Findings Of Fact Respondent, Milton Aaron Wetherington, holds Florida teacher's certificate number 035136 issued by the State Department of Education covering the areas of physical education, history and administration/supervision. The certificate is valid through June 30, 1991. This proceeding involves an administrative complaint filed against Wetherington by petitioner, Ralph D. Turlington, as Commissioner of Education. The complaint stems from various complaints lodged with the Volusia County School Board by several students and parents who alleged that Wetherington engaged or attempted to engage in improper relationships of a romantic nature with female high school students assigned to his classes. The filing of the administrative complaint precipitated the instant action. Wetherington, who is 57 years old, has been a teacher for some twenty seven years, the last seventeen in the Volusia County school system. From 1975 until 1984 Wetherington was a teacher at Spruce Creek School in Port Orange, Florida. Because of the pending disciplinary proceeding, he was reassigned to a non-instructional position as an assistant manager of purchasing and property for school year 1984-85. However, after the charges came to light in early 1984, Wetherington was allowed to continue as a teacher for the remainder of the school year, and was a chaperone on the senior class trip to Walt Disney World. In his twenty seven years of teaching, he has had no prior disciplinary action taken against him. In school year 1983-84 Wetherington taught a political systems course to first semester seniors. Two of his students were Lisa and Tammy, both seventeen years of age at the time, and the best of friends. Seven of the specific charges in the complaint involve respondent's relationship with Lisa, and to a lesser extent, Tammy. Lisa lived at home with her mother and step father for a part of her senior year. Because of problems with her stepfather, who beat her, she moved out at the end of January, 1984, to live with a girlfriend. She was involved with drugs, including cocaine and marijuana, and was experiencing financial problems. Lisa needed a social studies course to graduate, and transferred into Wetherington's class about two weeks after the semester started. She had not met or known Wetherington prior to that time. Wetherington immediately took a special interest in Lisa, and selected her to assist him during office hours with grading papers and the like. Lisa spotted an opportunity to take advantage of the situation, and began cultivating the relationship in an assiduous manner. Her testimony reveals she had two goals in mind: to obtain money from Wetherington and to get a good grade without studying. She also saw the opportunity to get her friend Tammy a good grade since she had access to Wetherington's grade book. The relationship was non-sexual, and all parties agree that Wetherington made no sexual advances or demands upon Lisa. One evening during the fall of 1983, Wetherington asked Lisa if she and Tammy wanted to get a pizza after a football game. Lisa agreed and Wetherington gave her $20 to purchase the food. The three met briefly in separate cars at a local Pizza Hut, but after the girls saw other students there, they all drove in Wetherington's car to the Breakers Restaurant and Lounge, an establishment in New Smyrna Beach. They arrived around 12:45 a.m. or so, and after being seated in a booth next to the stage on which a band was playing, they placed an order for pizza. Because of the lateness of the hour, the waitress informed there the kitchen had closed. They then departed the premises and returned to Daytona Beach where all went their separate ways. The two girls claimed Wetherington purchased them an alcoholic drink at the Breakers, but a member of the band, who happened to be a teaching colleague of Wetherington disputed this and observed the three had no drinks during their five to seven minute stay at the restaurant. His testimony is deemed to be more credible and it is found respondent did not "purchase alcoholic beverages for both students" as alleged in the administrative complaint. At some point in the first semester, Wetherington gave Lisa a key to his house in Holly Hill where he lives alone. According to respondent, he did so since he wanted Lisa to have a place to go in the event she suffered a beating from her stepfather. Lisa visited his house approximately five times in the company of a girlfriend when Wetherington was home, and an undisclosed number of times when he was not at home. One of Wetherington's sons lives at Bunnell, and visited his father regularly. The son kept a stash of marijuana at the house which the son used when he visited. Wetherington acknowledged that this was true, but maintained he did not know where it was hidden at the time. Indeed, he claimed he never used drugs himself, and objected to their use by other persons. Wetherington gave Lisa instructions to use the key only when she had problems with her stepfather, but Lisa ignored these instructions. While at Wetherington's home, she used both alcohol and marijuana on at least one occasion in his presence. The alcohol (wine) was taken from Wetherington's refrigerator while the marijuana was either brought onto the premises by Lisa, or came from the son's hidden stash. 