The Issue The issue presented is whether Respondent committed the offenses set forth in the specific notice of charges and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Respondent, Eric Farber, was employed as a psychologist by Petitioner, School Board of Dade County, Florida. At the time of his suspension on December 6, 1989, Petitioner served under a continuing contract. In the Summer of 1989, while at Booker T. Washington Middle School in Miami, Florida, Respondent requested, at least, five female students to remove portions of their clothing while he gave them physical examinations. The proof did not indicate that Respondent was qualified to perform physical examinations of the students or that Petitioner had authorized the examinations. In the Summer of 1989, L.B., was a student at Booker T. Washington. L.B. is a fifteen year old female. According to L.B., she was called to Respondent's office by another student for examination by Respondent. When she arrived, Respondent told her to remove her blouse and brassiere. He told L.B. that he was checking her for breast cancer. L.B. was pregnant at the time. Respondent touched both breasts and then asked her to pull up her skirt that he could examine her vagina. He inserted his finger into her vagina. L.B. then dressed herself and left the room. L.B. thought Respondent was a medical doctor and that his examination was appropriate. M.C. was also a student at Booker T. Washington in the Summer of 1989. M.C. is a fifteen year old female. L.B. told M.C. that Respondent was a doctor who was there to see her. M.C., then, went to Respondent's office. L.B. and M.C. had been friends for over two years. According to M.C., Respondent asked her to fill out some forms. He then asked her to go into the part of the room where he could examine her. The room was separated by a divider which prevented the person seated on one side from seeing the activity on the other side. He asked her to take off her underpants. After a short discussion about problems with her menstrual flow, Respondent touched her vagina and asked her to remove her blouse while he also touched her breasts. Although M.C. did not think Respondent's actions were normal or appropriate, she allowed him to touch both her vagina and her breasts. She, then, told him to stop, and she left the room. Another student at Booker T. Washington that same Summer was T.S. She is a thirteen year old female. According to T.S., she was called to Respondent's office by an office aide. When she arrived, Respondent asked her to wait on one side of the room and draw pictures. L.B. was on the other side of the room being examined while T.S. was waiting. T.S. thought,she heard L.B. scream and did see her leave, appearing to be nervous. When T.S. went into the room for her examination, Respondent asked her to take off her blouse and brassiere, told her he was going to check her for breast cancer and questioned her about the onset of her menses. T.S. removed her clothing as requested, and Respondent, then, touched her breast and her anus. He then remarked that he had mistaken her for another male and sent her back to class. The fourth female student of the group is D.E. She is fourteen years old. According to D.E., Respondent visited D.E.'s classroom in the Summer of 1989 and picked D.E. out of a group of students identified as being from a neighborhood called Riverside. Respondent took D.E. to his office. D.E. understood that Respondent was examining the female students from the Riverside area because of some problem there. Respondent asked her to take off her blouse and brassiere for a breast examination. She refused to do so and returned to her class where she informed her teacher what Respondent was asking. Another female student at Booker T. Washington during the Summer of 1989 was J.N. who is fifteen years old. She was approached by Respondent while she was lying on a cot in the attendance office. According to J.N., Respondent asked if he could see her, that he had something for her. He escorted her into a small office and introduced himself as the school doctor. He then asked her to go into the next room and take off her blouse. When he entered the room, he touched both of her breasts and began explaining parts of the vaginal area to her. He told her to turn around and bend over while he examined her vagina. He placed his finger in her vagina and touched her anus. When she put her pants back on, he told her that he had been checking all the girls from Riverside. He found her vagina to be too narrow and suggested that she rub it to enlarge the opening. J.N. allowed Respondent to touch her because she believed that he had been sent by Petitioner to perform the examinations. J.N. was too embarrassed by the incident to tell her parents. Members of the news media came to the school and tried to interview members of the faculty about Respondent's actions, and the news media of the Miami area carried coverage of the incidents. As a result of his action and the notoriety resulting from it, Respondent, the school and the education profession suffered public disgrace. Respondent's colleagues lost respect for him and his abilities as an education professional, impairing his service to the community. For the 1988-89 school year, Respondent's annual evaluation was acceptable. He received several notable professional awards during his tenure in education, including being selected as a finalist for the teacher of the year award offered by the Dade County PTA in the South Central Area. At the hearing, Respondent did not testify, and the testimony of the students about the events at issue is deemed credible. Although Respondent may in the past have been an outstanding teacher, his actions, during the Summer of 1989 were intentional, unethical and inconsistent with the standards of public conscience. They resulted in creating such public disgrace for the education profession that his effectiveness in the school system was impaired and caused unnecessary embarrassment to the students involved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the School Board of Dade County, Florida issue a Final Order dismissing Respondent, Eric D. Farber, as an employee of the School Board of Dade County, Florida without back pay or benefits. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of June, 1990. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6945 The following represents the rulings on the proposed findings of fact submitted in this case. The ruling reflects the number of the paragraph which addresses the proposed finding of fact, if applicable. Adopted in paragraph 1. Adopted in relevant part in paragraph 7. Adopted in relevant part in paragraph 7. Adopted in paragraph 7. Adopted in relevant part in paragraph 7. Adopted in paragraph 7. Adopted as subordinate to the findings of fact. Adopted in paragraph 3. Adopted in paragraph 3. Adopted in paragraph 3. Adopted in paragraph 3. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in relevant part in paragraph 4. Adopted in paragraph 4. Adopted in paragraph 6. Adopted in paragraph 6. Adopted as subordinate to the findings of fact. Adopted in paragraph 5. Adopted in paragraph 8. Adopted as subordinate to the findings of fact. COPIES FURNISHED: Phyllis O. Douglas, Esquire School Board of Dade County, Florida Suite 301 1450 Northeast Second Avenue Miami, Florida 33125 Don S. Cohn, Esquire 1504 Northwest 14th Street Miami, Florida 33125 Paul W. Bell Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Did the Respondent inappropriately touch students while employed by the Taylor County School Board? Did the Taylor County School Board follow a program of progressive discipline in this case? Was the Respondent grossly insubordinate by continuing to touch students after being warned to cease such conduct? Was the Taylor County School Board justified in suspending the Respondent without pay pending the outcome of an administrative hearing?
Findings Of Fact The Respondent, Jeff Silvers, was employed by the Taylor County School Board (the Board) as a science teacher at the Taylor County Middle School (the school). He had been an employee of the Board for several years. The Board was party to a contractual agreement with the Taylor County Education Association, FTP-NEA. On or about September 14, 1995, the Petitioner became aware that two female students had complained about Silvers rubbing their shoulders, touching their hair, and making an off color remark to them. The matter was brought to the attention of the Dean of Students at Taylor County Middle School, Reginald Wentworth, who reviewed the facts and counseled Silvers to refrain from touching his students. On or about September 15, 1995, four additional students complained that Silvers occasionally touched them which made them feel uncomfortable. As a result of these complaints, an investigation was undertaken of Silvers’ conduct and the statements of his students were taken. Their statements were reviewed at the Board level, and Paul Dyal, Principal of Taylor County Middle School was directed to counsel Silvers and advise him to alter his teaching style and not to touch students. Dyal advised Silver in writing to be careful of his comments to students and keep them professional.1 Silvers received an informal verbal and an informal written reprimand which was maintained in his personnel file. Thereafter, a mother of one of the girls who had originally complained about Silvers began to complain to the administration at the school and district about Silvers’ conduct with regard to the original incident. As a result of pressure put on the district by this parent, the matter was reinvestigated and the formal statements of the students originally involved were taken again. In addition, other students complained of Silvers touching them. Many of these students were called to testify at hearing, and their statements were introduced into evidence. None of these students described touching which was sexually explicit or overtly inappropriate because of the parts of the body which were touched. The touching described was “inappropriate” given the age of the young female students, and Silvers was properly directed to refrain from touching the students in this manner; however, the touching was not of a nature to establish “immoral” behavior. With the exception of two children, Maria V. and Michelle W., none of the children could fix the date of that Silvers touched them. It was not established that Silvers touched any of the other students after he was directed not to touch them. The incident involving Maria was typical of the reports of touchings reported by the students other than Amber M. and April E. The Respondent touched Maria on the shoulder while at her desk on December 1, 1996, answering a question she had. She reported that she did not feel uncomfortable because of Silvers’ touching her and would not have considered it except of the controversy over Silvers then being reported in the paper. Because of the diary entry she made, she could place the date of the incident. The other incident involved the Respondent touching Michelle on the leg while he plugged a pencil sharpener during class. Michelle was seated on a stool, with her feet on the upper rungs of the stool, and her knees and legs roughly parallel with her hips. The electrical outlet was between her knees on the upper part of the lab bench at which she was sitting. The Respondent, who was standing beside her, unplugged the sharpener into the outlet and accidentally touch her leg. Michelle thought nothing about it, was not concerned about it, and did not complain about it. This well documented occurrence was accidental and was not contrary to the directions which Silvers had received. The testimony of the two students who originally complained about Silver is discounted. In part, this is because their allegations continued to change during the investigation; however, the testimony of April at hearing was not credible. The testimony of Amber was not supportive of April regarding Silvers’ comments. Amber’s descriptions of Silvers’ conduct in the classroom was more detailed and differed from the testimony of the other students regarding Silvers’ behavior. Her descriptions of classroom touchings were of rubbing and lifting bra straps which would have been wholly inappropriate; however, she and April were the only students who offered such statements and testimony and it came late in the investigative process, casting doubts upon its credibility given the atmosphere which prevailed after the letter to the editor from April’s mother. In sum, the testimony of Ellison and Mauldin was sufficient to base the informal actions of the Board; however, their later testimony lacks the credibility to sustain the Board’s suspension and termination of Silver. The letter-writing campaign by April’s mother resulted in an atmosphere in which the young women in Silvers’ classes were overly suspicious of his every move. In addition, the administration re-investigated the matter and obtained the statements of additional girls that Silver had touched them. In response to leading questions, their statements indicated these were recent touchings; however, under oath and on cross examination they were unable to fix accurately the dates of the incidents of touching. On February 7, 1996, the Respondent was advised he would be suspended with pay pending an administrative hearing before the Board scheduled for February 13, 1996. The letter of suspension which is considered the original charging document, advised that he was charged with gross insubordination and immorality as the result of touching students in a inappropriate manner and continuing to do so after being directed not to touch students. Subsequent to Silvers’ requesting a hearing before the Division of Administrative Hearings, the Petitioner suspended the Respondent without pay on February 22, 1996.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Board enter an order dismissing the charges against the Respondent, and reinstate the Respondent to his former position with back pay DONE and ENTERED this 12th day of February, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1997.
