The Issue The issue is whether the Seminole County School Board has just cause to terminate Respondent's employment or to otherwise discipline him based upon the conduct alleged in the Petition for Termination.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Parties The School Board is the governing body of the local school district in and for Seminole County, Florida. Respondent is a 48-year-old male. He has been employed as an educational support employee of the School Board for approximately five years. During the 2001-02 school year, Respondent worked at Seminole High School (SHS) as a computer specialist. Collective Bargaining Agreement and SHS Handbook Respondent's employment with the School Board is governed by the collective bargaining agreement between the Seminole Educational Clerical Association, Inc., and the School Board (SECA Agreement). Article VII, Section 5 of the SECA Agreement provides in pertinent part: Regular employees who have been hired for a minimum of three (3) continuous years . . . shall not be disciplined (which shall include reprimands), suspended, or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following providing just cause is present: Violation of School Board Policy. Violation of work rules. * * * Article VIII, Section 1 of the SECA Agreement provides in relevant part that "[e]mployees may be immediately disciplined including termination for serious violation of the following: misconduct; " Respondent's employment is also governed by the SHS Faculty Handbook (SHS Handbook). The SHS Handbook is provided to SHS employees at an orientation session prior to the beginning of each school year. Respondent acknowledged receipt of the SHS Handbook prior to the 2001-02 school year. The SHS Handbook includes a sexual harassment policy which states that the School Board "will not tolerate sexual/racial harassment activity by any of its employees." As it relates to the circumstances of this case, the policy defines sexual harassment as follows: Sexual harassment consists of unwelcome sexual advances, requests for sexual favors and other inappropriate verbal, nonverbal, graphic, written or physical conduct of a sexual nature when: * * * (c) such conduct substantially interferes with . . . [a] student’s academic performance, or creates an intimidating, hostile, or offensive . . . school environment. Sexual harassment, as defined above, may include but is not limited to the following: verbal, nonverbal, graphic, and written harassment or abuse; * * * (c) repeated remarks to a person with sexual or demeaning implications; * * * In determining whether alleged conduct constitutes sexual[] harassment, the totality of the circumstances, the nature of the conduct, and the context in which the alleged conduct occurred will be investigated. . . . . The sexual harassment policy in the SHS Handbook is virtually identical to the School Board's district-wide sexual harassment policy. Thus, a violation of the policy in the SHS Handbook is a violation of School Board policy. Alleged Inappropriate Comments/Conduct by Respondent During the 2001-02 School Year Respondent had four "peer counselors" assigned to him during the 2001-02 school year, including eleventh-grader Nichole Combee. A peer counselor is a student who assists a teacher or other school staff member with designated tasks, such as filing or running errands on campus. The student provides that assistance for one class period per day. Nichole had approached Respondent at some point during the first semester of the 2001-02 school year and asked whether she could be a peer counselor for him. The record does not reflect the process by which that request was processed or approved by the administration at SHS, or even whether such approval is required. Nichole started as a peer counselor for Respondent in January 2002, which is the beginning of the second semester of the 2001-02 school year. Nichole continued in that position through May 23, 2002, when the regular school year ended. Nichole was Respondent's peer counselor during seventh period, which is the last period of the school day. Nichole's primary duty as Respondent's peer counselor was filing computer permission slips. During the time that Nichole was Respondent's peer counselor, she discussed her family troubles and school attendance problems with Respondent and his assistant, Mark Williams. Respondent tried to help Nichole with those problems. On several occasions, he talked to Nichole's mother on the phone in an attempt to help work things out between Nichole and her mother with respect to the "trouble" created at home by Nichole's academic and attendance problems. Nichole also discussed problems that she was having with male students and some male teachers at SHS looking at her large breasts rather than her eyes when they were speaking to her. She told Respondent at the time that he and Mr. Williams always looked her in the eye, and she reaffirmed that statement in her testimony at the hearing. Nichole discussed matters related to her breasts with Respondent on other occasions as well. On at least one occasion, she told Respondent that her breasts caused her back to hurt because of their size. On subsequent occasions when Nichole complained about her back hurting, Respondent replied by saying, "Well, you know why." That comment was intended by Respondent and understood by Nichole to be a reference to Nichole's prior comments that her large breasts were the cause of her back pain. Respondent never told Nichole that she should not discuss her breasts or other personal matters with him. Respondent acknowledged at the hearing that it would have been inappropriate for him to initiate a conversation with Nichole about her breasts (as a source of her back pain or otherwise), but that he did not see anything wrong with the discussions that he had with Nichole on that subject because she brought it up and because there was nothing sexual being implied. After classes had ended on the last day of the 2001-02 school year, a number of students engaged in a "water fight" using water balloons and "water bazookas." This conduct is apparently a "tradition" at SHS. The SHS administration had directed the school staff to try to prevent this conduct and/or to get the students off campus and onto their busses as quickly as possible. Respondent observed a group of students involved in a water fight near his office in the media center, and he went outside to break up the students. The group included Nichole and her friend Natalie Cotto-Caraballo, who was a tenth-grader at SHS. Nichole and Natalie were wearing white tank-top shirts that they had made for the last day of school. The shirts had gotten wet during the water fight and, as a result, the girls' bras were visible through the shirts. Respondent commented to Nichole and Natalie that he could see their bras through their shirts and that they needed to cover themselves up. He then directed the girls and the other students in the group to their buses. Nichole testified that the comment made her feel somewhat uncomfortable because "it's our bras and, you know, even though people see them, usually they don't say anything, you know." Respondent's comment regarding his ability to see the girls' bras was not inappropriate under the circumstances; it was a statement of fact and justified Respondent's direction to the girls to cover themselves up. Nichole did not immediately report the bra comment, either to her parent(s) or the SHS administration. Indeed, the comment did not even come to light until Nichole's second interview with the School Board's investigator in August 2002. Respondent gave Nichole a hug as she was leaving for her bus on the last day of school and told her to have a nice summer. Despite its close proximity in time to the bra comment, Nichole testified that the hug did not make her uncomfortable. She just considered it to be friendly "good bye" hug, which was all that was intended by Respondent. Nichole did not complain about Respondent to her parent(s) or anyone in the SHS administration during the time that she was his peer counselor. Lunch Invitations During Summer School Nichole attended the first session of summer school, which began on June 3, 2002, less than two weeks after the end of the regular school year. The only class that Nichole took during summer school was an English class taught by "Ms. Morris." Nichole was not Respondent's peer counselor during summer school, nor was she working on any school-related project with Respondent during that time. On June 3, 2002, while Respondent and Mr. Williams were in Ms. Morris' class fixing a computer, Respondent asked Nichole if she wanted to go to lunch with him off-campus. Nichole declined the invitation because she was "grounded" and had to pick up her brother from school. Respondent was again in Ms. Morris' class on June 5, 2002, and he again invited Nichole to lunch. Nichole again declined. Respondent did not have permission from Nichole's parent(s) or the SHS administration to take Nichole off-campus. The reason that Respondent invited Nichole to lunch was to thank her for doing a good job as his peer counselor and to congratulate her on deciding to stay in school and attend summer school, which Respondent and Mr. Williams had both counseled her to do. Respondent had taken a former male student off-campus to lunch for the same reasons in the past. Respondent and Nichole were not alone at the time of either invitation. Both invitations occurred in Ms. Morris' classroom, and Ms. Morris and other students were "milling around" in the classroom at the time. At the hearing, Nichole testified that she didn't think anything of the lunch invitations at first since she considered Respondent a "friend." However, she also testified that it "it was a little uncomfortable because he is a teacher." Nichole did not report the lunch invitations to Ms. Morris or to anyone in the SHS administration. Nichole did, however, tell her mother about Respondent's lunch invitations because "she thought she should know." On June 5, 2003, Nichole's mother called the SHS principal, Karen Coleman, and complained about the lunch invitations. Ms. Coleman told Nichole’s mother that she would look into the matter, which she did. The resulting investigation led to this proceeding. Investigation and Preliminary Disciplinary Recommendation Ms. Coleman began the investigation by speaking to Nichole on June 5, 2002. That discussion focused only on the lunch invitations. Nichole provided Ms. Colemen an unsworn written statement regarding the lunch invitations on June 5, 2002. That statement did not include any reference to the "lingerie incident" discussed below or the incidents described above involving the bra comment or the hug that Respondent gave to Nichole on the last day of school. Nichole provided Ms. Coleman another unsworn written statement on June 6, 2002. That statement referenced Respondent's comments about the source of Nichole's back pain, but it did not mention the lingerie incident or the other incidents described above. After speaking with Nichole, Ms. Coleman spoke with Respondent. Respondent admitted that he had invited Nichole to lunch off-campus. He further admitted that he did not have permission from Nichole’s parent(s) to take her off-campus and that he did not obtain permission from the SHS administration. Respondent told Ms. Coleman that he did not realize that such permission was necessary. Respondent had taken a male peer counselor to lunch off-campus in the past without receiving approval from the student's parents or the SHS. After Ms. Coleman's conversations with Nichole and Respondent, she contacted John Reichert, the School Board's director of human resources. Mr. Reichert directed John Byerly, the School Board’s internal affairs investigator, to conduct a formal investigation. Mr. Byerly interviewed Nichole on June 10, 2002, at SHS. Nichole did not mention the lingerie incident, the bra comment, or the hug to Mr. Byerly during that interview. Mr. Byerly also interviewed Respondent and Mr. Williams as part of his investigation. The results of Mr. Byerly's investigation were presented to the Executive Professional Standards Review Committee (Review Committee) on June 27, 2002. Among other functions, the Review Committee is used to make disciplinary recommendations to Mr. Reichert. The Review Committee’s recommendation was characterized at the hearing as "preliminary," and it is apparently not binding on Mr. Reichert when he formulates his recommendations to the Superintendent regarding employee disciplinary actions. The Review Committee recommended that Respondent be suspended for three days and/or be reassigned or transferred to another school. That recommendation was based only upon Respondent’s lunch invitations to Nichole and comments regarding the source of her back pain; it did not take into account the lingerie incident, the bra comment, or the hug because those incidents had not been disclosed by Nichole or Natalie at that point. Mr. Reichert and/or the Superintendent apparently did not accept the Review Committee’s recommendation because the Superintendent's July 26, 2002, letter recommended termination of Respondent's employment. At the hearing, Mr. Reichert testified that the reason for the change in the recommended discipline was the subsequent discovery of the lingerie incident, which he characterized as the "major driving factor" behind the termination recommendation. However, the preponderance of the credible evidence demonstrates that the lingerie incident was not disclosed to School Board staff until after the July 26, 2002, letter. Alleged Gift of Lingerie The lingerie incident was first disclosed by Natalie on August 2, 2002, when she was interviewed by Mr. Byerly.1 Natalie had given an unsworn written statement to Ms. Coleman on that same date, but that statement did not mention the lingerie incident. Based upon the "new information" from Natalie, Mr. Byerly interviewed Nichole again on August 15, 2002. The interview occurred at Lyman High School (LHS), where Nichole had transferred for her senior year.2 After the interview, Mr. Byerly had Nichole prepare a sworn written statement. The statement included the following account of the lingerie incident, which was consistent with Nichole's testimony at the hearing: When I was a peer counselor for Mr. Reeder, I had walked into class on[e] afternoon in 7th period and we were talking and he said ["]oh here I got something for you.["] He handed me a white plastic bag and through the bag I could see a black thing and I knew it was the langera [sic]. I then just put it on the floor and went on with my work. When the bell rang I picked up my belongings including the white plastic bag. When I got on the bus I showed Natalie it. It was a black see[-]through spagatie [sic] strap shirt and black thongs. When I got off the bus I walked home and through [sic] it away. That was the last time anything was ever said about it. Mr. Byerly interviewed Natalie again on August 16, 2002. Natalie's told Mr. Byerly that the lingerie incident occurred "a couple months before the end of the regular school year" and that Nichole showed her the lingerie on the bus. However, the sworn written statement she prepared after the interview indicated that the incident occurred "[a]bout the day before school was over" and that she learned of it "on the bus/car." Nichole told Natalie that the lingerie was from Respondent. Natalie had no independent personal knowledge that it was from him. There were some inconsistencies in Natalie's and Nichole's descriptions of the lingerie, but those inconsistencies were not material. They consistently described the lingerie as having a black see-through top and black panties. Nichole did not report the incident to the SHS administration around the time that it allegedly occurred. Nor did she tell her mother about the incident, even though she considered the lingerie gift to be more inappropriate than the lunch invitations which she did immediately tell her mother about. Nichole testified that she was somewhat embarrassed by the gift and she did not want her mother to think she "led into it." Respondent unequivocally denied that he gave Nichole any lingerie or other clothing, and Nichole's and Natalie's testimony relating to the lingerie incident was not credible. Thus, the School Board failed to prove that Respondent gave Nichole the lingerie. It is undisputed that Respondent never engaged in any type of sexual contact (e.g., kissing, inappropriate touching) with Nichole. Nichole made that point clear in both of her interviews with Mr. Byerly and in her testimony at the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board issue a final order which dismisses the Petition for Termination and provides Respondent the remedial relief that he is entitled under the collective bargaining agreement. DONE AND ORDERED this 17th day of July, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 17th day of July, 2003.