1/ There is no credible evidence that Wetherington himself used "marijuana and alcohol at his residence with female students" as charged in the complaint. During the school year, Wetherington gave Lisa a friendship ring valued at $12, some $500 in cash, between $400 and $500 worth of clothes, and lent her an Amoco gasoline credit card for gasoline purchases to get her to and from the part-time job she held. Lisa charged some $120 worth of gasoline on the card as well as $247 in auto repairs. With her mother's consent, and after clearing it with the school principal, he also paid Lisa's mother $500 for the equity in Lisa's car, transferred the title to his own name, and financed it with a Miami bank. Lisa got to use the car with the understanding that she would pay him $125 a month, which was Wetherington's obligation on the bank note. Wetherington considered all this to be a "loan," and kept a book detailing the total amount advanced to Lisa. As a part of the social studies course, Wetherington required each student to prepare a term paper. Wetherington gave fourteen students, including Lisa and Tammy, copies of term papers written in the prior year with instructions to use them as a "format" or "guideline" in preparing their own. Lisa and Tammy simply changed the title page, and turned the papers back in as if they were their own. They each received a grade of 25, which was the highest grade in the class. Lisa claimed she simply did what Wetherington told her to do, and Tammy corroborated this claim. Although Wetherington was negligent in failing to detect that the papers turned in by Lisa and Tammy were identical to those previously given them to be used as a "formats" the evidence does not support a finding that Wetherington gave them the papers for the purpose of evading any academic requirements. The final charge concerning Lisa and Tammy is that Wetherington "[o]n at least one occasion kissed and hugged a female student." This charge apparently stems from Wetherington kissing Lisa on the cheek one day and giving her a paternal hug. Wetherington does not deny this, but contends it was not romantic in nature but done in a fatherly way. Wendy was a seventeen year old senior at Spruce Creek High School in school year 1983-94. She is the source of some four separate charges against respondent in the administrative complaint. Wetherington approached her at the beginning of the year and asked if she wanted to be his teacher's aide. She said yes, and he accordingly rearranged her schedule so that she worked in his office or classroom during first period as an aide, and was a student in his social studies class the following period. During the first nine weeks, Wetherington gave Wendy two rings, one for her birthday and the other to simply keep till the end of the school year. He also gave her $230 in cash over this period of time. He kept a log detailing each amount of money given to her, and considered the payments to be a loan. While working in Wetherington's classroom one day, Wendy walked by Wetherington who pulled her onto his lap and began rubbing her upper thigh. He also approached her one day in his office and put his arms around her waist and pulled her towards him. After she told him, "I don't want this," he released her. She then pulled away and claimed she immediately reported the incident to the principal. The principal could not recall such a conversation. The next day Wetherington apologized to her in his office, but he then turned off the lights in the room and began hugging her. She pushed him away and ran out of the room. Although Wendy again claimed that she immediately reported the incident to the school principal, the principal could not recall such a meeting. In any event, Wendy went to her parents, disclosed the various incidents and gave them the two rings given to her by Wetherington. The parents were understandably irate, and went to the principal demanding that Wendy be transferred out of Wetherington's class. A meeting was held by the principal, with Wetherington and the two parents in attendance. At the meeting Wetherington simply acknowledged that he admired Wendy very much, that she was a good student, and that the cash given to her ($230) was a loan for car payments and voice lessons because he trusted her. However, Wendy does not own a car, and her another paid for all voice lessons. Moreover, her father is a physician who has provided well for his family. The mother then wrote Wetherington a check for $230 to repay the "loan." Wendy was also transferred out of respondent's class. Wendy acknowledged that she "took advantage" of