The Issue The issue posed for decision herein is whether or not the Respondent's teaching certificate should be revoked based upon conduct which will be set forth hereinafter in detail, as contained in the Petition for Revocation filed by Petitioner on or about May 11, 1979. During the course of the hearing, Petitioner withdrew allegations B, E and J, which are set forth in the Petition. Pursuant to the Stipulation, the parties waived the thirty-day period prescribed in Subsection 120.56(3), Florida Statutes, requiring the undersigned to file a Recommended Order within the prescribed thirty-day period.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the legal memoranda submitted by counsel for the parties and the entire record compiled herein, the following relevant facts are found. Respondent, Michael S. Park, has been employed by the Broward County School System as an instructor in art at Plantation High School since 1970. He was continuously employed until his suspension on April 19, 1979. Respondent holds Florida Teacher's Certificate No. 274996, Post Graduate, Rank III, valid through June 30, 1985, covering the areas of art and junior college. Respondent currently enjoys continuing contract status. While employed by the Broward County School System, Respondent taught several courses, including design, drawing, craft, sculpture and ceramics. Pursuant to a probable cause determination made by the Commissioner of Education on May 11, 1979, the Petitioner, pursuant to authority contained in Chapter 6A-4.37, Florida Administrative Code, filed a Petition seeking revocation of Respondent's teaching certificate based upon the following allegations: During the school year 1974-75, MICHAEL S. PARK locked a female student in his classroom office, presented her with a psychology magazine opened to an article on sex, and asked her if she had ever read such an article. During the school year 1977-78, MICHAEL PARK asked a female student to go 'bumming' with him and to meet him at the night spot, 'Crown', and telephoned the home of the same student stating that 'Mike' from Plantation was calling. During the school year 1977-78, MICHAEL PARK stated to a female art student that he knew for a fact that the she was going to bars for the purpose of meeting male teachers and eventually sleeping with male teachers. During the month of February, 1979, MICHAEL S. PARK asked a female student who was not under his supervision as a teacher to come to his office during the school day at which time MICHAEL S. PARK questioned the student about family and personal problems stating that he knew the only reason a certain boy took her out was to make love to her. Further, MICHAEL S. PARK asked this student whether or not she participated in or agreed with the practice of oral sex. During the spring of 1978, MICHAEL S. PARK hugged one or more female students, grabbed one female student from behind and pushed himself up against her buttocks. During the spring of 1978 and 1979, MICHAEL S. PARK pinched one or more female students on the buttocks on one or more occasions. During 1979, MICHAEL S. PARK pinched one or more female students on the breasts on one or more occasions. Based thereon, it is alleged that the Respondent violated Sections 231.09 and 231.28, Florida Statutes, and rules 6A-4.37, 6B-1 and 6B-5, Florida Administrative Code. As such, the Petition concludes that the Respondent's alleged conduct seriously reduced his effectiveness as a school board employee. It is alleged in paragraph 1, subparagraph A. of the Petition that: During the school year 1974-75, MICHAEL S. PARK locked a female student in his classroom, presented her with a psychology magazine opened to an article on sex, and asked her if she had ever read such an article. The Respondent denied the allegation. Darlene Wilcox is the female student referred to in the allegation (TR 96-98). The thrust of student Wilcox's testimony is that Respondent invited her to stay after class one day and when her classmates left, he handed her a psychology magazine opened to an article on sex and asked her if she had ever read a magazine like that before (TR 97). Student Wilcox, who was a ninth-grade student of Respondent, testified that Respondent sat down across from her in a chair and asked her questions about how she was that day. They were interrupted by another student, whereupon Respondent immediately got up, opened the door, and told her he would see her in class the following day (TR 98). Respecting this allegation, the evidence reveals that it was impossible for Respondent to secure the lock on his classroom door from the inside, as alleged (TR 243-244 and 359). The evidence reveals that student Wilcox could have left the room by turning the doorknob. Student Wilcox told her parents about her encounter with Respondent, whereupon her parents replied that she should keep clear of Respondent and not be over-friendly with him. Paragraph C of the Petition alleges, in pertinent part, that: During the school year 1977-78, MICHAEL S. PARK asked a female student to go 'bumming' with him and to meet him at a night spot, 'Crown', and telephoned the home of the same student stating that 'Mike' from the Plantation was calling. The female student referred to in the above-described allegation is Cathy Weber. The evidence respecting the above allegation reveals that during the fall of 1977, while a twelfth-grade student, Cathy Weber, was at a local establishment called the "Crown" bar with other students one evening. Student Weber was not a student of Respondent, although Respondent joined Weber and a group of her friends and started conversing with her at the "Crown" bar. During the conversation, Respondent took student Weber's wrists, stated that he could read her mind and proceeded to tell her birth date. On another occasion, Respondent telephoned student Weber at her home although she declined to talk to him. Additionally, during late November or early December, Respondent entered Linda Whealin's class and asked permission from instructor Whealin to excuse Cathy Weber when she finished her work in order that she could help in the office. Ms. Whealin agreed, but Cathy testified that she was afraid of Respondent and, therefore, took as much time as she could to complete her work because of the "too personal attitude" the Respondent evidenced toward her. The matter was brought to the attention of the Principal and Assistant Principal, which resulted in a counselling of Respondent by the Principal. During these counselling sessions, Respondent admitted that he told student Weber that he could read minds; that he called student Weber at her home because she wanted to talk to him and that he had asked for her to help him inventory an art order. Respondent was warned of his conduct by school officials and advised to restrict his student contact to classroom situations. A summary of the warning is embodied in a memorandum dated December 5, 1977, which Respondent signed acknowledging that he had read the warning contained therein. Respondent also submitted a rebuttal reciting his version of circumstances involving the student (Petitioner's Exhibit 3 and the testimony of Respondent and witnesses Lawton, Weber, Whealin and Hanes). The Respondent acknowledged talking to student Weber at the Crown bar; however, he testified that he was merely attempting to joke with the student, rather than, as contended by Petitioner, to advance a sexual topic to achieve a lustful objective. Paragraph D of the Petition alleges, in pertinent part, that: During the school year 1977-78, MICHAEL S. PARK stated to a female student that he knew for a fact that she was going to bars for the purpose of meeting male teachers and eventually sleeping with male teachers. The student referred to in the above paragraph is Susan Clement. During the 1977-78 school year, student Susan Clement was a student of Respondent. Student Clement testified that during the school year, she smoked marijuana approximately three times a week and was sometimes under the influence of marijuana while attending classes. However, she testified that her ability or memory was not impaired and that she was able to concentrate in her art classes. She testified that on several occasions, Respondent grabbed her neck with his hand, pinched her buttocks, and pushed up against her buttocks with his body from behind while she was washing her hands at a sink in the classroom. Student Clement testified that Respondent told her that there were rumors going around that she was going to bars and meeting male teachers there. Following one of these incidents, student Clement complained to the school's Principal about Respondent's conduct. The Respondent denied making such statements to student Clement and testified further that Clement confided in him without any prompting on his part with respect to her relationship with males. Additionally, the Respondent urges that student Clement generally spoke to others about her personal life in an unguarded manner (testimony of Dan Van Fleet)(TR 134 and 236). Paragraph F of the Petition alleges that: During the month of February, 1979, MICHAEL S. PARK asked a female student, who was not under his supervision as a teacher, to come to his office during the school day at which time MICHAEL S. PARK questioned the student about family and personal problems stating that he knew the only reason a certain boy took her out was to make love to her. Further, MICHAEL S. PARK asked the student whether or not she participated in or agreed with the practice of oral sex. The student with whom the Respondent allegedly addressed the above remarks is Tammy DeCarlo. In this regard, the evidence reveals that the Respondent had four conversations with student DeCarlo. Respondent acknowledged that he initiated the first conversation with DeCarlo. Evidence reveals that the above-referenced conversations occurred during February of 1979 while student DeCarlo was a senior at Plantation High School. DeCarlo was not a student of Respondent. While DeCarlo was conversing loudly with another student in a school corridor, Respondent joined the conversation based on DeCarlo's "frantic behavior" and the fact that she was shouting that "I'm going to kill him", referring to Mr. Kinder, the yearbook advisor, in a tone which was loud enough for Respondent and others to overhear the conversation (TR 76, 77 and 376). DeCarlo was the school yearbook editor and had been having problems with its publication. The thrust of the problem appeared to be that DeCarlo was of the opinion that although she was exerting all the effort towards the publication of the yearbook, advisor Kinder was receiving or attempting to receive all credit for her work. While the Respondent initially injected himself into the conversation with DeCarlo and another student concerning differences that DeCarlo was having with the yearbook advisor, Kinder, she later conversed with Respondent about various problems that she was having with the yearbook in the following weeks. During the third of approximately four conversations with Respondent, the evidence reveals that the Respondent told another student (Chris Sarko) that he wanted to speak with DeCarlo, whereupon Sarko summoned student DeCarlo to go to his office where he later joined her, bringing a paper flower with him to give her. In Respondent's office, they discussed the yearbook deadline and Respondent mentioned that he had "ESP". Respondent gave student DeCarlo several examples in that regard. Respondent requested DeCarlo to keep their conversations between the two of them, although DeCarlo later mentioned the conversations to her parents. DeCarlo's parents later spoke with the Assistant Principal about Respondent. Within a few days, DeCarlo received a note telling her that Respondent wanted to see her and again Respondent took her into his office. During this conversation, Respondent told DeCarlo that she did not trust him because she had been hurt by her boyfriend. Respondent later told her to close her eyes and concentrate and told her that the boy just took her out so that she could make love with him and that he had tried to make her do something she did not want to. DeCarlo replied that she did not know what he was talking about, and Respondent inquired "What is it, oral sex?". According to DeCarlo, Respondent asked her to give him something personal, whereupon she took her necklace off and gave it to him. Respondent also inquired of her the type birth control pill she used and DeCarlo told him. Approximately one week later, student DeCarlo saw Respondent again. He asked her to come to see him during her lunch hour, but she