dismissing the charges against Respondent and returning him to full duty with all back pay and benefits retroactive to May 9, 1991. RECOMMENDED this 5th day of March, 1992, at Tallahassee, Florida. ELLA JANE P. 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 March, 1992.
The Issue Whether the Education Practices Commission may revoke or suspend John T. Guzalak's Florida teaching certificate, or otherwise discipline Mr. Guzalak, for violations alleged in an Administrative Complaint entered September 21, 1992?
Findings Of Fact The Parties. The Petitioner, Betty Castor, as Commissioner of Education, on behalf of the EPC, is authorized to discipline individuals holding Florida teaching certificates. The Respondent is John T. Guzalak. At all times relevant to this proceeding, Mr. Guzalak held Florida teaching certificate number 615516. Mr. Guzalak is certified to teach English and Speech. Mr. Guzalak's teaching certificate is valid through June 30, 1995. From approximately August of 1987, until June of 1992, Mr. Guzalak served as a teacher for the Okaloosa County School Board (hereinafter referred to as the "School Board"). Mr. Guzalak's Attendance at Choctawhatchee Senior High School. Mr. Guzalak attended, and graduated from, Choctawhatchee Senior High School (hereinafter referred to as "Choctaw"). Mr. Guzalak graduated from Choctaw in 1981. Choctaw is a high school located in Okaloosa County, Florida. Choctaw has approximately 2,000 students, 117 to 120 teachers and a total of approximately 160 employees. While a student at Choctaw, Mr. Guzalak was active in debate and drama. His drama teacher was Mary Jo Yeager. Ms. Yeager was so impressed with Mr. Guzalak's acting ability that she cast him in the male leading role of essentially every play produced at Choctaw while Mr. Guzalak was a student there. Ms. Yeager and Mr. Guzalak developed a friendship and still remain friends. Mr. Guzalak's Employment by the School Board. After Mr. Guzalak had graduated from Choctaw and was attending college, Mr. Guzalak informed Ms. Yeager that he was interested in becoming a teacher. Ms. Yeager, who was planning to retire in a few years, talked to Richard G. Bounds, the Principal at Choctaw, about the possibility of Mr. Guzalak replacing her when she retired. Prior to August, 1987, Mr. Guzalak applied for a teaching position with the School Board as a teacher at Meigs Junior High School (hereinafter referred to as "Meigs"). Ms. Yeager recommended that Mr. Guzalak be hired. Mr. Guzalak was hired to teach at Meigs and began his employment with the School Board in August, 1987. Mr. Guzalak taught speech/drama and English during the 1987-1988 school year at Meigs. The Stage Crafters' Party. In January, 1988, Mr. Guzalak was involved with a local theatre group known as Stage Crafters. The group presented a play in which Mr. Guzalak participated during that month. Mr. Guzalak organized and gave a party for the cast of Stage Crafters after the presentation of the play. The party was held at the home of Mr. Guzalak's parents, where Mr. Guzalak lived until approximately August, 1991. Mr. Guzalak invited all students in his speech/drama classes at Meigs to attend the Stage Crafters' party. Mr. Guzalak invited his students because he thought it would be beneficial for his students to meet and talk to individuals who were involved in drama and who had more experience with acting. Mr. Guzalak had alcoholic beverages available for his guests during the Stage Crafters' party. A table was set up where guests were able to obtain alcoholic drinks. Adults drank alcoholic beverage in front of Mr. Guzalak's students during the party. Alcohol was consumed in the presence of students who were under the legal age required to consume alcoholic beverages. The evidence failed to prove that students who were not legally old enough to drink alcohol who were at the Stage Crafters' party were encouraged or allowed to drink alcoholic beverages. The evidence also failed to prove that underage students were in fact drinking in the presence of Mr. Guzalak or that Mr. Guzalak drank alcoholic beverages in front of any underage students. The testimony of Chris Hutcherson, a student at Meigs at the time of the party, concerning the party was contradicted by the testimony of Aaron Utley, another student at Meigs at the time, and is rejected. Mr. Guzalak testified that the underage students who attended the Stage Crafters' party were mainly relegated to half of the house and the adults and alcohol were located, and the consumption of alcoholic beverages took place, in the other half of the house. Mr. Guzalak testified that this separation of his underage students from the adults consuming alcohol was deliberate and intended to mitigate the extent to which alcohol would be consumed in front of his underage students. This testimony contradicts the purpose for which Mr. Guzalak indicated the students were invited to the Stage Crafters' party and is rejected. Mr. Guzalak simply failed to exercise good judgement when he allowed his underage students to attend a party without also inviting their parents when he knew that alcoholic beverages would be consumed. Mr. Guzalak was counseled by Bobby Smith, Principal at Meigs and Mr. Guzalak's supervisor, after Mr. Smith learned of the party. Mr. Guzalak told Mr. Smith that he had not consumed alcohol in the presence of his students at the party. Mr. Guzalak did admit that alcoholic beverages had been consumed in front of his students, although he minimized the extent to which alcohol had been consumed. Mr. Smith counseled Mr. Guzalak about his lack of judgement in allowing his underage students to attend a party where alcohol was being consumed. Meigs Student-Cast Dinner. In May, 1988, Mr. Guzalak was involved with a play presented at Meigs. The cast of the play consisted of Meigs students. After the play, Mr. Guzalak took the cast of the play to dinner at a restaurant. Some parents also attended the dinner. Mr. Guzalak failed to inform Mr. Smith or anyone else in the Meigs administration about the dinner. During the dinner Mr. Guzalak drank a glass of wine in the presence of the students, who were too young to legally consume alcoholic beverages, and the parents who attended the dinner. After the dinner about five students stayed to talk to Mr. Guzalak after everyone else had departed. When Mr. Guzalak was ready to take the students home who had stayed, he let one of the students drive his automobile. The student driver was 15 years of age at the time. The student driver had a learners' driving permit which allowed her to drive with an adult in the automobile. The student driver took the other students home and then drove to her own home. Mr. Guzalak then drove himself home from the home of the student that had driven his automobile. Mr. Guzalak testified that he had allowed the student driver to drive his automobile because he was concerned about the fact that he had consumed a glass of wine. This testimony is inconsistent with Mr. Guzalak's testimony that he did not give the drinking of the glass of wine with dinner in the presence of the students any thought, one way or the other, and is not credible. Mr. Guzalak allowed the student to drive his automobile that evening because Mr. Guzalak wanted to be accepted by students as a friend and not just a teacher. Consuming alcoholic beverages in front of students is against the policies of the School Board. Mr. Smith and Mr. Guzalak had previously discussed the inappropriateness of a teacher consuming alcohol in front of students as a result of the Stage Crafters' party. Despite this prior warning, Mr. Guzalak again exercised poor judgement and failed to adhere to School Board policy. Mr. Smith was informed of the dinner and spoke to Mr. Guzalak about it. Mr. Smith admonished Mr. Guzalak for drinking alcohol in front of his students. A few days after their discussion, Mr. Guzalak was given a formal, written reprimand by Mr. Smith. See Petitioner's Exhibit 2. Mr. Guzalak was specifically reprimanded for drinking alcohol in front of his students. He was also informed that he was required "to discuss any and all school sponsored activities with [Mr. Smith] before they occur." See Petitioners' Exhibit 2. During Mr. Smith's conference with Mr. Guzalak, Mr. Guzalak expressed concern to Mr. Smith about why it was improper for him to consume alcohol in front of students under the circumstances of the cast dinner. Mr. Guzalak found it difficult to understand why the drinking of a glass of wine with dinner in the presence of students by a teacher was inappropriate. Mr. Guzalak's Employment at Choctaw. Ms. Yeager decided to retire from Choctaw after the 1988-1989 school year. She recommended that Mr. Bounds hire Mr. Guzalak to be her replacement. Mr. Bounds questioned Mr. Smith about Mr. Guzalak's performance at Meigs. Mr. Smith informed Mr. Bounds of the dinner incident when Mr. Guzalak drank a glass of wine in the presence of students and provided Mr. Bounds with a copy of the written reprimand, Petitioner's Exhibit 2, that Mr. Smith had given to Mr. Guzalak. Mr. Bounds, Mr. Guzalak's supervisor at Choctaw, discussed Mr. Smith's written reprimand with Mr. Guzalak prior to, or soon after, Mr. Guzalak's employment at Choctaw. Mr. Bounds cautioned Mr. Guzalak about consuming alcohol in front of underage students. This was the third time that Mr. Guzalak had been cautioned about the inappropriateness of consuming alcohol in front of underage students. Mr. Guzalak was hired to teach at Choctaw. Mr. Guzalak began his employment at Choctaw in August of 1989. Mr. Guzalak taught at Choctaw during the 1989-1990, 1990-1991 and 1991-1992 school years. Part of his duties included coaching the forensic teams. The 1990-1991 School Year--Student Visits to Mr. Guzalak's Home. Mr. Guzalak developed and maintained relationships with several Choctaw students which went beyond the appropriate and acceptable teacher- student relationship. Those relationships were more typical of the relationships that students develop among themselves. During the 1990-1991 school year students would go to Mr. Guzalak's home to visit. Students who went to Mr. Guzalak's home during the 1990-1991 school year included Sarah Stimac, David Barron, Bobby Arnold, Steve Bucci, Patrick Peavy, Eric Gaul, Kevin Mock, Richard "Matt" Schoditsch, David Hodges, Thomas Ignas and Ross Foster. Sarah