Findings Of Fact This matter comes on before the undersigned for consideration following an Administrative Complaint brought by Ralph D. Turlington, Commissioner of Education for the State of Florida, against Robert J. Browne, Respondent. No genuine factual issue is in dispute because no communication, including an election of rights or an appearance from the Respondent, has ever been received. Pursuant to the above-cited rule, the matter was required to proceed to hearing before the undersigned for the presentation of a prima facie case by the Petitioner, regarding the establishment of the reputed facts alleged in the Administrative Complaint upon which the Petitioner seeks revocation of the Respondent's Certificate. The Administrative Complaint is dated July 1, 1981. After the Administrative Complaint was filed, various efforts were made to achieve service of the same on the Respondent. The Respondent never responded to the Administrative Complaint. Diligent search and inquiry failed to locate the Respondent, or a means or location whereby he might be served with the Complaint. Attempts to serve him at his last-known forwarding address resulted in the certi- fied mail being returned unclaimed and unforwardable. The undersigned attempted to serve notice of this proceeding itself upon the Respondent at the last known address with the same result. Service by publication of the Administrative Complaint was achieved by the Petitioner. The Respondent holds Florida Teaching Certificate Number 440435, Post Graduate, Rank II, which expires on June 30, 1998, authorizing him to engage in the profession of teaching in the areas of mental retardation, junior college, administration, and supervision. At all times pertinent hereto, he was employed at the Exceptional Student Educational Center in Broward County, Florida, at Eastside Elementary School. The Respondent's position was that of administrator or assistant principal at the school. The Respondent was employed at the school during the summer of 1980. Mrs. Annie Turner was employed at the school as the custodian during that same summer. She worked from the hours of 3:00 p.m. to 7:00 p.m. in the evening. She often took her son Ronnie, who was the youngest of seven children, to the school with her during her working hours. She did this in order for him to assist her in her job duties. On an early visit to the school, Ronnie met the Respondent, Mr. Browne. They met on frequent occasions thereafter, when Ronnie was at the school with his mother and talked of sports and other things of interest to Ronnie, and they ultimately struck up a friendship. Mrs. Turner began noticing that her son would go to a distant bathroom in the school and stay an inordinate period of time. This happened on a number of occasions and she noticed that Mr. Browne would follow her son into the mens' bathroom while she was engaged in cleaning another room nearby in the school. She did not feel anything was amiss until this happened on a regular basis. Finally, on a Thursday evening (she does not remember the date), in the summer of 1980, Mr. Browne and Ronnie entered the bathroom and stayed so long she opened the door to check on her son and observed the Respondent on his knees committing a homosexual act on the person of her son. She was not observed by Mr. Browne. She ultimately informed-the County Superintendent and Mr. Browne was confronted with the subject accusation by his superiors. Sometime thereafter the Respondent resigned his position at the school. Mrs. Turner no longer respects Mr. Browne and would not want one of her children in a school where he was principal or a teacher due to her apprehension regarding their physical and emotional welfare. The testimony of Ronnie Turner corroborates that of his mother, Annie Turner, and in addition, establishes that the homosexual act observed by Mrs. Turner occurred on three (3) other occasions in a substantially similar fashion and location. The occasion when Annie Turner discovered the Respondent committing a homosexual act on her son was the fourth and last of those occasions, all of which occurred during a three-week period during the summer of 1980. Ronnie Turner sougnt on several occasions to avoid association with the Respondent during this time after he became aware of the Respondent's intentions. He would not want to attend a school at which the Respondent was employed and fears that the same fate will befall other children at any school at which the Respondent should be employed. Ronnie Turner was fourteen years of age at the time the pertinent events occurred. After the Respondent resigned from his position with the Broward County School System, there ultimately ensued an Administrative Complaint brought by Ralph Turlington, Commissioner of Education of the State of Florida, seeking revocation of the Respondent's Florida Teacher's Certificate.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence in the record and the pleadings and arguments of counsel for the Petitioner, it is, RECOMMENDED: That the Respondent, Robert J. Browne, have his Teacher's Certificate in and for the State of Florida revoked permanently. DONE AND ENTERED this 19th day of March, 1982, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1982. COPIES FURNISHED: J. David Holder, Esquire BERG AND HOLDER 203-B South Monroe Street Post Office Box 1694 Tallahassee, Florida 32302 Mr. Robert J. Browne 1771 Northeast 12th Street Fort Lauderdale, Florida 33304
The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1999), to terminate Respondent's employment as a non-instructional employee for alleged sexual harassment of a co-worker. (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner has employed Respondent as a maintenance worker at Yulee Primary School in Yulee, Florida (the "school") for approximately 18 years. Petitioner has employed Ms. Joyce Sullivan as a food service worker for approximately three years. Respondent and Ms. Sullivan are co-workers. Respondent has no supervisory authority over Ms. Sullivan, has no authority to discipline Ms. Sullivan, and has no authority to affect the conditions of employment for Ms. Sullivan. The material facts in this case transpired over approximately ten minutes during work hours on April 6, 2000. Respondent approached Ms. Sullivan in the back kitchen of the school cafeteria shortly after breakfast and asked to speak to her privately. Ms. Sullivan agreed, and the two moved to the adjacent serving area near the checkout counter in the cafeteria. Respondent asked Ms. Sullivan to pose for pictures that would be nude, semi-nude, or partially clothed and that Respondent would enter into a contest on the internet. Respondent explained that the pictures would not identify Ms. Sullivan because the pictures would be taken from the neck down and that Ms. Sullivan could wear a bikini, a thong, or a bra. Ms. Sullivan asked Respondent what he was talking about. Respondent assured Ms. Sullivan that she would not be identified because the pictures would not identify Ms. Sullivan's face. Ms. Sullivan told Respondent that he was crazy. The entire conversation lasted approximately three minutes. Ms. Sullivan left Respondent and walked to the cash register to "ring up" the school principal who purchased some food. Ms. Sullivan went to an office in the back of the cafeteria with Ms. Sullivan's assistant manager. Respondent went to the back room and told Ms. Sullivan that he would show her some pictures on his computer. Respondent exited the room through the back door of the room to retrieve a laptop computer. Ms. Sullivan and her assistant manager went outside the back room and discussed the situation. Ms. Sullivan was embarrassed. After four or five minutes, Respondent returned to the back room and placed the laptop on the desk in front of Ms. Sullivan. The assistant manager was in the same room at another desk engaged in a telephone conversation. It took about 1.5 minutes for Respondent to turn on the laptop and display some pictures. The pictures included pictures of partially clad women and topless women. The situation terminated after 1.5 minutes when the assistant manager ended her telephone conversation, a child asked Ms. Sullivan to "ring up" some papers, and Ms. Sullivan's manager approached the room. Respondent changed the computer screen to a picture of his daughter and began talking to Ms. Sullivan's manager. Respondent left the school with the computer. Ms. Sullivan reported the incident to her manager, but Ms. Sullivan did not file a complaint for sexual harassment or state to her manager that she had been sexually harassed. Ms. Sullivan's manager relayed the information to Respondent's supervisor who discussed the matter with Respondent. Respondent admitted to the facts and expressed regret. Respondent's manager relayed the information to the Superintendent. The Superintendent investigated the matter and determined that Respondent had engaged in sexual harassment. The Superintendent based his determination on the definition of sexual harassment in the Board's Official Rule 3.54I.C. Rule 3.54I.C., in relevant part, states that sexual harassment consists of: . . . unwelcomed sexual advances, requests for sexual favors and other inappropriate oral, written or physical conduct of a sexual nature when: . . . such conduct substantially interferes with an employee's work performance . . . or creates an intimidating, hostile, or offensive work . . . environment. Respondent's request for Ms. Sullivan to pose for sexually revealing pictures was either an unwelcomed sexual advance, request for sexual favor, or other inappropriate oral or written conduct of a sexual nature within the meaning of Rule 3.54I.C. Respondent's conduct substantially interfered with Ms. Sullivan's work performance or created an offensive work environment. The Superintendent testified during cross-examination that he would not have determined that Respondent engaged in sexual harassment if Ms. Sullivan had not said no to Respondent's request. A preponderance of the evidence fails to show that Ms. Sullivan expressly said "no" when asked pose or view pictures. However, a preponderance of the evidence shows that Ms. Sullivan was embarrassed and that the entire episode was unwelcomed and offensive within the meaning of Rule 3.54I.C. Respondent has no previous discipline history. Article VII of the collective bargaining agreement between the Board and its employees prescribes progressive discipline procedures for this case. Except in unusual circumstances, employment can be terminated only after an oral warning for a first offense, a reprimand for a second offense, a written warning for a third offense, and suspension for a fourth offense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of sexual harassment and suspending Respondent from employment for the time of the current suspension. DONE AND ENTERED this 20th day of November, 2000, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November 2000. COPIES FURNISHED: Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Dr. John L. Ruiz, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32304 Brent P. Abner, Esquire Suite F 4741 Atlantic Boulevard Jacksonville, Florida 32207 Brian T. Hayes, Esquire 245 East Washington Street Monticello, Florida 32344 Martha F. Dekle, Esquire 806 G Street Post Office Box 1644 Jacksonville, Florida 32207
The Issue The issue is whether just cause exists for Petitioner to suspend Respondent from his teaching position without pay for 15 days and to terminate his employment as a teacher.
Findings Of Fact The Parties Petitioner, Palm Beach County School Board, is charged with the duty to operate, control, and supervise free public schools within the School District of Palm Beach County ("District"), pursuant to article IX, section 4(b) of the Florida Constitution and section 1012.33, Florida Statutes. Respondent has been employed by Petitioner as a teacher with Petitioner since 2008. During the timeframe relevant to this proceeding,5/ Respondent was employed as a teacher at Forest Hill High School ("Forest Hill"). He taught the Theatre I, II, III, and Theatre I IB classes (collectively, the "drama classes") and the Speech and Debate classes, and was the faculty sponsor for the school's drama club. Respondent has not previously been subject to discipline by Petitioner, and the evidence shows that he consistently received high performance evaluations and was a popular teacher with the students at Forest Hill. Administrative Charges On or about April 6, 2016, Petitioner took action to suspend Respondent for 15 days without pay and to terminate his employment as a teacher. Respondent timely challenged Petitioner's action by requesting an administrative hearing pursuant to sections 120.569 and 120.57(1). The factual bases for the administrative charges against Respondent are set forth in paragraph 10 of the Petition, which constitutes the administrative charging document in this proceeding. Paragraph 10 alleges: "[o]n or about May 14, 2015, it was reported that Respondent interacted inappropriately and made inappropriate comments to students in his drama class." The Petition does not identify the time frame in which the conduct referenced in paragraph 10 is alleged to have occurred, nor does it specifically describe the conduct in which Respondent is alleged to have engaged that would violate the rules and policies cited in the Petition. Based on the facts alleged in paragraph 10 of the Petition, Petitioner has charged Respondent with violating the following: Florida Administrative Code Rules 6A-5.056(2), 6A- 10.080(2), and 6A-10.081(3); School Board Policy 0.01(2), (3), and (6); School Board Policy 1.013(1); School Board Policy 3.02(4)(a), (b), (d), (e) and (5)(a); School Board Policy 3.27; and School Board Policy 5.81(10)(c).6/ If proved, the alleged violations of these rules and policies would constitute just cause under section 1012.33 to suspend Petitioner and terminate his employment as a teacher. Events Giving Rise to This Proceeding In March 2015, R.H., a student at Forest Hill, reported to Shawn McCall, a teacher at Forest Hill, that Respondent had engaged in what McCall characterized as "inappropriate" behavior with respect to another student, S.G. R.H. also relayed to McCall that S.G. had told her that Respondent was having a sexual relationship with another student, C.W. According to McCall, R.H. was emotionally distraught as she relayed this information to McCall. However, the evidence shows that R.H. did not have any personal knowledge regarding any of the matters she reported to McCall; rather, she relayed to him what she had been told by S.G. R.H. did not testify at the final hearing. McCall did not have personal knowledge of any of the matters that R.H. relayed to him. McCall reported the information he had received from R.H. to Dr. Mary Stratos, the principal of Forest Hill. Thereafter, Stratos spoke with R.H., who relayed to her that Respondent "may have been inappropriately touching" S.G. Pursuant to protocol, Stratos contacted the Palm Beach County School Police Department ("School Police"), which conducted an investigation of the matters relayed by R.H. The School Police interviewed students and teachers who witnessed, or may have witnessed, matters germane to the investigation. Stratos did not have personal knowledge of any of the matters about which R.H. told her.7/ As a result of the School Police investigation, Petitioner took action to suspend Respondent without pay for 15 days and to terminate his employment as a teacher. Evidence Regarding Factual Allegations in Petition As discussed above, the Petition does not provide any detail or specificity regarding the type or nature of the "inappropriate" interactions in which Respondent allegedly engaged, or the "inappropriate comments" Respondent allegedly made, with respect to the students in his drama class. From the evidence presented at the final hearing, the undersigned gleans8/ that Petitioner has charged Respondent with making sexually-suggestive comments and jokes to, and making verbal sexual advances toward, students in his classes and in drama club; making physical sexual advances toward three students9/; and having a sexual relationship with one10/ of those students.11/ Student S.G. S.G., a former student in Respondent's drama classes, testified at the final hearing. S.G. was a student in Respondent's drama classes in the 2013-14 school year, when he was a junior, and the 2014-15 school year, when he was a senior. S.G. also was a member of the drama club for all of his junior year and part of his senior year. S.G. testified that Respondent engaged in verbal and physical sexual advances toward him during both years in which he was a student in Respondent's classes and was a member of the drama club. Specifically, S.G. testified that during both years, Respondent would constantly ask him how large his penis was in front of the entire class, loudly enough for others to hear. He also testified that Respondent would comment on his appearance openly in class, telling him that he looked "cute," and that Respondent would frequently look at him in a sexually-suggestive manner while biting his lower lip and sticking out his tongue. S.G. also testified that during both years, during drama class and in drama club rehearsals, Respondent often would get very close to his face, sniff his neck, and try to kiss him. On cross-examination, S.G. characterized the frequency of Respondent's attempts to kiss him and sniff his neck as occurring "daily" or "every other day, at least." Also on cross- examination, S.G. asserted that Respondent's behavior was open and obvious "to everyone," including to persons passing in the hallway when Respondent engaged in such conduct while standing in the doorway of his classroom. S.G. also testified that during his junior year, Respondent sniffed his neck and bit his nipple as he and another student were moving a platform from center stage following a drama club rehearsal. According to S.G., the other student moving the platform was the only witness (other than Respondent) to the incident. That student did not testify at the final hearing. Additionally, S.G. testified that during his senior year, Respondent "cupped" his genitals on one occasion12/ as he held the auditorium door for female drama club students, and that after this incident, he quit participating in the drama club. S.G. testified that he heard Respondent frequently make sexual comments to students R.C. and C.W. in drama class and during drama club rehearsals, and he often saw Respondent try to kiss students R.C. and C.W. S.G. testified that Respondent engaged in this conduct frequently, in front of everyone in drama class and during drama club rehearsals. S.G. also testified that he heard Respondent and C.W. exchange sexual jokes, engage in sexually explicit discussions, and call