Findings Of Fact The Respondent holds Florida Teaching Certificate 431123 issued by the Florida Department of Education including the subject areas of business education, mathematics and vocational education. During the 1981-82 school year involved in this proceeding, the Respondent was employed as a teacher at Brownsville Middle School in the Escambia County School District. The Petitioner is an agency of the State of Florida charged with licensing and enforcing the licensure standards embodied in its organic statute and rules and with regulating and enforcing the standards of professional practice of teachers licensed in the State of Florida, including the institution of disciplinary proceedings against teachers for alleged violation of those standards. During the month of April, 1982, the Respondent served as one of eight chaperones for the Pensacola High School senior class trip to various points of interest in the State of Florida, including Busch Gardens in Tampa. Transportation for the trip was provided by four busses with two chaperones assigned to each bus. While on the trip the group took a brief cruise off the east coast of Florida, visited the Kennedy Space Center on Saturday and returned to Tampa on Saturday afternoon. The group had dinner at the Kapok Tree Inn Restaurant on Saturday evening and then visited Busch Gardens on Sunday. The class then returned to Pensacola directly from Busch Gardens without staying overnight Sunday. They arrived back in Pensacola in the early hours of Monday morning. There were eight chaperones, three of whom were male. Senior student Joe Blake was among the students on the senior class trip. The Respondent knew Joe Blake prior to the senior class trip because she served as a substitute teacher during the Spring of 1979 for a class at Pensacola High School in which Joe Blake was enrolled. Deborah Greene is a learning disabilities teacher at Pensacola High School. She also served as a chaperone for the senior class trip and shared a hotel room with the Respondent. Prior to accompanying the seniors on their trip in April, 1982, Ms. Greene had never met the Respondent. Joe Blake rode the same bus that Ms. Greene and Ms. Holmes rode on the trip, and on which they served as chaperones. On the Saturday afternoon bus trip from the Kennedy Space Center to Tampa, Florida, the Respondent hugged Joe Blake by placing her arm around him while they were both standing in the aisle of the bus. This action was done in a joking, lighthearted manner at a time when both Blake and Respondent were surrounded by other students. The Respondent also sat with Joe Blake near the rear of the bus on the ride from Kennedy Space Center to Tampa. They were observed with two of their arms intertwined and listening to a large radio which they were holding across their laps. Petitioner's Exhibit 2B in evidence, shows that the Respondent took a nap for part of the bus trip across the state, and was photographed with her head resting on Joe Blake's shoulder. Upon arriving in Tampa on Saturday afternoon, the class and the chaperones had supper at the Kapok Tree Inn and thereafter returned to their hotel rooms. Both Ms. Greene and the Respondent spent a considerable amount of time that evening checking the student's rooms and monitoring the halls and ensuring that the students engaged in no misconduct, were not absent from their rooms and unaccounted for. Ms. Greene finally went to bed at approximately 2:30 a.m. Sunday morning and the Respondent went to bed sometime thereafter. On this evening Ms. Greene and the Respondent were sharing a hotel room. Respondent was not in the room when Ms. Greene went to bed. Ms. Greene testified that she awoke sometime later to sounds of kissing, moaning and other indistinct noises and she heard the Respondent say "Joe, quit, be quiet, be quiet." According to Ms. Greene, the Respondent was lying in a recumbent position on the bed with the student named Joe Blake. Ms. Greene believed that she was awake for about an hour and that she heard noises of what she assumed to be sexual intercourse during that time, describing the Respondent's tone of voice as "passionate." Ms. Greene awoke about 6:00 that morning and observed the Respondent leaving the room clad in her bathrobe. Joe Blake was asleep in the adjoining bed, unclothed from the waist up and covered otherwise. Ms. Greene went into the bathroom to get dressed and then stepped out into the hall, leaving the hotel room door partially open. Shortly thereafter Joe Blake got up and went to his room next door. At approximately that time, the Respondent explained to Ms. Greene that Joe Blake had come to her room, knocked on the door and she let him in to watch television, and that he had fallen asleep on her bed. The Respondent told Ms. Greene that she didn't know what to do about that so she just left him there explaining that she slept in a chair. The hotel room was in a darkened condition at the time Ms. Greene perceived the Respondent and Joe Blake in the room. Ms. Greene did not report the incident to anyone until the Spring of 1983, approximately one year later and on the occasion of a proposal to include the Respondent as a chaperone for the 1983 senior trip. Thus, at that time she discussed the matter with another teacher named Peggy Hess and ultimately reported the matter to Principal J. P. Cone, who obtained a written statement from Ms. Greene. Ms. Greene testified that she "really didn't know what to do about the situation." In any event, Ms. Greene was eventually questioned about the incident in September of 1983 by Pensacola High School Principal J. P. Cone. At that time she verbally related her observances to Mr. Cone and later provided him with a written Statement concerning the episode. After arising on Sunday morning, the senior class and their chaperones, including the Respondent and Dean Barbara Rose, another chaperone, visited