The Issue Whether the Petitioner, a teacher under contract with the School Board of Seminole County, should be terminated from his employment based on misconduct in office, gross insubordination, and immorality, based on conduct during the course of the school year 1989-90 and an incident occurring on April 11, 1990.
Findings Of Fact Petitioner has been employed by the School Board of Seminole County since 1983 as a classroom teacher. Petitioner is employed pursuant to a Professional Services Contract. Petitioner was assigned to Lake Brantley High School during the 1988-89 and 1989-90 school year. During the 1989-90 school year, Petitioner taught two classes of honors world history and three classes of humanities. By letter dated August 17, 1989, which was hand delivered to Petitioner and a copy was placed in his personnel file, Petitioner was cautioned by Darvin Boothe, Principal of Lake Brantley High School, that: Any recurrence of behavior of this nature will result in the most serious of consequences. You are strongly advised to take appropriate measures to resolve the confusion, which, by your account, caused you to behave in a way which was unprofessional and unsound. In the letter, it was alleged that in late Fall of 1988 Petitioner placed a personal ad in the Orlando Sentinel which said: "Male seeks male for friendship." A fifteen year old male answered the ad in writing, and Petitioner replied in writing. A telephone conversation then occurred, and this ended the transaction. There was concern expressed by Principal Boothe that the purpose of the correspondence was an attempt by Respondent to initiate a homosexual liaison. Petitioner did not respond in writing to this letter. The Petitioner was a close acquaintance of the Ahuvia family, Citizens of the State of Israel and living in Seminole County. The oldest son, Saar, had been a friend of the Petitioner's son who was killed in an accident while an exchange student in Spain in September 1989. Mrs. Rachel Ahuvia invited the Petitioner to her home on frequent occasions after the death of Petitioner's son and attempted to involve the Petitioner in activities with her children because of Petitioner's apparent emotional reaction to the loss of his son. Ahuvia invited Petitioner to her home for Hanukkah in 1989 and to Passover supper in April 1990. During Petitioner's visit at Passover, Ahuvia asked Petitioner if he would take three of her children, Saar, Ram and Mor on an outing during the Spring Break. Petitioner agreed. It was arranged that Petitioner would take the three children to Rock Springs Park on April 11, 1990. Petitioner suggested that Saar being a 10th grade teenager and the other two being 11 and 9, could invite a friend as company in the outing. One or more friends his age were contacted before Gil Montag (who was 15 at the time and a school mate of Saar's) was contacted and agreed to go on the outing. Petitioner arrived at the Ahuvia home between 12:30 to 1:00 p.m., on April 11, 1990. Saar, a musician, was sleeping after having been up late taping a musical arrangement; rather than wake him, Mrs. Ahuvia suggested that the Petitioner and the other children go without Saar. Petitioner drove to the home of Gil Montag. Montag's parents were away, however, Gil had a friend with him, Danny Terrill. Gil Montag was told that Saar was unable to come. Gil decided to come anyway, and it was agreed that he would also bring his friend, Danny Terrill. The Petitioner and the four children drove to Rock Springs in Petitioner's car. When they arrived, they found it was closed and proceeded to Wekiva Springs. The trip took approximately 20 minutes, and the group arrived at Wekiva Springs at approximately 2:00 p.m. Enroute the children discussed several subjects, including Gil Montag's new earring. Danny Terrill also used one or more Hebrew words he had been taught by Gil Montag, one of which was "zain omed", a Hebrew word meaning "penile erection". The Petitioner requested that this word not be used in the presence of the young children. When the party arrived at Wekiva Springs, they passed through a gate tended by a park ranger. Several hundred people attended the park for day use that day. During the time Petitioner and his party were in the swimming area, there were at least 50 people present at any one time. During the time that Petitioner and his party were at the park, they were in the swimming area or on the grounds immediately surrounding the swimming area. Virtually all of the area where Petitioner and his party were located was within plain view of other patrons of the park swimming or sunning on the immediately surrounding grounds. During the time Petitioner was in the park, he played with the two younger children in the water and engaged in horseplay with the two older boys, Gil Montag and Danny Terrill, both in the water and in the surrounding grounds. A student known to the Petitioner, Toni-Ann Mariani and her visiting cousin, Loretta Mariani, arrived in the park by canoe and saw Petitioner and his party in the swimming area when they arrived. They also saw the two younger children and two older boys, who were introduced by Petitioner, in the swimming area. During the entire period of time Toni-Ann was there, the Petitioner as well as the younger children and two older boys appeared to be engaging in activities typical for the occasion, and it did not appear that anyone in the party was upset, angry or frightened. During one episode of horseplay, Danny Terrill pulled the string out of Gil Montag's bathing suit, which annoyed Gil Montag. In addition, Petitioner and the two older boys wrestled. Petitioner had wrestled in college and was involved with the high school wrestling program. Gil Montag had wrestled for a time in high school, and Danny Terrill had earned several belts in karate. During the wrestling, Petitioner put Gil Montag briefly in a scissors hold around his waist, a legitimate maneuver in olympic style wrestling. During that time, Danny Terrill was a short distance away and did not see any evidence that Petitioner was sexually aroused, nor did Gil Montag make any utterance at the time that made it appear that he was in distress or otherwise upset by the horseplay. During another episode of horseplay, Petitioner, Gil Montag and Danny Terrill, chased each other in the grounds surrounding the swimming area. This activity was not hostile or engaged in by Petitioner for some improper purpose and lasted for a short period of time, approximately 2 to 5 minutes. At about 4:00 p.m., Petitioner and his party decided to leave the park and return home. All of the