Wetherington, and characterized their relationship as simply a friendship. In a note written to him in a school yearbook at the end of the year, she apologized for "putting (him) through hell" and wished she "could erase it all." Wetherington denied any romantic involvement with Wendy, and acknowledged only that he had kissed her twice on the cheek, once at a football game and another time outside his house. He attributes Wendy's story to emotional problems she was experiencing that fall caused by her relationship with a married man. Wetherington portrayed himself as a teacher genuinely interested in his students. He estimated he has given financial aid in the form of loans and gifts to students over the years in excess of $10,000. Because he has raised seven children of his own, he vigorously denied having any illicit or sinister purpose in his dealings with Lisa and Wendy. Instead, he contended he was merely helping them overcome personal and financial problems so that they would be better persons after graduation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found GUILTY of violating Rules 6B- 1.06(3)(a) and (e), and Subsection 231.28(1)(c), as set out more specifically in the Conclusions of Law portion of this order. All other charges should be DISMISSED. It is further RECOMMENDED that respondent be placed on probation for three years and that he be retained by the school board during his probationary period only as a non- instructional employee. DONE and ENTERED this 22nd day of January, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1985.
The Issue Whether just cause, as set forth in the Petition for Termination of Employment, exists for the Petitioner to terminate the employment of the Respondent, employed under a professional services contract.
Findings Of Fact At all times material to this case, Raymond Dillon (Respondent) was a teacher at Mariner High School (Mariner) and the holder of a professional services contract with the Lee County School Board. Michael McNerney has been employed as the principal at Mariner during the period of the Respondent's employment. On October 8, 1992, a written reprimand was issued to the Respondent related to alleged inappropriate classroom conduct. On November 11, 1992, the Respondent requested that the matter be submitted for arbitration. As of the date of the hearing, the matter has not been arbitrated or resolved. The Respondent asserts that the written reprimand is inaccurate. On February 1, 1993, the Mariner principal and the Respondent met informally to discuss several complaints regarding alleged classroom behavior and to address the Respondent's questions regarding union representation at certain conferences. During the meeting, the principal raised allegations that the Respondent had discussed the pending arbitration in class and that students were uncomfortable about the situation. The Petitioner asserts that at the February 1 meeting the Respondent was specifically directed to refrain from discussing the arbitration matter with students. The Respondent recalls that the Mariner principal stated that such discussions were not appropriate but that the prohibition was not directly stated. The recollection of the Respondent is credited. On February 23, 1993, the superintendent, responding to complaints, initiating an investigation into the matter. Subsequent to completion of the investigation, the Respondent was notified that a predetermination conference would be held. A predetermination conference was held on March 8, 1993, attended by the Respondent, the School Board's personnel director, the Mariner principal, and the executive director of the local teachers union. At the conference, the superintendent informed the Respondent that the School Board would be advised to suspend the Respondent without pay and benefits at its next meeting, and that the Respondent could appear at the meeting with a representative or attorney to contest the recommendation. By letter dated March 30, 1993 and effective on that date, the superintendent of the Lee County Schools suspended the Respondent with pay. A Petition for Termination of Employment was issued on April 9, 1993. In relevant part, the Petition for Termination of Employment sets forth the charged offenses as follows: * * * The Superintendent has conducted an investigation of allegations made against Mr. Dillon by students and parents of misconduct occurring in the presence of students, including insubordination, intimidation and harassment of students, poor judgement and inappropriate and unprofessional conduct. This misconduct occurred following a meeting between Mr. Dillon and Michael McNerney, Principal of Mariner High School, on February 1, 1993, in which Mr. Dillon advised Mr. Dillon that he had received complaints from students and parent that Mr. Dillon was discussing in his classes an investigation and upcoming arbitration hearing and advised Mr. Dillon that such behavior was unprofessional