declined. DeCarlo later asked a friend (Sarko) to get her necklace from Respondent, which was returned by the student, together with Respondent's picture. DeCarlo's parents made a written complaint to school authorities concerning Respondent's conduct. Respondent testified that he was regarded as a confidant among the students and that they frequently conversed with him about personal matters. He testified that the DeCarlo relationship, which was initiated by him, was motivated by a normal concern for a student who was visibly upset, and he felt that he could offer some assistance to student DeCarlo in resolving a crisis. Paragraph G of the Petition alleges that: During the spring of 1978, MICHAEL S. PARK hugged one or more female students from behind and pushed himself up against their buttocks. The primary incident in which Respondent is alleged to have gone beyond a mere touching of the shoulder is when he grabbed student Clement from behind and touched his lower torso against his buttocks. As stated earlier, Respondent denied this allegation. In this regard, several of Respondent's former students testified that they had never seen him act improperly in class or inquire into the personal lives of students. These students considered Respondent to be a warm, friendly teacher who occasionally would pat a student on the back or put his arm around a student's shoulders. In this regard, Van Fleet testified that the Respondent was a "touching, feeling type of friendly" person (TR 254). Other students testified that the Respondent often placed his arms around the shoulders of various students. During the period 1971 through 1979, Respondent's Principal warned him approximately four or five times concerning his involvement with female students (testimony of witnesses Graff, Wilcox, Landers, Cirillo, Larkin, DeCarlo, Evans, Jackson, Hanes and Van Fleet). Paragraph H of the Petition alleges that: During the spring of 1978 and 1979, MICHAEL S. PARK pinched one or more female students on the buttocks on one or more occasions. The two students involved in this allegation are Susan Clement and Lori Evans. The Respondent testified and denied that he pinched students Evans and Clement on the buttocks; however, he conceded that he might have grabbed Clement's neck when she did not "clean up her mess" in the classroom. Student Clement was not sure of the time when the Respondent allegedly pinched her or of the number of times when such acts were allegedly committed by Respondent. Instructors Dan Van Fleet and Gail Altman testified that students Clement and Evans both complained and were upset that the Respondent gave them failing grades. Noteworthy, also, was the fact that student Evans testified that there were students present at the time that the Respondent pinched her, although no corroborating student witnesses were called upon to verify said acts. Paragraph I of the Petition alleges that: During 1979, MICHAEL S. PARK pinched one or more female students on the breasts on one or more occasions. During the hearing, the only student who claimed to have been pinched by Respondent was Lori Evans. Again, the Respondent denied that any such conduct occurred on his part. Although Evans testified that there were student witnesses to the incident, no witnesses were called upon to testify during the hearing. RESPONDENT'S DEFENSE Respondent, for the most part, denied that he engaged in any conduct which could be considered grossly immoral or inconsistent with good morals and the public conscience or conduct which would not be a proper example for students. He further denied that such conduct was sufficiently notorious to bring him and the educational profession into public disgrace and respect, or that it otherwise reduced his effectiveness as a School Board employee. He testified that students confided in him and that he was an instructor who was overly concerned about the plight and well-being of students. In that regard, he testified that he interjected himself into conversations in situations wherein students appeared to have needed his counsel and guidance. Respondent denied pinching Lori Evans above the breast or on the buttocks or slapping her on the buttocks with a ruler. He testified that Evans' motive for giving testimony supportive of the charges is that she was a problem student who was unreliable when assigned a task. Additionally, Respondent denied pushing against student Susan Clement at the classroom sink or pinching her buttocks; however, he conceded that he might have grabbed her neck inadvertently as stated earlier, when she failed to "clean up her mess". Respondent's stated reason for visiting the "Crown" bar to join students with whom he taught was merely an effort to socialize with students and that respecting the Cathy Weber allegation, he was merely trying to assist her to resolve the problem that she was having with her boyfriend. He testified that the fact that he asked her to go shopping in a public shopping center indicates that he had no ulterior motive in making such request. Respondent voiced his opinion that student Weber was probably drinking due to that problem and that he wanted to inspire confidence in her to prevent her from drinking to resolve problems. Respondent's version of the incident surrounding the Tammy DeCarlo incident is much the same as his involvement with student Weber. That is, that he was simply trying to console her, which was prompted, in part, by counselling from the Assistant Principal to the effect that students and parents complained that he was not consoling enough to students. However, Respondent's testimony and inquiries, admittedly, as they related to his giving of flowers to student DeCarlo and inquiring into her sexual activity, missed the mark of a proper teacher-student relationship. Respondent's denial of the incidents involving student Wilcox, Evans and Clement as they related to his alleged physical contact is denied based upon the entire record, including other admissions by Respondent, including his inquiries into students' personal/social lives. In this regard, Respondent's inquiries relative to students' birth control pills, talks about oral sex, the giving of paper flowers to students and the embracing of students are considered immoral in a student-teacher setting and certainly does not inspire or set a proper example for students, as required in Chapter 6B-1, Florida Administrative Code.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent's teaching certificate, No. 274996, be suspended for a period of three (3) years. DONE and ENTERED this 18th day of January, 1980, at Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue for consideration in this matter is whether Respondent should be suspended without pay for five days from employment with the School Board because of the matters alleged in the charging letter issued herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for the provision of public instruction from pre-kindergarten through secondary and adult education in Polk County, Florida, and operated Haines City High School in Haines City. Respondent had been employed at HCHS for eight years and in the last two years prior to the incidents in issue, taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. In January, 1994, Respondent was administered a verbal reprimand as a result of reports that she has been consuming alcohol in the presence of her students at an out of town conference. A part of the basis for that reprimand was her reported comments to students to the effect that her predecessor as DCT instructor had advised her not to let Black students into the program because they caused trouble. These comments by Respondent were communicated to Black students who were upset by them. At some point during the 1993-1994 school year, Respondent reportedly overheard a student, Alisha Tanner, (now, Forsythe), in a discussion with another student regarding her breakup with her boyfriend. Respondent is alleged to have stated to Ms. Tanner that, "...if you have a vibrator, you won't need a boyfriend." Both Ms. Tanner and another female student who allegedly heard the statement, claim to have been shocked and embarrassed by hearing a teacher make such a statement, and a third student, Delana Muncy, indicated Ms. Tanner was crying as a result of the comment made to her. Evidence was also presented to indicate that about the same time, Respondent was overheard by several other students to have asked a male student, Jonathan Bradley, if he masturbated. Respondent does not deny using the term, "vibrator" to the female student. Her version of the conversation is somewhat different than those of the students, however. Respondent admits that she overheard the two girls discussing one's breakup with her boyfriend and that she joined the conversation. She, however, indicates that she did so to remind them of the dangers of reckless sexual behavior and suggested that the young lady find other ways, including the use of a vibrator, to satisfy her sexual needs. Respondent denies, however, the use of the word "masturbate" to Bradley. Only two of the students in or near the conversation recall Respondent making such a comment. Notwithstanding these comments were alleged to have been made during the early or middle part of the school year, no mention of them was made by any of the students to Respondent, her immediate supervisor, parents, school administration, or Board personnel until late in the school year, just shortly before graduation. At that time, a group of the students allegedly involved met for lunch at Pizza Hut off campus and in the course of their conversation, Respondent's alleged indiscretions surfaced. Prior to leaving campus, some of these students who now testify against Respondent passed a list of complaints against her around and, though denied, there is at least some indication the students were trying to get Respondent fired. Some of the students refused to sign the list. It was only several months after the inappropriate comments were allegedly made that the first official complaint was made. Other information presented at hearing indicates that during the school year several of the students involved in the reporting of this incident became dissatisfied with Respondent's conduct of her class. Respondent was alleged by students to have used such words in class as "shit", "hell", and "pissed off", and is reported to have commented, on a hot day, "I've got sweat running down between my breasts and the crack of my ass." No specific incident was presented to explain or elaborate on this. In addition, Respondent allowed a class discussion on marketing to inappropriately discuss the sale of condoms as a demonstrative example. In this case, she allowed any student who was offended by the discussion to leave the room, but this was not a satisfactory solution, as the students' excusal served only to focus unwelcome attention on the excused students. More specifically, Respondent was alleged to have become upset with student Bradley because, contra to the instructions she had given him about picking up the DCT jerseys from the printer, he disobeyed her instructions and picked them up without her permission. Respondent chastised Bradley for this. It is entirely possible the allegations against Respondent are the result of her disciplining of Mr. Bradley, thereby antagonizing him and his clique. Another allegation made against the Respondent by the Principal is her reported permission to several of her students to grade, average and record student grades, which allowed them access to her grade book. The HCHS teacher handbook, of which Respondent had previously been given a copy, specifically prohibits teachers from making grade books available to students and proscribes allowing students to record grades. Both the principal, Mr. Partain, and the Board's Director of Employee Relations indicated, without specific examples being provided, that Respondent's sexually inappropriate comments and her failure to abide by Board rules have impaired her effectiveness as a teacher in the school system. In general, her misconduct diminished her stature as a role model for her students, and her failure to obey Board rules compromised her ability to enforce discipline, but not to the degree that her effectiveness as a teacher was destroyed. Prior to the initiation of this action, the only disciplinary action taken against Respondent since she started working for the Board in 1988 was the verbal warning, (reduced to a letter), in January, 1994 regarding the drinking in front of students at conference and the untoward reference to Blacks. Other than that, her personnel record, commencing with the teacher evaluation done during the 1988-1989 school year, reflects positive comments and no criticism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova be reprimanded for improperly allowing students to grade the papers of other students, to average grades, and to have access to her grade book. RECOMMENDED this 6th day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-4483 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. & 4. Accepted and incorporated herein. First two sentences accepted. Conclusions as to misconduct rejected. Accepted that a comment was made by Respondent to a student which included a reference to a vibrator. Exact wording as alleged not proven. Not proven. Accepted that condoms were discussed, but it is not established that the suggestion to use condoms as an example came from Respondent or that she agreed to the discussion other than reluctantly. In any event, this discussion was not listed as a basis for discipline. Not proven and not a listed basis for discipline. & 11. Accepted and incorporated herein. 12. Accepted as a restatement of the witnesses' testimony. FOR THE RESPONDENT: - 3. Accepted and incorporated herein. Accepted and incorporated herein with the exception of the last sentence which is not proven. & 6. Accepted and incorporated herein. & 8. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. First two sentences accepted. Third sentence a non proven conclusion. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Lane, Tron, Clarke, Bertrand, Vreeland & Jacobsen, P.A. Post Office Box 1578 150 East Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 24650 U.S. 19 North Suite 308 Palm Harbor, Florida 34684 John A. Stewart Superintendent Polk County Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830