children were dropped off at their homes without incident. That evening, while Gil Montag's parents were still away, Gil Montag and Danny Terrill invited some friends over and had a party. Although under the legal drinking age, beer was served and consumed, Gil stating that he drank about 12 beers. Danny Terrill testified that 24 beers were shared among 8 boys and that each boy had 2 or 3. Upon returning home from the outing and during the party, no mention was made by Gil Montag to Danny Terrill or to anyone that he had been assaulted in any fashion by Petitioner. A comment was made by Danny Terrill to the effect that he thought Petitioner was a "faggot" because of his mannerisms, not because of any conduct by Petitioner toward Danny. Gil Montag did not, in response to that statement, indicate that he had experienced any overture or conduct by the Petitioner that would substantiate Danny Terrill's slur. The alleged victim, Gil Montag, testified that during the horseplay in the swimming area, that Petitioner pulled the string out of his bathing suit, and that during this episode, while Danny Terrill was in the area, Petitioner was sexually aroused. Montag further testified that during the period Petitioner and the two older boys were "playing chase" on the grounds, that this episode was done in a hostile manner and that, in fact, he had fallen down 10 to 30 concrete steps, and as a result was cut and bleeding in many places on his body. Gil Montag further asserts that during the visit to the park, he was led against his will by the hand to the water after the above-described chasing and then taken against his will by Petitioner to a secluded area of the swimming area where Petitioner wrapped his legs around Gil Montag's waist and moved around in an indecent fashion for the presumed purpose of sexual gratification. Montag asserts that this went on for 10 minutes and that he was unable to escape from the grasp of Petitioner during that time. On or about May 16, 1990, Petitioner notified Gil Montag and his parents that Gil was earning a failing grade in Petitioner's class. During a discussion with Gil's father, Mr. Montag requested that his son's grade be changed and that he be transferred to a different teacher for the last nine weeks of the school year. Petitioner declined and offered the opinion that Gil's mind was not on his work and that he was preoccupied with girls and having a good time. That same evening, Gil Montag told his parents that he was upset because of Petitioner's alleged conduct at Wekiva Springs on April 11. Prior to this occasion, Gil Montag had not made this accusation, but states that he did not do so because of fear. During the school year 1989-90, Petitioner would regularly touch or pat students, including Ryan Anderson, Hisham Aboulhoson and Gil Montag, on their back, butt or knee as a sign of positive reinforcement or approval of work completed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board enter a Final Order finding, as follows: The Petition for Dismissal, filed by the Superintendent of Schools for the Seminole County School District, be DENIED. The Petitioner be reinstated to his position of employment under his professional services contract, and that he receive full back pay and benefits withheld from the date of suspension. DONE AND ENTERED this 27th day of March, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 27th day of March, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Accepted in substance: paragraphs A.1,2,3;B.1,2,3,4,5,6,7,8,9 (in part), 10,11,13,14 (in part), 15 (in part), 16 (in part), 18, 19 (in part), 20,21,22,23,24 (in part) Rejected as argument: paragraphs B.9 (in part), 12,14 (in part),15 (in part), 16 (in part), 17,19 (in part), 24 (in part),28 Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1,2,3,4,8,9,10 (in part),17,18 Rejected as irrelevant, excluded evidence of a previously resolved collateral matter: paragraphs 5,6,7 Rejected as against the greater weight of evidence: paragraphs 11,12,12 (#2),13,14,15,16,17 Copies furnished: John Chamblee, Esquire Chamblee, Miles & Grizzard 202 Cardy Street Tampa, FL 33606 Ned N. Julian, Jr., Esquire Stenstrom, McIntosh, Julian Colbert, Whigham & Simmons 200 West First Street Sanford, FL 32772 Robert W. Hughes Superintendent Seminole County School Board 1211 Mellonville Avenue Sanford, FL 32771 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400
Findings Of Fact At all times relevant hereto, respondent, James Mickey, Jr., was an occupational placement specialist at Homestead Senior High School (HSHS) in Homestead, Florida. He has taught there since 1979 and has been an employee of petitioner, School Board of Dade County (Board), since 1970. On April 23, 1987, and as set forth in greater detail on June 1, 1987, petitioner issued proposed agency action alleging that Mickey had (a) wrongfully converted $200 in cash to his own use which belonged to another person, (b) accepted a $715 coaching supplement for services that he did not perform, and (c) falsified or failed to keep adequate records for a Work Study Program of which he was in charge. For this, the Board has proposed to suspend Mickey for ten working days, and if he failed to repay $990, to suspend him for an additional twenty working days. The threat of this disciplinary action prompted Mickey to institute this proceeding. Conversion of Funds - This charge stems from an allegation made by a former student at HSHS who claims she was required to give Mickey $200 of her proceeds derived from working in the Work Study Program in the spring of 1985. As might be expected, the validity of this charge turns on the credibility of the testimony of the "victim" and the accused. The former student, who is now twenty-one years old and will be identified by her initials, L. D., worked part-time in school year 1984-85 in a work study program at the HSHS "slush house," so named because slush drinks and other munchies were sold there during lunch hour, and from 2:30 p.m. to 6:30 p.m. each school day. Profits were used for such laudable purposes as purchasing uniforms for the boys and girls school track teams. Sometime in the spring of 1985, Mickey noticed a shortage of funds at the house and suspected foul play, particularly since only he, L. D. and the custodian had keys to the house. Mickey stated he mentioned this to L. D., who denied any impropriety, but who eventually resigned from her job on May 15. Because of the accusations, Mickey contends permanent animosity between him and L. D. was engendered. Whether another student was hired to replace L. D., and if so whom, is