each other "pet" names "all the time." Additionally, S.G. testified that one day, he saw Respondent and C.W. come to a pep rally "together" and sit together, and also that they were "just together constantly." On these bases, he surmised that Respondent and C.W. were engaged in a sexual relationship. S.G. testified that he did not report Respondent's conduct to anyone because he was embarrassed and thought that no one would believe him because Respondent was a popular teacher. He also testified that he was concerned that if he reported Respondent's conduct, school authorities would find out that he was attending Forest Hill instead of the school (Wellington) for which his actual place of residence was zoned. When asked why he chose to take a second year of Respondent's drama class after Respondent purportedly had engaged in the conduct that he claimed, S.G. testified that he took the drama course in his senior year because it was an easy class in which you could get an A just for attending, that Respondent was a very lax teacher who let students play on their phones, and that some of his friends were in the class. On or about March 5, 2015, S.G. told R.H. that Respondent had made verbal and physical sexual advances toward him and that Respondent was engaged in a sexual relationship with C.W. As discussed above, R.H. relayed this information to McCall, who relayed it to Stratos. Shortly thereafter, the investigation leading to this proceeding was initiated. Student R.C. As previously discussed, student R.C.'s deposition was admitted into evidence when R.C. did not appear to testify at the final hearing despite having been subpoenaed by Petitioner.13/ R.C. was a student in Respondent's drama class in his freshman and sophomore years and was a member of the drama club. R.C. initially testified that he had heard Respondent make "homosexual jokes," but then clarified that Respondent would, on occasion, compliment students, saying things like "you look nice today." R.C. testified that he had heard Respondent and C.W. engaged in "homosexual jabber," but was unable to recall anything specific that he had heard Respondent and C.W. say to each other that constituted "homosexual jabber." R.C. testified that S.G. had told him, in passing, that Respondent engaged in "homosexual jokes" with him and that S.G. was upset about it; however, R.C. testified that S.G. was mostly upset because Respondent gave preference to C.W. in assigning roles in the drama club plays. R.C. testified that S.G. felt that Respondent treated him unfairly by not giving him a more prominent role in a play being produced by the drama club, and that S.G. would become upset if Respondent corrected him on stage during rehearsals. R.C. also testified that S.G. told him that Respondent had tried to kiss him (S.G.), but that again, it was in passing, and that S.G. mainly vented about how he was upset about learning lines in drama class. R.C. testified that once during class, he had gone to Respondent with a personal issue, and that after Respondent listened and talked with him, Respondent tried to kiss him. However, R.C. subsequently clarified that Respondent had actually blown a kiss in a theatrical manner in R.C.'s direction as he went back to his seat. R.C. stated that he had never had a problem with Respondent and that he liked him as a teacher. Student C. W. C.W. was a student in Respondent's drama class in his junior and senior years of high school, and also served as Respondent's teacher's aide in his senior year. He also was a member of the drama club in his junior and senior years. In high school, C.W. aspired to be an actor. He is majoring in theater in college. While in high school, Respondent functioned as C.W.'s mentor and would coach him on acting techniques after school, either in his classroom or in the auditorium. C.W. credibly testified that Respondent did not charge him for the tutoring, and that he never paid Respondent for tutoring. C.W. credibly testified that his relationship with Respondent was strictly professional and related to acting. C.W. credibly testified that he and Respondent did not have a personal relationship; that neither had visited each other's house; that they did not date; that Respondent had not made any sexual advances toward him or tried to kiss him; and that Respondent had never done anything to make him feel uncomfortable. C.W. also credibly testified that he and Respondent did not engage in sexual discussions and did not call each other pet names. C.W. confirmed that he had talked to Respondent at a school pep rally. Specifically, C.W. arrived at the pep rally separately and sought Respondent out, because, as C.W. put it, "I'd rather spend my time talking to him, if I could, about acting or something whenever I could instead of just watching a pep rally." C.W. testified that he stood, not sat, next to Respondent during the pep rally. C.W. credibly testified that during his time as a student and teacher's aide in Respondent's classes and during drama club rehearsals, he never heard Respondent make inappropriate comments toward, engage in sexual discussions with, make verbal sexual advances toward, or otherwise engage in inappropriate conduct directed toward S.G., R.C., or any other students. He also never saw Respondent sniff any student's neck or embrace any student. C.W. also credibly testified that during Respondent's classes, students were required to be engaged in school work related to theater and were not allowed to use their phones. To that point, C.W. noted that Respondent often would confiscate phones if the use of them was "getting out of hand." C.W. also credibly testified that Respondent did not curse or participate in sexual joke-telling or banter, that he would not tolerate students making sexual jokes or cursing in his class, and that he would threaten discipline if they engaged in such conduct. Student I.D. I.D. was a student in Respondent's classes in her sophomore, junior, and senior years of high school, and she also served as Respondent's teacher's aide. She also was a member of the drama club. In her junior year, she was in drama class with S.G., who also was a junior that year. I.D. credibly testified that she had never seen Respondent act inappropriately toward S.G. She never saw Respondent try to kiss S.G. or get close to his face, nor did she ever see Respondent make overtures to any students in his class or in the drama club. She also testified, credibly, that she never saw any conduct by Respondent directed toward C.W. that suggested a personal relationship between Respondent and C.W. Student V.A. V.A. was a student in Respondent's classes. She took four classes from him while attending Forest Hill. During her junior and senior years, she took drama classes from Respondent. During both years, S.G. also was a student in those classes. V.A. credibly testified that she sat close enough to S.G. and Respondent to hear conversations between them, and that she never heard Respondent ask about S.G.'s penis size. She never saw Respondent try to kiss S.G., embrace him or smell his neck, or otherwise engage in any inappropriate conduct toward him, and she never saw Respondent make any sexual advances toward any other students, including R.C. and C.W., in the classroom. Likewise, she never saw Respondent make sexual advances or otherwise engage in inappropriate conduct, or make inappropriate comments, directed toward S.G., R.C., C.W., or any other students in the drama club. V.A. was friends with C.W. She credibly testified that she often was present when C.W. and Respondent were together and that she never heard them call each other pet names. Through her friendship with C.W. and her frequent interactions with Respondent and C.W., she did not believe that Respondent was any closer to C.W. than he was to other students in the class. V.A. also credibly testified that while in Respondent's classes, students always were engaged in classwork, were not allowed to sit around and play on their phones, and, in fact, were not permitted to have their phones out during Respondent's classes. Respondent Respondent credibly testified that he did not have a sexual interest in S.G. or C.W. He also credibly testified that he never tried to kiss S.G., R.C., or C.W. He credibly denied having ever groped S.G., and he also credibly denied having bitten S.G. He denied having ever embraced any students or having smelled their necks. Respondent credibly testified that he did not make sexual comments toward S.G., and he credibly denied having asked or joked about the size of S.G.'s penis or that of any other student. Respondent tutored C.W. in theater after school, and he credibly testified that he was not paid for it. He also credibly testified that he did not call C.W. by pet names, and he credibly denied having anything other than a teacher-student academic mentoring relationship with C.W. Clear and Convincing Evidentiary Standard As discussed in greater detail below, the clear and convincing evidentiary standard applies to this proceeding. This burden requires that: [T]he evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. In re Davey, 645 So. 2d 398, 404 (Fla. 1994). Findings Regarding Alleged Sexual Comments, Jokes, and Verbal Sexual Advances Toward Students Petitioner has not shown, by clear and convincing evidence, that Respondent made sexual comments to, engaged in sexual jokes with, or made verbal sexual advances toward students in his drama classes or in the drama club. S.G.'s testimony that Respondent constantly asked him how large his penis was and also made similar comments to R.C. and S.G.——frequently, loudly, and openly in class, where others could hear——during both years in which he was a student in Respondent's drama class, was not credible. Not only did no other witness corroborate S.G.'s testimony, but the testimony of C.W., I.D., and V.A. flatly contradicted it. Those witnesses——who were students in Respondent's class, and, thus, in a position to hear and see any "constant," loud comments of a sexual nature——credibly and persuasively testified that they never heard Respondent make sexual comments, tell sexual jokes, or make verbal sexual advances to any members of the class, including S.G. Had Respondent made these comments——particularly in the loud, frequent, open, and obvious manner to which S.G. testified——it is highly likely that these students would have heard them; yet all consistently and credibly denied having ever heard them. Although R.C. initially testified that he heard Respondent make "homosexual" comments, he subsequently clarified that Respondent simply occasionally complimented students on their appearance. Additionally, although R.C. claimed to have heard Respondent and C.W. engage in "homosexual jabber," he was unable to specifically articulate anything that either Respondent or C.W. said that was, or could be considered, sexual or "homosexual" in nature. Additionally, Respondent credibly and persuasively denied having made sexual comments to, engaged in sexual jokes with, or engaged in verbal sexual advances toward S.G. or any other student in his class or in the drama club. The undersigned finds the testimony of C.W., I.D., V.A., and Respondent on these allegations credible and persuasive, while finding S.G.'s testimony incredible and unpersuasive. Further, R.C.'s testimony regarding hearing Respondent make "homosexual jokes" and engage in "homosexual jabber" was not precise, explicit, or distinctly remembered; rather, it was equivocal and non-specific. In sum, the evidence does not clearly and convincingly establish that Respondent made sexual comments or jokes to, or made verbal sexual advances toward, the students in his drama classes and in the drama club. Findings Regarding Alleged Physical Sexual Advances toward Students The undersigned also finds incredible and unpersuasive S.G.'s testimony that Respondent would get close to his face, sniff his neck, and try to kiss him, and that Respondent engaged in similar conduct toward C.W. and R.C. S.G. testified that Respondent directed this conduct toward him openly and obviously to everyone, on an almost daily basis. However, C.W., I.D., and V.A.——all of whom were in the drama class, drama club, or both, so were in a position to observe any such behavior——all unequivocally testified that they had never observed Respondent engage in any of those actions toward S.G. or any other students. Again, had Respondent engaged in this conduct——particularly in the loud, frequent, open, and obvious manner to which S.G. testified——it is highly likely that these students would have seen that conduct; yet, all persuasively and credibly testified that they never saw Respondent engage in such conduct. S.G. also testified that on one occasion, Respondent bit him on the nipple, and that one other student (who did not testify at the final hearing) witnessed it. Respondent credibly denied having engaged in this behavior. The undersigned does not find S.G.'s testimony on this point credible or persuasive. To the contrary, the undersigned finds it far more likely that, had Respondent engaged in such behavior, S.G. would have told his mother, school authorities, or other students——and, most important——would not have voluntarily taken another drama class from Respondent the following year.14/ Furthermore, the undersigned finds Respondent's testimony that he did not bite S.G.'s nipple credible and persuasive. S.G. also testified at the hearing that on one occasion during his senior year, Respondent had purposely groped his genitals. However, in his sworn statement made during the School Police investigation, S.G. stated that Respondent had "constantly" tried to kiss him and grab him in his "private area," and that Respondent had grabbed his genitals on more than one occasion——the latest occasion as recently as a week before S.G. was interviewed as part of the investigation. S.G.'s hearing testimony is patently inconsistent with his sworn statement on a material detail——i.e., the frequency with which he claims Respondent grabbed or attempted to grab his genitals. This inconsistency bears directly on S.G.'s credibility as a witness. Due to this obvious inconsistency on a key detail——one which cannot credibly be explained to mistake or lapse of memory——S.G.'s testimony that Respondent grabbed his genitals is deemed incredible and unpersuasive. Further, the undersigned finds credible and persuasive Respondent's testimony that he did not ever grab S.G.'s genitals. Although R.C. initially testified that Respondent tried to kiss him, he subsequently clarified that Respondent had, in fact, blown a "theatrical kiss" toward him as he returned to his seat after they had engaged in a discussion. This testimony does not clearly and convincingly establish that Respondent made a sexual advance toward R.C. In sum, the evidence does not clearly and convincingly establish that Respondent made physical sexual advances toward S.G., R.C., C.W., or any other students in his drama class or in the drama club. Findings Regarding Alleged Sexual Relationship with Student The credible, persuasive evidence does not show that Respondent engaged in a sexual relationship with C.W. S.G.'s testimony that he heard Respondent and C.W. engage in sexually explicit discussions, exchange sexual jokes, and call each other pet names "all the time" was directly contradicted by the credible, persuasive testimony of C.W. and Respondent, both of whom denied engaging in such conduct. Furthermore, I.D. and V.A.——both of whom were in Respondent's classes and in the drama club, so were often around both Respondent and C.W.——persuasively and credibly testified that they never heard Respondent and C.W. engage in sexually explicit discussions, exchange sexual jokes, call each other pet names, or otherwise engage in inappropriate verbal or physical conduct toward each other. Additionally, as previously discussed, although R.C. claimed to have heard Respondent and C.W. engage in "homosexual jabber," he was not able to specifically articulate anything that Respondent or C.W. said to each other that was, or could be considered, sexual or "homosexual" in nature. The fact that Respondent and C.W. stood (or even sat) next to each other and talked to each other during a school pep rally——and that, consequently, S.G. and R.C. perceived them as a "couple"——is of no probative value in proving the existence of a sexual relationship between Respondent and C.W.15/ Indeed, the undersigned finds completely credible and persuasive C.W.'s testimony that he had gone to the pep rally separately, and found Respondent and stood by him specifically to talk to him about acting instead of watching the pep rally. Respondent and C.W. both credibly and persuasively denied being involved in a sexual relationship, engaging in sexual jokes with each other, or calling each other pet names. The evidence does not clearly and convincingly establish that Respondent engaged in a sexual relationship with C.W. Findings of Ultimate Fact It is well-established in Florida law that whether charged conduct constitutes a deviation from a standard of conduct established by rule or statute is a question of fact to be decided by the trier of fact, considering the testimony and evidence in the context of the alleged violation. Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985). See also McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); MacMillan v. Nassau Cnty. Sch. Bd., 629 So. 2d 226 (Fla. 1st DCA 1993). Accordingly, whether alleged conduct violates the laws, rules, and policies set forth in the charging document is a factual, not legal, determination. For the reasons addressed in detail above, the competent substantial evidence in the record does not clearly and convincingly establish that Respondent engaged in any of the conduct with which he was charged in the Petition. Therefore, the undersigned finds, as a matter of ultimate fact, that Respondent did not violate the following rules and policies, as charged in the Petition: Florida Administrative Code Rules 6A-5.056(2), 6A-10.080(2), and 6A- 10.081(3); School Board Policy 0.01(2), (3), (4) and (6); School Board Policy 1.013(1); School Board Policy 3.02(4)(a), (b), (d), (e) and (5)(a); and School Board Policy 5.81(10)(c).16/ Accordingly, the undersigned finds, as a matter of ultimate fact, that Petitioner did not show, by clear and convincing evidence, that there is just cause, as defined in section 1012.33(1)(a), to suspend Respondent without pay and terminate his employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Palm Beach County School Board, enter a final order dismissing the charges against Respondent, reinstating his employment as a teacher, and awarding him back pay to the date on which he was first suspended without pay. DONE AND ENTERED this 24th day of April, 2017, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2017.