Stimac, Bobby Arnold, Steve Bucci, Patrick Peavy, Eric Gaul and Kevin Mock were seniors at Choctaw during the 1990-1991 school year. David Barron was a sophomore at Choctaw. David Hodges and Thomas Ignas were juniors at Choctaw. Matt Schoditsch and Ross Foster were also students at Choctaw. Initially, students began going to Mr. Guzalak's home for school- related purposes. They went for assistance from Mr. Guzalak with school subjects, to practice for plays and to practice for forensic team competitions. Students eventually began visiting Mr. Guzalak's home primarily for social reasons. Mr. Guzalak allowed students to come to Mr. Guzalak's home to visit without invitation, without informing Mr. Guzalak they were coming and without asking for Mr. Guzalak's permission. While at Mr. Guzalak's home, students would watch movies, listen to music, play music, play chess, talk and "just hang out." Mr. Guzalak's characterization of student visits as tending to be "academic in nature" is rejected. At some time during the Fall of 1990, Mr. Guzalak invited a group of students who had formed a rock band to come to his home to practice for an upcoming pep rally. Bobby Arnold was one of the first students to be invited to practice at Mr. Guzalak's home. Eventually, the students included Steve Bucci, Kevin Foster and John Randall. A few other students would join in on occasion. At some point, students, including those mentioned in the foregoing finding of fact, would go to Mr. Guzalak's home and just play music as opposed to practicing for some upcoming event. Other students, including Patrick Peavy, Eric Gaul and Kevin Mock would listen. The music sessions were social in nature and were not school related. Bobby Arnold's suggestion that the students and Mr. Guzalak, in addition to playing music, would talk about books is rejected to the extent that Bobby Arnold was suggesting an academic purpose for his visits. As Steve Bucci described the visits, they were "jam sessions." Bobby Arnold went to Mr. Guzalak's home at least five to seven times during the 1990-1991 school year. Steve Bucci indicated that the music sessions at Mr. Guzalak's home took place two times a month and more often if he was getting ready for a talent show. Matt Schoditsch went to Mr. Guzalak's home at least six times. Matt Schoditsch's testimony that he only went to Mr. Guzalak's home for academic purposes and not for social reasons was contradicted by many of the other witnesses in this proceeding, including Mr. Guzalak, and is rejected. Mr. Schoditsch's suggestion that students would "be sitting there reading a book or something . . . Magazines" is rejected. Even Mr. Guzalak admitted that students came for social reasons. David Barron went to Mr. Guzalak's home more than twelve times and less than twenty times. During three to five of those visits by David Barron went to Mr. Guzalak's home, beer was consumed by underage students in Mr. Guzalak's presence. Matt Schoditsch, Kevin Foster, Patrick Peavy and others were at Mr. Guzalak's home at times that David Barron saw beer consumed by underage students in front of Mr. Guzalak. Mr. Guzalak also consumed beer in David Barron's presence and the presence of other underage students. The beer consumed by David Barron was either provided by Mr. Guzalak or Mr. Barron brought his own beer. On one of the occasions where Mr. Guzalak provided beer to David Barron at Mr. Guzalak's home, it was a type of beer that David Barron had not seen before. Mr. Guzalak said that he got the beer when he had gone north to visit his parents. On one occasion Mr. Guzalak drank a glass of wine in front of Kevin Mock. This took place despite the fact that Mr. Guzalak had previously been counselled by Mr. Smith (twice) and Mr. Bounds about the impropriety of drinking alcohol in front of students. Mr. Guzalak offered Kevin Mock a drink of the wine and Mr. Mock took it. Sarah Stimac also went to Mr. Guzalak's home during the 1990-1991 school year. Patrick Peavy started taking Ms. Stimac to Mr. Guzalak's. Mr. Peavy was Ms. Stimac's boy friend during the 1990-1991 school year. Mr. Peavy and Ms. Stimac had started doing things with a group of their friends during the summer of 1989 and by the end of the summer they had developed a relationship. Sarah Stimac began going to Mr. Guzalak's home because Patrick Peavy and his friends, primarily Eric Gaul and Kevin Mock, liked to go there and they went there often. On one occasion during the 1990-1991 school year, Sarah Stimac saw Mr. Guzalak and Eric Gaul smoke marijuana at Mr. Guzalak's home in the guest rest room. They used a "bong", a pipe-like device used for smoking marijuana. Ms. Stimac also witnessed Patrick Peavy and Kevin Mock smoke marijuana at Mr. Guzalak's home. Mr. Mock admitted to Martha Clemons, his girl friend during part of the 1990-1991 school year, that he had smoked marijuana at Mr. Guzalak's home. Sarah Stimac also saw marijuana smoked and alcoholic beverages consumed on at least one other occasion at Mr. Guzalak's home. Patrick Peavy, Eric Gaul and Kevin Mock visited Mr. Guzalak's home more frequently than other students. By their own admissions, they went to Mr. Guzalak's home, on average, from two to three times a week. Contrary to Mr. Guzalak's testimony that Mr. Peavy, Mr. Gaul and Mr. Mock were rarely at his home at the same time, Mr. Peavy, Mr. Gaul and Mr. Mock went to Mr. Guzalak's together or were at Mr. Guzalak's home at the same time often based upon their own admissions. Based upon the weight of the evidence, it is concluded that Mr. Peavy, Mr. Gaul and Mr. Mock went to Mr. Guzalak's home on a frequent and regular basis. Sarah Stimac substantiated the fact that Patrick Peavy went to Mr. Guzalak's home frequently. She went with him approximately six times. She also picked him up at Mr. Guzalak's and she telephoned Mr. Peavy at Mr. Guzalak's home. Mr. Peavy told Ms. Stimac and his parents that he was going to Mr. Guzalak's home more often than he actually went. Mr. Peavy lied to Ms. Stimac and his parents so that he could do other things without Ms. Stimac or so that he could do things that his parents would not let him do if he told them the truth. This gave Ms. Stimac the impression that Mr. Peavy was at Mr. Guzalak's home more often then he actually was. Despite this fact, the weight of the evidence proved that Mr. Peavy was at Mr. Guzalak's home on a frequent and regular basis for non-academic purposes. The 1990-1991 School Year Initiation Night. At some time during the Fall of 1990, an annual event, referred to as "Initiation Night," took place at Choctaw. Groups of students at Choctaw traditionally go out together on Initiation Night. On Initiation Night during the Fall of 1990, Sarah Stimac drove Angie Smallwood to Mr. Guzalak's home at approximately 9:00 p.m. to pick up Patrick Peavy. Mr. Peavy had told Ms. Stimac that he would be there. Mr. Peavy, Eric Gaul and Kevin Mock were at Mr. Guzalak's home and were picked up by Ms. Stimac. After Sarah Stimac picked up Patrick Peavy, he told Ms. Stimac that he had been drinking and that he had smoked marijuana and taken LSD. The evidence, however, failed to prove where these events took place. More importantly, the evidence failed to prove that Mr. Guzalak was present when these events took place or that he was aware of what had happened. After leaving Mr. Guzalak's home, Ms. Stimac and the students she picked up went to a local pizza restaurant and met other students, including Matt Schoditsch. The students then went to a bayou where they built a fire. Eric Gaul had a bottle of spiced rum. At some point during the evening Okaloosa County sheriff's deputies appeared. When they did, despite the cold evening, Patrick Peavy, who had been swinging on a rope swing over the water, fell into the water. Whether Mr. Peavy did so because he was startled (as he testified) or because he was trying to get rid of the marijuana and LSD he had in his pocket (as Ms. Stimac testified) need not be decided. The evidence failed to prove that Mr. Guzalak was directly involved in this incident. It is also not necessary to decide whether Mr. Peavy had drugs in his pocket because the evidence failed to prove that Mr. Guzalak had anything to do with any such drugs. After Eric Gaul admitted that the bottle of spiced rum he had, and which the deputies had found, was his and he had convinced the deputies that he had a stranger buy the rum for him at a liquor store, the students were allowed to leave. Although Mr. Gaul, after getting into Ms. Stimac's automobile, stated that he had been given the rum by Mr. Guzalak, the evidence failed to prove the truth of this hearsay statement. After the incident at the bayou the students went back to Mr. Guzalak's home. The 1990-1991 School Year Senior Prom. The day of the 1990-1991 school year senior prom, Sarah Stimac and Patrick Peavy had a fight and broke off their relationship. They did, however, go to the prom together that night. The prom was held at a local motel. Sarah Stimac and Patrick Peavy rented a room at the motel. At some time before the prom was over, Sarah Stimac and Patrick Peavy went to the room they had rented. Mr. Guzalak came to the room to visit. Mr. Peavy had invited Mr. Guzalak. Mr. Guzalak left after Ms. Stimac gave Mr. Peavy an ultimatum that either Mr. Guzalak leave or she would, and Mr. Peavy asked Mr. Guzalak to leave. Mr. Guzalak stayed approximately five to fifteen minutes. Although there was alcohol in Ms. Stimac's and Mr. Peavy's room, the evidence failed to prove that Mr. Guzalak was aware of the alcohol or that anyone was drinking while Mr. Guzalak was there. The 1990-1991 Spring Break Canoe Trip. During the spring break of April, 1991, a student party was organized. The party consisted of a canoe trip down a local river. The party was not a school-sponsored event. Mr. Guzalak was invited to come on the 1991 canoe trip. Although Mr. Guzalak remembered that he was invited by one or more students, Mr. Guzalak, who had an excellent memory for most details, could not remember the names of any student that invited him. Mr. Guzalak spent most of the trip with Patrick Peavy, Eric Gaul and Kevin Mock. There were about 120 students who participated in the canoe trip. They met at the Choctaw parking lot the morning of the trip. During the canoe trip, underage students were drinking beer. They did so openly and in Mr. Guzalak's presence. Mr. Guzalak