and uncomfortable for students. During that meeting, Mr. McNerney directed Mr. Dillon to refrain from discussing the investigation and the scheduled arbitration hearing during his classes. Mr. Dillon acknowledged the instructions at that time. The Superintendent's investigation revealed that subsequent to the February 1, 1993 meeting, and despite Mr. McNerney's instructions, in all but his third period classes, and on at least one or two occasions in each class, Mr. Dillon discussed his upcoming arbitration hearing during class time. Specifically, Mr. Dillon discussed the nature of the hearing, namely that it involved allegations by students concerning his use of profanity in the classroom; discussions and negative comments about the students who made allegations against him concerning his use of profanity, (this occurred in the presence of at least one of the students who had brought the allegations); discussing the possibility that some of the students present would be called to testify either for or against him in the arbitration hearing; and direct or indirect solicitation of support from students who might be called to testify. Misconduct on the part of Mr. Dillon also included inappropriate criticism of the school administration, namely referring to administration as "gestapo"; as using "gestapo tactics"; and as "crazy"; and words to the effect that Principal McNerney did not know how to do his job. Mr. Dillon was also insubordinate in that he wrote "f-rt" on the classroom blackboard in the presence of students after being specifically directed not to use that, as well as other inappropriate words, in a written reprimand issued by Dr. Jerry Baker, on October 8, 1992.... * * * At the April 13, 1993 meeting of the School Board, the Board terminated the employment of the Respondent. The Petition for Termination of Employment does not allege that the Respondent's teaching performance has been substandard. The 1992-93 assessment, completed on the day the Respondent received notice that the Superintendent intended to pursue termination of the Respondent's employment, indicates several areas of unacceptable performance. Prior to the 1992-93 school year performance assessment, the Respondent's evaluations had been acceptable. There had been no prior unacceptable ratings. Allegations related to conduct prior to February 1, 1993 are not addressed in the Petition for Termination and are outside the scope of this Recommended Order. However, the greater weight of the evidence offered at hearing fails to establish the factual allegations related to the arbitration. The evidence establishes that after the Respondent was directed to refrain from saying "fart" in class, he returned to the classroom and wrote "f- rt" on the chalkboard, explaining to his students that he was not allowed to say the word. He had previously identified to the students a list of words which were not permitted to be spoken in the classroom. The evidence fails to establish that "fart" is an obscene or offensive word. The evidence establishes that on February 1, 1993, the Mariner principal opined that discussions of the pending arbitration matter in the classroom were inappropriate, but did not specifically prohibit them. The evidence fails to establish that he discussed the specific allegations of the case or that he directly or indirectly solicited support from his students. The evidence fails to establish that he made negative or derogatory comments about any students in his classes or that he identified or provided information leading to the identity of the students complaining about his alleged behavior. There is no evidence that students were harassed or intimidated by the Respondent. Subsequent to the February 1 meeting, students, among whom the matter was apparently common knowledge, would attempt to inquire as to the status of the case or as to the identities of the accusing students. The Respondent generally refrained from such discussions other than to tell the students that, if called to testify, they should do so honestly. The evidence fails to establish that even had the Respondent been directed to refrain from such discussions, such remarks in response to student curiosity would be inappropriate. There is no evidence that the Respondent offered criticism of the school administration, that he referred to the administration as "gestapo," using "gestapo tactics" or as "crazy." There is no evidence that the Respondent suggested to students that the principal did not know how to do his job. Other than as set forth herein, the evidence offered at hearing fails to establish that the Respondent used the language set forth in written reprimand of October 8, 1992.