not of record. While employed in the program, L. D. kept track of the hours she worked by recording this information on a piece of paper. This was then given to Mickey who placed the information on a time card to calculate her wages. L. D. could not recall what her hourly rate of pay was, or the amount of wages to which she was entitled. Because of paperwork delays, checks for the work study program participants, such as L. D., were not issued and distributed until August, 1985. L. D.'s proceeds totaled in excess of $200 for the semester but she could not recall the specific amount. According to L. D., Mickey brought her check to her house one day and told her to cash it and give him back $200 for payment due another student who had replaced her. He later telephoned her to remind her about the money. After cashing the check on August 28, L. D. went to the school office looking for Mickey. She carried a bank envelope with an undisclosed amount of cash. She first went to the principal's office and related to his secretary that she was going to give Mickey the cash in the envelope because Mickey had told her it was needed to pay another student. Finding this to be somewhat unusual, the secretary took L. D. to the library where they met the assistant principal (Bernstein). The secretary told Bernstein that the "young lady has money" for Mickey. L. D. repeated her story that she had $200 for Mickey that was to be paid to another student. When Mickey could not be found, L. D. departed. Neither the secretary or Bernstein saw any cash change hands, and neither knew whether the envelope actually contained $200. Later on, L. D. found Mickey in his office and gave him the $200. There is no evidence that Mickey then gave the money to another student, or returned it to the program. Word of this alleged transaction reached the principal who asked L. D. to write a statement. She did so that day although she wrote portions of it at two separate times. The statement generally corroborates L. D.'s testimony given at hearing. Respondent does not deny meeting with L. D. in his office on the morning of August 28 but denies receiving any money. However, L. D.'s testimony is deemed to be the most credible and persuasive, is corroborated by other independent testimony, and is hereby accepted. Coaching Supplement - Mickey has been a coach of various athletic teams at HSHS for a number of years. Under school policy, a coach was given a salary supplement as compensation for the additional hours devoted to coaching a team. Prior to school year 1984-85, Mickey had served as head coach of both the men and women track teams and had received two supplements for his services. However, his request to coach both teams in 1984-85 was eventually turned down since school policy did not permit a person to serve as head coach for two teams at the same time. While the record suggests that Mickey may have actually performed head coaching services for the two teams during the first part of school year 1984-85, he was compensated only as head coach of the boys cross- country track team. Its season began in August, 1984, and required his services until around 7:00 p.m. or later each school day. To Mickey's credit, his team won the state championship that year. For these services, Mickey received a salary supplement. After learning that his request to coach the two track teams (and receive two supplements) had been rejected, Mickey met with the HSHS principal, Percy Oliver, in early January, 1985, to see if he could earn the supplement in another manner. He was told of an opening for an assistant coach on the wrestling team that would pay a $715 supplement. Although the wrestling season had already begun in November, and would end in February, Oliver approved Mickey's request to serve as assistant coach for the wrestling team. To earn the supplement, Oliver stated it was necessary for Mickey to "go out and assist the kids' wrestling coach" and attend practices and meets. In an interview prior to hearing, Mickey acknowledged receiving the $715 even though he failed to attend any practices or meets. The only duty he could recall performing was advising the head coach on unspecified "rules and procedures." He also stated he did not deserve the supplement for wrestling duties, but was entitled to the extra compensation for his other school activities. At hearing, Board witness Gray described what he considered to be the normal duties of an assistant wrestling coach in an effort to show that Mickey did not earn his supplemental pay. However, Gray's testimony was drawn from his own coaching experience in the late 1960s, and is deemed to be too remote to be relevant to this proceeding. Even so, it is found Mickey was not entitled to compensation for serving as an assistant wrestling coach in school year 1984-85 since he did not perform the duties expected of an assistant coach. Recordkeeping - During school years 1983-84 and 1984-85, Mickey was in charge of a "work study program" at HSHS. As such, he had the responsibility of keeping records for the program and authorizing payment to students. This program is designed to provide on-the-job training to students enrolled in vocational educational programs who are otherwise qualified. Students were then compensated at the rate of $3.25 per hour for their services which could not exceed twenty hours per week. Mickey acknowledged he was familiar with the recordkeeping requirements of the program, since he had been involved with work study programs for some fifteen years. To be eligible for the program, a student must have been enrolled in a vocational educational program at HSHS, and be a member of a family meeting certain income criteria. In this regard, the program is funded by a federal grant, and income criteria are published annually by the federal government. As a prerequisite to enrollment students are obliged to fill out a form entitled Vocational Work Study Student Income Determination. The form must be signed by the parent or guardian, and reflect the number of members in the family as well as the annualized family income. The form itself does not require additional income verification by the parents but Mickey stated they sometimes attached additional income verification to the form, such as a W-2 form. Although it was Mickey's responsibility to verify the students' eligibility, he indicated that if the information submitted facially complied with the eligibility requirements, he made no further inquiry. Students enrolled in the program were to be paid every two weeks. Before payment could be made, it was necessary for the supervising