Busch Gardens in Tampa. While Dean Rose observed the Respondent walking hand-in-hand with Joe Blake on one occasion while the class was visiting Busch Gardens, she did not consider that unusual under the circumstances. J. P. Cone, the Principal of Pensacola High School, received a report, concerning the incident involving the Respondent being observed holding hands with Blake at Busch Gardens, from Barbara Rose on September 13, 1983. Mr. Cone obtained a written statement from Debbie Greene concerning the incident in the hotel room on September 1, 1983. That written statement and the verbal statement made by Ms. Greene to Mr. Cone contained no reference to the fact that Ms. Greene allegedly heard sounds of sexual intercourse. An investigation was conducted by Mr. Cone and the Respondent ultimately was issued a reprimand. Mr. Cone also received a written report prepared by Margaret Hess, another chaperone on the trip which was introduced into evidence by Respondent. In that written statement, Ms. Hess acknowledged that she knew of the report made by Debbie Greene, but stated that she had observed nothing that would have indicated such an event had taken place based upon her observance of the Respondent and Joe Blake's conduct on the trip. Ms. Hess explained that she had seen the Respondent with Joe Blake and other students at Busch Gardens and observed them holding hands on one occasion but had not considered that in itself unusual. The Respondent is a 35-year old woman with two teen age sons. She took the stand in her own defense and stated that she had no contact of a romantic nature with Joe Blake, explaining that she considered such conduct ridiculous since she was approximately 17 years his senior. Ms. Holmes described Joe Blake as banging on the door of her hotel room and creating a disturbance on the night in question. When she opened it he appeared to be intoxicated. She maintains that although he made an advance and attempted to kiss her or hug her, including pulling her down beside him on the bed, that this was at his behest and not hers and that she resisted and discouraged his conduct immediately. Thereafter Blake fell asleep for the remainder of the night, and she stated that she spent the remainder of the night sleeping in a chair. She told the other chaperones the next morning that Blake was asleep in her room so that they would not be concerned about his whereabouts. Charles Franklin Beall is a minister at Trinity Presbyterian Church in Pensacola, Florida. The Respondent has been his parishioner for approximately twelve and one-half years and she has a good reputation in the community for truthfulness. Lucy Mitchell, an Occupation Placement Specialist at Pensacola High School has known the Respondent for approximately seven years and considers her to be "highly respected." Aside from the disciplinary measure of a reprimand imposed by Principal Cone, concerning this incident, the Respondent was not shown to have ever been subjected to disciplinary action in the past.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that the Administrative Complaint should be DISMISSED. DONE and ENTERED this 20th day of December, 1984 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1984. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Donald Griesheimer, Executive Director Education Practices Commission The Knott Building Tallahassee, Florida 32301 Honorable Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Background Information The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Dillard High School, Thurgood Marshall Elementary School, and Deerfield Park Elementary School) and for otherwise providing public instruction to school-aged children in the county. Respondent is employed by the School Board as a professional service contract teacher. He has worked as a teacher for the School Board since 1982 (except for a year's leave of absence following the 1994- 1995 school year). He has an unblemished disciplinary record as a School Board employee. Respondent taught music at Dillard High School (Dillard) from 1982 until the end of the 1994-1995 school year, at Thurgood Marshall Elementary School for the 1995-1996 school year, and at Parkview Elementary School from the beginning of the 1996-1997 school year until early 2005, when he was placed on administrative reassignment pending the outcome of an investigation of an allegation of sexual misconduct made against him by a former student, T. H. At Dillard, Respondent was the director of the school band and a popular teacher. Allegations of Sexual Misconduct T. H. graduated from Dillard in 1989. In her ninth, tenth, eleventh and twelfth grade years at Dillard, she was in the school band and a student of Respondent's. T. H., who lived in a fatherless household, looked up to Respondent and considered him to be a "father figure" and "role model." A personal relationship developed between the two. They began conversing with one another on a daily basis, talking "about people and about the world and different things like that." Respondent did most of the talking, with T. H. "listen[ing] to [the] the things he had to say." During "summer band," before the beginning of T. H.'s tenth grade year, the conversations between T. H. and Respondent became more intimate in nature and their relationship evolved into a physical one. The first physical contact they had that summer was in the music library adjacent to Respondent's office, when Respondent walked up to T. H., "embraced" her, and gave her an "[i]ntimate, on-the-mouth kiss." Later that summer, Respondent started driving T. H. home (but not always straight home) in his Toyota Camry after band practice. In the car, there was intimate touching between the two, including Respondent's penetrating T' H.'s vagina with his hand. Thus began the sexual relationship between T. H. and Respondent, which lasted until after she had