The Issue Whether Respondent violated Pinellas County School Board policies related to sexual harassment, inappropriate sexual conduct with students, and inappropriate relationships with students, and if so, whether the violations constitute just cause for her dismissal as a teacher.
Findings Of Fact Respondent, Dorothy Simon (Respondent), has been employed as a teacher by the Pinellas County School Board (School Board) since 1980. Her entire teaching career in the Pinellas County School District has been spent at the Pinellas Technical Education Center (PTEC). Pursuant to her employment, Respondent was issued a professional services contract. During the 1995-96 school year, Respondent taught an electronics technology course at PTEC in which approximately twenty-six (26) to thirty (30) students were enrolled. The course lasted one year, and upon completion of the course work, the students received a certificate. Except for one seventeen year old who was enrolled in the course, all of the students in Respondent's class were between the ages of twenty (20) and forty-eight (48) years old. On or about March 1996, a male student named Thomas Mitchell, who was approximately forty (40) years of age, enrolled in the electronics technology course taught by Respondent. Mitchell, who was not married, held himself out as an ordained minister and told Respondent that he wanted to be called "Reverend Mitchell". Consequently, Respondent as well as students in the class referred to and addressed Thomas Mitchell as Reverend Mitchell. On or about July 15, 1996, Mr. Mitchell gave the Respondent a letter in which Mr. Mitchell expressed a physical and emotional attraction to her and discussed starting a relationship with the Respondent. Prior to July 19, 1996, while on school premises, Respondent approached Mr. Mitchell and asked him if he would accompany her and her thirteen year old daughter to the Summer Olympics in Atlanta, Georgia, and act as their bodyguard during their stay. On or about July 19, 20 and 21, 1996, Mr. Mitchell accompanied Respondent and her daughter to the Summer Olympics in Atlanta. Mr. Mitchell drove the Respondent's car to Atlanta. While in Atlanta, Mr. Mitchell stayed with Respondent and her daughter in a hotel room which Respondent had reserved and paid for a year in advance. Respondent paid for Mr. Mitchell's meals and gave him $50.00 spending money. Mitchell later return the $50.00 to Respondent. After class, on or about July 22, 1996, Respondent drove several students to a nearby bus stop and Mr. Mitchell to Workforce, a center near PTEC where he tutored children. While Respondent was driving Mr. Mitchell to Workforce, she asked him if he would house-sit for her while she and her daughter were on vacation for two weeks. The Respondent offered to pay Mr. Mitchell $100.00 each week, and in return he was to feed her pets, clean her pool and live in her house while she was vacationing. Mr. Mitchell accepted the Respondent's offer. After class, on July 25, 1996, the last day of school before the summer break, Respondent drove several students to the bus stop and gave Mr. Mitchell a ride to his mother's apartment where he lived. Both the bus stop and Mr. Mitchell's mother's apartment were in the vicinity of PTEC. Respondent had given Mitchell a ride home on one other occasion and often gave other students rides to various places when they so requested. Shortly after Respondent dropped Mr. Mitchell off at his mother's apartment, while driving home, Respondent was involved in an automobile accident in which Respondent's vehicle struck a teen-age girl. After police and paramedics arrived at the scene of the accident, Respondent remained on the scene. However, about one hour after their arrival, the police who were investigating the accident advised Respondent to go home. Respondent was quite shaken, and did not feel that she was in any condition to drive herself home. Rather than driving herself home, Respondent went to Mr. Mitchell's residence, which was nearby, and asked him to drive her home. Mr. Mitchell complied with Respondent's request. On the way to Respondent's house, Mitchell and Respondent made two stops. The first stop was at a bank where the Respondent made a cash withdrawal for the $200.00 that she was going to give Mr. Mitchell for house-sitting. The second stop was at a liquor store where Mr. Mitchell, at the Respondent's request, went inside and purchased a bottle of vodka. Mr. Mitchell then drove Respondent home and when they arrived, Respondent had one drink of orange juice and vodka. Respondent then went into her swimming pool to calm herself and was shortly thereafter joined by Mr. Mitchell. While both were in the pool, Respondent asked Mr. Mitchell to hug her because she wanted to be comforted. Mr. Mitchell then hugged Respondent and the two engaged in sexual intercourse. On or about July 27, 1996, Respondent and her daughter drove to Mr. Mitchell's residence and picked him up. Mr. Mitchell accompanied Respondent and her daughter to a swim meet in which the daughter was participating. After the swim meet, Mr. Mitchell drove the Respondent and her daughter to the airport for their departure on a two-week vacation. Mr. Mitchell returned to Respondent's home and house- sat for Respondent for two weeks while she was away on vacation, pursuant to their previously made agreement. As promised, Respondent paid Mr. Mitchell $100.00 per week for house-sitting. While on vacation, Respondent received one phone call from Mr. Mitchell in which he requested an additional $100.00. Respondent wired Mr. Mitchell the $100.00. When Respondent returned from vacation, she found that Mr. Mitchell had trashed and vandalized her house. She later determined that Mitchell had run up an exorbitant phone bill and had stolen approximately $2,300 from her by making unauthorized cash withdrawals on a credit card that had been mailed to her home while she was away. When school began at PTEC in August 1996, Mr. Mitchell was still enrolled as a student in Respondent's electronics technology course. At that time Mr. Mitchell had approximately two weeks of course work remaining to be completed in order to receive a certificate of completion. Upon returning to PTEC after the summer break, Respondent went to see Dr. Warren Laux, Director at PTEC, concerning Mr. Mitchell. Respondent was afraid of Mr. Mitchell, and requested that he be removed from her class because she did not want to come in contact with him. Respondent explained that Mr. Mitchell house-sat for her during a two-week vacation and left the house a mess, stole money from her and ran up an exorbitant phone bill during his stay. Because she had notified police of these incidents involving Mr. Mitchell, the Respondent told Dr. Laux that the situation created a conflict for her if Mr. Mitchell remained in her class. During their discussion, Dr. Laux asked Respondent if there had been any sexual relationship between herself and Mr. Mitchell. The Respondent stated that she had sex with Mr. Mitchell on one occasion. However, Respondent did not give details of the time, place, or circumstances surrounding that encounter. Dr. Laux explained to Respondent that for the moment it appeared that Mr. Mitchell had done nothing which violated the Student Code of Conduct and, accordingly, there was no valid reason to remove him from her class. During August 1996, Respondent told some students in her class that the person who had house-sat for her when she was away on vacation had trashed her house. However, Respondent did not identify Mr. Mitchell as that person. During August 1996, while in her classroom, Respondent told Mr. Mitchell that she would rather scratch his eyes out than have him in her class. At the time this comment was made by Respondent, there were students in the classroom, but on the other side of the room. Respondent's comments to Mr. Mitchell were not made loudly enough for other students to hear. The School Board's Office of Professional Standards conducted an investigation regarding the allegations that the Respondent had been involved with a student. As a part of this investigation, Respondent was interviewed on three occasions: August 28, 1996; September 3, 1996; and mid-September 1996. During each interview, Respondent admitted that on one occasion she had engaged in sexual intercourse with one of her students, Thomas Mitchell. Respondent's conduct impaired her effectiveness as a teacher. Respondent failed to maintain a professional relationship with her student Thomas Mitchell and used her position to enter into a personal relationship with him. Once that relationship deteriorated, as admitted by Respondent, it was impossible for her to work with that student, and her effectiveness was significantly impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be dismissed from her position as a teacher with the Pinellas County School Board.DONE and ENTERED this 4th day of April, 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1997. COPIES FURNISHED: Keith B. Martin Assistant School Board Attorney Post Office Box 2942 Largo, Florida 34649-2942 Robert F. McKee, Esquire Kelly and McKee, P.A. Suite 301 1718 East Seventh Avenue Tampa, Florida 33675-0638 J. Howard Hinesley, Ed.D. Superintendent Pinellas County School Board 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 34649-2942 Ms. Dorothy Simon 6315 Eight Avenue North St. Petersburg, Florida 33710
Findings Of Fact Wright holds teaching certificate number 109682, covering the areas of elementary education and junior college. This certificate was issued on October 4, 1978, and is valid until 1989. Wright is employed by the Duval County School Board and is currently assigned to the Media center in Jacksonville, Florida. Wright has been a teacher with the Duval County School Board since 1962 and was a teacher at Mamie Agnes Jones Elementary School for 17 years, until this incident resulted in reassignment to the Media center. Wright attempted to motivate students by offering them money and other rewards for achieving good grades. He visited in other classrooms and took interest in students that were not in his class. One student he singled out, who was not in his class, was Lillian Simone Allen. He says he singled her out because "he saw potential in her." Wright talked to Ms. Allen's teacher on several occasions about her grades and he talked to Ms. Allen directly. As an incentive, he entered into a "bet" with Ms. Allen whereby she would receive money from him if she made the A/B Honor Role. On February 2, 1987, Ms. Allen walked to school as usual and went to the cafeteria with her friends. Shortly thereafter, Wright entered the cafeteria and said hello to the group. Ms. Allen did not say hello and Wright asked her why she did not respond. Ms. Allen finally said hello. Wright then asked her some questions about her grades and whether she needed any help. Ms. Allen went outside to wait for the buses to arrive with other friends on board. When they arrived, the group went to the playground. After playing for a few minutes, Ms. Allen and some friends headed for the library. On the way, Wright saw her and called her over. He asked her to come to his room to discuss her grades. Wright unlocked his classroom and both entered. He closed the door behind them. Ms. Allen remained standing by the door until Wright called her over to some cabinets along one wall. The area of the room where the cabinets were located was out of the view of the door and the only window in the room. Ms. Allen ended up sitting on the low cabinet. Wright was sitting next to her. A male student in Wright's class entered the room to place his books on his desk. Wright moved away from Ms. Allen when this student was in the room. After the student left, Wright began putting papers in the high cabinet next to where Ms. Allen was sitting. Up until that moment, Wright had been asking Ms. Allen about her grades and whether she needed help with her studies. After the student left, Wright moved over next to Ms. Allen and began rubbing her shoulder. Then he ran his hand down and rubbed her hip and thigh. Wright then stepped in front of Ms. Allen and asked her bra size. Using both hands, Wright touched and rubbed Ms. Allen's breasts. Wright heard the door handle turn and stepped away from Ms. Allen. A female student who was a friend of Ms. Allen's entered the room to drop off her books. As soon as this student, Lakia, left the room, Ms. Allen jumped up and left the room. Ms. Allen was shocked and frightened by this incident. At the time she was twelve years old. She was mature enough that she was wearing a bra, but no teacher had ever touched her in this manner. She is now scared of males and male teachers. When she left the room, Ms. Allen went out to the playground and talked to her friend, Lakia. She then went and told her teacher, Ms. Miles, who in turn took Ms. Allen to the principal's office. An investigation was conducted initially by the principal, Mr. Hurst. Wright denied touching Ms. Allen. A further investigation was conducted by Police Officer Norman of the School Board's Security Office. Wright told Norman that he could have accidently brushed against the left side of Ms. Allen's body. Now Wright denies making this statement. On or about March 4, 1987, Wright was arrested and charged with three counts of lewd and lascivious assault upon a minor child in violation of Section 800.04, Florida Statutes. Two additional victims were mentioned in the information, but no testimony regarding those children was presented in this proceeding. The information filed on March 13, 1987, charged Wright with lewd, lascivious or indecent acts upon minor children. Wright entered into a Deferred Prosecution Agreement whereby he was placed on 24 months probation with the special conditions that he perform 80 hours of community service, that he have no contact directly or indirectly with the victims, that he not be employed as a teacher at Mamie Agnes Jones Elementary, and that he attend Arlington Psychological Center for evaluation and successful counseling. In exchange for the Deferred Prosecution Agreement, the State Attorney's Office nol prossed the Information. According the Mr. Hurst, the principal, there was publicity about these events at the time and teachers, parents and students were aware of the arrest. Since that time the matter has died down and people no longer ask about it. According to Raymond Bailey, Director of Certified Personnel at the Duval County School Board, if the allegations are shown to be true, the acts are ones of gross immorality or moral turpitude in violation of Section 231.28(1)(c), Florida Statutes; and the acts are personal conduct which seriously reduces Wright's effectiveness as an employee of the School Board; the acts violate Rules 6B-1.006(3)(e)(f), and (h), in that they exposed a student to unnecessary harassment or disparagement, they intentionally violated or denied a student her legal rights, and they exploited his professional relationship with a student for personal gain or advantage. In making these findings regarding the actual events of this incident, it recognized that Wright denies that he touched Ms. Allen in an inappropriate manner. It is also recognized that Ms. Allen's testimony contains some inconsistencies, such as the date of the event. Viewing the testimony as a whole, however, it is found that Ms. Allens testimony the more credible and that Wright's testimony is self-serving and inconsistent with statements made to the principal and the Police Officer during the investigations.