teacher (Mickey) to submit paperwork to the Board's county-wide coordinator (Joseph Zaher) where the program payroll was processed. Through testimony from another work-study program supervisor, it was established that preparation of paperwork was sometimes "delayed," but never more than for a few weeks. In Mickey's case, the completed paperwork was not submitted until at least June, 1985, or after the regular school year had ended, and checks were not issued until July or August. Therefore, the students were not paid biweekly as they should have been. It is also noted that the actual paperwork was prepared by a former student, D. M., rather than by Mickey himself. Mickey blamed the delay on the "downtown office," saying one set of paperwork sent in March had been lost, and this forced him to send a second set to Zaher in June or July. Even if this is true, Mickey did not timely supply the first set of paperwork, and he was negligent in not following up on the matter to ensure that the students were promptly paid. The notice of charges alleges that certain students were paid for work not performed. The pertinent program "write-in roster" and attendance cards reflect that student K. M. attended an out of town track meet on May 9 and 10, 1985 but was also paid for working in the work study program on the same days. Even though K. M. was assisting Mickey at the track meet, she was not eligible for payment in the program. In the case of student T. M., Mickey relied upon a time sheet approved by another teacher and cannot be held accountable for that teacher's error. The student was also paid for working for the registrar on March 7, 8 and 20, 1985, even though he was absent from school on those days. This was improper. Mickey gave no explanation for this error except to say that he had no "guidelines" for administering the program. As to student L. D., payroll records reflect she worked after May 15, 1985, when, in fact, she quit on that date. No explanation for this variance was given by Mickey except to say he believes she received pay only for actual work performed. The notice also alleges several students were allowed to enroll in the program even though they were ineligible. At hearing, Mickey stated that although he knew he had an obligation to verify eligibility, he accepted without further checking the information given by the parents on the enrollment form. The pertinent records reflect that students T. M., K. M., L. D., M. W. and T. C. did not provide proof that they were either income eligible or enrolled in a vocational program. They also reflect that one person, D. M., was allowed to work in the program from February through April, 1984, even though she had graduated from HSHS in January, 1984. Although there are a number of mistakes, errors and omissions in the work study program records, and they failed to comply with Board recordkeeping requirements, there is no evidence that Mickey intentionally violated any program rule or regulation, or applicable state recordkeeping requirements. Miscellaneous - The Board investigated the charges against Mickey, and the results of its audit were published in a local newspaper. As a result of such notoriety, it was established that Mickey's effectiveness as a teacher had been impaired.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding respondent guilty of those charges set forth in the conclusions of law, and that he be suspended from his position for ten days without pay. Petitioner should also dispose of the $990 in a manner consistent with paragraph 8 of the conclusions of law. DONE AND ORDERED this 9th day of December, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1987.
Findings Of Fact At all times material hereto, the Respondent held Teaching Certificate Number 570975 issued by the State of Florida, Department of Education, covering the area of physical education. At all times material hereto, Respondent was employed by the Palm Beach County School Board and assigned to Santaluces Community High School. Incident to his teaching position at that school, Respondent also was one of the coaches for the male wrestling team and was a weight instructor. During the 1987-88 school year, Gina Marie Finnan attended the Respondent's third period personal fitness class at Santaluces Community High School. During the month of November, 1987, Finnan, then a sophomore born August 30, 1971, became a statistician for the school's wrestling team. As a statistician for the wrestling team, Finnan worked under Respondent and began to accept rides home from him following practice sessions and/or wrestling matches which were conducted either at the high school or at other sites within the community. The first physical encounter between Finnan and Respondent occurred at the conclusion of the Thanksgiving Sock Hop held at the school. Initially, Finnan had obtained possession of the Respondent's keys while they were in the school gym. The Respondent, in an attempt to obtain the return of his keys, made physical contact with her and ultimately ended up seated on the gym floor with his back resting against the bleachers and Finnan seated on his lap. With Finnan sitting on his lap, Respondent then placed his arms around her and kissed her. The only other person then present in the gym was Finnan's friend and classmate, Katherine Coffin. Coffin had been with Finnan for the sock hop and was prepared to proceed to lunch when she observed Respondent and Finnan "playing around" while fighting over Respondent's keys. During this time, several students attempted to enter the gym but were told to leave by Respondent. Respondent then went over and shut the doors to the gym, which caused the doors to automatically lock, thereby preventing anyone from entering the gym. Following this, Respondent and Finnan became silent, so Coffin walked around the bleachers and observed Respondent sitting on the floor with Finnan in front of him with her back to him. Respondent had his arms around Finnan. At that time, Coffin left the gym. Katherine Coffin did not feel that Respondent's conduct at the time was "right" for a teacher. The next time Respondent made physical contact with Finnan was near the end of November following a wrestling match on school grounds. At the time, all the equipment had been secured and the two of them were in the locker room Respondent kissed the student and touched her breasts and buttocks. This was followed by Respondent's offer to drive the student home. The student then called her mother to advise her that she need not come to school to pick her up in that Finnan had found another