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Lee County School Board enter a Final Order rescinding the termination of Raymond Dillon. DONE and RECOMMENDED this 1st day of February, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2939 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2. Rejected, irrelevant except as otherwise specifically addressed in the Petition for Termination of Employment which is directed towards alleged misconduct which occurred after the February 1, 1993 meeting. The arbitration matter is irrelevant to this proceeding. The referral of the matter to the Florida Department of Education is immaterial. 3-4. Rejected, irrelevant. 14. Rejected, unnecessary. 15-26. Rejected, irrelevant except as otherwise specifically addressed in the Petition for Termination of Employment which is directed towards alleged misconduct which occurred after the February 1, 1993 meeting. 28-32. Rejected, contrary to the greater weight of credible and persuasive evidence. 33-35. Rejected, as to use of "offensive" language prior to February 1, 1993, immaterial. As to Subsequent to February 1, 1993, evidence fails to establish that such "offensive" language was used. As to use of "fart," "f-rt" and "poop," evidence fails to establish that such language was contextually offensive. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3-5, 11-13. Rejected, subordinate. 6-9. Rejected, cumulative. 14-17, 20-26. Rejected, unnecessary or irrelevant. 29-30. Rejected, unnecessary. 38-44. Rejected, goes to weight of evidence. COPIES FURNISHED: Dr. James A. Adams, Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Marianne Kantor, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Daniel H. Kunkel, Esquire Kunkel & Hament Suite 785, 1800 Second Street Sarasota, Florida 34236 Anthony D. Demma, Esquire 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302
The Issue Whether Respondent’s alleged conduct is a violation of Pinellas County School Board Policy 8.25 and/or Section 231.36, Florida Statutes, and is just cause for his dismissal as a teacher in the Pinellas County School District.
Findings Of Fact Respondent, Reginald K. Reese, is a teacher certified by the State of Florida, holding a professional service contract with Petitioner, the Pinellas County School Board (School Board). Respondent was employed as a substitute teacher by the School Board in August 1988. Respondent was hired as a full- time teacher in the Pinellas County School System in August 1989, and has been a teacher in the district since that time. At all times relevant to this proceeding, he was employed as a teacher at Riviera Middle School. Throughout his tenure with the School Board, Respondent's teaching career has been exemplary and he has consistently received good evaluations. It is undisputed that Respondent is held in high regard and considered an excellent teacher by many parents of children he has taught and by his colleagues and administrators with whom he has worked. Respondent is viewed by his former principal and current assistant principals as an excellent educator. His co-workers view him as an excellent teacher, the epitome of quality, a wonderful teacher, top-notch, one of the best, innovative, creative, compassionate with children, an inspiration to students, and one of the teachers students come back to the school to see. Two parents whose children were taught by Respondent several years ago believe that Respondent's work and effort as a teacher had turned their children around and made them responsible, productive adult members of society. Prior to the recommended disciplinary action which is the subject of this proceeding, Respondent has never been the subject of disciplinary action by the School Board or any of its administrators. On Wednesday, November 10, 1999, at about 1:00 p.m., Respondent parked his vehicle at the entrance of the south trail near the mangrove area in the vicinity of 4th Street and 115th Avenue in St. Petersburg, Florida. Respondent then exited his vehicle and entered the south trail of the mangrove area. It is undisputed that while in the mangrove area, Respondent engaged in a sexual activity, specifically oral sex and masturbation, with two other adults. The contact between Respondent and the other individuals was consensual and involved adults who were strangers to each other. This sexual activity was observed by Corporal Ward of the Pinellas County Sheriff’s Office. The mangrove area in which the incident occurred was not clearly visible from the street. However, the area is considered a public place and is next to a busy four-lane road. Moreover, within that vicinity, people engage in recreational activities, including sunbathing, fishing, and boating. After the sexual activity had concluded, Respondent was arrested at the scene of the incident described in paragraph 7 by an officer with the Pinellas County Sheriff’s Office who had observed the acts. As a result of the incident, Respondent was charged with committing an unnatural and lascivious act and exposure of sexual organs. Respondent pled nolo contendere to exposure of sexual organs and an Order Withholding Adjudication of Guilt was entered on December 30, 1999. Further, an Order Withholding Adjudication