The Issue The issue presented for decision in this case is whether Petitioner, St. Petersburg Junior College, should dismiss Respondent from his employment and terminate his continuing contract.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Respondent is an instructor in computer programming and networking at the College. Respondent has been an instructor at the College since 1983. Since the 1986-87 academic year, Respondent has worked under a continuing contract of employment. A continuing contract is tantamount to a tenured position, entitling the instructor to maintain his position from year-to-year unless terminated by mutual consent, by the instructor’s resignation, or by the suspension or removal of the instructor for cause pursuant to the statutes and rules of the State Board of Education. Respondent has received at least above-average evaluations of his job performance both from the institution and from his students during his tenure at the College. Respondent has not been subject to disciplinary proceedings of any kind prior to or since the incidents giving rise to this proceeding. Kimberly Zemola, a married woman in her late twenties, was a student in Respondent’s classes during Session II and Session III of the 1994-95 academic year. In January 1995, while she was a student in Respondent’s class, Ms. Zemola wrote an anonymous note to Respondent suggesting that they commence a relationship and that Respondent should indicate his interest by wearing a certain sweater to class on a certain day. Respondent wore the sweater as suggested in the note. Respondent testified that his purpose in doing so was not to initiate a relationship, but to identify the author of the note, discover her problem, and direct her into obtaining assistance. Respondent and Ms. Zemola met. Their testimony was consistent in describing that they were both involved in troubled marriages, spent a great deal of time discussing their problems with each other, and, over a period of weeks, became close friends and confidants. During the period of January through May 1995, the relationship was not sexual, though there was some holding of hands and kissing during their meetings. During the summer session of 1995, while Ms. Zemola was a student in Respondent's class, Respondent and Ms. Zemola engaged in consensual sex. Both Respondent and Ms. Zemola testified that this occurred on only one occasion, in June 1995. Respondent and Ms. Zemola continued their relationship until December 1995, at which point Ms. Zemola ended it. Ms. Zemola testified that in January 1996, after she ended the relationship with Respondent, she was diagnosed as clinically depressed. She testified that she believed Respondent took advantage of her depressed condition in pursuing a relationship with her. Respondent testified that Ms. Zemola mentioned suicidal thoughts on one occasion in late 1995, and that she revealed to him that she had been addicted to drugs and was a victim of child abuse. Nonetheless, Respondent testified that he had no knowledge Ms. Zemola was fighting depression during the period of their relationship. In January 1996, John Zemola, the husband of Kimberly Zemola, phoned Myrtle Williams, Associate Provost of the Gibbs Campus, to complain that Respondent had an affair with his wife. Ms. Williams testified that Mr. Zemola was very agitated, so she invited him to her office to discuss the matter. Mr. Zemola met in person with Ms. Williams, and a little later in the day had a second meeting with both Ms. Williams and Charles Roberts, the Provost of the Gibbs Campus. Ms. Williams and Dr. Roberts testified that Mr. Zemola was very agitated and upset, expressing a great deal of anger toward Respondent. Mr. Zemola repeatedly demanded to know what the College was going to do about the situation. Shortly after his meeting with Mr. Zemola, Dr. Roberts called Respondent and asked him to come over to his office. Dr. Roberts testified that his main concern in calling Respondent was to warn him of Mr. Zemola’s angry and agitated state. Dr. Roberts also alerted campus security of the situation. At this meeting with Dr. Roberts, Respondent openly and voluntarily acknowledged his relationship with Ms. Zemola, including the romantic aspects thereof. The only discrepancy was that Respondent recalled the sexual encounter as having occurred after Ms. Zemola was a student in his class, whereas Ms. Zemola recalled that it occurred when she was a student in Respondent’s class. Ms. Williams and Dr. Roberts investigated the matter further, attempting to set up a meeting with Ms. Zemola herself. It took them roughly ten days to two weeks to set up this meeting, which finally occurred in Dr. Roberts’ office. Present at the meeting were Dr. Roberts, Ms. Williams, and the Zemolas. At this meeting, Ms. Zemola acknowledged the relationship with Respondent, and acknowledged that it was she who initiated it. Both of the Zemolas were adamant that Respondent should not be permitted to continue teaching at the College. \ 18. Mr. Zemola in particular seemed intent on seeing Respondent punished. Ms. Williams testified that Mr. Zemola telephoned her “all the time talking about what are we going to do about Mr. Brooks.” Mr. Zemola’s threatening demeanor led Ms. Williams to move Ms. Zemola’s classes to a different campus, so that Respondent and Ms. Zemola would not be in each other’s presence. Ms. Williams testified that this precaution was taken, not because of Respondent or Ms. Zemola, but because of John Zemola. No evidence was presented that Respondent ever attempted to contact Ms. Zemola after she ended the relationship. In January 1996, Ms. Williams began attempting to get Ms. Zemola to sign an affidavit stating the facts of the situation. Ms. Zemola initially declined to do so, her stated reason being that she feared Respondent’s influence in the local market could jeopardize her academic future. No evidence was presented that Respondent ever took any action to adversely affect Ms. Zemola’s academic standing or career, either within or outside of the College setting. In a memorandum to Respondent, dated February 8, 1996, Dr. Roberts recounted the details of the charges leveled by the Zemolas, as well as Respondent’s admissions regarding his relationship with Ms. Zemola. The memorandum recited portions of the College’s “Sexual Harassment Policy and Definitions” (the “Policy”). Under the Policy, “sexual harassment” is defined as: An employee’s or a student’s unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, sexually related jokes, display of pornographic material in the workplace or an academic or student setting (An academic or student setting includes all settings on campus, off-campus clinical programs, off- campus courses, and off-campus college- sponsored events), when submission to such conduct is made explicitly or implicitly a term or condition of an individual’s employment or an individual’s treatment as a student; submission or rejection of such conduct by an individual is used as the basis for employment decisions or the treatment of a student affecting such individual; or such conduct has the purpose or effect of unreasonably interfering with an individual’s work or a student’s academic performance or creating a sexually intimidating, hostile or offensive working or academic environment. The definition quoted above does not apply to the conduct alleged against Respondent, though a later section of the Policy, labeled “Instructor-Student Relationships,” appears to broaden the definition, as indicated in the relevant portion quoted below: This rule applies to instructor-student relationships. In the instructor-student context, the term sexual harassment has a broader impact. The fundamental element of such behavior is the inappropriate personal attention, including romantic and sexual relationships with a student by an instructor or staff member who is in a position to determine a student’s grade or otherwise affects the student’s academic advancement. Because the instructor-student relationship is one of professional and client, the above inappropriate behavior is unacceptable in a college; it is a form of unprofessional behavior which seriously undermines the atmosphere of trust essential to the academic setting. Both President Kuttler and Dr. Roberts testified that, in their opinion, the language quoted in the preceding paragraph broadened the definition of “sexual harassment” as applied to the instructor-student relationship, such that any form of romantic or sexual relationship between an instructor and a student constitutes sexual harassment, at least when the instructor is in a position to determine the student’s grade or otherwise affect the student’s academic advancement. The Policy also forbids retaliation against any person who has filed a complaint or complained about sexual harassment. No evidence was presented indicating that Respondent took any retaliatory action against Ms. Zemola. The Policy states that discipline for violation of its provisions “will depend on the nature of the incident,” but that the range of such discipline is from admonishment to dismissal. The February 8, 1996, memorandum goes on to state that, because of the seriousness of the alleged violations and because a violation of the Policy could lead to a recommendation of suspension or dismissal, Dr. Roberts was scheduling a meeting on February 13 with Ms. Williams, Martha Adkins, who was the Assistant Director of Business Technologies, and Nevis Herrington, Vice President of Human Resources, for the purpose of permitting Respondent to tell his side of the story in full. Ms. Williams was the only witness who testified as to the February 13 meeting, but her recollection was unclear as to the details of this meeting as distinguished from others involving Dr. Roberts, Respondent, and her. She recalled generally that Respondent was made aware of the Policy and potential penalties for violation thereof. Some delay ensued in the disciplinary process, because Dr. Roberts and Ms. Williams were waiting for the affidavit from Ms. Zemola, which was not forthcoming as spring turned into summer of 1996. At length, Dr. Roberts issued a memorandum to Respondent, dated August 13, 1996, and titled “Reprimand.” In the memorandum of reprimand, Dr. Roberts found that the facts to which Respondent had already admitted, characterized by Dr. Roberts as “a romantic relationship, including sexual relations, following the time that the student was a student in your class,” were sufficient to warrant a written admonishment. The memorandum stated that there were certain mitigating factors that caused Dr. Roberts not to recommend suspension or dismissal: that the student’s initiating the contact led to the relationship; that, according to Respondent, no romantic relationship or sexual relationship occurred while Ms. Zemola was Respondent’s student; and that Ms. Zemola had thus far refused or failed to provide her version of the facts in writing. However, Dr. Roberts’ memorandum went on to state: On the other hand, if the student had confirmed in an Affidavit what she originally advised us took place, I do not believe that I would have any choice but to consider recommending dismissal since such conduct would be a gross and direct violation of the College’s Sexual Harassment Policy. Such conduct would not only be in violation of the College’s Sexual Harassment Rule and Procedure but it would be unprofessional, immoral and constitute misconduct in office. Should confirming or additional information come forward to support the verbal statements we were given by the student and her husband, further consideration of an additional discipline including up to dismissal will be necessary. (Emphasis added.) The August 13, 1996, memorandum placed dispositive emphasis on the timing of the romantic and/or sexual relationship between Respondent and Ms. Zemola. As of August 13, Dr. Roberts accepted Respondent’s version of the facts, i.e., that the romantic and sexual aspects of the relationship occurred after Ms. Zemola was a student in Respondent’s class. Dr. Roberts found that this version, while contrary to the spirit of the Policy, and constituting misconduct in office and immorality, merited only a written admonishment. Dr. Roberts testified that “the power relationship is there whether the student is a student in that individual’s class or not,” somewhat