ride home. In route to the student's residence, Respondent parked his vehicle off the side of the road, and the two began kissing, with the Respondent "feeling" the student's breasts. This incident was followed by five or six other incidents when Finnan would accept rides home from the Respondent, and Respondent would kiss her and feel her breasts and buttocks. Shortly before the Christmas holidays, Finnan was approached by Respondent and advised that his wife would be away for the holidays and the student "should try to maybe stop by and see him and spend more time with him." Finnan solicited the help of another classmate, Robin Freedman, in hopes that she would help provide her with an alibi should the opportunity present itself for her to spend time with Respondent. This help consisted of Robin Freedman providing a "cover" for Finnan by telling Finnan's mother, should she call, that Finnan was there but unavailable to speak with the mother at the time. When Gina Finnan asked her to "cover" for her while she was visiting Respondent, Robin Freedman "didn't know what to say" in response to Gina's request so she went to her own mother for advice. During this time period, Gina Finnan received two letters from Respondent. Both of these letters were destroyed by Finnan, but, before their destruction, at least one of the two letters was shown to Katherine Coffin and to Robin Freedman. The one letter was described as a "fantasy letter" which talked about wanting to have sexual intercourse. Although the letters were not signed except for initials that did not correspond with those of the Respondent or Gina Finnan, Respondent, when questioned by Finnan, related to her that "it was in case anybody found them," and that Finnan was to throw them away.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the teaching certificate of Mark Miele be permanently revoked. DONE and ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 February, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-2841 Petitioner's proposed findings of fact numbered 1-15 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 16-18 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. The statements contained within the five unnumbered paragraphs of Respondent's proposed recommended order have been rejected as being contrary to the weight of the credible evidence in this cause. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Mark Miele 5350 Rosemarie Avenue North Boynton Beach, Florida 33437 Martin B Schaap, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 418 Knott Building Tallahassee, Florida 32399
The Issue The issue is whether petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by petitioner, Damon L. Lee, for an exemption from disqualification from employment in a position of special trust. If the request is approved, petitioner intends to work in a developmental services facility for retarded persons. Respondent, Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of approving or denying such requests. Petitioner is now barred from working in such a facility because of a disqualifying offense which occurred on June 1, 1994. On that date, petitioner was arrested for the offense of "battery on spouse, domestic violence," a misdemeanor. On the evening of June 1, 1994, petitioner went to the residence of his girlfriend in Baldwin, Florida, where he discovered that another male was present. As he started to leave the premises, his girlfriend, who was four months pregnant, followed him outside and an altercation ensued. She took a broom and began smashing the windows of petitioner's vehicle, causing $458.32 in damages. While attempting to stop her, petitioner grabbed his girlfriend and pushed her to the ground. Although not seriously injured, the girlfriend received marks on her body where petitioner grabbed her. After an investigation was conducted by local law enforcement officials, petitioner was arrested and charged with domestic violence. Whether petitioner pled guilty or nolo contendere to the charge is unclear. In any event, on July 13, 1994, he was given three months supervised probation and was required to enroll in, and complete, an anger control class. Thereafter, he successfully completed all terms of probation and a six-week anger control class. Other than this incident, petitioner has never been charged with any other crime. After being disqualified from employment, petitioner appeared before a three-person committee composed of local HRS employees seeking an exemption. At that time, he was told that his request was being denied because he had not brought to the hearing proof that he had successfully completed the terms of his probation and the anger control class. This proceeding followed. When the incident occurred, petitioner was employed by Jacksonville Electric Authority (JEA). Because of his arrest, however, JEA terminated his employment. For the same reason, he was denied employment with AT&T Corporation. He eventually obtained employment as a program assistant with Kincaid Cluster Homes, a facility for retarded persons in Jacksonville, Florida, where he worked for six weeks until the disqualifying offense was discovered. He is presently enrolled in a special HRS program known as the Project Independence Program for food stamp recipients since he has custody of, and is caring for, two small children. Petitioner, who is twenty-three years of age, has completed course work at Lake City Junior College and is now enrolled at Florida Junior College in Jacksonville seeking to attain a degree in computer programming. He desires an exemption so that he can work on a part-time basis at Kincaid Cluster Homes, which has promised to rehire him if his request for an exemption is approved. Besides needing the income for college, petitioner also has children who rely upon him for their support. Petitioner was described as a responsible, reliable worker at Kincaid Cluster Homes and is well-liked by the staff and clients. This was not contradicted. He will not present a danger to the safety or well-being of that facility's clients. Based on petitioner's own testimony, as corroborated by letters from third parties, and the testimony of his former co-worker at Kincaid Cluster Homes, it is found that petitioner has presented sufficient evidence of rehabilitation so as to justify approving the exemption.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 27th day of August, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 27th day of August, 1996. APPENDIX TO RECOMMENDED