was offered beer at least ten times by underage students. Kevin Mock admitted that he drank beer in front of Mr. Guzalak during the trip. Mr. Guzalak did not make any effort to stop any of the underage students from drinking alcoholic beverages. Mr. Guzalak's testimony that there was nothing he could do about students drink beer on the trip is not credible. Mr. Guzalak had a duty and responsibility to attempt to stop underage students from drinking beer. Even if Mr. Guzalak's testimony that he did not attempt to stop the drinking because of the number of students involved was credible (which it is not), his testimony did not explain why he did not say something to those students who were bold enough to offer him a beer and then students who he came into contact with that were drinking beer By allowing the consumption of alcohol in his presence by students who were under the legal drinking age, Mr. Guzalak condoned their illegal behavior. When a teacher allows the violation of one law, it becomes difficult for the teacher to enforce other laws and rules governing student conduct. Mr. Guzalak failed to report the incident to Mr. Bounds or any other administrative employees at Choctaw. Mr. Guzalak should not have just ignored the fact that students, some of whom were his students, had blatantly violated the law in his presence. The 1991-1992 School Year--Mr. Bounds Second Warning. In approximately August of 1991, Patrick Peavy's father spoke to Mr. Bounds about his belief that his son was drinking alcohol and using drugs at Mr. Guzalak's home. The evidence failed to prove what basis, if any, Mr. Peavy had for his suspicions at the time he made his complaint. As a result of the concerns raised by Patrick Peavy's father, Mr. Bounds spoke to Mr. Guzalak. The conversation took place on approximately September 19, 1991. Among other things, Mr. Bounds told Mr. Guzalak that a parent had reported that students were frequenting Mr. Guzalak's home and that alcohol and drugs were being used there. Mr. Bounds told Mr. Guzalak that the parent had followed his child to Mr. Guzalak's home. While Mr. Guzalak admitted to Mr. Bounds that students were frequenting his home, he denied that alcohol was being consumed or that drugs were being used. Mr. Bounds explained to Mr. Guzalak why it was not a good idea to allow students to come to his home. Mr. Guzalak, however, did not agree with Mr. Bounds' concerns over the possible pitfalls of forming personal, social relationships with his students. On September 24, 1991, Mr. Bounds wrote a memorandum to Mr. Guzalak "to reiterate my position regarding our conversation in my office on Thursday, September 19, 1991." Petitioner's Exhibit 3. Mr. Bounds also stated the following in the memorandum: During our conversation you related to me that students from our school were invited and allowed to visit your home for non-academic reasons. Furthermore, you related to me that students from our school are not discouraged by you to establish a personal friendship with you. These personal friendships are encouraged by your participating in non-school related activities. You are hereby notified that all future contact with students from our school should be exclusively of a professional and academic nature. Moreover, meetings with our students should be held on our school property exclusively unless express permission is obtained from me. Petitioner's Exhibit 3. Mr. Bounds also arranged for Mr. Guzalak to meet with Annette Lee (formerly, Annette Francis), Personnel Director of the School Board. Ms. Lee, who was Assistant Superintendent, Human Resource Division, at the time, met with Mr. Guzalak. On October 9, 1991, Ms. Lee wrote Mr. Guzalak a letter memorializing this meeting and provided him with a copy of a document titled "How to Use Common Sense and Professional Judgement to Avoid Legal Complications in Teaching," a form containing some School Board expectations for teacher conduct. See Petitioner's Exhibits 4 and 5. Ms. Lee also discussed the inappropriateness of Mr. Guzalak's behavior and stressed to him the importance of maintaining a professional relationship with students. Mr. Guzalak again admitted that he had developed friendships with some of his students and that he had seen them on occasion socially. Among other things, Ms. Lee stressed the following portions of the "How to Use Common Sense and Professional Judgement to Avoid Legal Complications in Teaching" form she had provided to Mr. Guzalak: Interaction with Students: Maintain a professional barrier between you and students. You are the adult, teacher and the professional; act like the expert not like another one of the "kids." . . . . 3. Refer students to the appropriate resource person for counseling and/or discussions about personal matters. . . . . 5. Do NOT discuss your personal life or personal matters with students. Do NOT discuss your husband, boyfriend, dates or controversial issues with students. . . . . 10. Chaperone only school sponsored functions. Do NOT socialize with students. If you chaperone a field trip, put in writing what your responsibilities will be. Do NOT drink alcoholic beverages in front of students. Do NOT take children home with you. . . . . C. Reputation in the Community. . . . . Communicate with parents and document your communications. Dress and act appropriately but professionally. You are a role model in the community as well as in the school; be a good example for students. Use common sense and good judgement. Ask yourself how someone else could perceive your comments or actions. Ask yourself if your comments or actions could be taken out of context and/or misinterpreted. Avoid putting yourself in a position where you have to defend, explain, or justify your behavior or actions. Avoid putting yourself in a position where it's your word against another person's word. . . . . Petitioner's Exhibit 5. Continued Student Visits to Mr. Guzalak's Home. Mr. Guzalak was very concerned about what Mr. Bounds had told him about students coming to his home. Mr. Guzalak thought that he was being watched (by a parent) and he was concerned because some of the allegations about alcohol and drug use were true. Initially, Mr. Guzalak told students who dropped by or who asked if they could come by, not to come or that they could not stay. For example, Mr. Guzalak told Thomas Ignas and David Hodgson they should not come to his home. On at least one occasion, however, Mr. Guzalak allowed students to visit him at his home during the 1991-1992 school year after Mr. Bounds had instructed Mr. Guzalak to stop such visits. The incident took place during the first three months of 1992. Aaron Utley was told to come to Mr. Guzalak's home by either David Hodges or Thomas Ignas. When Mr. Utley arrived at Mr. Guzalak's home, Mr. Hodges and Mr. Ignas were there with Mr. Guzalak. There were empty beer cans on the coffee table. Mr. Hodges was drunk. Mr. Guzalak did not request that any of the students leave. The weight of the evidence failed to prove, however, that alcohol was consumed by Mr. Guzalak in front of the students or that the students consumed alcohol in front of Mr. Guzalak. The Florida State University Trip--September, 1991. At some time after Mr. Guzalak spoke to Mr. Bounds in September 1991, Mr. Guzalak took a group of students who were participating in the forensic program to Florida State University in Tallahassee, Florida, for a forensic competition. Among others on the trip were Chris Hutcherson, Mark Bradshaw, David MacCarroll and Josh Mickey. These Choctaw students stayed in the same motel room while on the trip. One evening, Mark Bradshaw, David MacCarroll and Josh Mickey came into the motel room where they were staying and smelled marijuana smoke. Mr. Hutcherson was in the room. Mr. Hutcherson had smoked marijuana just before the other students came into the room. Mr. Guzalak came into the motel room shortly after the students arrived and he smelled the marijuana smoke also. Mr. Guzalak asked what was going on, but no one admitted anything at that time. At some point during the trip, Chris Hutcherson admitted to Mr. Guzalak that he had smoked marijuana in the motel room. At no time did Mr. Guzalak report Chris Hutcherson's admission to Mr. Hutcherson's family, Mr. Bounds or any other administrative official. Nor did Mr. Guzalak take any disciplinary action against Mr. Hutcherson. Failing to report the use of illicit drugs was against school policy. Mr. Guzalak did not even explain to Chris Hutcherson why he should not have been using marijuana. Instead, Mr. Guzalak told Mr. Hutcherson that he had put Mr. Guzalak in an untenable position by his actions. Because Mr. Bounds had spoken to Mr. Guzalak only a few days before this incident, Mr. Guzalak's concern was not for Mr. Hutcherson or even the forensic team--"[i]t was for myself." See line 11, page 595, Transcript of the Final Hearing. Mr. Guzalak, by his use of marijuana and alcohol with students prior to this incidental, had placed himself in a position of action in a manner similar to that of Mr. Hutcherson. Therefore, it became difficult for Mr. Guzalak to carry out his responsibility as a teacher to report Mr. Hutcherson's admission. The Pensacola Trip--November, 1991. In November, 1991, the Choctaw forensic team went to Pensacola, Escambia County, Florida, to participate in a competition. Since the competition was out of Okaloosa County, students were prohibited by School Board policy from driving their own vehicles. Students who participated in the competition were required to have their parents sign a form granting permission for their child to travel on the trip. See Respondent's Exhibit 1. On the permission form it indicated that "students' may not drive themselves to out of county school-sponsored activities . . . ." The students who were going on the Pensacola trip were told to be at Choctaw at 6:15 a.m. They were scheduled to leave at 6:30 a.m. Chris Hutcherson, who was to participate in the Pensacola competition, did not want to get up as early as he would have to arise to be at Choctaw at 6:15 a.m. Therefore, Mr. Hutcherson asked his mother, Sharon Philbrook, if he could drive his automobile to Pensacola. She told him no. She also spoke to Mr. Guzalak who confirmed the School Board policy that students were not allowed to drive their own vehicles on the trip and that transportation would be provided for