Recommendation Based upon the foregoing Findings of Fact and conclusions of Law, it is RECOMMENDED that The Department of Education, Education Practices Commission, enter a Final Order finding Ira B. Wright guilty of the violations charged and permanently revoking his teaching certificate number 109682. DONE and ENTERED this 26th day of October, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-2474 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Education, Education Practices Commission Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-4(1-4); 5(4&5) ; 6(6); 7- 9(7); 10&11(8) ; 12(9&10) ; 13(11); 14(10); 15-17(11); 18- 20(12-14); 22(15); 23&24(16) ; 25-28(17-20); and 29-33(20). Proposed findings of fact 21 and 34 are unnecessary or Irrelevant. Specific Rulings on proposed Findings of Fact Submitted by Respondent, Ira B. Wright Each of the following proposed findings of fact are adopted In substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1&2(1); 3(2); 14(4); 20(21); and 26(3). Proposed findings of fact 4-9, 18, and 29 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 10-12, 27 and 28 are rejected as being unsupported by the competent, substantial evidence. Proposed findings of fact 13, 15-17, 19, and 21-25 are Irrelevant. COPIES FURNISHED: Lane Burnett 331 East Union Street Suite 2 Jacksonville, Florida 32202 David A Hertz 1601 Atlantic Boulevard Jacksonville, Florida 32207 Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 =================================================================
The Issue The issue is whether Petitioner should be dismissed from his employment as a tenured professor at Florida A & M University as proposed in a termination letter dated October 17, 2003, on the grounds that he violated Rules 6C3-10.103 and 6C3-10.230, Florida Administrative Code.
Findings Of Fact Petitioner, Dr. Donald Allen, was hired by Respondent, Florida A & M University, as an associate professor in 1993. Three to four years later, Petitioner attained the status of tenured professor, which he held until his termination from employment on September 18, 2003. Petitioner is also known as Dr. Daudi Ajani ya Azibo. While employed by Respondent, Petitioner authored numerous scholarly articles and books. Dr. Allen was recognized by the International Association of Black Psychologists as a distinguished psychologist. Petitioner has also been recognized by the Journal of Black Psychology for his work and, as a result, Respondent’s Psychology Department has been regarded as the top department in Black Psychology. The Journal of Black Psychology has devoted two issues solely to Petitioner’s work, a heretofore unprecedented move. During the fall semester of 2002, Petitioner taught a course for Respondent in Black Psychology. The class held approximately 100 students, one of whom was a woman named Brandi McSwain. Ms. McSwain received a passing grade on her first test in Petitioner’s class, but received a failing grade on her second test when she and three other students were caught cheating on the test. Petitioner informed the four students who had cheated on the test that they would have to pass the final two tests in the class in order to receive a passing grade. Each of the four students, except Ms. McSwain, passed the final two tests. Ms. McSwain approached Petitioner after class on the Thursday before Thanksgiving 2002, to discuss her failing grade on the second test while Dr. Allen was conducting office hours in an adjacent classroom. Ms. McSwain asked Petitioner if she could earn extra credit to make up for her failing grade. She offered to “do anything” in order to improve her test score. Dr. Allen asked Ms. McSwain to write her telephone number on the test paper so that he could contact her about her failing grade. Requesting a student’s telephone number was something Petitioner routinely did when he had too many students to handle during office hours. On November 23, 2002, Petitioner called Ms. McSwain to discuss her failing test score. Ms. McSwain offered to write a research paper or perform another assignment in order to earn credit for the failing grade. Petitioner informed Ms. McSwain that she would have to take the remaining two tests, along with the other three students who had cheated, then he would work with her to improve her score on the test on which she had been caught cheating. During the telephone conversation, a discussion took place between Dr. Allen and Ms. McSwain concerning trading sexual favors for a better grade on the failed test. Petitioner claims that Ms. McSwain initiated the discussion of exchanging sex for an “A” on the test. Ms. McSwain claims that Dr. Allen initiated the conversation of the exchange of sex for a good grade. Petitioner told Ms. McSwain that he did not trade sex for grades. Ms. McSwain told Petitioner that she just wanted to have sexual relations with him, not in exchange for grades, but because she had a “crush” on him. Petitioner believed that Ms. McSwain was attempting to exchange sexual relations for an “A” grade on the test she failed, and he repeatedly told her that he would not exchange sex for an improved grade. He stated the following: “Get the hell out of here. You’ve got to be kidding. There is no way you want me on you. I’m short, fat, bald, and 50.” Ms. McSwain convinced Petitioner that she wanted to have sex with him regardless of the impact on her grade. She said the sex she was offering was not about grades. “No sir, I just want to have sex with you.” Ms. McSwain purchased a tape recorder at a local Wal-Mart so that she could tape the conversations she had with Petitioner concerning their proposed sexual liaison. Petitioner and Ms. McSwain exchanged several telephone calls concerning arranging a sexual liaison. They finally agreed to meet at the Albertson’s grocery store on North Monroe Street in Tallahassee, then to proceed to a motel down the street. Petitioner and Ms. McSwain met at the Albertson’s, then proceeded to the Super 8 Motel down the street, arriving around midnight. Petitioner proceeded to rent the room in his own name, paying cash, while Ms. McSwain waited in her car. Petitioner came out to Ms. McSwain’s car and told her the room number, then he went up to the motel room. Ms. McSwain joined him in the room a few minutes later. Upon entering the room, and on several occasions when she was in the room with Dr. Allen, Ms. McSwain asked if she was going to get an “A” if she performed various sexual acts with him. Petitioner and Ms. McSwain discussed the sexual acts that he wanted her to perform and she repeatedly asked him if she was going to get her “A” if she performed one or another of the acts. Dr. Allen repeatedly told Ms. McSwain that this was not about grades and that he refused to trade sex for grades. Ms. McSwain testified that she spent no more than five minutes in the motel room with Petitioner, yet the tape recording she made while she was with Petitioner lasted approximately 30 minutes. Petitioner and Ms. McSwain caressed and discussed explicitly the sexual acts in which they were going to engage. Ms. McSwain began to dance for Petitioner and, as she began to remove her clothes, asked if he was going to give her an “A” for what she was doing or, presumably, for what she was about to do with him. Petitioner continued to tell her that “there is no grade in this.” At some point in the motel room, before any actual sexual intercourse took place, Ms. McSwain removed the tape recorder from her purse and said to Petitioner “I got you!” As she left the room with her tape recorder in hand, Ms. McSwain told Petitioner that he had better give her an “A” or she was going to turn over the tape to his wife and the people at Florida A & M. Dr. Allen did not dispute meeting Ms. McSwain at the motel, or that they agreed to engage in sex. Petitioner asserts a consensual sexual relationship and Ms. McSwain asserts a “sex for grades” scenario. The audiotape of the meeting at the hotel is largely inaudible, although enough of it is audible to make the following conclusions: Approximately 10 minutes into the tape, Ms. Mcswain states she is trying to get an “A.” Approximately 12 minutes into the tape, Dr. Allen says, “not related to grade”; Ms. McSwain responds that she is trying to get a good grade. Approximately 13 minutes into the tape, Dr. Allen states he does not swap grades for sex. Approximately 14-15 minutes into the tape, Ms. McSwain states that she is not having sex unless she gets a grade. Approximately 15 minutes into the tape, Ms. McSwain states she wants an “A,” then asks “I’ll get an ‘A’ if I have sex?” Approximately 17 minutes into the tape, Ms. McSwain states, “if I don’t get an ‘A,’ I’m not going to do it.” Approximately 18-19 minutes into the tape, she asks for an incomplete and states that she is not going to allow this class to ruin her life. Approximately 22-23 minutes into the tape, Ms. McSwain says, “I want an ‘A,’ and no one hears this if I get it. I don’t want to hurt anyone.” Approximately 31 minutes into the tape, Ms. McSwain leaves the motel room. Petitioner has had no contact with Ms. McSwain since November 24, 2002. Ms. McSwain did not return to the Black Psychology class for the remainder of the semester following their encounter at the motel. Ms. McSwain reported the incident with Petitioner to the Office of Equal Opportunity Programs on November 27, 2002, and met with the Director, Ms. Carrie Gavin. Ms. Gavin advised Ms. McSwain of Respondent’s rules and regulations and provided her with a form for filing a formal complaint against Petitioner. Ms. Gavin met with Ms. McSwain again on December 4, 2002, at which time she reviewed the audiotape made by Ms. McSwain of the meeting in the motel room. Ms. McSwain did not file a formal complaint at that time. Petitioner completed his grades on December 13 or 14 and submitted them to Respondent on or before December 16, 2002. On December 17, 2002, Ms. McSwain filed a complaint of sexual harassment against Petitioner, after Petitioner’s grades had been posted. Ms. Gavin notified Petitioner of the filing of the formal complaint by Ms. McSwain. Petitioner filed a written response to the allegations of the formal complaint. Ms. Gavin conducted an investigation into the allegations of Ms. McSwain’s complaint and concluded that “there was merit to the complaint.” The report generated by Ms. Gavin recommended that Petitioner should be terminated from employment because of prior disciplinary action pursuant to Rule 6C3-10.103, Florida Administrative Code. The report found that Petitioner had engaged in quid pro quo sexual harassment and had created a hostile environment with respect to Ms. McSwain. The basis of these charges was that “a sexual relationship was discussed during the point of dealing with grades” in discussion between a professor and a student. The recommendations from Ms. Gavin were reviewed by Respondent’s President, Dr. Fred Gainous, who issued a letter upholding the termination of Petitioner pursuant to Rules 6C3-10.103 and 10-230, Florida Administrative Code. Ms. Gavin indicated that over the last five years, five or six informal sexual harassment complaints and 15 or 16 formal sexual harassment complaints had been filed with her office. Of the formal complaints, eight had been substantiated and resulted in disciplinary action being taken. Respondent believes in the principle of progressive discipline. Disciplinary actions range from a written reprimand to a dismissal. Any employee with a second substantiated violation of the discrimination rule receives a recommendation of dismissal. Dr. Frederick Humphries, Respondent’s former president, issued a written reprimand to Petitioner for retaliation on April 20, 1999. Petitioner had retaliated against a group of students by providing a survey to “those members of his class who had not filed a sexual harassment complaint against him.” Also contained in that letter was language stating that any further infractions could lead to termination. Dr. Larry Rivers, Dean of Respondent’s College of Arts and Sciences, was informed of Ms. McSwain’s sexual harassment complaint by Dr. John Chambers, his assistant dean at the time, who informed him that Ms. McSwain did not feel comfortable returning to Petitioner’s class. Dr. Rivers instructed Mr. Chambers to make alternative arrangements for Ms. McSwain to complete the class. Petitioner issued Ms. McSwain a grade of “I” (incomplete) in the Black Psychology class. Ms. McSwain enrolled in one class during the summer semester 2003, but failed to complete it. She withdrew from the University in July 2002. Dr. Rivers has taught both undergraduate and graduate level courses for Respondent for approximately 25 years. In his role as a department chair and as dean, he has discussed his belief that it is always unprofessional for a professor to have any type of relationship, other than an academic one, with a student. The teacher-student relationship is one based upon power, with the teacher wielding the power. Respondent has no rule or regulation that prevents a faculty member from having a consensual relationship with an adult (greater than age 18) student.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered affirming the dismissal of Dr. Allen from his position at Florida A & M University. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2004. COPIES FURNISHED: H. B. Stivers, Esquire Levine, Stivers & Myers 245 East Virginia Street Tallahassee, Florida 32301 Linda Barge-Miles, Esquire Florida A & M University Office of the General Counsel Lee Hall, Room 300 Tallahassee, Florida 32399-3100 Avery D. McKnight, Acting General Counsel Florida A & M University Office of the General Counsel 300 Lee Hall Tallahassee, Florida 32307-3100
The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1997), to terminate Respondent's employment as a classroom teacher. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner employed Respondent as a member of the instructional staff at Beaumont Middle School, now known as Kissimmee Middle School ("Kissimmee"), pursuant to a written annual contract as required in Section 231.36(1). Respondent first taught at Kissimmee in the 1995-96 school year. Prior to that, Respondent taught school in Virginia. On November 29, 1996, Respondent was in his second year at Kissimmee. However, he had not yet signed his annual contract for the 1996-97 school year. On November 29, 1996, Respondent was arrested in the Florida Mall in Orange County, Florida. He was charged with indecent exposure of sexual organs. The charging affidavit alleges that Respondent masturbated while standing at a urinal in the men's room of a Sears department store in the Florida Mall. The affidavit also alleges that a male at an adjacent urinal also masturbated. Petitioner proceeded with disciplinary action against Respondent in accordance with the procedure prescribed in the contract between Petitioner and the Osceola Classroom Teachers Association. In a letter dated December 3, 1996, from Dr. Thomas McCraley, Superintendent, Osceola County School District, Petitioner suspended Respondent with pay. By letter dated December 16, 1996, Respondent requested an administrative hearing. On December 17, 1996, the Board voted unanimously to suspend Respondent without pay ". . . because the employee is requesting an administrative hearing." The Board referred the matter to DOAH to conduct an administrative hearing. The ultimate issue is whether Petitioner has just cause to terminate Respondent's employment. Just cause is defined in Section 231.36(1) to include misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. In the letter from Dr. McCraley, Petitioner expands the statutory definition of just cause to include immorality and misconduct other than misconduct in office. Dr. McCraley's letter is the only charging document in this case. The charging document is the instrument by which the Board provides Respondent with notice of the charges against him. The charging document states that there is just cause to terminate Respondent's employment based solely on: the alleged sexual acts, including masturbation; and the subsequent arrest. In relevant part, the charging document provides Respondent with notice of the following charges against him: This letter will serve to formally advise you that you are hereby suspended with pay from your position . . . effective immediately. Also, please be advised that I will