contradicting the distinction he drew in his memorandum regarding the timing of the affair and its impact on the proposed discipline. Dr. Roberts testified that the admonishment was based on his judgment that Respondent’s relationship with the student violated the Policy “in terms of creating a threatening or offensive or intimidating environment.” He testified that Ms. Zemola had clearly complained that she felt intimidated and reluctant to take classes. Dr. Roberts’ conclusion in this regard was based on Ms. Zemola’s subjective apprehensions. No evidence was produced, at any point in these proceedings, that Respondent engaged in any behavior that could have caused Ms. Zemola to feel “intimidated” or “reluctant to take classes.” Ms. Zemola testified that she heard students at other campuses discussing the incident, and that an instructor in one of her classes talked about the case in front of the class. She believed that Respondent was the source of these persons’ knowledge of the situation. Ms. Zemola offered nothing more than her suspicions in this regard, and Respondent resolutely and credibly denied having discussed the affair with students or fellow instructors. In fact, the weight of the credible evidence leads to the finding that John Zemola was the likely source of any campus gossip regarding the incident. On at least one occasion, Mr. Zemola disrupted a College class by writing accusations against Respondent on the blackboard. Dr. Roberts’ August 13 reprimand memorandum left open the possibility that further disciplinary measures might be taken, should Ms. Zemola come forward with a sworn affidavit confirming her version of the timing of the romantic and sexual aspects, i.e., that they occurred while she was a student in Respondent’s class. In a sworn affidavit dated October 24, 1996, Ms. Zemola attested that, while she was a student in Respondent’s classes during Session II, 1994-95, they had an affair which consisted of “a great amount of time talking, and some time kissing, hugging, and holding hands.” She attested that during Session III, 1994- 95, while she was still a student in Respondent’s class, Respondent told her that “if our affair did not go any further, then it had to end.” She attested that at this time she was constantly fighting suicidal thoughts, and believed that if she lost Respondent, the only person she could talk to, she might no longer be able to fight those thoughts. Therefore, during Session III, 1994-95, she engaged in a single sexual encounter with Respondent. By memorandum dated December 11, 1996, Dr. Roberts informed Respondent that the affidavit has been filed and offered Respondent an opportunity to meet with Dr. Roberts and two other officials “to respond to the allegations and share your side of the story.” There is no record evidence that this meeting ever took place. On May 8, 1997, the College filed the Petition. The essential allegation was framed as follows: The faculty member entertained romantic and sexual relations with a student while that student was in the faculty member’s class. This relationship continued after the student was no longer in the faculty member’s class for a period of several months while the student continued her course of education at the College. Such conduct therefore occurred during a time when the faculty member could influence and affect the student’s academic advancement. In addition to the allegations regarding Respondent’s romantic and/or sexual relationship with Ms. Zemola, the Petition alleged: The faculty member thereafter encouraged students of his to pressure the woman with whom he had had the romantic relationship to refrain from stating charges against him in order that it not jeopardize the faculty member’s career. Petitioner offered no evidence to support this allegation, and it is thus assumed that it has been dismissed. The remaining factual allegations contained in the Petition are for the most part conclusions alleged to arise from Respondent’s conduct: Said conduct seriously undermines the atmosphere of trust essential to the student/instructor relationship, and further is inconsistent with the standards of public conscience and good morals, and was sufficiently notorious so as to disgrace the faculty member’s profession and impair the faculty member’s service to the community and to students. The faculty member’s conduct had serious adverse consequences upon the student, the student’s relationship with her husband, as well as adverse impact on other students, faculty, staff, and upon members of the community, impairing his effectiveness. The effect of the faculty member’s aforesaid conduct was the creation of an intimidating, hostile and/or offensive educational environment for the student and others. No evidence was presented of any “adverse consequences” to other students, faculty, staff, or members of the community, caused by Respondent’s actions. None of the College administrators who testified could recall receiving any complaints regarding Respondent. Dr. Roberts recalled an inquiry from the campus newspaper, but testified that no article ever ran in that or any other newspaper regarding this situation. Ms. Zemola testified that she heard some gossip around the campus, though none of it mentioned the parties by name. Such talk naturally affected Ms. Zemola, but could not be said to have had any other adverse impact. Ms. Zemola’s relationship with her husband was plainly affected by this incident. However, testimony from both Respondent and Ms. Zemola indicated that neither of their marriages was happy at the outset of their relationship. In fact, their testimony indicated that mutual unhappiness in their marriages was one of the main reasons they were drawn together in the first place. No evidence was presented to demonstrate that Ms. Zemola’s grades or academic advancement were in any way compromised by her affair with Respondent. Ms. Zemola received grades of “A” in both classes she took from Respondent. Both Ms. Zemola and Respondent testified that these grades were earned by Ms. Zemola based entirely on her work in those classes. Respondent has continued to work as an instructor at the College since the affair and subsequent disciplinary proceedings. His work has been performed competently and completely without incident. The episodes of disruption and/or diminished effectiveness cited by the College’s administrators were in fact caused by John Zemola, not by Respondent. When asked for evidence that Respondent’s effectiveness as a teacher has been diminished as a result of the relationship, President Kuttler related an incident in which John Zemola disrupted a class to inform the students about Respondent’s situation, and another incident in which John Zemola harassed Respondent at his home, telling Respondent’s neighbors about the incident. President Kuttler concluded that Respondent’s effectiveness was diminished by the fact that it became known on the campus that there was a teacher/student sexual relationship. However, all the credible record evidence indicates no one involved in the incident or the subsequent disciplinary proceedings other than John Zemola ever publicly disclosed the relationship. Respondent cannot fairly be blamed for the actions of Mr. Zemola in publicizing the incident. Several of Respondent’s colleagues testified to attest to Respondent’s outstanding ability in the classroom. All opined, based on their experience as instructors at the College and their knowledge of Respondent’s character and abilities, that Respondent could continue to perform as an effective instructor at the College. No evidence was presented to demonstrate that Respondent’s actions created “an intimidating, hostile and/or offensive educational environment for the student and others.” Respondent acknowledged the impropriety of his actions, and the impact they have had on his personal life, but testified that it has had no impact on his professional life.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Board enter a final order finding that Respondent violated the “Instructor-Student Relationships” portion of the College’s Sexual Harassment Policy, and suspending Respondent from his position at the College for a period not to exceed one Session. DONE AND ENTERED this 24th day of April, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 24th day of April, 1998. COPIES FURNISHED: Maria N. Sorolis, Esquire Shannon Bream, Esquire Allen, Norton and Blue Hyde Park Plaza, Suite 350 324 South Hyde Park Avenue Tampa, Florida 33606 Mark Herdman, Esquire Herdman and Sakellarides 2595 Tampa Road, Suite J Tampa, Florida 34684 Charles L. Roberts, Provost St. Petersburg Junior College St. Petersburg/Gibbs Campus Office of the Provost St. Petersburg, Florida 33733 District Board of Trustees St. Petersburg Junior College Post Office Box 13489 St. Petersburg, Florida 33733 Carl M. Kuttler, Jr., President St. Petersburg Junior College Post Office Box 13489 St. Petersburg, Florida 33733
The Issue Whether the Education Practices Commission may revoke or suspend John T. Guzalak's Florida teaching certificate, or otherwise discipline Mr. Guzalak, for violations alleged in an Administrative Complaint entered September 21, 1992?
Findings Of Fact The Parties. The Petitioner, Betty Castor, as Commissioner of Education, on behalf of the EPC, is authorized to discipline individuals holding Florida teaching certificates. The Respondent is John T. Guzalak. At all times relevant to this proceeding, Mr. Guzalak held Florida teaching certificate number 615516. Mr. Guzalak is certified to teach English and Speech. Mr. Guzalak's teaching certificate is valid through June 30, 1995. From approximately August of 1987, until June of 1992, Mr. Guzalak served as a teacher for the Okaloosa County School Board (hereinafter referred to as the "School Board"). Mr. Guzalak's Attendance at Choctawhatchee Senior High School. Mr. Guzalak attended, and graduated from, Choctawhatchee Senior High School (hereinafter referred to as "Choctaw"). Mr. Guzalak graduated from Choctaw in 1981. Choctaw is a high school located in Okaloosa County, Florida. Choctaw has approximately 2,000 students, 117 to 120 teachers and a total of approximately 160 employees. While a student at Choctaw, Mr. Guzalak was active in debate and drama. His drama teacher was Mary Jo Yeager. Ms. Yeager was so impressed with Mr. Guzalak's acting ability that she cast him in the male leading role of essentially every play produced at Choctaw while Mr. Guzalak was a student there. Ms. Yeager and Mr. Guzalak developed a friendship and still remain friends. Mr. Guzalak's Employment by the School Board. After Mr. Guzalak had graduated from Choctaw and was attending college, Mr. Guzalak informed Ms. Yeager that he was interested in becoming a teacher. Ms. Yeager, who was planning to retire in a few years, talked to Richard G. Bounds, the Principal at Choctaw, about the possibility of Mr. Guzalak replacing her when she retired. Prior to August, 1987, Mr. Guzalak applied for a teaching position with the School Board as a teacher at Meigs Junior High School (hereinafter referred to as "Meigs"). Ms. Yeager recommended that Mr. Guzalak be hired. Mr. Guzalak was hired to teach at Meigs and began his employment with the School Board in August, 1987. Mr. Guzalak taught speech/drama and English during the 1987-1988 school year at Meigs. The Stage Crafters' Party. In January, 1988, Mr. Guzalak was involved with a local theatre group known as Stage Crafters. The group presented a play in which Mr. Guzalak participated during that month. Mr. Guzalak organized and gave a party for the cast of Stage Crafters after the presentation of the play. The party was held at the home of Mr. Guzalak's parents, where Mr. Guzalak lived until approximately August, 1991. Mr. Guzalak invited all students in his speech/drama classes at Meigs to attend the Stage Crafters' party. Mr. Guzalak invited his students because he thought it would be beneficial for his students to meet and talk to individuals who were involved in drama and who had more experience with acting. Mr. Guzalak had alcoholic beverages available for his guests during the Stage Crafters' party. A table was set up where guests were able to obtain alcoholic drinks. Adults drank alcoholic beverage in front of Mr. Guzalak's students during the party. Alcohol was consumed in the presence of students who were under the legal age required to consume alcoholic beverages. The evidence failed to prove that students who were not legally old enough to drink alcohol who were at the Stage Crafters' party were encouraged or allowed to drink alcoholic beverages. The evidence also failed to prove that underage students were in fact drinking in the presence of Mr. Guzalak or that Mr. Guzalak drank alcoholic beverages in front of any underage students. The testimony of Chris Hutcherson, a student at Meigs at the time of the party, concerning the party was contradicted by the testimony of Aaron Utley, another student at Meigs at the time, and is rejected. Mr. Guzalak testified that the underage students who attended the Stage Crafters' party were mainly relegated to half of the house and the adults and alcohol were located, and the consumption of alcoholic beverages took place, in the other half of the house. Mr. Guzalak testified that this separation of his underage students from the adults consuming alcohol was deliberate and intended to