students for the trip. The morning of the Pensacola trip, Ms. Philbrook found a note from Chris Hutcherson indicating he had taken his stepbrother's automobile despite her instructions to the contrary. Ms. Philbrook reported the incident to Mr. Bounds who suggested that she go to Pensacola and get Mr. Hutcherson. She did so. Upon arriving at the competition site, Ms. Philbrook introduced herself to Mr. Guzalak and explained what had happened. She also told him that she had reported the incident to Mr. Bounds and that Mr. Bounds wanted Mr. Guzalak to telephone him. Mr. Guzalak was very upset about what Ms. Philbrook told him and told her he wished she had not telephoned Mr. Bounds. In light of Mr. Bounds' admonishment of Mr. Guzalak in September and Chris Hutcherson's admission to Mr. Guzalak that he had smoked marijuana on the Florida State University trip (which Mr. Guzalak had not reported), Mr. Guzalak's reaction is understandable. Mr. Guzalak's reaction and the other evidence presented by the EPC concerning this incident, however, failed to prove that Mr. Guzalak was responsible for Chris Hutcherson's violation of School Board policy against students driving their own vehicles out of the county. As a result of Mr. Hutcherson's actions, Mr. Guzalak informed Mr. Hutcherson that he could no longer travel with the forensic team. Mr. Hutcherson's testimony concerning whether Mr. Guzalak told him that it was okay to drive his own automobile to Pensacola was not credible and is rejected. The Rush Concert--February, 1992. In February, 1992, Mr. Guzalak was responsible for the production of a play at Choctaw. During the week before the play was to begin, Mr. Guzalak cancelled a rehearsal. The rehearsal was cancelled because Mr. Guzalak and several students involved in the play wanted to attend a concert by a musical group, Rush, in Pensacola. The evidence failed to prove that Mr. Guzalak went to the concert with any students from Choctaw, although he did see and speak to at least one student at the concert. The evidence failed to prove that Mr. Guzalak acted improperly or violated School Board policy in cancelling the rehearsal. Matt Schoditsch's Party--February, 1992. On a Friday evening in February, 1992, Mr. Guzalak spoke to Matt Schoditsch on the telephone. Mr. Schoditsch invited Mr. Guzalak to come to his home. Mr. Schoditsch told Mr. Guzalak that there would be other students at his home, students that Mr. Guzalak knew, and that they would be grilling food. Mr. Guzalak knew that Mr. Schoditsch was having a student get-together. Mr. Guzalak's and Mr. Schoditsch's testimony that Mr. Guzalak was invited and came to Mr. Schoditsch's home only to discuss his participation in a play is not credible. The weight of the evidence proved that Mr. Schoditsch invited Mr. Guzalak for social reasons, and that Mr. Guzalak accepted the invitation for social reasons. Mr. Guzalak accepted the invitation and went to a student's house contrary to Mr. Bounds' directive to him and contrary to Ms. Lee's advice. Mr. Guzalak testified that he had assumed that Mr. Schoditsch's parents would be there. Mr. Guzalak also testified that it was not until after students starting showing up with beer that he realized that Mr. Schoditsch's parents were not there. This testimony is not credible. In light of Mr. Bounds' directive, which Mr. Guzalak indicated he was very concerned about, a reasonable person would have inquired. Additionally, a reasonable person, especially a teacher and one who had previously been accused of being too friendly with students, would seek out a student's parents soon after arriving at their home to introduce himself or to say hello if the teacher thought the parents were home. Even if Mr. Guzalak did not know that Mr. Schoditsch's parent would not be home before he arrived, he should have realized soon after arriving that they were not there and left. Shortly after arriving at Mr. Schoditsch's home, Mr. Guzalak saw students start to arrive with beer which they began drinking. According to Mr. Guzalak and Mr. Schoditsch, Mr. Guzalak expressed concern to Mr. Schoditsch about students drinking in front of him. They also testified that Mr. Schoditsch attempted to stop the drinking, but too many students started coming, and there was too much beer. This testimony is not credible. According to Mr. Barron, who also attended the party, there were only fifteen to twenty people at the party. If Mr. Schoditsch had really wanted to, he could have stopped the drinking. Mr. Schoditsch had no intention of stopping the beer drinking. And Mr. Guzalak did not expect him to. Even after Mr. Guzalak saw students drinking beer he did not leave immediately. According to his own testimony, he stayed another twenty-five to thirty minutes after he saw students drinking and even took time to go speak to a student, Jodie Brooks, before leaving. The weight of the evidence failed to prove whether Mr. Guzalak drank alcohol while at Mr. Schoditsch's home. Although Mr. Barron thought Mr. Guzalak was drinking a mixed drink because he was drinking out of Mr. Schoditsch's cup or glass, Mr. Barron did not testify about how he knew that Mr. Schoditsch was drinking a mixed drink. Use of Profanity. It is against the policy of the School Board for a teacher to use profanity in the presence of students. Mr. Guzalak used the term "fucking" in front of several students when he became angry about their use of squirt guns on a forensic competition trip. The weight of the evidence failed to prove that Mr. Guzalak used profanity in the classroom. Supervision of Students on Trips. The weight of the evidence failed to prove that Mr. Guzalak failed to provide adequate or required supervision of students while on school trips. Mr. Guzalak's Resignation from the School Board. Ultimately, several teachers became aware of various rumors about Mr. Guzalak and some of his inappropriate behavior with students. Those comments were reported to Mr. Bounds, who spoke to a few students and then reported the problem to Ms. Lee. The Superintendent of Okaloosa County Schools met with Mr. Guzalak in March 1992, and discussed the various allegations against him. Mr. Guzalak subsequently resigned, effective at the end of the 1991-1992 school year. Credibility of the Witnesses. Mr. Guzalak and the students who were most involved in the incidents at issue in this proceeding denied that most of the more serious accusations against Mr. Guzalak are true. In addition to denying the accusations against him, Mr. Guzalak also suggested that he is the victim of unfounded rumors. Finally, Mr. Guzalak questioned the credibility and motives of some of the witnesses who testified in this proceeding. The denials of Mr. Guzalak and those students who supported his version of events have been rejected. Based upon the weight of the evidence, Mr. Guzalak's testimony was not convincing. The denial of the accusations by several (but not all) of the witnesses called by Mr. Guzalak was also not credible and has been rejected. Many of those witnesses are young men who have developed a close relationship to Mr. Guzalak. They consider Mr. Guzalak to be their "friend." Their testimony reflected their desire not to betray their "friend" and has been rejected in large part based upon the weight of all of the evidence. The efforts to suggest that Mr. Guzalak is merely a victim of rumors also failed. Rumors were caused, in part, because of the perception that Mr. Guzalak was different or eccentric, and, in part, because of the incidents described in this Recommended Order. While there were no doubt rumors concerning this matter and Mr. Guzalak, the incidents which have been found to have occurred in this Recommended Order are based upon the specific knowledge of those witnesses found to be credible. Many of those incidents were confirmed or substantiated by more than one witness. Finally, the efforts of Mr. Guzalak to discredit some of the witnesses also failed. Most of those efforts were directed at Sarah Stimac, Chris Hutcherson and Aaron Utley. The testimony of Ms. Stimac, Mr. Utley and most of the other witnesses called by the Petitioner was credible. It is true, however, that Mr. Hutcherson's testimony contained inconsistencies and that Mr. Hutcherson evidenced an extremely bitter and judgemental attitude against Mr. Guzalak. Consequently, Mr. Hutcherson's testimony has not been accepted except to the extent that it has been corroborated by other evidence. Attacks on Ms. Stimac's credibility are rejected. The suggestion that Sarah Stimac was not credible fails to consider, among other things, the fact that Ms. Stimac's actions in this matter were taken at some personal expense and aggravation. Mr. Guzalak, during the investigation of this matter by the EPC, allowed several students to read confidential statements that Ms. Stimac and other students had given during the investigation. He did so without regard to the consequences to Ms. Stimac or the other students. As a result, Ms. Stimac has faced hostility and ridicule from those misguided students who believe that not telling, or "ratting," on a friend is admirable. Despite such hostility, Ms. Stimac refused to compromise her integrity. The weight of the evidence proved that other students, such as Aaron Utley and David Barron made the same choice that Sarah Stimac made. Rather than lacking credibility, Ms. Stimac's testimony, Mr. Barron's testimony, and the testimony of most of the other students who spoke out about Mr. Guzalak's inappropriate conduct is admirable. The Impact of Mr. Guzalak's Actions on His Ability to Perform His Duties Effectively. There was no direct evidence to prove that Mr. Guzalak was not effective in the classroom. Most of the witnesses agreed that Mr. Guzalak was very effective in the classroom. Several of the witnesses spoke of Mr. Guzalak's intelligence and ability with some admiration. Unfortunately, Mr. Guzalak, by his own admission and based upon the facts presented in this case, has evidenced a lack of the judgement necessary for him to be entrusted with the education of young people. This fact is based upon the nature of the improper acts which Mr. Guzalak has been found to have committed in this case and by his attitude about the warnings he received from Mr. Smith, Mr. Bounds, Ms. Lee and even Mr. Guzalak's coworkers. A teacher that drinks alcohol in the presence of students and provides