recommend to the . . . . Board at the December 17, 1996 Board meeting that your contract with the School District be terminated. Please be advised that in the event you timely request a hearing, I will be recommending to the . . . Board that you be suspended without pay until this matter is fully adjudicated. Your recommended termination is based on the following information: On or about November 29, 1996 while you were on or about the Sears restroom in the Florida Mall . . . you were observed and did perform inappropriate and improper sexual acts in the presence of a minor person. These acts include . . . masturbation. You were thereafter arrested by law enforcement for those acts. The above-described acts and subsequent arrest constitute grounds under Section 231.36 . . . for your termination, including . . . misconduct in office, immorality, misconduct, and, if convicted of this offense, conviction of a crime involving moral turpitude. . . . The charging document does not charge that Respondent's teaching ability is impaired. However, Petitioner did disclose in its responses to interrogatories that it intended to present evidence relevant to this additional charge. Petitioner provided Respondent with adequate notice of the additional charge of impaired teaching ability. Evidence relevant to this additional charge did not exist when Petitioner issued the charging document. When Petitioner discovered such evidence, Petitioner properly disclosed the additional charge to Respondent during discovery. This proceeding is not penal in nature. It does not propose disciplinary action against Respondent's license. The original charges in the charging document are based solely on the alleged sexual acts in the men's room. The charges disclosed in the responses to discovery are based on alleged adverse publicity and its effect on the school environment. Petitioner failed to show by a preponderance of the evidence that Respondent committed any sexual acts in the men's room. Without proof of the underlying facts, Petitioner lacks just cause to terminate Respondent's employment on the grounds stated in the charging document. Just cause is statutorily defined to include the conviction of a crime of moral turpitude. Respondent was not convicted in criminal court of a crime involving moral turpitude within the meaning of Section 231.36(1). On August 4, 1997, the judge in the criminal case granted a motion for judgment of acquittal and excused the jury. The charge that Respondent engaged in sexual acts in the men's room is based solely on the observations of Deputy Steven Franklin of the Orange County Sheriff's Office. Deputy Franklin and Deputy Tina Durden were at the Florida Mall on November 29, 1996, to investigate complaints of homosexual acts committed in bathrooms at the mall. Deputy Franklin went into a men's room to urinate. He used a urinal adjacent to the urinal used by Respondent at the same time. Another male was adjacent to Respondent but on the opposite side of Respondent from Deputy Franklin. Deputy Franklin observed Respondent and the other male for less than two seconds. While he was waiting for a urinal, Deputy Franklin also observed Respondent from behind for a few minutes. However, Deputy Franklin could not observe Respondent's hands before he stood beside Respondent at the urinal. The observations by Deputy Franklin for less than two seconds are insufficient to determine whether Respondent was masturbating or voiding Respondent's urinary tract. Respondent has a medical history that makes it difficult for Respondent to determine whether his urinary tract is empty after he urinates. On November 29, 1996, Respondent went to the Florida Mall to obtain a fresh supply of a cleaning solution he used to avoid scratching reflective lenses in eyeglasses that Respondent purchased from Sears Optical in August 1996. The Sears Optical at the Florida Mall was the store location closest to Respondent's residence. However, it was approximately a 45- minute drive from Respondent's house. During the drive, Respondent drank a large bottle of water. He drank the water as part of the treatment for a kidney infection that developed after Respondent passed a kidney stone approximately two days prior to November 29, 1996. Respondent had a long medical history of kidney stones. Since 1972, Respondent had passed numerous kidney stones. After locating a parking place at the Florida Mall, Respondent needed to urinate. He went to the men's room adjacent to Sears Optical. Respondent had to wait for a urinal to become available. November 29, 1996, was the day after Thanksgiving, and the men's room was crowded. Respondent went to the first urinal that became available. He was at the urinal for no more than two minutes. When Respondent first attempted to urinate, he felt some pain in the kidney area. Respondent leaned forward to reduce the pain. He placed his left hand against the wall to avoid touching the urinal. Respondent was not sure he had voided all of the urine from his urinary tract. Respondent has no feeling in his penis due to an automobile accident that occurred in 1988. The automobile accident caused nerve damage. The loss of feeling makes it difficult for Respondent to determine whether or not he has emptied all of the urine from his urinary tract. To be sure all of the urine was eliminated from his urinary tract on November 29, 1996, Respondent shook and stroked his penis several times. Respondent's penis was not erect. Respondent can not have an erection without injection of a specific medication. Respondent has not had an injection since 1991 because the injections are painful and last for only a brief period. Deputy Franklin observed Respondent's hands and penis for less than two seconds and incorrectly concluded that Respondent was masturbating. In fact, Respondent was making sure there was no urine remaining in his urinary tract. While Respondent was at the urinal, he neither spoke to anyone nor touched anyone else. He was not aware of those around him other than a man standing behind him at the electric hand dryer who later identified himself as Deputy Franklin. After Respondent finished urinating, he washed his hands and left the men's room. He was arrested outside the men's room. Deputies Franklin and Durden also arrested the male who had used the urinal next to Respondent. The deputies escorted Respondent to a hearing aid store across from the waiting room of Sears Optical and told him to sit down. The deputies brought the other man to the area where Respondent was sitting. They asked Respondent and the other man if they knew each other. Both men stated that they did not know each other. The deputies searched and hand cuffed both men. The deputies detained both men for approximately 15 minutes. During that time, Respondent asked why he had been arrested but received no answer. The deputies then took both men in handcuffs through the mall to a security office near the hotel in the mall. Respondent remained at the security office for approximately three to four hours. While Respondent was in the security office, the deputies informed Respondent of the charges against him. Respondent repeatedly denied the charges. Respondent was taken to the 33rd Street jail at about 4:00 p.m. He was booked, photographed, finger printed, and placed in a holding cell. He was allowed to make a telephone call at about 5:00 p.m. Respondent telephoned one of his two sons and asked his son to provide bail. Respondent was allowed to leave the jail at about 8:00 p.m. As soon as Respondent reached his son's house, Respondent attempted to report the incident to Principal John Beall. Principal Beall was not available. Respondent telephoned Assistant Principal Karen Turner, who subsequently reported the incident to the principal. The decision to suspend Respondent with pay was made by Petitioner after a meeting on December 3, 1996, between Respondent, his representatives, and representatives for Petitioner. Petitioner did not undertake an independent investigation of the matter but relied solely on the police report, the arrest, statements by Petitioner's director of human resources, and the attorney for the Board. At the meeting, Respondent disclosed his medical condition and offered to provide documentation. He subsequently signed a medical authorization to release those records. At a meeting of the Board on December 17, 1996, Petitioner suspended Respondent without pay. Respondent did not have an opportunity to discuss his case with the Board. The Board relied on the advice of its counsel who in turn relied solely on the criminal arrest and underlying documents. Two local newspapers covered the arrest and suspension of Respondent. The articles were first published after the Board voted to suspend Respondent without pay on December 17, 1996. Respondent's effectiveness as a teacher is not impaired. A copy of a newspaper article was gratuitously distributed at Kissimmee in early January 1997. The publicity has not impaired Respondent's effectiveness with students, faculty, or parents. Approximately a dozen students, out of a student body of approximately 400, referred to the incident in class. The discussions were brief and dissipated after four or five days. Many of the students who discussed the matter in class have moved on to high school and are no longer at Kissimmee. Respondent has a very good rapport with students, even though he is strict and does not play or horse around with them. Teachers have not observed inappropriate behavior between Respondent and his students. Fellow teachers would like for Respondent to return to Kissimmee. Parents have not expressed any concern to Respondent's fellow teachers. One parent did complain to Assistant Principal Turner about Respondent. Respondent is a very competent and very dynamic teacher who exceeds the minimum requirements as a teacher at Kissimmee. He goes to great lengths to help students learn and communicate effectively. He assists parents and fellow teachers. Prior to Respondent's arrest, Respondent received excellent job evaluations. Principal Beall considered Respondent to be an excellent teacher who was creative, effective with students, a good manager of the classroom, and demonstrated independent initiative. Principal Beall chose Respondent to serve as a temporary dean and encouraged Respondent to attend a program designed to qualify Respondent as an assistant principal. Principal Beall and several other witnesses for Petitioner would not hesitate to reinstate Respondent at Kissimmee if the charges against him are not proven. Respondent has obtained an education that significantly exceeds the minimum educational qualifications prescribed in Section 231.17(1)(c) for an elementary or secondary teacher. Respondent earned a bachelor's degree and master's degree in education and geography, respectively, and also earned a PhD. degree in Christian counseling. Respondent has over 20 years of teaching experience in Virginia and Florida. Prior to this case, Respondent has never been disciplined by a school district in which he taught. Respondent has never been arrested prior to this case. Respondent is certified to teach in Virginia. He has met all of the requirements for renewal of his teaching certificate in Florida. He is awaiting the outcome of this proceeding before submitting the necessary paperwork for the renewal of his Florida teaching certificate. At the hearing, Petitioner charged for the first time that Respondent violated school regulations and policies contained in the faculty handbook. Petitioner argued that Respondent violated regulations and policies that prohibit faculty contact with students outside of the school by providing care and instruction to students after school. Respondent objected to the admission of evidence relevant to this charge on several grounds, including the ground that such evidence was not relevant to any charges in the charging document or in the responses to discovery and the ground that allowing such a charge to be made for the first time during the hearing violated essential due process requirements. The undersigned reserved ruling on the objection and heard evidence from both parties. Petitioner did not provide prior notice of the charge that Respondent violated regulations and policies in the faculty handbook. The failure to comply with essential requirements of due process precludes Petitioner from submitting evidence to support such charges. Even if Petitioner had complied with due process requirements, the evidence would not affect the outcome of this proceeding. Petitioner either failed to show by a preponderance of the evidence that Respondent violated relevant regulations and policies in the faculty handbook, or Petitioner condoned the violations committed by Respondent. Respondent had previously been selected by his team of teachers to visit a student named Josh Harweger and Josh's mother in their home to address learning and behavioral problems experienced by Josh. Respondent conferred with Josh's mother at her home, on the telephone, and at school in conjunction with other members of the teaching team. One evening at about 11:00 p.m., Josh's mother came to Respondent's residence without notice and asked Respondent to care for her son overnight while she took care of a family emergency. Respondent agreed to allow Josh to spend the night in his home, which Respondent shared with his son and daughter-in- law and Respondent's other son. The next morning, Respondent informed three members of the Kissimmee staff, including Assistant Principal Turner, of the situation. Josh's mother did not return the next day as promised. In fact, she did not return until approximately five days had passed. Each day, Respondent informed Assistant Principal Turner of the situation. Petitioner condoned each stay. No other student ever spent the night at Respondent's house. Augustine Rivera is the other student for whom Petitioner asserts a violation of regulations and policies in the faculty handbook. Respondent's relationship with Augustine was strictly professional and conducted with the knowledge and consent of Augustine's mother. Augustine has a learning disability and was a student in Respondent's classes for three years. Respondent tutored Augustine after class, even after Augustine's mother was informed of the arrest on November 29, 1996. Augustine's mother drove Augustine to Respondent's house after school for tutoring. Augustine is now in high school. Respondent continues to tutor Augustine once or twice a week after school in Respondent's house with the approval of Augustine's mother. Respondent's tutoring after school has significantly improved Augustine's academic performance and ameliorated Augustine's behavioral problems. Out of gratitude for Respondent's assistance, Augustine has performed various home maintenance tasks for Respondent, including mowing the yard. Respondent and other members of his teaching team created a study jam-session after school for students who wanted academic assistance. The study jam-program had the prior approval of the principal. The study jam-sessions were in addition to Respondent's regular duties and did not relieve Respondent of this regular teaching responsibilities. Approximately eight to ten students went to Respondent's home for a cookout as a reward for exceeding their goals in the study jams. The students came with their parents or had parental permission. Petitioner condoned the cookouts. Respondent obtained the prior approval of the principal for the cookouts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of the underlying factual allegations, finding that there is not just cause to terminate Respondent's employment, and reinstating Respondent with back pay from December 17, 1996. DONE AND ENTERED this 20th day of February, 1998, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1998. COPIES FURNISHED: Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel The Capitol, Plaza 08 Tallahassee, Florida 32399-0400 Dr. Thomas L. McCraley, Superintendent Osceola County School Board 817 Bill Beck Boulevard Kissimmee, Florida 34744-4495 G. Russell Petersen, Esquire 3339 Cardinal Drive, Suite 200 Vero Beach, Florida 32963 Joseph Egan, Jr., Esquire Egan, Lev and Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802
The Issue Whether just cause exists for Petitioner to suspend without pay and terminate Respondent’s employment as a teacher.
