The Issue The issues for determination are whether Petitioner has just cause to terminate the Professional Services Contract of each of the respondents because each respondent allegedly engaged in immorality and misconduct in office in violation of Subsection 1012.33(6)(a), Florida Statutes (2007),1 and the Rules of Professional Conduct in Florida Administrative Code Rules 6B- 4.009(2) and (3), 6B-1.001, and 6B-1.006(3)(a), (4)(b) and (c), and (5)(a) and (h).
Findings Of Fact Petitioner is the agency responsible for the employment and dismissal of instructional staff (teachers) in Brevard County, Florida (the school district). During the 2007-2008 school year, Petitioner employed each of the respondents as teachers and wrestling coaches. Petitioner employed John M. Hackney as a teacher and the varsity wrestling coach at Astronaut High School (Astronaut). Petitioner employed James Michael Murray as a teacher at Space Coast Junior Senior High School (Space Coast) and as the junior varsity wrestling coach at Astronaut.2 Mr. Hackney and Mr. Murray have extensive experience in competitive wrestling. Mr. Hackney has coached high school wrestling for more than 20 years and has been the head coach of the Astronaut varsity wrestling team for approximately 15 years. For the last 15 years, Mr. Hackney has also coached competitive wrestling in the Amateur Athletic Union (AAU). Mr. Hackney has also served as the head of AAU wrestling in Florida. Mr. Murray began wrestling competitively in 1967 for the wrestling team at Cocoa High School (Cocoa), a high school located within the school district. Mr. Murray wrestled for Cocoa for three years, wrestled for Brevard Community College for two years, and was a member of wrestling team at the University of Florida for one year, although he did not compete in any event for the university. Mr. Murray completed law school and practiced law as a licensed attorney in Florida. While in private practice, Mr. Murray was a wrestling referee for the Florida High School Athletic Association (FHSAA). The FHSAA is the officiating body for all high school athletic programs in the state, including wrestling. Mr. Murray authored some parts of the FHSAA officiating exam. He also taught classes to prepare candidates for the FHSAA exam. In 2000, Mr. Murray left his law practice to become a high school teacher and a wrestling coach. Mr. Murray became the head coach of the Space Coast varsity wrestling team in the 2003-2004 school year. When the principal at Space Coast removed Mr. Murray as head coach, Mr. Murray remained as a teacher at Space Coast, but became a junior varsity wrestling coach at Astronaut. Mr. Murray also has extensive experience as a coach in AAU wrestling. On December 1, 2007, the Astronaut varsity wrestling team competed in a multi-team tournament at Poinciana High School (Poinciana). A regular member of the Astronaut team, identified in the record as W.P., was injured and unavailable to compete in the Poinciana tournament. Mr. Hackney substituted a student, identified in the record as T.G., for W.P. T.G. was a seventh-grade middle school student. He was not enrolled in Astronaut and was not eligible to compete for Astronaut in the Poinciana tournament, because the Poinciana tournament was a high school event sanctioned by the FHSAA. T.G. was at the Poinciana tournament because Mr. Hackney and Mr. Murray coached T.G. in AAU wrestling events. T.G. was a very good wrestler for his age group and very interested in wrestling. Mr. Hackney allowed T.G. to ride on the team bus with the Astronaut varsity team and attend the tournament with the Astronaut team.3 Mr. Murray also attended the Poinciana tournament. The Poinciana tournament was a varsity tournament, and Mr. Murray was a junior varsity coach. Mr. Murray was not present at the varsity tournament in any official capacity. Mr. Murray attended the varsity tournament to help Mr. Hackney. While the Astronaut team members were weighing in prior to the Poinciana tournament, the father of T.G., identified in the record as Mr. G., approached Mr. Hackney and asked Mr. Hackney if Mr. Hackney would substitute T.G. for W.P. and allow T.G. to wrestle a high school student from another school who was at the tournament. The student was ranked number one in the nation in the AAU, and Mr. G. wanted T.G. to get experience wrestling at that level of competition. T.G. welcomed the opportunity to wrestle such a highly-ranked opponent. Mr. Hackney agreed to the request by Mr. G. Mr. Hackney discussed the matter with Space Coast coaches Mr. Toni McCormick and Mr. Richard Jones, and the coaches for Space Coast agreed to T.G. wrestling as W.P.4 Mr. Murray was not present during the discussions between Mr. Hackney, Mr. G., and the Space Coast coaches. When Mr. Hackney informed Mr. Murray of the decision to allow T.G. to compete as W.P., Mr. Murray advised Mr. Hackney not to proceed. T.G. competed as W.P. in three matches at the Poinciana tournament. One of the matches was against the number one ranked AAU wrestler. On December 5, 2007, Mr. Hackney allowed T.G. to compete as W.P. for Astronaut in a dual meet with the Eau Gallie High School (Eau Gallie) wrestling team. Mr. G. approved the entry of his son as W.P. Mr. Murray was not present at the Eau Gallie dual meet. Petitioner knew, or should have known, that Mr. Hackney allowed T.G. to compete as W.P. in the Poinciana tournament and dual meet at Eau Gallie. Mr. Hackney informed the coaches of the opposing teams of his intent to allow T.G. to compete as W.P. Mr. Jones also discussed the situation with Ms. Sharon Travis, the athletic director at Space Coast. Within days of the Eau Gallie match, the area newspaper published a picture of T.G. wrestling with a caption identifying T.G. as W.P. Parents and spectators at both the Poinciana tournament and the Eau Gallie dual meet knew that T.G. was competing as W.P. The principal at Space Coast, Mr. Bob Spinner, knew that T.G. had competed as W.P. in the Poinciana tournament and the Eau Gallie dual meet. In preparation for an arbitration hearing in April of 2008 concerning Mr. Murray’s grievance against the principal