alcohol to, or condones the use of, alcoholic beverages by students has lost his or her effectiveness as a teacher because of the high standard of conduct expected of teachers. A teacher that uses marijuana in the presence of students or allows students to use marijuana in his or her presence has also lost his or her effectiveness as a teacher. Mr. Guzalak's conduct was, therefore, contrary to the conduct expected of him by the School Board and the community. Mr. Guzalak's conduct is sufficiently notorious in the community that he has lost his effectiveness as a teacher. Mr. Guzalak's inability to follow the directions of his supervisors has also reduced his effectiveness as a teacher. Mr. Guzalak probably has begun to take too much stock in the praise he has received concerning his intelligence and abilities. He has begun to believe his "reviews." As a result, Mr. Guzalak believes that he knows more about how to be an effective teacher than his supervisors and fellow teachers. Mr. Guzalak was asked during the hearing why he had a problem with Mr. Bounds' directive concerning his student friendships. Mr. Guzalak's response, which evidences his attitude about the appropriate role of a teacher with his or her students, was as follows: Because I was used to the idea at that point of having some social contact with students. It was important to me. I was, basically, disturbed because I felt that Richard Bounds was asking me to suddenly make some sort of major capitulation, not in my life-style, but in my mode of thought, in the way I viewed my relationship with students. He wanted me to be an authoritarian clone, if I must. Lines 18-25, Page 627 and Lines 1-2, Page 628, Vol. IV of the Transcript. Additionally, Mr. Guzalak answered the following questions: Q. [Mr. Bounds is] your principal. Shouldn't he be allowed to tell you how you should behave with your students? A. No. Q. He shouldn't be able to tell you how you conduct yourself with your students? A. No. Q. Why not? A. Because I'm an adult and because I'm a professional. And I'm capable of making those decisions on my own. . . . . Lines 17-25, Page 628 and Lines 1-2, Page 629, Vol. IV of the Transcript. Rather than being an "authoritarian clone," Mr. Guzalak attempted to reach some of his students by being their friend on their level. To some extent, he was influenced by Ms. Yeager, who developed friendships with her students. Ms. Yeager, however, was more mature, married, had a family and had been teaching for some time. As Ms. Yeager put it: . . . . Of course, I have an advantage, being an old, married woman. I mean, I had a husband. I had a family. I had a track record when I came here, Ms. O'Sullivan. I taught seven years junior high and two more years in high school. So I think age -- Not all people are respected because they're older, as you know. But, I'm saying I sort of had an edge there on John [Guzalak], plus experience. Lines 19-25, Page 375 and Lines 1-2, Page 376, Vol. III of Transcript. More importantly, Ms. Yeager, by her actions, her character and her good judgement, was able to develop a certain level of friendship with her students while maintaining her distance and her professionalism. Mr. Guzalak has not evidenced the ability to do the same because of his lack of judgement and his inability to heed the advice and experience of his supervisors and peers.
The Issue Whether the Respondent engaged in sexual misconduct with and S.L. when they were students at a district high school, and should be terminated for violation of Volusia County School Board Policies.
Findings Of Fact The Petitioner is the School Board of Volusia County. The Petitioner is charged with the operation of the public schools in Volusia County to including directing, controlling, and disciplining teachers employed to teach in those schools. The Petitioner has entered into contractual agreements concerning the discipline of its teachers. The instant case arises from Petitioner's execution of its duties to direct, control and discipline a teacher whom it had employed. The Respondent is Reuben Mordecai, Jr., who was employed as a classroom teacher and athletic coach at Mainland High School by the School Board of Volusia County. The Respondent had been employed as a classroom teacher and athletic coach for girls' basketball and track teams since 1989. On or about September 6, 2000, L.G., a female student at Mainland High School, alleged that the Respondent spoke to her in a sexually explicit and improper manner. On or about September 7, 2000, L.G. further alleged that the Respondent had touched her in a sexually inappropriate manner. These allegations were reported to the Board's Department of Professional Standards and to the Daytona Beach Police Department. Pursuant to policy, the Board limited its interviews of the alleged victim and delayed its investigation of the incident pending resolution of any potential criminal charges. While awaiting further investigation, the Board initially reassigned the Respondent to a non-instructional position in Facilities Maintenance Department. He was in this position from September 11, 2000, until the Board transferred him to the Educational Development Center in August 2001. After the police had finished their investigation, the Board conducted an investigation into the allegations. Based upon its investigation, the Board suspended the Respondent without pay and initiated termination proceedings against him. While the case was pending, the Board became aware of allegations made by S.L., a former student of the Respondent, who also alleged that he had made improper sexual comments to her and had improperly touched her. The charges against the Respondent were amended to include these allegations. S.L. and L.G. knew one another and had a friendly relationship with one another both in and out of school. The essence of S.L.'s allegation was that, while she was a student at Mainland in 1998, the Respondent let her use his coaching office in the morning to make telephone calls to her boy friend who was not in school; that during these calls, the Respondent was present on more than one occasion. The Respondent talked to her about having sex with his wife, talked about sexual matters with her, and on one occasion kissed her neck and fondled her buttocks and thighs. S.L. testified that she said nothing to the Respondent about his conduct and left for first period class. Thereafter, she stopped going to his office. S.L. testified that she reported this to Susan Lewis, a teacher at Mainland, but did not identify herself as the victim. She also testified that she reported the Respondent's actions to Walter Brunson and Rose Rowland, the assistant principal. Mr. Brunson was called to testify, but not asked if he recalled S.L.'s mentioning this to him. Ms. Rowland was asked if she recalled S.L. having reported this incident to her. She did not remember S.L. telling her about an incident involving inappropriate touching or speech by the Respondent. The Respondent denies having touched, kissed, or spoken to S.L. in an inappropriate fashion. He did not remember her being in his class, although he accepted that school records reflected that she was enrolled in one of his classes. I do not find the testimony of S.L. credible. L.G. testified that she had been a member of the girls' track team and the following year had been an assistant manager for the football program. She stated that she and the Respondent had made bets about various things, the outcomes of meets, individual performances, etc. The loser had to buy the other a soda or snack. They also discussed various matters, including her relationships and school. She stated that at some point, their discussions included sexual content. She stated that he had observed her in track shorts and commented on the imprint of her vagina. With regard to the allegations of improper touching, she stated that they had commenced a discussion about her boy friend who was bothering her. During this discussion, he discussed having had sex with his ex-wife. This alleged encounter between L.G. and the Respondent moved from the bench outside the gym, to the Respondent's classroom, where L.G. was going to wait for her ride to pick her up and the Respondent was going to grade papers. While in the classroom, L.G. testified that she was playing with the computer and a discussion occurred which led to a bet about the definition of oral sex. She stated that she wrote her answer on a piece of paper and gave it to the Respondent, who said it was wrong. Because she lost the bet, he wanted her to pull her pants down and show him her vagina. She testified that she said okay, and pulled down her shorts. L.G. testified that he asked her to sit on the front of his desk and spread her legs, which she did. When he touched her vagina, she jumped down, pulled up her shorts and left. L.G. did not explain why she abruptly ended the encounter when she had freely engaged in all of the previous conduct when refusing earlier would have been much easier both physically and emotionally. She testified that she did not initially report the incident because she was scared; however, her fear did not keep her from participating in the acts leading up to the touching. L.G. testified that she continued to go to school, but people asked her if she was okay. She assumed something about her manner was different. The Respondent asked her in the auditorium if she was okay, and she said she was. She stated she went and sat by herself, and Mr. Brunson came and asked her if she was okay. He asked her about rumors that were circulating in the school that the Respondent had said inappropriate things to her. L.G. denied having spoken to anyone about the alleged events prior to Mr. Brunson's speaking to her. See Page 82 of the Transcript. No one could have overheard L.G. and the Respondent. It is highly doubtful that the Respondent told anyone about the alleged events. L.G. says that she did not talk to anyone about the incident until several weeks after it occurred when she told her boy friend, R.M., about it. See page 94 of the Transcript. This contradicts her testimony on Page 82. The Respondent denies having made the statements attributed to him or touching L.G. I do not find the testimony of L.G. credible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That no action be taken against the Respondent. DONE AND ENTERED this 2nd day of July, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 2002. COPIES FURNISHED: Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302 Thomas Gonzalez, Esquire Thompson, Sizemore & Gonzalez 501 East Kennedy Boulevard, Suite 1400 Post Office Box 639 Tampa, Florida 33602 William E. Hall, Superintendent Volusia County Schools Post Office Box 2118 Deland, Florida 32721-2118 Charlie Crist, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact Respondent, Michael B. Smith (Smith), has been continuously employed as a teacher by Petitioner, School Board of Dade County (School Board) since 1977. During the 1985-86 school year, Smith was employed under a continuing contract as a work experience teacher at Miami Norland Senior High School. The Assault and Loan Among the students in Smith's second period work experience class was Colleen Ann Dougherty (Colleen); a 15 year old female and 10th grade student. Colleen had been a student of Smith's since September 1985, and they enjoyed a good student- teacher relationship until the events which gave rise to these proceedings. 