of Guilt on a Plea of Nolo Contendere to the charge of unnatural and lascivious act was entered on December 30, 1999. An Order to Seal Criminal History Record was entered on January 4, 2001. On the advice of counsel, Respondent did not report his arrest, the charges filed against him, or the orders entered resolving the criminal matters to School Board officials at or near the time they occurred. Respondent reported his arrest in a letter dated June 10, 2001, to the School Board’s Office of Professional Standards, when he applied for renewal of his teaching certificate. Upon receipt of the June 10, 2001, notification of Respondent’s arrest, the School Board investigated the matter. Following the investigation, on July 18, 2001, Respondent was notified in a certified letter that Dr. J. Howard Hinesley, Superintendent of Pinellas County Schools, would be recommending to the School Board that Respondent be dismissed from employment. The basis of the recommendation of dismissal is that the conduct engaged in by Respondent on November 10, 1999, violated Pinellas County School Board Policy 8.25 and the Code of Ethics and the Principles of Conduct of the Education Profession in Florida. It was alleged that these violations constitute just cause for Respondent's dismissal pursuant to Section 231.36, Florida Statutes. Dr. Hinesley's recommendation of dismissal is based on several factors. First, Dr. Hinesley believes that the conduct engaged in by Respondent on November 10, 1999, was immoral in that it took place in a public area. Second, Dr. Hinesley believes that dismissal of Respondent is warranted because Respondent's actions were inappropriate and embarrassed the school system and the school. Finally, Dr. Hinesley believes that the conduct engaged in by Respondent was inappropriate and impaired his effectiveness as a teacher in the Pinellas County School District. Information regarding the subject incident has not been widely disseminated because the record was sealed by court- order. However, all of the witnesses testifying in support of Respondent were advised of the details of the incident. In light of this knowledge, teachers who have worked with Respondent, a former administrator who supervised Respondent, former students of Respondent, parents of Respondent's former students, and community members supported Respondent. While admitting that Respondent made a mistake or had a lapse in judgment, they believe that his exemplary teaching record and dedication to students and to the profession will allow him to overcome the challenges that may arise if and when the incident becomes public. Many of them also believe that his service to the Pinellas County School District community will not be impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order that dismisses Respondent from his position as a teacher with the Pinellas County School District. DONE AND ENTERED this 2nd day of January, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 2002. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Jacqueline Spoto Bircher, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Honorable Charlie Crist Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 Fourth Street, Southwest Largo, Florida 33770-3536 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact At all times material to this proceeding, Petitioner was a duly constituted school board. At all times material to this proceeding, Respondent was employed by Petitioner as a continuing contract teacher. Respondent was assigned as a math teacher to Miami Senior High School, one of the schools in the school District of Dade County, Florida. On March 20, 1989, Respondent and J.R., a 14 year old male who was one of Respondent's math students, entered into a discussion in Respondent's classroom regarding two musical keyboards that Respondent was trying to sell. J.R. Was interested in purchasing a musical keyboard and had been told by Respondent that he had at his home two musical keyboards that he wanted to sell. J.R. wanted to inspect the two keyboards to determine whether he might be interested in purchasing one of them, but he wanted to wait until the weekend to look at the keyboards so that his father could accompany him when he went to Respondent's house. Respondent had other commitments and advised the student on March 21, 1989, that he would have to look at the keyboards that afternoon. On March 21, 1989, Respondent drove J.R. to Respondent's home for the stated purpose of allowing J.R. to examine the two keyboards. No one else was present at Respondent's home. Respondent showed J.R. the keyboards and quoted J.R. a price for each. When J.R. inquired as to terms of payment, Respondent asked J.R. if he wanted to watch a video with him and stated that he wanted to watch a video so that he could think. Respondent then led J.R. into a darkened bedroom that had, in addition to video equipment, only a chair and a bed. Respondent lay down on the bed and