Findings Of Fact Background The School Board is a duly constituted school board charged with the duty to operate, control, and supervise the public schools within Miami-Dade County, Florida. 1 At the conclusion of the hearing, the parties stipulated that students N.E., C.Z., T.C., and S.M., were unavailable, and that their deposition testimony, included within the School Board’s Exhibit No. 12 and Respondent’s Exhibit Nos. 16 through 18, could be received in evidence in lieu of their live testimony. The School Board hired Respondent in 2010 as a teacher at Campbell Drive K-8 Center ("Campbell Drive"), a public school in Miami-Dade County. During the 2016-2017 and 2017-2018 school years and at all times relevant to this case, Respondent was employed at Campbell Drive as an intensive reading teacher pursuant to a professional services contract. At all times material to this case, Respondent’s employment with the School Board was governed by Florida law, the School Board’s policies, and the collective bargaining agreement between the School Board and the United Teachers of Dade ("UTD"). The alleged conduct giving rise to the School Board’s proposed suspension and termination of Respondent occurred during the 2016-2017 and 2017-2018 school years. Allegations Involving K.S. The School Board alleges in paragraph 10 of the Notice of Specific Charges that during the 2016-2017 school year Respondent made grossly inappropriate physical and verbal sexual contact with K.S. At the time of the alleged conduct, K.S. was a female 12-year-old student in Respondent’s seventh-grade intensive reading class. Specifically, paragraph 10 of the notice alleges: During the course of the school year, beginning sometime after the Winter Recess, he would touch her private area over her clothing. On one day during lunch, the Respondent requested that this student come to his room during lunch to make up a test. When she arrived in the room, the Respondent initiated physical sexual contact with the student. In addition to touching the girl beneath her clothes, the Respondent exposed himself to her and had her touch his private area. After the brief encounter, the girl exited the room. During the course of the school year the Respondent also asked her to engage in sexual acts and made sexual comments to her. The School Board further alleges in paragraph 10 of the notice that during the 2017-2018 school year, when K.S. was a student in Respondent’s eighth grade intensive reading class, "Respondent requested a sexual favor from [K.S] on a small note that he had handed her." At hearing, Respondent vehemently denied making any sexual comments or engaging in any sexual contact with K.S. 2 K.S.’s Written Sworn Statement to Detective Webb On March 2, 2018, K.S. was interviewed by Detective Steven Webb, with the School Board’s police department, regarding alleged inappropriate sexual conduct by Respondent against her. That same day, K.S. gave a written sworn statement to Detective Webb, received into evidence as Respondent’s Exhibit No. 11. In this sworn statement, K.S. stated that during the 2016-2017 school year, Respondent "became sexually active with students, he did multiple things." K.S. went on state that Respondent: started off by touching my private area and then he advanced a couple of days later by pulling his pen[n]is (sic) out and grabbing my hand and, placing it there. One day he sent a student to get me from the cafeteria and on the pass it stated that I had to make up a test, but when I entered his class he rubbed my breast, and started to suck them for about 10 to 15 seconds, and then I pushed him away. He was dropping my grade until I did the things he wanted me to do with him which is to have sex, give him head, thing of that nature. Recently, about 2-3 weeks ago he asked me to do things with him and that’s a reason to why I left early recently. 2 K.S. did not complete her seventh-grade school year at Campbell Drive. Before the school year ended, the principal of Campbell Drive asked K.S. to leave the school because of disciplinary problems involving physical altercations with other students and defiant behavior. K.S. subsequently enrolled in Villa Prep Academy, a private school where she completed her seventh-grade year. K.S. did not attend Villa Prep Academy for very long because she was dismissed from that school during the early part of her eighth-grade year. In December 2017, K.S. re-enrolled in Campbell Drive. Upon her return, K.S.’s mother requested that she be put in Respondent’s classroom and K.S. was a student in Respondent’s eighth-grade intensive reading class for the remainder of the 2017-2018 school year. There was nothing mentioned in K.S.’s written sworn statement about Respondent engaging in any inappropriate conduct toward K.S. while she sat at her desk in Respondent’s classroom. K.S.’s Audio Recorded Interview with Detectives Webb and Ochoa In a subsequent audio recording interview of K.S. on March 2, 2018, by Detective Webb and Detective Gil Ochoa, received into evidence as the School Board’s Exhibit No. 5, K.S. initially described the cafeteria pass incident as follows: K.S. stated she left the cafeteria with her food tray in hand and went to Respondent’s classroom. Upon entering Respondent’s classroom, she began telling him things about her family. K.S. stated Respondent then took away her food tray, set the tray down, and pulled her over to another area of the room, at which time he touched her breasts over her shirt, lifted up her shirt and sports bra, exposed her breasts, and sucked on one of her breasts for about 10 to 15 seconds. K.S. stated she got scared and left the classroom, and that is all he did that day. K.S. failed to mention anything about Respondent pulling out his penis on this occasion until asked specifically about it by Detective Ochoa near the conclusion of the interview. School Board’s Ex. 5 at 13:22. K.S. then stated that she saw his penis, but she was scared and looked away. K.S. made no mention of Respondent placing her hand on his penis. During this interview, K.S. went on to describe another occasion in Respondent’s class that occurred after school was dismissed for the day. According to K.S., on this particular occasion, Respondent asked her "to give him head" and "to have sex with him." However, according to K.S., it never happened. K.S. further stated that recently (two to three weeks ago), Respondent asked that she "give him head." There was no mention in this interview of Respondent touching K.S.’s vaginal area or dropping her grades. The entire audio recorded interview lasted approximately 15 minutes. At the conclusion of the interview, K.S. was asked if there was anything else that she remembered that she wanted to add. K.S. declined and she did not state any other alleged inappropriate physical and verbal sexual contact by Respondent. K.S.’s Testimony at Hearing At the final hearing, K.S. testified that toward the beginning of the 2016-2017 school year, Respondent moved her seat next to his because she was easily distracted by the other students and failed the first test. Subsequently, the following exchange occurred between counsel for the School Board and K.S.: Q: Now, during that school year, did Mr. Rizo ever do anything inappropriate to you during class time? A: Yes. Q: All right. Can you explain to the Judge what he would do to you? A: He would, like, walk by, ‘cause since I was sitting so close to him, he would just touch me, like, my private areas or he’ll just, like go down on my arm, like that. Stuff like that. Q: All right. Now, this would occur during class time? A: Yes. Q: When specifically--was there a specific time that it would occur during class time? A: Mainly when we were testing or doing our work. T. Vol. 1, pp. 28-29. Counsel for the School Board went on to question K.S. about the testing process and Respondent’s efforts to curtail students cheating on tests. K.S. testified that students placed raised stapled manila folders on their desks to prevent students from seeing each other’s tests. Counsel for the School Board then asked K.S., in leading fashion: "So it was this time, during the testing, when he would touch you? K.S. responded: "Yes." Id., Vol. 1, pp. 29-30. However, K.S. could not describe the number of times "this occurred" during the 2016-2017 school year. Moreover, this alleged inappropriate touching supposedly occurred while 20 to 25 other students were in the classroom. At hearing, K.S. testified at one point that Respondent’s touching of her vaginal area occurred every time they had tests, but she acknowledged that the raised stapled manila folders were not always present on the students’ desks during testing. At hearing, K.S. further acknowledged that had the inappropriate touching occurred as she testified to, any student at any point could have looked and seen Respondent caressing her in her vaginal area. Counsel for the School Board then inquired of K.S. if there was "ever anything more serious that [Respondent] did to [her]" that school year (2016- 2017). In response, K.S. described the alleged cafeteria pass incident as follows: A: I was in lunch--because I was in seventh grade at the time, seventh grade goes to lunch before anybody, and he sent one of his eighth grader students with a pass to go to get me. Because in order to leave the lunchroom, you have to have a pass. Security didn’t let you leave the lunchroom. Security called me and told me that my teacher was calling me to make up a test. When I got in the room, I had my tray in my hand, and he took my tray, put it down, he exposed himself. And then there was a corner and he, like, put me in the corner and he sucked on my breast. T. Vol. 1, pp. 32-33. However, moments later, K.S. described the incident differently: First he pushed me to the corner, and then after he sucked my breast, then he exposed himself. And then I was just scared. And he--when he exposed himself, he grabbed my arm and he made me touch his area, and then I grabbed my tray, I threw it away, and then I left. Id. at p. 33. According to K.S., she was in Respondent’s classroom on this particular occasion between five or ten minutes. The corner of Respondent’s classroom is located right next to the door entering the room. K.S. testified that the incident occurred with just Respondent and K.S. in the classroom, but with the other student who had retrieved K.S. from the cafeteria still waiting outside the door when K.S. left Respondent’s classroom. At hearing, counsel for the School Board also asked K.S., in leading fashion, whether she ever told the police officers that Respondent would "suck on your breasts or try to have sex with you multiple times?" In response, K.S. testified: "I told them--I told them the suck on my breast part, when he exposed him. And then when they asked about my eighth-grade- year, I told them how he wrote on a sticky note that I want to give him head, like oral sex …." Inconsistently, K.S. testified in her deposition that Respondent wrote on the sticky note: "Can I eat her?" According to K.S. in her deposition, Respondent picked up the sticky note, showed it to K.S., and she grabbed it from him and threw the note away. School Board’s Ex. 11, p. 11. At hearing, K.S. testified that Respondent handed her the sticky note and that she then threw it away. K.S. and Respondent never communicated by telephone, text, e-mail, or social media. There are no witnesses to any of the alleged incidents. K.S. never reported any alleged inappropriate conduct by Respondent to her parents, a teacher, or school administrators. However, at hearing, K.S. testified she told V.S.C. about Respondent’s conduct toward her during the 2016-2017 school year when V.S.C. came to her house on a single occasion sometime during K.S.’s eighth grade school year. Allegations Involving V.S.C. The School Board alleges in paragraph 11 of the Notice of Specific Charges that during the 2017-2018 school year, Respondent also made inappropriate comments to V.S.C. during his role as an afterschool care supervisor, and that he would "bump up against" V.S.C., "rubbing himself on her buttocks area." V.S.C. was not a student in Respondent’s classroom. The alleged inappropriate conduct occurred while V.S.C., a female 14-year-old eighth grade student at Campbell Drive, attended the school’s Students with a Goal ("SWAG") afterschool program. SWAG is an outdoor program where students can engage in a variety of recreational activities. Respondent was one of six school staff members that participated in the program. At any given time, there were approximately 100 students in attendance. Students could play soccer, basketball, football, dodge ball, board games, or do homework. Students could freely rotate through the different activities by simply notifying the adult conducting the desired activity. Respondent primarily engaged in soccer, but would occasionally participate in other activities. At hearing, Respondent vehemently denied making any sexual comments or engaging in any sexual contact with V.S.C. V.S.C.’s Audio Recorded Interview with Detective Bernice Charley On March 6, 2018, V.S.C. was interviewed by Detective Bernice Charley, with the School Board’s police department, regarding alleged inappropriate sexual conduct by Respondent against her. An audio recording of the interview was received into evidence as the School Board’s Exhibit 8.3 During the interview, V.S.C. stated that while she and Respondent were at SWAG during the 2017-2018 school year, Respondent told her he wanted to slap her face with his penis; he asked her if she liked it rough (referring to sex); and he told her his penis was his "third leg." According to V.S.C., she and Respondent would engage in a verbal "back and forth," and he would say these comments in front of other students at SWAG. Additionally, V.S.C. stated she and Respondent would "bump" into each other at SWAG. According to V.S.C., Respondent would bump into her side or back from behind. During the interview, V.S.C. stated she had a bad memory. V.S.C. was reluctant to speak and there were many long pauses by her after questioning by Detective Charley. After much prodding and requests by Detective Charley for V.S.C. to "open-up," V.S.C. actually stated: "There’s nothing to talk about because nothing did happen." School Board’s Ex. 8, at 38:48-38:52. After further pauses, prodding, and requests by Detective Charley for V.S.C. to "open up," V.S.C. stated that Respondent also touched her breasts one time while they were at SWAG. According to V.S.C., this incident occurred with her shirt on. The School Board argues in its proposed recommended order that V.S.C. also described another incident while she and Respondent were at his classroom. According to V.S.C., Respondent was standing at his desk and V.S.C. was standing in the doorway, at which time Respondent stated to V.S.C.: "me and