The Issue Whether Respondent, Franklin Lewis, inappropriately touched a student, and, if so, whether this misconduct violates Section 1012.33, Florida Statutes (2004),1/ and Florida Administrative Code Rules 6B-1.001 and 6B-4.009 and constitutes "just cause" for Respondent's dismissal.
Findings Of Fact Respondent has been employed by Petitioner as an instructional employee since August 20, 1996. At the time of his suspension, he taught reading and was the wrestling coach at Dunbar High School (Dunbar) in Fort Myers. Respondent is a member of the collective bargaining unit for instructional personnel. His employment is subject to the terms and conditions of the written agreement between Petitioner and the Teachers Association of Lee County. Prior to the February 7, 2005, incident2/ that is the subject of this case, Respondent was a well-liked and respected person that many students looked up to and turned to for help and support. Respondent is 43 years old. He is divorced and the father of four children. S.W. is 18 years old. He was a student at Dunbar and graduated in 2005. He was a member of the wrestling team during his sophomore, junior, and senior years at Dunbar. Prior to joining the wrestling team, S.W. was in a combined geography/history class taught by Respondent. Respondent encouraged S.W. to join the wrestling team because other students "called him a woman and stuff like that." Respondent believed that if S.W. joined the wrestling team, he would gain the respect of other students because they would know S.W. could defend himself. Mr. Dukes also encouraged S.W. to join the wrestling team. During the wrestling season, October through February, the team practiced every day after school until 5:15 p.m. or 5:30 p.m. Respondent and Mr. Dukes often gave students a ride home after wrestling practices. During the 2004-2005 school year, Respondent usually drove S.W. home after wrestling practices. Early in 2005, S.W. told Respondent that he was interested in becoming a massage therapist, but he did not want other students to know. Respondent agreed not to tell anyone. According to Respondent, he has chronic neck pain from an old injury and wanted to give S.W. an opportunity to practice massage. Respondent suggested that S.W. give Respondent massages, and Respondent would pay S.W. $20 for each massage. S.W. gave Respondent two or three massages before February 7, 2005, and Respondent paid S.W. for them. All the massages took place at Respondent's house. The record does not indicate in what room the earlier massages took place, but a reasonable inference from the record evidence is that the massages always took place in Respondent's bedroom. Respondent stated that during the massages, the door to the room was usually closed. S.W. owed money to Respondent. Although the size of the debt was disputed, S.W. was indebted to Respondent for money Respondent spent on food and drinks for S.W. At S.W.'s request, Respondent occasionally purchased food and drinks for S.W. at convenience stores when Respondent was driving S.W. home from wrestling practices. Sometimes Respondent gave money to S.W. to buy food and drinks on his own. Respondent gave or loaned money to other students. Mr. Dukes also gave small amounts of money to students from time to time, but he never asked to be paid back. Monday, February 7, 2005 On February 7, 2005, following wrestling practice, Respondent drove S.W. and two other members of the team, J.M. and P.L., to an apartment complex where Mr. Dukes lived. They went there to use the complex's sauna for the purpose of "sweating off" weight. Wrestlers compete in weight classifications, and it is important to a wrestler to keep his weight within the classification that is considered optimum for him. Following their use of the sauna, the three students got back in Respondent's car to be taken home. Respondent first dropped off P.L. at P.L.'s house and then dropped off J.M. at J.M.'s church. At S.W.'s urging, Respondent drove back to Dunbar so S.W. could use the scale at the school to check his weight. After S.W. checked his weight, Respondent and S.W. drove to Respondent's house. According to Respondent, they went to his house because S.W. wanted to give him a massage to "pay off" S.W.'s debt to Respondent. S.W. says Respondent suggested the massage. When Respondent and S.W. arrived at Respondent's house, Respondent's 10-year-old daughter and adult sister were in the house. Respondent and S.W. went into Respondent's bedroom. At first, the door to the bedroom remained open. They watched a video of Respondent competing in a wrestling match when he was in high school. When the video ended, Respondent closed the bedroom door. Respondent took off his shirt and lay on the bed to get a massage from S.W. According to Respondent, he was lying on his stomach with his head on a pillow at the bottom of the bed. S.W. was sitting on the bed, at Respondent's right side, with his feet on the floor. S.W. began to massage Respondent's shoulders. According to Respondent, his head was on the pillow at the beginning of the massage; but in order to see what S.W. was referring to on the video that was playing on the television located to Respondent's front and right, Respondent raised his head and held it in his right hand, propped up by his right elbow. Respondent said his body was also twisted to the right. It was from this position that Respondent claims his head accidentally slipped from his hand and landed in S.W.'s lap or on S.W.'s leg. Petitioner claims that, if Respondent's description of the relative positions of Respondent and S.W. on the bed were true, it would have been physically impossible for Respondent's head to have slipped from his hand and fallen against S.W.'s leg. The evidence is not sufficient to support a finding that it would have been impossible. The improbability of such an occurrence, however, is a factor that contributes to the overall finding that Respondent's account of the incident lacks credibility. According to Respondent, when his head slipped and fell against S.W.'s leg or lap, no part of his hands ever touched S.W. in "his private area." S.W.'s account of the incident in the bedroom is much different. He testified that during the massage, they were not watching a video. Respondent had his head in S.W.'s lap. As S.W. was massaging Respondent's shoulders, Respondent pulled S.W.'s pants outward. S.W. said that he "felt lips on [his] stomach." Then, he felt Respondent's hand go into his pants and touch the "top of [his] penis" and pubic hair. S.W. explained that he was referring to the base of his penis, where it attaches to his abdomen. Respondent and S.W. agree that S.W. pushed Respondent away, and