J.R. sat in the chair. Respondent then asked J.R. if he talked a lot or whether he could keep a secret. After J.R. said he did not talk a lot, Respondent showed J.R. a pornographic movie that depicted nudity and sexual intercourse. While watching the movie, Respondent told J.R. that he had seen with a "hard on" during his math class. Respondent then asked J.R. if he had ever measured the size of his penis. When J.R. replied in the negative, Respondent told him that he should. Respondent then asked J.R. whether he "jerked off" often. J.R. replied in the negative and left the room because he was uncomfortable being with Respondent under those circumstances. During the course of the foregoing conversation, Respondent was lying on a bed in this darkened bedroom watching the pornographic movie with this 14 year old student. Respondent then drove J.R. to J.R.'s home after he asked to leave. J.R. immediately reported the incident to his parents when he returned to his home. J.R.'s parents notified the police that evening and reported the incident to the appropriate school officials the next day. This incident caused notoriety which has impaired Respondent's effectiveness as a teacher. Respondent testified that nothing inappropriate occurred when J.R. inspected the keyboards at his home on March 21, 1989. Respondent testified that he and J.R. drove to his house after school so that J.R. could inspect the keyboards, that while at the house he and J.R. drank a soft drink, looked at the keyboards, and discussed watching a video of a popular movie. Respondent contended that he drove J.R. to J.R.'s home and that nothing else occurred. Respondent denied that he showed J.R. a pornographic video or that he engaged in sexually explicit conversations with J.R. Respondent contended that J.R. fabricated part of his testimony and offered two motives for J.R. to lie. First, Respondent contended that J.R. may have seen this situation as a means to get one of the keyboards from Respondent without having to pay for it. Respondent did not explain how J.R. expected to accomplish this. Second, Respondent contended that J.R. may have fabricated the story to avoid getting into trouble with his parents because they did not know J.R.'s whereabouts during the time he was at Respondent's house on March 21, 1989. These proffered motives as to why J.R. would lie lack credibility and are rejected. J.R. is a good student who had no motive to fabricate his testimony as to the events that occurred at Respondent's house. Respondent's version of the events of March 21, 1989, insofar as that version conflicts with J.R.'s testimony, lacks credibility and is rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order which finds Jimmie D. Harris guilty of immorality and of misconduct in office, which affirms the suspension of Jimmie D. Harris without pay, and which terminates the continuing contract of Jimmie D. Harris. DONE AND ORDERED this 23rd day of March, 1990, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Jimmie D. Harris 13336 S.W. 112 Place Miami, Florida 33176 Frank R. Harder, Esquire Suite 100 - Twin Oaks Building 2780 Galloway Road Miami, Florida 33165 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Dr. Joseph A. Fernandez Superintendent of Schools 1444 Biscayne Boulevard Suite 215 Miami, Florida 33132 APPENDIX TO THE RECOMMENDED ORDER IN CASE 89-3691 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraphs 3-5 of the Recommended Order. The proposed findings of fact in paragraph 4-6 are rejected as being subordinate to the findings made and to the conclusions reached. There is no paragraph numbered in Petitioner's post-hearing submittal. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in the second sentence of paragraph 1 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 2 are rejected as being subordinate to the findings made. The proposed findings of fact in the second sentence of paragraph 1 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 3 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 4 are rejected as being subordinate to the findings made. The remaining proposed findings of fact in paragraph 4 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 5 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 6 are rejected as being unclear and as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 7-9 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 10 are rejected as being conclusion of law.
The Issue The issues in this case are (1) whether an education paraprofessional made salacious and vulgar comments to a female student and, if so, (2) whether such conduct gives the district school board just cause to suspend this member of its instructional staff for 30 workdays, without pay.