mitigate the extent to which alcohol would be consumed in front of his underage students. This testimony contradicts the purpose for which Mr. Guzalak indicated the students were invited to the Stage Crafters' party and is rejected. Mr. Guzalak simply failed to exercise good judgement when he allowed his underage students to attend a party without also inviting their parents when he knew that alcoholic beverages would be consumed. Mr. Guzalak was counseled by Bobby Smith, Principal at Meigs and Mr. Guzalak's supervisor, after Mr. Smith learned of the party. Mr. Guzalak told Mr. Smith that he had not consumed alcohol in the presence of his students at the party. Mr. Guzalak did admit that alcoholic beverages had been consumed in front of his students, although he minimized the extent to which alcohol had been consumed. Mr. Smith counseled Mr. Guzalak about his lack of judgement in allowing his underage students to attend a party where alcohol was being consumed. Meigs Student-Cast Dinner. In May, 1988, Mr. Guzalak was involved with a play presented at Meigs. The cast of the play consisted of Meigs students. After the play, Mr. Guzalak took the cast of the play to dinner at a restaurant. Some parents also attended the dinner. Mr. Guzalak failed to inform Mr. Smith or anyone else in the Meigs administration about the dinner. During the dinner Mr. Guzalak drank a glass of wine in the presence of the students, who were too young to legally consume alcoholic beverages, and the parents who attended the dinner. After the dinner about five students stayed to talk to Mr. Guzalak after everyone else had departed. When Mr. Guzalak was ready to take the students home who had stayed, he let one of the students drive his automobile. The student driver was 15 years of age at the time. The student driver had a learners' driving permit which allowed her to drive with an adult in the automobile. The student driver took the other students home and then drove to her own home. Mr. Guzalak then drove himself home from the home of the student that had driven his automobile. Mr. Guzalak testified that he had allowed the student driver to drive his automobile because he was concerned about the fact that he had consumed a glass of wine. This testimony is inconsistent with Mr. Guzalak's testimony that he did not give the drinking of the glass of wine with dinner in the presence of the students any thought, one way or the other, and is not credible. Mr. Guzalak allowed the student to drive his automobile that evening because Mr. Guzalak wanted to be accepted by students as a friend and not just a teacher. Consuming alcoholic beverages in front of students is against the policies of the School Board. Mr. Smith and Mr. Guzalak had previously discussed the inappropriateness of a teacher consuming alcohol in front of students as a result of the Stage Crafters' party. Despite this prior warning, Mr. Guzalak again exercised poor judgement and failed to adhere to School Board policy. Mr. Smith was informed of the dinner and spoke to Mr. Guzalak about it. Mr. Smith admonished Mr. Guzalak for drinking alcohol in front of his students. A few days after their discussion, Mr. Guzalak was given a formal, written reprimand by Mr. Smith. See Petitioner's Exhibit 2. Mr. Guzalak was specifically reprimanded for drinking alcohol in front of his students. He was also informed that he was required "to discuss any and all school sponsored activities with [Mr. Smith] before they occur." See Petitioners' Exhibit 2. During Mr. Smith's conference with Mr. Guzalak, Mr. Guzalak expressed concern to Mr. Smith about why it was improper for him to consume alcohol in front of students under the circumstances of the cast dinner. Mr. Guzalak found it difficult to understand why the drinking of a glass of wine with dinner in the presence of students by a teacher was inappropriate. Mr. Guzalak's Employment at Choctaw. Ms. Yeager decided to retire from Choctaw after the 1988-1989 school year. She recommended that Mr. Bounds hire Mr. Guzalak to be her replacement. Mr. Bounds questioned Mr. Smith about Mr. Guzalak's performance at Meigs. Mr. Smith informed Mr. Bounds of the dinner incident when Mr. Guzalak drank a glass of wine in the presence of students and provided Mr. Bounds with a copy of the written reprimand, Petitioner's Exhibit 2, that Mr. Smith had given to Mr. Guzalak. Mr. Bounds, Mr. Guzalak's supervisor at Choctaw, discussed Mr. Smith's written reprimand with Mr. Guzalak prior to, or soon after, Mr. Guzalak's employment at Choctaw. Mr. Bounds cautioned Mr. Guzalak about consuming alcohol in front of underage students. This was the third time that Mr. Guzalak had been cautioned about the inappropriateness of consuming alcohol in front of underage students. Mr. Guzalak was hired to teach at Choctaw. Mr. Guzalak began his employment at Choctaw in August of 1989. Mr. Guzalak taught at Choctaw during the 1989-1990, 1990-1991 and 1991-1992 school years. Part of his duties included coaching the forensic teams. The 1990-1991 School Year--Student Visits to Mr. Guzalak's Home. Mr. Guzalak developed and maintained relationships with several Choctaw students which went beyond the appropriate and acceptable teacher- student relationship. Those relationships were more typical of the relationships that students develop among themselves. During the 1990-1991 school year students would go to Mr. Guzalak's home to visit. Students who went to Mr. Guzalak's home during the 1990-1991 school year included Sarah Stimac, David Barron, Bobby Arnold, Steve Bucci, Patrick Peavy, Eric Gaul, Kevin Mock, Richard "Matt" Schoditsch, David Hodges, Thomas Ignas and Ross Foster. Sarah Stimac, Bobby Arnold, Steve Bucci, Patrick Peavy, Eric Gaul and Kevin Mock were seniors at Choctaw during the 1990-1991 school year. David Barron was a sophomore at Choctaw. David Hodges and Thomas Ignas were juniors at Choctaw. Matt Schoditsch and Ross Foster were also students at Choctaw. Initially, students began going to Mr. Guzalak's home for school- related purposes. They went for assistance from Mr. Guzalak with school subjects, to practice for plays and to practice for forensic team competitions. Students eventually began visiting Mr. Guzalak's home primarily for social reasons. Mr. Guzalak allowed students to come to Mr. Guzalak's home to visit without invitation, without informing Mr. Guzalak they were coming and without asking for Mr. Guzalak's permission. While at Mr. Guzalak's home, students would watch movies, listen to music, play music, play chess, talk and "just hang out." Mr. Guzalak's characterization of student visits as tending to be "academic in nature" is rejected. At some time during the Fall of 1990, Mr. Guzalak invited a group of students who had formed a rock band to come to his home to practice for an upcoming pep rally. Bobby Arnold was one of the first students to be invited to practice at Mr. Guzalak's home. Eventually, the students included Steve Bucci, Kevin Foster and John Randall. A few other students would join in on occasion. At some point, students, including those mentioned in the foregoing finding of fact, would go to Mr. Guzalak's home and just play music as opposed to practicing for some upcoming event. Other students, including Patrick Peavy, Eric Gaul and Kevin Mock would listen. The music sessions were social in nature and were not school related. Bobby Arnold's suggestion that the students and Mr. Guzalak, in addition to playing music, would talk about books is rejected to the extent that Bobby Arnold was suggesting an academic purpose for his visits. As Steve Bucci described the visits, they were "jam sessions." Bobby Arnold went to Mr. Guzalak's home at least five to seven times during the 1990-1991 school year. Steve Bucci indicated that the music sessions at Mr. Guzalak's home took place two times a month and more often if he was getting ready for a talent show. Matt Schoditsch went to Mr. Guzalak's home at least six times. Matt Schoditsch's testimony that he only went to Mr. Guzalak's home for academic purposes and not for social reasons was contradicted by many of the other witnesses in this proceeding, including Mr. Guzalak, and is rejected. Mr. Schoditsch's suggestion that students would "be sitting there reading a book or something . . . Magazines" is rejected. Even Mr. Guzalak admitted that students came for social reasons. David Barron went to Mr. Guzalak's home more than twelve times and less than twenty times. During three to five of those visits by David Barron went to Mr. Guzalak's home, beer was consumed by underage students in Mr. Guzalak's presence. Matt Schoditsch, Kevin Foster, Patrick Peavy and others were at Mr. Guzalak's home at times that David Barron saw beer consumed by underage students in front of Mr. Guzalak. Mr. Guzalak also consumed beer in David Barron's presence and the presence of other underage students. The beer consumed by David Barron was either provided by Mr. Guzalak or Mr. Barron brought his own beer. On one of the occasions where Mr. Guzalak provided beer to David Barron at Mr. Guzalak's home, it was a type of beer that David Barron had not seen before. Mr. Guzalak said that he got the beer when he had gone north to visit his parents. On one occasion Mr. Guzalak drank a glass of wine in front of Kevin Mock. This took place despite the fact that Mr. Guzalak had previously been counselled by Mr. Smith (twice) and Mr. Bounds about the impropriety of drinking alcohol in front of students. Mr. Guzalak offered Kevin Mock a drink of the wine and Mr. Mock took it. Sarah Stimac also went to Mr. Guzalak's home during the 1990-1991 school year. Patrick Peavy started taking Ms. Stimac to Mr. Guzalak's. Mr. Peavy was Ms. Stimac's boy friend during the 1990-1991 school year. Mr. Peavy and Ms. Stimac had started doing things with a group of their friends during the summer of 1989 and by the end of the summer they had developed a relationship. Sarah Stimac began going to Mr. Guzalak's home because Patrick Peavy and his friends, primarily Eric Gaul and Kevin Mock, liked to go there and they went there often. On one occasion during the 1990-1991 school year, Sarah Stimac saw Mr. Guzalak and Eric Gaul smoke marijuana at Mr. Guzalak's home in the guest rest room. They used a "bong", a pipe-like device used for smoking marijuana. Ms. Stimac also witnessed Patrick Peavy and Kevin Mock smoke marijuana at Mr. Guzalak's home. Mr. Mock admitted to Martha Clemons, his girl friend during part of the 1990-1991 school year, that he had smoked marijuana at Mr. Guzalak's home. Sarah Stimac also saw marijuana smoked and alcoholic beverages consumed on at least one other occasion at Mr. Guzalak's home. Patrick Peavy, Eric Gaul and Kevin Mock visited Mr. Guzalak's home more frequently than other students. By their own admissions, they went to Mr. Guzalak's home, on average, from two to three times a week. Contrary to Mr. Guzalak's testimony that Mr. Peavy, Mr. Gaul and Mr. Mock were rarely at his home at the same time, Mr. Peavy, Mr. Gaul and Mr. Mock went to Mr. Guzalak's together or were at Mr. Guzalak's home at the same time often based upon their own admissions. Based upon the weight of the evidence, it is concluded that Mr. Peavy, Mr. Gaul and Mr. Mock went to Mr. Guzalak's home on a frequent and regular basis. Sarah Stimac substantiated the fact that Patrick Peavy went to Mr. Guzalak's home frequently. She went with him approximately six times. She also picked him up at Mr. Guzalak's and she telephoned Mr. Peavy at Mr. Guzalak's home. Mr. Peavy told Ms. Stimac and his parents that he was going to Mr. Guzalak's home more often than he actually went. Mr. Peavy lied to Ms. Stimac and his parents so that he could do other things without Ms. Stimac or so that he could do things that his parents would not let him do if he told them the truth. This gave Ms. Stimac the impression that Mr. Peavy was at Mr. Guzalak's home more often then he actually was. Despite this fact, the weight of the evidence proved that Mr. Peavy was at Mr. Guzalak's home on a frequent and regular basis for non-academic purposes. The 1990-1991 School Year Initiation Night. At some time during the Fall of 1990, an annual event, referred to as "Initiation Night," took place at Choctaw. Groups of students at Choctaw traditionally go out together on Initiation Night. On Initiation Night during the Fall of 1990, Sarah Stimac drove Angie Smallwood to Mr. Guzalak's home at approximately 9:00 p.m. to pick up Patrick Peavy. Mr. Peavy had told Ms. Stimac that he would be there. Mr. Peavy, Eric Gaul and Kevin Mock were at Mr. Guzalak's home and were picked up by Ms. Stimac. After Sarah Stimac picked up Patrick Peavy, he told Ms. Stimac that he had been drinking and that he had smoked marijuana and taken LSD. The evidence, however, failed to prove where these events took place. More importantly, the evidence failed to prove that Mr. Guzalak was present when these events took place or that he was aware of what had happened. After leaving Mr. Guzalak's home, Ms. Stimac and the students she picked up went to a local pizza restaurant and met other students, including Matt Schoditsch. The students then went to a bayou where they built a fire. Eric Gaul had a bottle of spiced rum. At some point during the evening Okaloosa County sheriff's deputies appeared. When they did, despite the cold evening, Patrick Peavy, who had been swinging on a rope swing over the water, fell