S.W. asked Respondent to take him home. According to Respondent, he told S.W. it was an accident and that he was sorry. S.W. said he walked out of the bedroom and looked back to see Respondent with "his head down shaking it like when, you know, you can't believe you did something." While he was waiting for Respondent to put his shirt back on and take him home, S.W. stood for a few minutes near a pool table where Respondent's sister and daughter were playing pool. Respondent's sister, Marjorie Lewis, M.D., testified that S.W. looked "very calm." According to S.W., during the short drive to his house, Respondent "told me he was sorry, that this never happened before, and he didn't know what got into him." Tuesday, February 8, 2005 The next morning, S.W. got a ride to school from his friend and fellow Dunbar student, M.G. S.W. told M.G. that he was quitting the wrestling team, and M.G. pressed S.W. for the reason. According to M.G., S.W. told him that he was giving Respondent a massage when Respondent placed his head in S.W.'s lap and then put his hand in S.W.'s "pubic area." S.W. told M.G. he shoved Respondent away, and Respondent sat on the bed with his head in his hands, as if "he was ashamed of himself." S.W. did not tell M.G. that Respondent kissed his stomach. At the hearing, S.W. said he told M.G. that Respondent "started to pull his [S.W.'s] pants down," reached into his pubic area, and "tried" to grab his penis. In explaining why he told M.G. that Respondent "tried" to touch his penis, S.W. said he meant that Respondent only touched the top of his penis, but did not grab all of it. Other statements made by S.W. that Respondent "grabbed my penis," are not inconsistencies that show S.W. lacks credibility. In this case, the inconsistencies simply reflect the imprecision that is common when the circumstances of an event are repeated several times to both friends and strangers. S.W. was a credible witness, and he showed no doubt that Respondent touched his penis. When S.W. and M.G. got to Dunbar, M.G. accompanied S.W., at S.W.'s request, to Respondent's classroom to get some things belonging to S.W. Respondent was in the classroom, and M.G. approached and talked to him. M.G. and Respondent knew each other because M.G. had been on the wrestling team. During their conversation, Respondent never made eye contact with M.G., but kept his eyes on his computer screen. According to M.G., that was unusual behavior for Respondent. Later that same day, M.G. repeated what S.W. told him to S.W.'s friend and wrestling teammate, J.M. J.M. testified that M.G. told him that Respondent made S.W. give him a massage and Respondent "tried to touch his penis." J.M. talked to S.W. in the school cafeteria a short time later. S.W. said he quit the wrestling team because of what happened the day before at Respondent's house and that S.W. felt "degraded" and "like a four-year-old." J.M. testified that S.W. told him Respondent locked the bedroom door, "tried to reach into [S.W.'s] pants, like touching his pubic area." S.W. did not tell J.M. that Respondent kissed his stomach. Sometime during the school day, Respondent saw S.W. and urged him not to quit the wrestling team. According to Respondent, S.W. told Respondent he was not quitting the team because of the incident at Respondent's house, but because of other "personal reasons." Later that day, Respondent telephoned S.W. According to Respondent, he called to tell S.W. that S.W. was mistaken about Respondent's head hitting S.W.'s lap, that his head only hit S.W.'s leg. According to S.W., Respondent asked S.W. to keep the incident a secret and "he'd do anything." Respondent admits that he told S.W. during this telephone conversation not to report the incident, but did so "because I thought it was silly." Wednesday, February 9, 2005 The next evening, S.W. called Laurie Beaudry, his Big Sister from the Big Brother/Big Sister Program and told her he was quitting the wrestling team. According to Ms. Beaudry, S.W. told her of an "inappropriate touching" incident. Because he was upset, Ms. Beaudry offered to pick him up so they could talk. She picked S.W. up and returned to her house. On the way to pick up S.W., Ms. Beaudry called Respondent on her cellular telephone and asked Respondent whether he knew why S.W. was upset and wanted to quit the wrestling team. Respondent told her he did not know. After S.W. and Ms. Beaudry arrived at her house, S.W. told her that on Monday he was giving Respondent a massage, "then Mr. Lewis was kissing on his stomach, and then he pulled his pants and grabbed his thing." Later that evening, Respondent telephoned J.M. Respondent and J.M. had a close relationship, and J.M. said he thought of Respondent as a big brother. Respondent asked J.M. what S.W. was telling people about the incident. J.M. asked Respondent to tell his side of the story first. Respondent admitted at the hearing that what he then told J.M. was a lie. He told J.M. that he and S.W. had been practicing a wrestling move, and S.W. got upset when his pants came down. Respondent claims that what he described to J.M. actually happened at Dunbar, a week earlier. According to Respondent, J.M. told him S.W.'s account of the incident was that Respondent made S.W. give him a massage, and Respondent's head fell in S.W.'s lap. According to J.M., he told Respondent that S.W. accused Respondent of trying to touch S.W. in his pubic area. Respondent denies that J.M. said anything about S.W.'s accusing Respondent of touching S.W.'s "private area." According to J.M., he told Respondent he did not believe Respondent's account of the incident. Respondent began to cry during their telephone conversation and said, "this can't get out" and "this could ruin my life." Respondent asked J.M. to tell S.W. that Respondent would "do anything," such as leave Dunbar or the wrestling team, if S.W. did not report the incident. Respondent denies that he cried or made these statements to J.M. Immediately following his telephone conversation with Respondent, J.M. called Mr. Dukes to discuss the incident. Based on what J.M. told him, Mr. Dukes understood S.W.'s story to be that Respondent fondled S.W. J.M told Mr. Dukes he was also going to quit the wrestling team because of the incident. Shortly after the conversation between Mr. Dukes and J.M., Respondent and Mr. Dukes talked by telephone. Respondent denied J.M.'s account of the incident. Respondent admitted at the hearing that he told Mr. Dukes the same lie he told J.M., that he and S.W. had been practicing a wrestling move and S.W. got upset when his pants "came down" and Respondent's head "went