1/ On February 10, 1986, Smith asked Colleen to remain after class. Once the other students had left the classroom, and Colleen and he were alone, Smith engaged Colleen in a brief conversation concerning the progress of her outside employment. Gauging the conversation at an end, Colleen picked up her purse and book bag preparatory to moving to her next class, but was distracted when Smith asked her what was in her purse. As Colleen looked into her purse, which was hanging from her right shoulder, Smith placed his left hand on her right hip and his right hand on her left shoulder. When Colleen looked up, Smith pulled her toward him, and kissed her on the lips. Smith's conduct was uninvited and unexpected; Colleen, disconcerted, left the classroom. On February 11, 1986, Smith was covering Colleen's first period class for her regular teacher. After the class had started, Smith asked Colleen into the hall and, exhibiting his divorce papers and a sense of urgency, asked to borrow $50.00 by the end of third period. Colleen informed Smith that she did not know if she could get the money by then since she would need to go to her boy friend's house for the bank book. Thereupon, Smith gave Colleen a pass to visit her friend Jessica to see about transportation. After arranging for transportation with Jessica, Colleen returned to Smith, who was still standing in the hall outside the classroom, and informed him that Jessica and she could get the money. At this time, Smith told Colleen that he liked her and suggested that they meet at school one night so he could repay the money. When Colleen expressed a lack of understanding concerning Smith's comments, he told her to look down and said, "even standing next to you excites me." On looking down, Colleen observed that Smith had an erection. Colleen quickly changed the subject and left with Jessica to get the requested $50.00 from the bank, which she later gave to Smith. Colleen was troubled by what had transpired and was afraid that if she reported the incident the administration would not credit her statements over those of a teacher. However, on Wednesday, February 12, 1986, Colleen told her boss what had transpired between Smith and her, and on the evening of February 12, 1986, she informed her grandmother. On February 13, 1986 Colleen, together with her boss and grandmother, informed the principal of Miami Norland Senior High School concerning the events of February 10-11, 1986. Smith was subsequently suspended from his teaching position, and this administrative proceeding duly followed. In choosing to credit Colleen's recollection of the events of February 10-11, 1986, as opposed to Smith's, I am not unmindful of minor discrepancies in the proof. However, the candor and demeanor of Colleen, coupled with the corroborating proof, compels the conclusion that Smith did commit, without invitation or provocation, the acts set forth in paragraphs 3-5, supra. Smith's conduct was inconsistent with the standards of public conscience and good morals, and was sufficiently notorious to bring himself and his profession into public disgrace or disrespect. Due to the notoriety of his conduct, Smith's service in the community, as well as his effectiveness in the school system, has been severely impaired. The Excessive Absences The proof establishes that Smith was absent from his employment on 26 days during the 1985-86 school year. Five of those days, and possibly six, were for personal reasons, rather than illness. While teachers are generally allowed only 4 personal days each school year, the School Board offered no evidence to rebut the proof that the additional 1-2 days were authorized by Smith's supervisor, or that all time off was duly approved.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the School Board enter a Final Order sustaining the suspension of Respondent, Michael B. Smith, from his employment, and dismissing Respondent, Michael B. Smith, from his employment with the School Board. DONE AND ENTERED this 21st day of November, 1986, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1986.
The Issue The central issue in this case is whether the Respondent committed certain acts alleged by the School Board and, if so whether those acts constitute misconduct in office, immorality, conduct unbecoming a School Board employee and/or employee misconduct, and thereby constitute just cause for the suspension and termination of Respondent's employment as a teacher.
Findings Of Fact Based on the evidence received at the formal hearing in this case, I make the following findings of fact: The Respondent, Monica Chisholm, was employed by Petitioner from 1984 until September 28, 1988, pursuant to several annual contracts. During the 1987-88 school year, while employed as a teacher at Miami Jackson High School, the Respondent was given and accepted the responsibility of a senior class sponsor, which responsibility included coordinating and preparing activities for graduating seniors. Those activities included an activity known as "Grad Nite." In her capacity as a sponsor, the Respondent was charged with the duties of collecting money from students, issuing accurate receipts for the money collected, and depositing the money with the school treasurer. At Miami Jackson Senior High School explicit procedures for the handling and accounting of money were in effect. These procedures required that: (a) money be collected only during specific times and only at specific locations, (b) money be deposited with the school treasurer on a daily basis, and (c) in no event was a sponsor to retain money in excess of $50.00 overnight. These procedures were set forth in the sponsor's handbook, which was distributed to all sponsors. The procedures were also discussed during workshops held twice each year. The Respondent was admittedly aware of these mandatory procedures. Two receipt books were issued to the Respondent for the purpose of accounting for money received from students for "Grad Nite." One receipt book was Series 500; the other was Series 600. In May of 1988, Sophia Jackson, a student who had paid the Respondent $100 towards her participation in "Grad Nite," requested a refund. The Respondent prepared a fraudulent receipt and a check requisition form for Sophia Jackson. The fraudulent receipt was prepared by photocopying, from the 600 series receipt book, the receipt that had been issued to another student, removing the other student's name, and writing the name of Sophia Jackson in place of the other student's name. The Respondent, with intent to deceive, presented the fraudulent receipt copy, along with a written request for a refund, to Ms. Charlotte Wright, the school treasurer. Ms. Wright compared the fraudulent receipt to her copy of the original receipt, noticed the difference in names, and reported the matter to the school principal, Mr. Freddie Woodson. Mr. Woodson confronted the Respondent about the altered receipt. During the course of that confrontation, it became obvious that there were irregularities in the Respondent's handling of student funds. Mr. Woodson then demanded that the Respondent turn in the two receipt books that had been issued to her. At that time the Respondent had with her only the 600 series receipt book, and she had to return to her home to retrieve the 500 series receipt book. Upon review of the two receipt books, Mr. Woodson determined that the Respondent had collected a total of $2,716 that had not been turned in to the school treasurer. The Respondent's initial explanation to Mr. Woodson was that over two thousand dollars had been stolen from her briefcase while she was absent from school due to an injury. Prior to the confrontation with Mr. Woodson, the Respondent had not made any report of a theft from her briefcase, even though she claimed to have discovered it several weeks before the confrontations. Mr. Woodson demanded that the Respondent immediately turn over any remaining money in her possession. The Respondent failed to do so. Instead, she delivered a written statement in which she admitted to having used some of the money collected from students for her own personal use. In fact, the Respondent had misappropriated to her own use all of the $2,716 she had collected and failed to turn in to the school treasurer. Thereafter, a criminal complaint was filed in the State Attorney's Office and the Respondent was charged with grand theft, a felony offense. The suspicious circumstances surrounding the Respondent's failure to account for a substantial sum of money became known to various people in the school, including Ms. Young, Ms. Timson, Mrs. Wright, Officer Covington, and members of the school clerical staff who typed or otherwise handled papers with relevant information. In addition, law enforcement personnel and other school administrators became aware of the facts regarding the Respondent's mishandling of the students' money. The Respondent's misappropriation of funds collected from students and her attempt to obtain a refund through fraudulent means constitute the exploitation of professional relationships with students for personal gain or advantage and also constitute a use of an institutional privilege for personal gain or advantage. Such conduct also impairs the Respondent's effectiveness as an employee of the school system.