Findings Of Fact At all times relevant to this case, Respondent Alfredo Regueira ("Regueira") was an employee of Petitioner Miami-Dade County School Board ("School Board"), for which he worked full time as a physical education paraprofessional. At the time of the events giving rise to this proceeding, Regueira was assigned to Miami Senior High School ("Miami High"), where he led exercise and fitness classes in the gymnasium. As of the final hearing, A. M., aged 17, was a senior at Miami High. She had met Regueira in the spring of her sophomore year at the school, in 2005, outside the gym. Thereafter, although never a student of Regueira's, A. M. would chat with "Fred"——as she (and other students) called him——about once or twice per week, on the gymnasium steps, during school hours. As a result of these encounters, A. M. and Regueira developed a friendly relationship. At some point, their relationship became closer than it prudently should have, moving from merely friendly to (the undersigned infers) nearly flirty. A. M. gave Regueira a picture of herself inscribed on the back with an affectionate note addressed to "the prettiest teacher" at Miami High. Regueira, in turn, spoke to A. M. about sexual matters, disclosing "what he did with women" and admitting a proclivity for lesbians. Notwithstanding this flirtatious banter, there is no allegation (nor any evidence) that the relationship between Regueira and A. M. was ever physically or emotionally intimate. As time passed, however, it became increasingly indiscreet and (for Regueira at least) dangerous. At around eight o'clock one morning in late February or early March 2006, A. M. and her friend E. S. went to the gym to buy snacks, which were sold there. Regueira approached the pair and, within earshot of E. S., made some suggestive comments to A. M., inviting her to get into his car for a trip to the beach. Later, when E. S. was farther away, Regueira spoke to A. M. alone, using vulgar language to communicate his desire to have sexual relations with her. In A. M.'s words, "Mr. Fred me dijo en English 'I want to fuck you.'" (Mr. Fred told me in English "I want to fuck you.")1 At lunch that day, while conversing with E. S., A. M. repeated Regueira's coarse comment. A. M. did not, however, report the incident contemporaneously either to her parents, being unsure about how they would react, or to anyone else in authority, for fear that she would be disbelieved. After the incident, A. M. stopped going to the gym because she was afraid and embarrassed. A few weeks later, A. M. disclosed to her homeroom teacher, whom she trusted, what Regueira had said to her. The teacher promptly reported the incident to an assistant principal, triggering an investigation that led ultimately to the School Board's decision to suspend Regueira. Thus had the candle singed the moth.2 That this incident has diminished Regueira's effectiveness in the school system is manifest from a revealing sentence that Regueira himself wrote, in his proposed recommended order: "Since this situation has been made public[,] . . . my peers have lost all respect for me." An employee who no longer commands any respect from his colleagues is unlikely to be as effective as he once was, when his peers held him in higher regard. Ultimate Factual Determinations Regueira's sexually inappropriate comments to A. M. violated several rules and policies that establish standards of conduct for teachers and other instructional personnel, namely, Florida Administrative Code Rule 6B-1.006(3)(e)(prohibiting intentional exposure of student to unnecessary embarrassment or disparagement), Rule 6B-1.006(3)(g)(forbidding sexual harassment of student), Rule 6B-1.006(3)(h)(disallowing the exploitation of a student relationship for personal advantage), School Board Rule 6Gx13-4A-1.21 (banning unseemly conduct); and Board Rule 6Gx13-4-1.09 (proscribing unacceptable relationships or communications with students). Regueira's misconduct, which violated several principles of professional conduct as noted above, also violated Florida Administrative Code Rule 6B-1.001(3)(employee shall strive to achieve and sustain the highest degree of ethical conduct). This ethics code violation, it should be mentioned, is secondary to the previously described misdeeds, inasmuch as sexually inappropriate behavior in the presence of, or directed toward, a student necessarily demonstrates a failure to sustain the "highest degree of ethical conduct." Regueira's violations of the ethics code and the principles of professional conduct were serious and caused his effectiveness in the school system to be impaired. In this regard, Regueira's admission that his colleagues have lost all respect for him was powerful proof that, after the incident, he could no longer be as effective as he previously had been. Based on the above findings, it is determined that Regueira is guilty of the offense of misconduct in office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order suspending Regueira from his duties as a physical education paraprofessional for a period of 30 workdays. DONE AND ENTERED this 11th day of April, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2007.