into the water. Whether Mr. Peavy did so because he was startled (as he testified) or because he was trying to get rid of the marijuana and LSD he had in his pocket (as Ms. Stimac testified) need not be decided. The evidence failed to prove that Mr. Guzalak was directly involved in this incident. It is also not necessary to decide whether Mr. Peavy had drugs in his pocket because the evidence failed to prove that Mr. Guzalak had anything to do with any such drugs. After Eric Gaul admitted that the bottle of spiced rum he had, and which the deputies had found, was his and he had convinced the deputies that he had a stranger buy the rum for him at a liquor store, the students were allowed to leave. Although Mr. Gaul, after getting into Ms. Stimac's automobile, stated that he had been given the rum by Mr. Guzalak, the evidence failed to prove the truth of this hearsay statement. After the incident at the bayou the students went back to Mr. Guzalak's home. The 1990-1991 School Year Senior Prom. The day of the 1990-1991 school year senior prom, Sarah Stimac and Patrick Peavy had a fight and broke off their relationship. They did, however, go to the prom together that night. The prom was held at a local motel. Sarah Stimac and Patrick Peavy rented a room at the motel. At some time before the prom was over, Sarah Stimac and Patrick Peavy went to the room they had rented. Mr. Guzalak came to the room to visit. Mr. Peavy had invited Mr. Guzalak. Mr. Guzalak left after Ms. Stimac gave Mr. Peavy an ultimatum that either Mr. Guzalak leave or she would, and Mr. Peavy asked Mr. Guzalak to leave. Mr. Guzalak stayed approximately five to fifteen minutes. Although there was alcohol in Ms. Stimac's and Mr. Peavy's room, the evidence failed to prove that Mr. Guzalak was aware of the alcohol or that anyone was drinking while Mr. Guzalak was there. The 1990-1991 Spring Break Canoe Trip. During the spring break of April, 1991, a student party was organized. The party consisted of a canoe trip down a local river. The party was not a school-sponsored event. Mr. Guzalak was invited to come on the 1991 canoe trip. Although Mr. Guzalak remembered that he was invited by one or more students, Mr. Guzalak, who had an excellent memory for most details, could not remember the names of any student that invited him. Mr. Guzalak spent most of the trip with Patrick Peavy, Eric Gaul and Kevin Mock. There were about 120 students who participated in the canoe trip. They met at the Choctaw parking lot the morning of the trip. During the canoe trip, underage students were drinking beer. They did so openly and in Mr. Guzalak's presence. Mr. Guzalak was offered beer at least ten times by underage students. Kevin Mock admitted that he drank beer in front of Mr. Guzalak during the trip. Mr. Guzalak did not make any effort to stop any of the underage students from drinking alcoholic beverages. Mr. Guzalak's testimony that there was nothing he could do about students drink beer on the trip is not credible. Mr. Guzalak had a duty and responsibility to attempt to stop underage students from drinking beer. Even if Mr. Guzalak's testimony that he did not attempt to stop the drinking because of the number of students involved was credible (which it is not), his testimony did not explain why he did not say something to those students who were bold enough to offer him a beer and then students who he came into contact with that were drinking beer By allowing the consumption of alcohol in his presence by students who were under the legal drinking age, Mr. Guzalak condoned their illegal behavior. When a teacher allows the violation of one law, it becomes difficult for the teacher to enforce other laws and rules governing student conduct. Mr. Guzalak failed to report the incident to Mr. Bounds or any other administrative employees at Choctaw. Mr. Guzalak should not have just ignored the fact that students, some of whom were his students, had blatantly violated the law in his presence. The 1991-1992 School Year--Mr. Bounds Second Warning. In approximately August of 1991, Patrick Peavy's father spoke to Mr. Bounds about his belief that his son was drinking alcohol and using drugs at Mr. Guzalak's home. The evidence failed to prove what basis, if any, Mr. Peavy had for his suspicions at the time he made his complaint. As a result of the concerns raised by Patrick Peavy's father, Mr. Bounds spoke to Mr. Guzalak. The conversation took place on approximately September 19, 1991. Among other things, Mr. Bounds told Mr. Guzalak that a parent had reported that students were frequenting Mr. Guzalak's home and that alcohol and drugs were being used there. Mr. Bounds told Mr. Guzalak that the parent had followed his child to Mr. Guzalak's home. While Mr. Guzalak admitted to Mr. Bounds that students were frequenting his home, he denied that alcohol was being consumed or that drugs were being used. Mr. Bounds explained to Mr. Guzalak why it was not a good idea to allow students to come to his home. Mr. Guzalak, however, did not agree with Mr. Bounds' concerns over the possible pitfalls of forming personal, social relationships with his students. On September 24, 1991, Mr. Bounds wrote a memorandum to Mr. Guzalak "to reiterate my position regarding our conversation in my office on Thursday, September 19, 1991." Petitioner's Exhibit 3. Mr. Bounds also stated the following in the memorandum: During our conversation you related to me that students from our school were invited and allowed to visit your home for non-academic reasons. Furthermore, you related to me that students from our school are not discouraged by you to establish a personal friendship with you. These personal friendships are encouraged by your participating in non-school related activities. You are hereby notified that all future contact with students from our school should be exclusively of a professional and academic nature. Moreover, meetings with our students should be held on our school property exclusively unless express permission is obtained from me. Petitioner's Exhibit 3. Mr. Bounds also arranged for Mr. Guzalak to meet with Annette Lee (formerly, Annette Francis), Personnel Director of the School Board. Ms. Lee, who was Assistant Superintendent, Human Resource Division, at the time, met with Mr. Guzalak. On October 9, 1991, Ms. Lee wrote Mr. Guzalak a letter memorializing this meeting and provided him with a copy of a document titled "How to Use Common Sense and Professional Judgement to Avoid Legal Complications in Teaching," a form containing some School Board expectations for teacher conduct. See Petitioner's Exhibits 4 and 5. Ms. Lee also discussed the inappropriateness of Mr. Guzalak's behavior and stressed to him the importance of maintaining a professional relationship with students. Mr. Guzalak again admitted that he had developed friendships with some of his students and that he had seen them on occasion socially. Among other things, Ms. Lee stressed the following portions of the "How to Use Common Sense and Professional Judgement to Avoid Legal Complications in Teaching" form she had provided to Mr. Guzalak: Interaction with Students: Maintain a professional barrier between you and students. You are the adult, teacher and the professional; act like the expert not like another one of the "kids." . . . . 3. Refer students to the appropriate resource person for counseling and/or discussions about personal matters. . . . . 5. Do NOT discuss your personal life or personal matters with students. Do NOT discuss your husband, boyfriend, dates or controversial issues with students. . . . . 10. Chaperone only school sponsored functions. Do NOT socialize with students. If you chaperone a field trip, put in writing what your responsibilities will be. Do NOT drink alcoholic beverages in front of students. Do NOT take children home with you. . . . . C. Reputation in the Community. . . . . Communicate with parents and document your communications. Dress and act appropriately but professionally. You are a role model in the community as well as in the school; be a good example for students. Use common sense and good judgement. Ask yourself how someone else could perceive your comments or actions. Ask yourself if your comments or actions could be taken out of context and/or misinterpreted. Avoid putting yourself in a position where you have to defend, explain, or justify your behavior or actions. Avoid putting yourself in a position where it's your word against another person's word. . . . . Petitioner's Exhibit 5. Continued Student Visits to Mr. Guzalak's Home. Mr. Guzalak was very concerned about what Mr. Bounds had told him about students coming to his home. Mr. Guzalak thought that he was being watched (by a parent) and he was concerned because some of the allegations about alcohol and drug use were true. Initially, Mr. Guzalak told students who dropped by or who asked if they could come by, not to come or that they could not stay. For example, Mr. Guzalak told Thomas Ignas and David Hodgson they should not come to his home. On at least one occasion, however, Mr. Guzalak allowed students to visit him at his home during the 1991-1992 school year after Mr. Bounds had instructed Mr. Guzalak to stop such visits. The incident took place during the first three months of 1992. Aaron Utley was told to come to Mr. Guzalak's home by either David Hodges or Thomas Ignas. When Mr. Utley arrived at Mr. Guzalak's home, Mr. Hodges and Mr. Ignas were there with Mr. Guzalak. There were empty beer cans on the coffee table. Mr. Hodges was drunk. Mr. Guzalak did not request that any of the students leave. The weight of the evidence failed to prove, however, that alcohol was consumed by Mr. Guzalak in front of the students or that the students consumed alcohol in front of Mr. Guzalak. The Florida State University Trip--September, 1991. At some time after Mr. Guzalak spoke to Mr. Bounds in September 1991, Mr. Guzalak took a group of students who were participating in the forensic program to Florida State University in Tallahassee, Florida, for a forensic competition. Among others on the trip were Chris Hutcherson, Mark Bradshaw, David MacCarroll and Josh Mickey. These Choctaw students stayed in the same motel room while on the trip. One evening, Mark Bradshaw, David MacCarroll and Josh Mickey came into the motel room where they were staying and smelled marijuana smoke. Mr. Hutcherson was in the room. Mr. Hutcherson had smoked marijuana just before the other students came into the room. Mr. Guzalak came into the motel room shortly after the students arrived and he smelled the marijuana smoke also. Mr. Guzalak asked what was going on, but no one admitted anything at that time. At some point during the trip, Chris Hutcherson admitted to Mr. Guzalak that he had smoked marijuana in the motel room. At no time did Mr. Guzalak report Chris Hutcherson's admission to Mr. Hutcherson's family, Mr. Bounds or any other administrative official. Nor did Mr. Guzalak take any disciplinary action against Mr. Hutcherson. Failing to report the use of illicit drugs was against school policy. Mr. Guzalak did not even explain to Chris Hutcherson why he should not have been using marijuana. Instead, Mr. Guzalak told Mr. Hutcherson that he had put Mr. Guzalak in an untenable position by his actions. Because Mr. Bounds had spoken to Mr. Guzalak only a few days before this incident, Mr. Guzalak's concern was not for Mr. Hutcherson or even the forensic team--"[i]t was for myself." See line 11, page 595, Transcript of the Final Hearing. Mr. Guzalak, by his use of marijuana and alcohol with students prior to this incidental, had placed himself in a position of action in a manner similar to that of Mr. Hutcherson. Therefore, it became difficult for Mr. Guzalak to carry out his responsibility as a teacher to report Mr. Hutcherson's admission. The Pensacola Trip--November, 1991. In November, 1991, the Choctaw forensic team went to Pensacola, Escambia County, Florida, to participate in a competition. Since the competition was out of Okaloosa County, students were prohibited by School Board policy from driving their own vehicles. Students who participated in the competition were required to have their parents sign a form granting permission for their child to travel on the trip. See Respondent's Exhibit 1. On the permission form it indicated that "students' may not drive themselves to out of county school-sponsored activities . . . ." The students who were going on the Pensacola trip were told to be at Choctaw at 6:15 a.m. They were scheduled to leave at 6:30 a.m. Chris Hutcherson, who was to participate in the Pensacola competition, did not want to get up as early as he would have to arise to be at Choctaw at 6:15 a.m. Therefore, Mr. Hutcherson asked his mother, Sharon Philbrook, if he could drive his automobile to Pensacola. She told him no. She also spoke to Mr. Guzalak who confirmed the School Board policy that students were not allowed to drive their own vehicles on the trip and that transportation would be provided for students for the trip. The morning of the Pensacola trip, Ms. Philbrook found a note from Chris Hutcherson indicating he had taken his stepbrother's automobile despite her instructions to the contrary. Ms. Philbrook reported the incident to Mr. Bounds who suggested that she go to Pensacola and get Mr. Hutcherson. She did so. Upon arriving at the competition site, Ms. Philbrook introduced herself to