Recommendation On the basis of all of the foregoing, it is recommended that the School Board of Dade County issue a final order in this case terminating the employment of the Respondent as a teacher in the Dade County Public Schools. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of May 1989. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-5040 The following are my specific rulings on all proposed findings of fact submitted by all parties: Findings proposed by Petitioner: Paragraphs 1 through 4: Accepted. Paragraph 5: Accepted in substance, with exception of last sentence. Last sentence is rejected as subordinate and unnecessary details. Paragraphs 6 through 8: Accepted in substance. Paragraph 9: Rejected as irrelevant. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as irrelevant. Paragraph 12: First two sentences rejected in part as subordinate and unnecessary details and in part as unduly repetitious. Last sentence accepted in substance. Paragraphs 13 and 14: Accepted in substance. Paragraph 15: Rejected as subordinate and unnecessary details. Paragraph 16: The substance of the last three lines of this paragraph is accepted. The remainder of the paragraph is rejected as constituting legal argument or proposed ultimate conclusions of law. Findings proposed by Respondent: Paragraph 1: Accepted. Unnumbered paragraph following paragraph 1: Accepted. Paragraph 2: Rejected as contrary to the greater weight of the evidence and as not supported by competent substantial details. (The Respondent's testimony regarding the theft of funds is simply unconvincing..) Paragraphs 3 through 5: Accepted in substance. Paragraph 6: Portion dealing with failure to properly collect and turn in funds is accepted. The remainder of this paragraph is rejected as contrary to the greater weight of the evidence. Paragraph 7: Rejected in part as constituting agreement rather than proposed findings and in part as contrary to the greater weight of the evidence. COPIES FURNISHED: Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Jaime C. Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 William DuFresne, Esquire 2929 Southwest Third Avenue Suite One Miami, Florida 33129 Karen B. Wilde Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399
Findings Of Fact At all times material to these proceedings, the Respondent Ivory Scott, held Teaching Certificate Number 460227, issued by the Department of Education for the State of Florida. The Respondent was employed with the School Board of Lee County Florida, and was assigned to Mariner High School. In addition to his duties as a health teacher and drivers' education instructor during the 1987-1988 school year, the Respondent coached the boy's varsity basketball team. M. C., a fifteen-year old female minor student at Mariner High School, participated in after school sports activities as the head statistician for the boy's varsity basketball team and as a player for the girl's basketball team. The Respondent first became acquainted with M.C. when she attended his health class during the first semester of the school year. Before the basketball season began, the student approached the Respondent and told him that she kept statistics for the boy's basketball team at her former high school the year before. The student volunteered to be one of the statisticians for the Respondent's team. She was interviewed by Respondent regarding her recordkeeping abilities and knowledge of the game. Based upon the interview and the student's display of knowledge, she was made the team's head statistician. Prior to granting permission to allow M.C. to participate in the boy's basketball program as a student athletic assistant, her mother voiced concern to the Respondent about transportation problems which could occur when a family member was occasionally unable to meet the student at the school after a game. The Respondent solved this problem with an offer to provide the student with a ride home whenever the family was unable to pick up the student. This potential solution to the problem was accepted by the mother, and the Respondent did give the student a ride home after a few games during the basketball season. On February 9, 1988, the student M.C. wanted to go home before she played in a basketball game at school at 4:00 p.m. The student asked the Respondent for a ride, and he agreed to give her a ride after school ended at 2:20 p.m. When the Respondent left the school grounds with the student, no one else was in the vehicle. The Respondent drove in a direction away from the student's home. Once an isolated area was located, the Respondent engaged in sexual intercourse with M.C. The Respondent then drove M.C. home, and told her not to tell anyone about the incident. During the following week, but before February 19, 1988, the Respondent again left the school grounds alone with the student M.C. They traveled to another isolated area and the Respondent again had sexual intercourse with the student. When the student was driven home, she was instructed not to tell anyone about the incident. On February 19, 1988, the student M.C. was crying in an hysterical manner in the courtyard area of the school grounds. The child's schoolfriend, A.F., tried to comfort the child, but was unable to calm her. The assistant principal who observed the scene, took the girls to the guidance area so that they could deal with M.C.'s loss of control in a more private area. A female guidance counselor was asked to keep an eye on the students because of M.C.'s unusual behavior. In an attempt to assist the student, the guidance counselor asked M.C. if she would like to go to the counselor's private office. The student accepted the offer, but did not discuss why she was upset. On Monday, February 22, 1988, M.C. returned to the guidance counselor's office. She implied that her problem was of a sexual nature, but was unwilling to discuss the matter further. A few days later, the counselor gave the student the Abuse Counseling Center telephone number. On Friday, February 26, 1988, the child M.C. contacted the guidance counselor and revealed that she had seen the man involved in her problems the evening before. The police officer on campus was contacted. The student revealed to the counselor and the officer that she was in a relationship with a man who was twenty-five years old, married, and the father of a child. Although the Respondent was married and had a child, he was older than twenty-five years of age. The evening before the limited revelations to the counselor and officer occurred, M.C. had attended the school district's boy's basketball tournament. The Respondent was present at the tournament. The following week, the counselor and the police officer urged M.C. to tell her parents about her relationship with the man. When the student did not tell her parents, the police officer called the student's mother and told her what the student had told him. The student was taken for a medical examination by her mother on March 3, 1988, and it was determined that her hymen was no longer intact. The student would not tell her mother the name of the man involved, but she agreed to tell the guidance counselor on Friday, March 4, 1988. On the appointed date, the student told the counselor the man involved was the Respondent, Ivory Scott. The guidance counselor informed the assistant principal who brought the student into the guidance office on February 19, 1988, about the allegations. The assistant principal advised the principal. When the principal was informed of the student's accusations, he sent for the Respondent immediately to prevent him from hearing the news from less reliable sources. After the principal notified the Respondent of the student's accusations, the Respondent admitted to having the student M.C. alone with him in his vehicle on several occasions. The Respondent denied that any sexual activity took place during these times, and he was unable to speculate why the child might be motivated to make the accusations against him. During the hearing, the Respondent denied that the student M.C. had ever been alone in his vehicle with him, or that the events testified to by the student regarding sexual intercourse had ever occurred. It was his testimony that M.C. had once confided to him that her stepbrother had intercourse with her. The Respondent did not report this purported confidence to the authorities, and there was no evidence in the record to substantiate that the student had a stepbrother. A number of students from the high school testified at hearing. Members of the basketball team and a student athletic assistant testified that on Thursday, February 25, 1988, M.C. was behaving in a flirtatious, sexually aggressive manner with a member of the boy's basketball team in the back of the bus. The basketball player and his mother testified as to M.C.'s persistent need to seek attention from the player. A former boyfriend of M.C.'s testified that, contrary to her statements that she had not kissed with boys prior to the sexual incidents with Respondent, he had engaged in kissing activity with her. The former boyfriend also testified that M.C. told him that nothing has happened between her and the Respondent. She told him this after a newspaper article related her accusations and the Respondent's arrest. The former boyfriend had telephoned her to discuss the matter after his grandparents mentioned that they read about the accusations in the newspaper. Diane Goldberg, a licensed clinical social worker who was accepted as an expert in the area of child sexual abuse counseling, opined that M.C.'s behavior after the alleged incidents of sexual intercourse with the Respondent was congruent, and consistent with behavioral indicators which reflect that sexual molestation has occurred.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Respondent's Florida teaching certificate be revoked for violating Section 231.28(1)(c) and (h), Florida Statutes and Rule 6B-1.006(3)(a) and (h), Florida Administrative Code, of the State Board of Education. That the allegation that Respondent violated Section 231.28(1)(f), Florida Statutes, and Rule 6B-1.006(3)(e), Florida Administrative Code, be dismissed. DONE and ENTERED this 4th day of October, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4544 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #2. Accepted. See HO #3. Rejected as to the finding that the student relied on Respondent for rides home after her basketball practices prior to the alleged incidents. Accept that she occasionally relied on Respondent for rides home after games. See HO #5. Accepted. See HO #6. Accepted. See HO #6. Reject as to two week time period. See HO #7. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #7. Accepted. See HO #7. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #9. Accepted. See HO #10. Accepted. See HO #11. Accepted. See HO #15. Accepted. See HO #16. Accepted. See HO #17. Accepted. Accepted. See HO #17. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO #17. Rejected. Witness incompetent to render legal conclusion. Rejected. Improper summary, Accepted. See HO #21. Respondent's proposed findings of fact are addressed as follows: 1. Accepted. See HO #2. 2. Accepted. See HO #8-#10, #11, #13 and #15. Reject the first sentence. Contrary to fact. M.C. referred only to rides home, not rides home after games. See HO #6 and #7. Reject the second sentence as contrary to fact. See HO #6 and #7. The rest of paragraph 3 is rejected as contrary to fact. See HO #6 and #7. Accept first sentence. See HO #6. All but the last sentence in the first paragraph are accepted as facts presented. Although probative, these facts were not determinative. See Conclusions of Law. The last sentence is rejected as contrary to fact. See HO #6 and #7. The first two sentences in the second paragraph of proposed finding of fact number 4 is accepted. See HO #6 and #7. The third sentence is accepted as testimony. The finding of fact based on the evidence is found in HO #7. The last paragraph in proposed finding of fact number 4 is rejected as it is argument as opposed to a proposed factual finding. See Conclusions of Law. Rejected. Improper summary. See HO #19 and Conclusions of Law. Accept the first paragraph of proposed finding of fact number 6. See HO #14 and #15. The second paragraph is rejected as it is argument as opposed to a proposed finding of fact. See Conclusions of Law. Accept the first sentence. See HO #13 and #15. The rest of proposed finding of fact number 7 is rejected as irrelevant to these proceedings. Rejected. Dr. Seitz's testimony was not filed in Case NO. 88-4544. COPIES FURNISHED: Wilbur C. Smith, III, Esquire Post Office Drawer 8 Fort Myers, Florida 33902-0008 Craig R. Wilson, Esquire 1201 U.S. Highway One, Suite 315 North Palm Beach, Florida 33408-3581 Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399