towards his crotch." Respondent asked Mr. Dukes to accompany Respondent to Ms. Beaudry's house to see S.W. and "get to the bottom of what was going on." Respondent knew S.W. was at Ms. Beaudry's house because he had called for S.W. at S.W.'s house and had spoken to S.W.'s foster mother. During the drive to Ms. Beaudry's house, Respondent and Mr. Dukes discussed the allegations made by S.W. According to Mr. Dukes, Respondent said, "S.W.'s story is true." Mr. Dukes became upset and Respondent said "he didn't blame [Mr. Dukes] for being mad at him." Respondent denies that he told Mr. Dukes that S.W.'s account of the incident was true. When Respondent and Mr. Dukes arrived at Ms. Beaudry's house, Mr. Dukes suggested that Respondent remain in the car. Inside the house, Mr. Dukes talked with S.W. who was upset and did not want to see Respondent. According to Mr. Dukes, S.W. told him Respondent touched "his private area." At some point, Ms. Beaudry said she wanted to speak to Respondent, and Respondent was asked to come into the house. S.W. went into a bedroom, and S.W. and Respondent did not see or speak to each other. During the discussion between Respondent and Ms. Beaudry, Respondent began crying. Respondent says he was crying because he was thinking about how his children would be harassed when the matter got into the newspaper. According to Mr. Dukes, when Ms. Beaudry confronted Respondent with S.W.'s accusation that Respondent "grabbed his penis," Respondent's reaction was "mournful." Respondent "said he was sorry, you know, and he don't know why it happened and this has never happened before and things like that." According to Ms. Beaudry, Respondent sat in a chair, held his head in his hands, and rocked back and forth crying and saying, "I'm sorry. I'm sorry. Is [S.W.] OK? Is [S.W.] OK?" Respondent did not deny S.W.'s account of the incident or offer Ms. Beaudry a different account of the incident. Respondent asked Ms. Beaudry and Mr. Dukes not to report the incident and said, "I'll do anything. I'll move. I'll leave the school or whatever." About 11:30 that evening, after Respondent returned home, he told his sister, Dr. Lewis, that there had been a "misunderstanding" with S.W. According to Dr. Lewis, Respondent told her "he may have inadvertently touched [S.W.] near his private area." Dr. Lewis noted that Respondent showed signs of depression in the days that followed. Thursday, February 10, 2005 The next day, February 10, 2005, Mr. Dukes reported the incident to an employee in Dunbar's Office of Student Services. From that first contact, a series of contacts were made with Dunbar officials leading to a formal investigation and Petitioner's initiation of these termination proceedings against Respondent. Sometime that same day, Dr. Lewis called Ms. Beaudry to ask how S.W. was doing and to offer counseling to S.W. Ms. Beaudry declined the offer. A reasonable inference can be drawn from Dr. Lewis' offer of counseling for S.W. that she believed his emotional upset was genuine and not contrived. Credibility This is not just a case of S.W.'s word against Respondent's. Respondent's account of the events is also contradicted by J.M. (regarding what J.M. told Respondent about the incident, whether Respondent cried, and whether Respondent asked J.M. to keep the incident a secret) and Mr. Dukes (whether Respondent admitted that S.W. was telling the truth). Furthermore, Respondent admitted that his first explanation of the incident to J.M. and Mr. Dukes was a lie. The record evidence does not explain why S.W. would have become so upset if the only thing that happened was what Respondent claims -- an accidental, brief contact between Respondent's head and S.W.'s leg or lap. S.W. testified that he loved and respected Respondent like a brother or father. Respondent did not deny their close relationship. The record contains no credible evidence to establish a motive for S.W. to destroy his relationship with Respondent and jeopardize Respondent's career as a teacher by falsely accusing him. Respondent removed S.W. as one of the captains of the wrestling team sometime during the 2004-2005 wrestling season for using excessive profanity, but Respondent himself never said he believed this "demotion" was the reason for S.W.'s accusation against him. S.W.'s demotion from captain is not sufficient, standing alone, to support an inference that it caused S.W. to become so angry with Respondent that he fabricated the incident that occurred on February 7, 2005. Moreover, it would not account for the contradictions between Respondent's account of his conversations with J.M. and Mr. Dukes and their account of the same conversations. Respondent had an obvious motive to lie in order to avoid the adverse professional and financial consequences of S.W.'s accusation against him. The more persuasive and credible evidence supports a finding that Respondent's account of the incident is untrue. The truthfulness of S.W.'s account of the incident is corroborated by Respondent's behavior in the days that followed. Respondent exhibited remorse, fear, and shame. This behavior, while not always reliable as proof of guilt, was more consistent with S.W.'s account of the incident than with Respondent's account. Petitioner has met its burden to prove by a preponderance of the evidence its factual allegation that on February 7, 2005, while Respondent was receiving a massage from S.W. in the bedroom of Respondent's home, Respondent reached his hand into S.W.'s pants and touched S.W.'s penis. Ms. Beaudry and Mr. Dukes stated that the incident caused S.W. to become more introverted. Mr. Dukes said S.W. and J.M. performed poorly as wrestlers after the incident. The wrestlers, in general, and S.W., in particular, were teased and picked on by other students when the incident was reported in the news and became public knowledge. Respondent's misconduct undermines the foundation of the relationship between a teacher and his students, and thereby impairs his effectiveness in the Lee County school system. Respondent's dishonesty, which includes some of his testimony under oath in these proceedings, also impairs his effectiveness in the Lee County school system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding Respondent, Franklin Lewis', misconduct constitutes "just cause" under Section 1012.33, Florida Statutes (2004), and Florida Administrative Code Rule 6B-4.009 to dismiss him from his employment as a teacher with Petitioner, the Lee County School Board. DONE AND ENTERED this 31st day of October, 2005, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 31st day of October, 2005.