Mr. Guzalak and explained what had happened. She also told him that she had reported the incident to Mr. Bounds and that Mr. Bounds wanted Mr. Guzalak to telephone him. Mr. Guzalak was very upset about what Ms. Philbrook told him and told her he wished she had not telephoned Mr. Bounds. In light of Mr. Bounds' admonishment of Mr. Guzalak in September and Chris Hutcherson's admission to Mr. Guzalak that he had smoked marijuana on the Florida State University trip (which Mr. Guzalak had not reported), Mr. Guzalak's reaction is understandable. Mr. Guzalak's reaction and the other evidence presented by the EPC concerning this incident, however, failed to prove that Mr. Guzalak was responsible for Chris Hutcherson's violation of School Board policy against students driving their own vehicles out of the county. As a result of Mr. Hutcherson's actions, Mr. Guzalak informed Mr. Hutcherson that he could no longer travel with the forensic team. Mr. Hutcherson's testimony concerning whether Mr. Guzalak told him that it was okay to drive his own automobile to Pensacola was not credible and is rejected. The Rush Concert--February, 1992. In February, 1992, Mr. Guzalak was responsible for the production of a play at Choctaw. During the week before the play was to begin, Mr. Guzalak cancelled a rehearsal. The rehearsal was cancelled because Mr. Guzalak and several students involved in the play wanted to attend a concert by a musical group, Rush, in Pensacola. The evidence failed to prove that Mr. Guzalak went to the concert with any students from Choctaw, although he did see and speak to at least one student at the concert. The evidence failed to prove that Mr. Guzalak acted improperly or violated School Board policy in cancelling the rehearsal. Matt Schoditsch's Party--February, 1992. On a Friday evening in February, 1992, Mr. Guzalak spoke to Matt Schoditsch on the telephone. Mr. Schoditsch invited Mr. Guzalak to come to his home. Mr. Schoditsch told Mr. Guzalak that there would be other students at his home, students that Mr. Guzalak knew, and that they would be grilling food. Mr. Guzalak knew that Mr. Schoditsch was having a student get-together. Mr. Guzalak's and Mr. Schoditsch's testimony that Mr. Guzalak was invited and came to Mr. Schoditsch's home only to discuss his participation in a play is not credible. The weight of the evidence proved that Mr. Schoditsch invited Mr. Guzalak for social reasons, and that Mr. Guzalak accepted the invitation for social reasons. Mr. Guzalak accepted the invitation and went to a student's house contrary to Mr. Bounds' directive to him and contrary to Ms. Lee's advice. Mr. Guzalak testified that he had assumed that Mr. Schoditsch's parents would be there. Mr. Guzalak also testified that it was not until after students starting showing up with beer that he realized that Mr. Schoditsch's parents were not there. This testimony is not credible. In light of Mr. Bounds' directive, which Mr. Guzalak indicated he was very concerned about, a reasonable person would have inquired. Additionally, a reasonable person, especially a teacher and one who had previously been accused of being too friendly with students, would seek out a student's parents soon after arriving at their home to introduce himself or to say hello if the teacher thought the parents were home. Even if Mr. Guzalak did not know that Mr. Schoditsch's parent would not be home before he arrived, he should have realized soon after arriving that they were not there and left. Shortly after arriving at Mr. Schoditsch's home, Mr. Guzalak saw students start to arrive with beer which they began drinking. According to Mr. Guzalak and Mr. Schoditsch, Mr. Guzalak expressed concern to Mr. Schoditsch about students drinking in front of him. They also testified that Mr. Schoditsch attempted to stop the drinking, but too many students started coming, and there was too much beer. This testimony is not credible. According to Mr. Barron, who also attended the party, there were only fifteen to twenty people at the party. If Mr. Schoditsch had really wanted to, he could have stopped the drinking. Mr. Schoditsch had no intention of stopping the beer drinking. And Mr. Guzalak did not expect him to. Even after Mr. Guzalak saw students drinking beer he did not leave immediately. According to his own testimony, he stayed another twenty-five to thirty minutes after he saw students drinking and even took time to go speak to a student, Jodie Brooks, before leaving. The weight of the evidence failed to prove whether Mr. Guzalak drank alcohol while at Mr. Schoditsch's home. Although Mr. Barron thought Mr. Guzalak was drinking a mixed drink because he was drinking out of Mr. Schoditsch's cup or glass, Mr. Barron did not testify about how he knew that Mr. Schoditsch was drinking a mixed drink. Use of Profanity. It is against the policy of the School Board for a teacher to use profanity in the presence of students. Mr. Guzalak used the term "fucking" in front of several students when he became angry about their use of squirt guns on a forensic competition trip. The weight of the evidence failed to prove that Mr. Guzalak used profanity in the classroom. Supervision of Students on Trips. The weight of the evidence failed to prove that Mr. Guzalak failed to provide adequate or required supervision of students while on school trips. Mr. Guzalak's Resignation from the School Board. Ultimately, several teachers became aware of various rumors about Mr. Guzalak and some of his inappropriate behavior with students. Those comments were reported to Mr. Bounds, who spoke to a few students and then reported the problem to Ms. Lee. The Superintendent of Okaloosa County Schools met with Mr. Guzalak in March 1992, and discussed the various allegations against him. Mr. Guzalak subsequently resigned, effective at the end of the 1991-1992 school year. Credibility of the Witnesses. Mr. Guzalak and the students who were most involved in the incidents at issue in this proceeding denied that most of the more serious accusations against Mr. Guzalak are true. In addition to denying the accusations against him, Mr. Guzalak also suggested that he is the victim of unfounded rumors. Finally, Mr. Guzalak questioned the credibility and motives of some of the witnesses who testified in this proceeding. The denials of Mr. Guzalak and those students who supported his version of events have been rejected. Based upon the weight of the evidence, Mr. Guzalak's testimony was not convincing. The denial of the accusations by several (but not all) of the witnesses called by Mr. Guzalak was also not credible and has been rejected. Many of those witnesses are young men who have developed a close relationship to Mr. Guzalak. They consider Mr. Guzalak to be their "friend." Their testimony reflected their desire not to betray their "friend" and has been rejected in large part based upon the weight of all of the evidence. The efforts to suggest that Mr. Guzalak is merely a victim of rumors also failed. Rumors were caused, in part, because of the perception that Mr. Guzalak was different or eccentric, and, in part, because of the incidents described in this Recommended Order. While there were no doubt rumors concerning this matter and Mr. Guzalak, the incidents which have been found to have occurred in this Recommended Order are based upon the specific knowledge of those witnesses found to be credible. Many of those incidents were confirmed or substantiated by more than one witness. Finally, the efforts of Mr. Guzalak to discredit some of the witnesses also failed. Most of those efforts were directed at Sarah Stimac, Chris Hutcherson and Aaron Utley. The testimony of Ms. Stimac, Mr. Utley and most of the other witnesses called by the Petitioner was credible. It is true, however, that Mr. Hutcherson's testimony contained inconsistencies and that Mr. Hutcherson evidenced an extremely bitter and judgemental attitude against Mr. Guzalak. Consequently, Mr. Hutcherson's testimony has not been accepted except to the extent that it has been corroborated by other evidence. Attacks on Ms. Stimac's credibility are rejected. The suggestion that Sarah Stimac was not credible fails to consider, among other things, the fact that Ms. Stimac's actions in this matter were taken at some personal expense and aggravation. Mr. Guzalak, during the investigation of this matter by the EPC, allowed several students to read confidential statements that Ms. Stimac and other students had given during the investigation. He did so without regard to the consequences to Ms. Stimac or the other students. As a result, Ms. Stimac has faced hostility and ridicule from those misguided students who believe that not telling, or "ratting," on a friend is admirable. Despite such hostility, Ms. Stimac refused to compromise her integrity. The weight of the evidence proved that other students, such as Aaron Utley and David Barron made the same choice that Sarah Stimac made. Rather than lacking credibility, Ms. Stimac's testimony, Mr. Barron's testimony, and the testimony of most of the other students who spoke out about Mr. Guzalak's inappropriate conduct is admirable. The Impact of Mr. Guzalak's Actions on His Ability to Perform His Duties Effectively. There was no direct evidence to prove that Mr. Guzalak was not effective in the classroom. Most of the witnesses agreed that Mr. Guzalak was very effective in the classroom. Several of the witnesses spoke of Mr. Guzalak's intelligence and ability with some admiration. Unfortunately, Mr. Guzalak, by his own admission and based upon the facts presented in this case, has evidenced a lack of the judgement necessary for him to be entrusted with the education of young people. This fact is based upon the nature of the improper acts which Mr. Guzalak has been found to have committed in this case and by his attitude about the warnings he received from Mr. Smith, Mr. Bounds, Ms. Lee and even Mr. Guzalak's coworkers. A teacher that drinks alcohol in the presence of students and provides alcohol to, or condones the use of, alcoholic beverages by students has lost his or her effectiveness as a teacher because of the high standard of conduct expected of teachers. A teacher that uses marijuana in the presence of students or allows students to use marijuana in his or her presence has also lost his or her effectiveness as a teacher. Mr. Guzalak's conduct was, therefore, contrary to the conduct expected of him by the School Board and the community. Mr. Guzalak's conduct is sufficiently notorious in the community that he has lost his effectiveness as a teacher. Mr. Guzalak's inability to follow the directions of his supervisors has also reduced his effectiveness as a teacher. Mr. Guzalak probably has begun to take too much stock in the praise he has received concerning his intelligence and abilities. He has begun to believe his "reviews." As a result, Mr. Guzalak believes that he knows more about how to be an effective teacher than his supervisors and fellow teachers. Mr. Guzalak was asked during the hearing why he had a problem with Mr. Bounds' directive concerning his student friendships. Mr. Guzalak's response, which evidences his attitude about the appropriate role of a teacher with his or her students, was as follows: Because I was used to the idea at that point of having some social contact with students. It was important to me. I was, basically, disturbed because I felt that Richard Bounds was asking me to suddenly make some sort of major capitulation, not in my life-style, but in my mode of thought, in the way I viewed my relationship with students. He wanted me to be an authoritarian clone, if I must. Lines 18-25, Page 627 and Lines 1-2, Page 628, Vol. IV of the Transcript. Additionally, Mr. Guzalak answered the following questions: Q. [Mr. Bounds is] your principal. Shouldn't he be allowed to tell you how you should behave with your students? A. No. Q. He shouldn't be able to tell you how you conduct yourself with your students? A. No. Q. Why not? A. Because I'm an adult and because I'm a professional. And I'm capable of making those decisions on my own. . . . . Lines 17-25, Page 628 and Lines 1-2, Page 629, Vol. IV of the Transcript. Rather than being an "authoritarian clone," Mr. Guzalak attempted to reach some of his students by being their friend on their level. To some extent, he was influenced by Ms. Yeager, who developed friendships with her students. Ms. Yeager, however, was more mature, married, had a family and had been teaching for some time. As Ms. Yeager put it: . . . . Of course, I have an advantage, being an old, married woman. I mean, I had a husband. I had a family. I had a track record when I came here, Ms. O'Sullivan. I taught seven years junior high and two more years in high school. So I think age -- Not all people are respected because they're older, as you know. But, I'm saying I sort of had an edge there on John [Guzalak], plus experience. Lines 19-25, Page 375 and Lines 1-2, Page 376, Vol. III of Transcript. More importantly, Ms. Yeager, by her actions, her character and her good judgement, was able to develop a certain level of friendship with her students while maintaining her distance and her professionalism. Mr. Guzalak has not evidenced the ability to do the same because of his lack of judgement and his inability to heed the advice and experience of his supervisors and peers.
The Issue Whether 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