graduated from Dillard. "[N]umerous times," after school and on weekends, Respondent drove T. H. in his car to various hotels, where they had sexual relations. They also had "dozens" of sexual encounters on school grounds, usually after school hours, in a "little back room," near the school auditorium, that was used as a dressing area. As a result of her having been intimate with Respondent, T. H. was able to observe that Respondent's penis was uncircumcised and that he had a "branded tattoo on his chest." Respondent sometimes set up a video camera to tape his sexual liaisons with T. H. He would also "send [T. H.] home with the camera" on weekends, requesting that she tape herself fondling herself and "and then bring the camera back to him on Monday" (which T. H. did). One day while T. H. was in Respondent's office, Respondent handed her a piece of "notebook paper" on which he had written the following poem: How then, can I tell you of my love? Strong as the eagle, soft as the dove, Patient as the pine tree that stands in the sun and whispers to the wind you are the one!!!![2] On another occasion when T. H. was in Respondent's office, she had a tape recorder with her and asked Respondent to "say something" that she could record. What Respondent said in response to this request was: "I love you baby, suck my dick," and "I love you baby, sit on my face."3 T. H. ended her relationship with Respondent during her first year as a student at the International Fine Arts College in Miami. It was not until 2003, approximately 14 years after she had graduated from Dillard, that T. H. decided to come forward and tell authorities about the sexual relationship she had had with Respondent when she was a student at the school. She had not come forward sooner because she did not have the courage to do so. Only after receiving "church counseling" was she able overcome her fear and become sufficiently emboldened to report what had occurred years earlier between her and Respondent. T. H. first went to the Fort Lauderdale Police Department, but was told that Respondent could not be criminally prosecuted because the limitations period had expired. In January 2005, the School Board's police unit was advised of the allegation that T. H. had made against Respondent and commenced an investigation into the matter, which included interviews with both T. H. and Respondent. On January 28, 2005, Respondent was placed on administrative reassignment with pay pending the outcome of the investigation. T. H. has "hired an attorney to pursue a civil claim against the School Board" for damages she allegedly suffered as a result of her relationship with Respondent when she was a student at Dillard. Allegations of Residing with Students From 1985 to 1987, Respondent resided in Dade County, Florida, with his wife4 and two minor daughters. For at least a portion of that time, two Dillard students stayed with Respondent and his family. One of these students was P. R., who was in the school band. When Respondent learned that P. R. was living in a residence with "no running water [and] no mom or dad," he invited P. R. to move in with him, an invitation that P. R. accepted. "Eventually," Respondent was able to make contact with P. R.'s mother and obtain her approval to "keep" P. R. P. R. lived with Respondent and his family for a year and a half. He moved out after he graduated and joined the military. The other student that stayed with Respondent and his family was C. M. Respondent's oldest daughter and C. M. both played flute in the school band and were close friends. C. M. stayed at Respondent's house on weekends and when school was not in session. C. M.'s mother never had any problem with these living arrangements. Respondent did not notify the School Board that P. R. and C. M. were staying with him inasmuch as he did not know that he was required to do so. Allegations of Corporal Punishment From 1982 to 1985, Respondent administered corporal punishment to students contrary to School Board policy (hitting female students on the hand with a ruler and male students on the buttocks with a paddle). He did not "seek permission from anyone in the [school] administration before administering [this] corporal punishment," nor did he administer this corporal punishment in the presence of another School Board employee, as required by School Board policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment as a professional service contract teacher with the School Board for having had a sexual relationship with T. H. when she was a student of his at Dillard. DONE AND ENTERED this 23rd day of August, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 23rd day of August, 2006.
The Issue The issue in this case is whether there is just cause, within the meaning of Section 231.36(1), Florida Statutes (1997), to terminate Respondent's employment as a classroom teacher. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner employed Respondent as a member of the instructional staff at Beaumont Middle School, now known as Kissimmee Middle School ("Kissimmee"), pursuant to a written annual contract as required in Section 231.36(1). Respondent first taught at Kissimmee in the 1995-96 school year. Prior to that, Respondent taught school in Virginia. On November 29, 1996, Respondent was in his second year at Kissimmee. However, he had not yet signed his annual contract for the 1996-97 school year. On November 29, 1996, Respondent was arrested in the Florida Mall in Orange County, Florida. He was charged with indecent exposure of sexual organs. The charging affidavit alleges that Respondent masturbated while standing at a urinal in the men's room of a Sears department store in the Florida Mall. The affidavit also alleges that a male at an adjacent urinal also masturbated. Petitioner proceeded with disciplinary action against Respondent in accordance with the procedure prescribed in the