for removing Mr. Murray as head wrestling coach at Space Coast, Mr. Spinner learned that Mr. Hackney had allowed T.G. to compete as W.P. in the Poinciana tournament and Eau Gallie dual meet. The principal called a student, identified in the record as W.C., to his office approximately four times to interview the student concerning the involvement of Mr. Hackney, Mr. Murray, and T.G. in the Poinciana tournament and Eau Gallie dual meet. Other employees and agents of Petitioner also knew of the competition of T.G. in the Poinciana tournament and the Eau Gallie dual meet. Prior to the arbitration, Mr. Terry Humphrey, the principal at Astronaut, and Ms. Joy Salamone, the director of Human Resource Services and Labor Relations, learned of the actions of Mr. Hackney and Mr. Murray involving T.G. The actions of the respondents did not impair their service in the community as teachers or their effectiveness as teachers in the classroom. Each of the respondents continued to teach in the classroom and receive favorable evaluations as classroom teachers after the Poinciana tournament and the Eau Gallie dual meet. Mr. Hackney and Mr. Murray received the highest marks available on all of their evaluations, including the evaluations completed after the Poinciana tournament and Eau Gallie dual meet. Petitioner selected Mr. Hackney as the Teacher of the Year for the 2006-2007 school year. After Mr. Murray prevailed in the arbitration proceeding, he was scheduled to be reinstated as head coach for the Space Coast varsity wrestling team. Mr. Jones, a community coach at Space Coast, met with several parents, and they decided to raise the ineligible competition by T.G. as a ground to prevent the reinstatement of Mr. Murray at Space Coast. One of the parents reported the ineligible competition by T.G. to the FHSAA. The FHSAA imposed a fine of $2,500.00 against Astronaut. Sometime in July 2008, the school district superintendent asked Ms. Salamone to conduct an investigation. On or about August 4, 2008, the investigation concluded that Mr. Hackney and Mr. Murray should be removed as wrestling coaches, but retained as classroom teachers. The superintendent convened a meeting to reconsider the recommendation. The recommendation was changed, and the superintendent recommended that Petitioner terminate the respondents as classroom teachers.5 Mr. Hackney and Mr. Murray cooperated fully in the investigation. Neither of the respondents ever attempted to conceal their actions. Mr. Hackney was motivated solely by his desire and the desire of Mr. G. for T.G. to gain experience T.G. would not otherwise enjoy. Neither of the respondents sought personal gain, either direct monetary gain or indirect gain through a winning season. Astronaut would have gained nothing in season standings by winning the Poinciana tournament and Eau Gallie dual meet. There is no evidence that T.G. was successful in the matches with older competitors, and the number one ranked AAU wrestler pinned T.G. in their match. The competition of T.G. in the Poinciana tournament and Eau Gallie dual meet did not expose the school district to increased liability. Mr. G. paid an additional premium for AAU insurance that covered his son in any competition, including the Poinciana tournament and the Eau Gallie dual meet. Mr. Hackney knew that T.G. was insured for both events. The entry of T.G. in the Poinciana tournament and Eau Gallie dual meet did not cause harm to T.G. The FHSAA suspended T.G. from varsity competition for one year, but T.G. was ineligible for varsity competition before the suspension. The competition by T.G. in each event was not a violation of AAU rules and regulations. T.G. did not suffer any physical harm from his competition with older, more experienced wrestlers. There is no evidence that T.G. suffered any academic or personal harm. The testimony of T.G. at the hearing demonstrated his appreciation for the experience he gained in the Poinciana tournament and Eau Gallie dual meet.6 The termination of the respondents from their classroom teaching positions deviates from Petitioner’s progressive discipline policy. Petitioner has never terminated a coach from his or her teaching position for any reason other than an improper relationship with a student. Petitioner has refused to terminate other teachers for conduct more egregious than that of Mr. Hackney and Mr. Murray. For example, a teacher who provided alcohol to a student and allowed her to drink until she became incapacitated was suspended for 30 days from June 12 through July 12, 2008; was reprimanded; and was subjected to a salary freeze for one year. In another incident, three assistant principals conspired over a two-year period to move 52 special education students into different grades so they would not have to take the Florida Comprehensive Assessment Test (FCAT). The goal was to raise the school’s overall performance and receive higher funding from the state. Both administrators and teachers may receive financial benefits from increased FCAT scores. Petitioner did not terminate any of the employees. One assistant principal was demoted to teacher, and another was subjected to a salary freeze for one year. The assistant principal, who knew of the plan and failed to report it, was promoted to the position of elementary school principal. In 2005, two coaches punished two players, who missed practice, by subjecting the two players to tackling by fellow players during practice. The coaches instructed the other players to hurt the two players who missed practice and allowed tackling after blowing the whistle to end the session. The incidents received publicity in the local media after the investigation. Petitioner issued letters of reprimand to each of the coaches.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law in this Recommended Order and reinstating each of the respondents to their positions as classroom teachers with back pay and benefits. DONE AND ENTERED this 17th day of June, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2009.
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.
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