Findings Of Fact Respondent, Milton Aaron Wetherington, holds Florida teacher's certificate number 035136 issued by the State Department of Education covering the areas of physical education, history and administration/supervision. The certificate is valid through June 30, 1991. This proceeding involves an administrative complaint filed against Wetherington by petitioner, Ralph D. Turlington, as Commissioner of Education. The complaint stems from various complaints lodged with the Volusia County School Board by several students and parents who alleged that Wetherington engaged or attempted to engage in improper relationships of a romantic nature with female high school students assigned to his classes. The filing of the administrative complaint precipitated the instant action. Wetherington, who is 57 years old, has been a teacher for some twenty seven years, the last seventeen in the Volusia County school system. From 1975 until 1984 Wetherington was a teacher at Spruce Creek School in Port Orange, Florida. Because of the pending disciplinary proceeding, he was reassigned to a non-instructional position as an assistant manager of purchasing and property for school year 1984-85. However, after the charges came to light in early 1984, Wetherington was allowed to continue as a teacher for the remainder of the school year, and was a chaperone on the senior class trip to Walt Disney World. In his twenty seven years of teaching, he has had no prior disciplinary action taken against him. In school year 1983-84 Wetherington taught a political systems course to first semester seniors. Two of his students were Lisa and Tammy, both seventeen years of age at the time, and the best of friends. Seven of the specific charges in the complaint involve respondent's relationship with Lisa, and to a lesser extent, Tammy. Lisa lived at home with her mother and step father for a part of her senior year. Because of problems with her stepfather, who beat her, she moved out at the end of January, 1984, to live with a girlfriend. She was involved with drugs, including cocaine and marijuana, and was experiencing financial problems. Lisa needed a social studies course to graduate, and transferred into Wetherington's class about two weeks after the semester started. She had not met or known Wetherington prior to that time. Wetherington immediately took a special interest in Lisa, and selected her to assist him during office hours with grading papers and the like. Lisa spotted an opportunity to take advantage of the situation, and began cultivating the relationship in an assiduous manner. Her testimony reveals she had two goals in mind: to obtain money from Wetherington and to get a good grade without studying. She also saw the opportunity to get her friend Tammy a good grade since she had access to Wetherington's grade book. The relationship was non-sexual, and all parties agree that Wetherington made no sexual advances or demands upon Lisa. One evening during the fall of 1983, Wetherington asked Lisa if she and Tammy wanted to get a pizza after a football game. Lisa agreed and Wetherington gave her $20 to purchase the food. The three met briefly in separate cars at a local Pizza Hut, but after the girls saw other students there, they all drove in Wetherington's car to the Breakers Restaurant and Lounge, an establishment in New Smyrna Beach. They arrived around 12:45 a.m. or so, and after being seated in a booth next to the stage on which a band was playing, they placed an order for pizza. Because of the lateness of the hour, the waitress informed there the kitchen had closed. They then departed the premises and returned to Daytona Beach where all went their separate ways. The two girls claimed Wetherington purchased them an alcoholic drink at the Breakers, but a member of the band, who happened to be a teaching colleague of Wetherington disputed this and observed the three had no drinks during their five to seven minute stay at the restaurant. His testimony is deemed to be more credible and it is found respondent did not "purchase alcoholic beverages for both students" as alleged in the administrative complaint. At some point in the first semester, Wetherington gave Lisa a key to his house in Holly Hill where he lives alone. According to respondent, he did so since he wanted Lisa to have a place to go in the event she suffered a beating from her stepfather. Lisa visited his house approximately five times in the company of a girlfriend when Wetherington was home, and an undisclosed number of times when he was not at home. One of Wetherington's sons lives at Bunnell, and visited his father regularly. The son kept a stash of marijuana at the house which the son used when he visited. Wetherington acknowledged that this was true, but maintained he did not know where it was hidden at the time. Indeed, he claimed he never used drugs himself, and objected to their use by other persons. Wetherington gave Lisa instructions to use the key only when she had problems with her stepfather, but Lisa ignored these instructions. While at Wetherington's home, she used both alcohol and marijuana on at least one occasion in his presence. The alcohol (wine) was taken from Wetherington's refrigerator while the marijuana was either brought onto the premises by Lisa, or came from the son's hidden stash. 1/ There is no credible evidence that Wetherington himself used "marijuana and alcohol at his residence with female students" as charged in the complaint. During the school year, Wetherington gave Lisa a friendship ring valued at $12, some $500 in cash, between $400 and $500 worth of clothes, and lent her an Amoco gasoline credit card for gasoline purchases to get her to and from the part-time job she held. Lisa charged some $120 worth of gasoline on the card as well as $247 in auto repairs. With her mother's consent, and after clearing it with the school principal, he also paid Lisa's mother $500 for the equity in Lisa's car, transferred the title to his own name, and financed it with a Miami bank. Lisa got to use the car with the understanding that she would pay him $125 a month, which was Wetherington's obligation on the bank note. Wetherington considered all this to be a "loan," and kept a book detailing the total amount advanced to Lisa. As a part of the social studies course, Wetherington required each student to prepare a term paper. Wetherington gave fourteen students, including Lisa and Tammy, copies of term papers written in the prior year with instructions to use them as a "format" or "guideline" in preparing their own. Lisa and Tammy simply changed the title page, and turned the papers back in as if they were their own. They each received a grade of 25, which was the highest grade in the class. Lisa claimed she simply did what Wetherington told her to do, and Tammy corroborated this claim. Although Wetherington was negligent in failing to detect that the papers turned in by Lisa and Tammy were identical to those previously given them to be used as a "formats" the evidence does not support a finding that Wetherington gave them the papers for the purpose of evading any academic requirements. The final charge concerning Lisa and Tammy is that Wetherington "[o]n at least one occasion kissed and hugged a female student." This charge apparently stems from Wetherington kissing Lisa on the cheek one day and giving her a paternal hug. Wetherington does not deny this, but contends it was not romantic in nature but done in a fatherly way. Wendy was a seventeen year old senior at Spruce Creek High School in school year 1983-94. She is the source of some four separate charges against respondent in the administrative complaint. Wetherington approached her at the beginning of the year and asked if she wanted to be his teacher's aide. She said yes, and he accordingly rearranged her schedule so that she worked in his office or classroom during first period as an aide, and was a student in his social studies class the following period. During the first nine weeks, Wetherington gave Wendy two rings, one for her birthday and the other to simply keep till the end of the school year. He also gave her $230 in cash over this period of time. He kept a log detailing each amount of money given to her, and considered the payments to be a loan. While working in Wetherington's classroom one day, Wendy walked by Wetherington who pulled her onto his lap and began rubbing her upper thigh. He also approached her one day in his office and put his arms around her waist and pulled her towards him. After she told him, "I don't want this," he released her. She then pulled away and claimed she immediately reported the incident to the principal. The principal could not recall such a conversation. The next day Wetherington apologized to her in his office, but he then turned off the lights in the room and began hugging her. She pushed him away and ran out of the room. Although Wendy again claimed that she immediately reported the incident to the school principal, the principal could not recall such a meeting. In any event, Wendy went to her parents, disclosed the various incidents and gave them the two rings given to her by Wetherington. The parents were understandably irate, and went to the principal demanding that Wendy be transferred out of Wetherington's class. A meeting was held by the principal, with Wetherington and the two parents in attendance. At the meeting Wetherington simply acknowledged that he admired Wendy very much, that she was a good student, and that the cash given to her ($230) was a loan for car payments and voice lessons because he trusted her. However, Wendy does not own a car, and her another paid for all voice lessons. Moreover, her father is a physician who has provided well for his family. The mother then wrote Wetherington a check for $230 to repay the "loan." Wendy was also transferred out of respondent's class. Wendy acknowledged that she "took advantage" of Wetherington, and characterized their relationship as simply a friendship. In a note written to him in a school yearbook at the end of the year, she apologized for "putting (him) through hell" and wished she "could erase it all." Wetherington denied any romantic involvement with Wendy, and acknowledged only that he had kissed her twice on the cheek, once at a football game and another time outside his house. He attributes Wendy's story to emotional problems she was experiencing that fall caused by her relationship with a married man. Wetherington portrayed himself as a teacher genuinely interested in his students. He estimated he has given financial aid in the form of loans and gifts to students over the years in excess of $10,000. Because he has raised seven children of his own, he vigorously denied having any illicit or sinister purpose in his dealings with Lisa and Wendy. Instead, he contended he was merely helping them overcome personal and financial problems so that they would be better persons after graduation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found GUILTY of violating Rules 6B- 1.06(3)(a) and (e), and Subsection 231.28(1)(c), as set out more specifically in the Conclusions of Law portion of this order. All other charges should be DISMISSED. It is further RECOMMENDED that respondent be placed on probation for three years and that he be retained by the school board during his probationary period only as a non- instructional employee. DONE and ENTERED this 22nd day of January, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1985.