you here and now," followed by Respondent tapping on his desk. V.S.C. interpreted this comment as meaning that Respondent wanted 3 The audio recorded interviews of K.S. and V.S.C. (School Board’s Exhibits 6 and 8) are contained on a thumb-drive accompanying the School Board’s written exhibits received into evidence at the hearing. to have sex with her. According to V.S.C., other students were present when Respondent allegedly made the comment. Notably, this alleged incident is not referred to in the Notice of Specific Charges. The notice was, therefore, insufficient to inform Respondent of the School Board’s contention. The entire recorded interview lasted approximately 52 minutes. Much of the interview involved Detective Charley’s repeated efforts to redirect V.S.C. and her attempts to have V.S.C. "open-up." V.S.C.'s Testimony at Hearing At the final hearing, V.S.C. could not even remember whether she was in seventh or eighth grade during the 2017-2018 school year. In any event, V.S.C. testified that during the 2017-2018 school year, she attended Campbell Drive and the afterschool SWAG program. Respondent and V.S.C. did not have much interaction in the SWAG program. V.S.C. testified that she did not really participate in any of the SWAG activities; rather, she would either just "hang-out with [her] friends or sleep," or watch her friends and Respondent play soccer. However, most of V.S.C.’s time was spent sleeping near a tree, far away from where Respondent spent most of his time with the soccer group. When asked if Respondent ever did anything inappropriate to her during the SWAG program, V.S.C. testified that he talked about his "private part" to her, saying that "it was big," and referring to it once as "his third leg." Counsel for the School Board then asked V.S.C. in leading fashion: "Okay. Did he ever mention anything that he would like to do with his private part," to which V.S.C. responded, "I don’t remember. I just know that he talked about it once." T. Vol. 1, p. 82. V.S.C. described unspecified things that Respondent allegedly said to V.S.C. as "playful, like, in an inappropriate way," and "weird." Counsel for the School Board then asked V.S.C. in leading fashion: "Do you remember telling these things that he would say to you to the police at a given point," to which V.S.C. responded, "I barely remember. It’s, like, such a long time ago now." Id. at p. 83. As with her recorded interview with Detective Charley, V.S.C. was reluctant to testify at hearing and there were many long pauses by her after questioning by the School Board’s counsel. After further prodding and requests by the School Board’s counsel to describe "the things he would say to you, other than his talking about his private part," V.S.C. described the aforementioned verbal incident in Respondent’s classroom. On cross-examination, V.S.C. acknowledged this comment was loud enough so that other students could hear it and that she read a sexual connotation into the comment. Id. at p. 97. Counsel for the School Board again asked V.S.C. if Respondent ever made any other comments to her during SWAG, to which V.S.C. responded, "I can’t remember." Id. at p. 85. Subsequently, the following exchanges occurred between counsel for the School Board and V.S.C.: Q: Did he ever threaten to slap you with anything?" A: Yeah, with his penis. Q: What did he say? A: He said he wants to, like, slap me in the face with his penis. Q: And when did he say that? A: I think in SWAG. Yeah, it was in SWAG. * * * Q: Do you remember Mr. Rizo touching you in any other way other than bumping you with his hip or anything like that? A: When we would play fight, he would, like, put his pelvis, like, on my back area. Q: What would he do with his pelvis? A: He would just, like, be there, like, behind me and play fighting me. Q: Did he ever try to touch you sexually in any way? A: I guess, yeah, if he’s doing that, if he’s behind me like that. Id. at pp. 87 and 92. V.S.C. never reported any alleged inappropriate conduct by Respondent to her parents, teachers, or school administrators. At hearing, V.S.C. acknowledged that she and K.S. were friends. At hearing, V.S.C. admitted that she and Respondent were never alone during the SWAG program and that she was always close to the other students. At hearing, nothing was mentioned about Respondent touching V.S.C.’s breasts. Allegations involving N.E. In paragraph 12 of the Notice of Specific Charges, the School Board alleges that "Respondent also made sexual advances and over the clothing sexual contact with a third female student [N.E.] during the 2017-2018 school year." However, N.E. did not testify live at hearing and the School Board did not present any eyewitness testimony in support of the allegations. At hearing, Respondent vehemently denied making any sexual comments or engaging in any sexual contact with N.E. Ultimate Findings of Fact At hearing, the undersigned had the opportunity to observe the testimony and demeanor of Respondent, K.S., and V.S.C. The testimony of Respondent is credited and is more persuasive than the testimony of K.S. and V.S.C., which is not credited or persuasive. Notably, K.S.’s and V.S.C’s versions of the events as set forth in their statements to the police and testimony at hearing were vague, differed in key respects, and much of their testimony and statements to the police were obtained through patently leading questions. Moreover, V.S.C. admitted that her memory is bad and that "there’s nothing to talk about because nothing did happen." It is also inconceivable that K.S. would have returned to Respondent’s classroom for intensive reading during the 2017-2018 school year had the alleged conduct during the 2016-2017 school year actually occurred. Had the alleged incidents occurred as testified about by K.S. and V.S.C., who were friends, it is also expected that there would have been eyewitnesses. In sum, the persuasive and credible evidence adduced at hearing demonstrates that Respondent did not engage in inappropriate physical and verbal sexual contact with K.S., V.S.C., or N.E., as alleged in the Notice of Specific Charges, and Respondent did not engage in conduct with K.S., V.S.C., or N.E., which constitutes misconduct in office or immorality.4 4 K.S. and N.E. were also friends. As detailed above, N.E. did not testify at the hearing. However, an audio statement and a written statement purportedly authored by N.E., both of which are hearsay, were received into evidence at the final hearing as the School Board’s Exhibit Nos. 6 and 16, respectively. Although hearsay is admissible in administrative proceedings, this does not necessarily mean that the undersigned must use the hearsay in resolving a factual issue. The statements cannot be used as the sole basis to support a finding of fact, because they do not fall within an exception to the hearsay rule. Furthermore, the statements do not supplement or explain other non-hearsay evidence. See § 120.57(1)(c), Fla. Stat. ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions."). At hearing, the parties stipulated to the receipt into evidence of N.E.’s deposition testimony in lieu of her live testimony. Even if the audio statement and written statement could be used by the undersigned, however, the audio statement, written statement, and deposition testimony would not be given any weight based on the live testimony Respondent presented at hearing. Unlike N.E., who did not testify live
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order rescinding the suspension and termination of Respondent, Oscar D. Rizo, and reinstate Respondent with full back pay and benefits. DONE AND ENTERED this 18th day of May, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2020. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 (eServed) Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue to be determined is whether Respondent violated the provisions of Section 1012.795(1)(c), (f) and (i), Florida Statutes (2007)1/, and Florida Administrative Code Rule 6B- 1.006(3)(a) and (e), and if so, what penalty should be imposed?
Findings Of Fact At all times relevant to this proceeding, Respondent held a Florida Educator's Certificate, numbered 1003139, covering the area of athletics coaching. The certificate was valid through June 30, 2008. Petitioner is the state agency charged with the certification and regulation of teachers, pursuant to Chapter 1012, Florida Statutes. At all times relevant to these proceedings, Respondent was employed as an in-school suspension teacher and a track coach at Hernando High School in the Hernando County School District. The allegations in this proceeding involve events that occurred during the 2007-2008 school year, and deal with three separate incidents: Respondent's conduct in connection to the prom; his actions toward M.G.; and his actions toward A.H. The Prom The prom for Hernando High School was held on or about April 5, 2008, at the Glen Lakes Country Club in Hernando County. Joy Nagy was a coordinator for the prom, and Vicelia Azzarelli was the administrator on duty. Teachers who desired to chaperone the prom signed up in advance. They were given specific responsibilities, including a schedule for monitoring students' behavior. Volunteers' duties did not include dancing with the students. Those teachers who were not volunteering but wanted to stop by and see the students dressed up in their prom attire were also expected to get prior authorization. According to Joy Nagy, Respondent neither signed up to volunteer nor sought permission to attend the prom. Respondent came to the prom with Mr. Mobley, a long-time substitute teacher. Both men were present for a short time, approximately twenty minutes. During their appearance at the prom, they were seen on the dance floor dancing with the students. Assistant Principal Azzarelli observed Respondent while he was at the prom, and he appeared to her to be under the influence of alcohol. He had the smell of alcohol on his person and on his breath, his eyes were dilated and his gait was unsteady. She and another administrator requested that Respondent and Mr. Mobley leave the dance, and they did so. After the prom, a group of students chose to continue celebrating, and rented rooms at a hotel in Clearwater Beach. Respondent and Mr. Mobley went to the hotel where the students were staying, and socialized with the students. The students were drinking alcohol at the hotel, and the presence of alcoholic beverages was evident. The next week, some students came forward asserting that Respondent and Mr. Mobley were partying with students in Clearwater Beach following the prom. During a subsequent investigation into the partying, Respondent admitted to Ms. Azzarelli that he went to Clearwater Beach after the prom, and had a couple of drinks at a club there. He also admitted that he went to the hotel room of some of the students. As a result of the investigation into the events surrounding the prom, school officials also received information regarding possible conduct by Respondent with respect to two female students at Hernando High School. M.G. M.G. is currently a student at Valencia Community College. At the time of the events in this case, she was a senior at Hernando High School, and was, along with a few other students, a manager for the track team. At some point during the 2007-2008 school year, M.G. was sent to the in-room suspension room for a dress code violation, because she was wearing a skirt that was too short. She was the last student to leave the room. As she was leaving the classroom, Respondent came up behind her and reached around, putting his hand underneath her skirt, over her underpants. M.G. immediately left the room. She did not report the incident to anyone initially, because there were no witnesses to the conduct and she did not think anyone would believe her. She thought that by staying out of in-school suspension and working with the other track managers, she would not be in a position where the situation could be repeated. However, there was a subsequent occasion where M.G. was taking inventory of the uniforms for the track team. She was again alone with Respondent, and he again came up behind her and touched her in the crotch area, over her clothes. On this occasion, M.G. was wearing capris pants. She left the room and, as before, did not tell anyone because she did not want to be in a position where she reported the behavior and no one believed her. She only came forward after hearing about another incident involving Respondent's alleged conduct with a female student.3/ A.H. A.H. was also a student at Hernando High School at the time of the events in question. She graduated in 2009, and is now a student at Pasco-Hernando Community College. There was an occasion during the 2007-2008 school year when A.H. was alone with Respondent in the portable where he taught. Respondent kissed her, and she tried to walk out. He grabbed her arm, pulled her back to him and kissed her again. Respondent also sent A.H. inappropriate text messages. For example, he would text her that he did not want to have sex with her because he knew she was a virgin, but that "I'll go down on you and show you a good time." Like M.G., A.H. did not want to tell anyone about the incident with Respondent because she did not want anyone to know about it. When questioned initially by school officials, she denied it for the same reason. Both girls were interviewed by Detective Morrell of the Hernando County Sheriff's Office during her investigation stemming from the conduct related to prom. The information given during the investigation by Detective Morrell and the information provided during the hearing was consistent. Unfortunately for both girls, after the conduct was investigated, there was significant publicity regarding the incidents. Information was published in both the print and electronic media. Consistent with her fears, M.G. was subjected to ridicule and the publicity related to the investigation made it difficult for her to finish her senior year. Neither girl wanted to press charges as a result of Respondent's conduct, because they did not want to have to deal with the publicity associated with criminal charges. Neither girl wanted to testify in this proceeding. However, both girls were candid and credible, despite their obvious reluctance to appear. On or about May 5, 2008, Respondent resigned in lieu of termination from his position with the school district.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Education Practices Commission enter a Final Order finding that Respondent violated Section 1012.795(1)(c), (f), and (i), Florida Statutes (2007), and Florida Administrative Code Rules 6B-1.006(3)(a) and (e), and permanently revoking his teaching certificate. DONE AND ENTERED this 10th day of February, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2010.