contract between Petitioner and the Osceola Classroom Teachers Association. In a letter dated December 3, 1996, from Dr. Thomas McCraley, Superintendent, Osceola County School District, Petitioner suspended Respondent with pay. By letter dated December 16, 1996, Respondent requested an administrative hearing. On December 17, 1996, the Board voted unanimously to suspend Respondent without pay ". . . because the employee is requesting an administrative hearing." The Board referred the matter to DOAH to conduct an administrative hearing. The ultimate issue is whether Petitioner has just cause to terminate Respondent's employment. Just cause is defined in Section 231.36(1) to include misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. In the letter from Dr. McCraley, Petitioner expands the statutory definition of just cause to include immorality and misconduct other than misconduct in office. Dr. McCraley's letter is the only charging document in this case. The charging document is the instrument by which the Board provides Respondent with notice of the charges against him. The charging document states that there is just cause to terminate Respondent's employment based solely on: the alleged sexual acts, including masturbation; and the subsequent arrest. In relevant part, the charging document provides Respondent with notice of the following charges against him: This letter will serve to formally advise you that you are hereby suspended with pay from your position . . . effective immediately. Also, please be advised that I will recommend to the . . . . Board at the December 17, 1996 Board meeting that your contract with the School District be terminated. Please be advised that in the event you timely request a hearing, I will be recommending to the . . . Board that you be suspended without pay until this matter is fully adjudicated. Your recommended termination is based on the following information: On or about November 29, 1996 while you were on or about the Sears restroom in the Florida Mall . . . you were observed and did perform inappropriate and improper sexual acts in the presence of a minor person. These acts include . . . masturbation. You were thereafter arrested by law enforcement for those acts. The above-described acts and subsequent arrest constitute grounds under Section 231.36 . . . for your termination, including . . . misconduct in office, immorality, misconduct, and, if convicted of this offense, conviction of a crime involving moral turpitude. . . . The charging document does not charge that Respondent's teaching ability is impaired. However, Petitioner did disclose in its responses to interrogatories that it intended to present evidence relevant to this additional charge. Petitioner provided Respondent with adequate notice of the additional charge of impaired teaching ability. Evidence relevant to this additional charge did not exist when Petitioner issued the charging document. When Petitioner discovered such evidence, Petitioner properly disclosed the additional charge to Respondent during discovery. This proceeding is not penal in nature. It does not propose disciplinary action against Respondent's license. The original charges in the charging document are based solely on the alleged sexual acts in the men's room. The charges disclosed in the responses to discovery are based on alleged adverse publicity and its effect on the school environment. Petitioner failed to show by a preponderance of the evidence that Respondent committed any sexual acts in the men's room. Without proof of the underlying facts, Petitioner lacks just cause to terminate Respondent's employment on the grounds stated in the charging document. Just cause is statutorily defined to include the conviction of a crime of moral turpitude. Respondent was not convicted in criminal court of a crime involving moral turpitude within the meaning of Section 231.36(1). On August 4, 1997, the judge in the criminal case granted a motion for judgment of acquittal and excused the jury. The charge that Respondent engaged in sexual acts in the men's room is based solely on the observations of Deputy Steven Franklin of the Orange County Sheriff's Office. Deputy Franklin and Deputy Tina Durden were at the Florida Mall on November 29, 1996, to investigate complaints of homosexual acts committed in bathrooms at the mall. Deputy Franklin went into a men's room to urinate. He used a urinal adjacent to the urinal used by Respondent at the same time. Another male was adjacent to Respondent but on the opposite side of Respondent from Deputy Franklin. Deputy Franklin observed Respondent and the other male for less than two seconds. While he was waiting for a urinal, Deputy Franklin also observed Respondent from behind for a few minutes. However, Deputy Franklin could not observe Respondent's hands before he stood beside Respondent at the urinal. The observations by Deputy Franklin for less than two seconds are insufficient to determine whether Respondent was masturbating or voiding Respondent's urinary tract. Respondent has a medical history that makes it difficult for Respondent to determine whether his urinary tract is empty after he urinates. On November 29, 1996, Respondent went to the Florida Mall to obtain a fresh supply of a cleaning solution he used to avoid scratching reflective lenses in eyeglasses that Respondent purchased from Sears Optical in August 1996. The Sears Optical at the Florida Mall was the store location closest to Respondent's residence. However, it was approximately a 45- minute drive from Respondent's house. During the drive, Respondent drank a large bottle of water. He drank the water as part of the treatment for a kidney infection that developed after Respondent passed a kidney stone approximately two days prior to November 29, 1996. Respondent had a long medical history of kidney stones. Since 1972, Respondent had passed numerous kidney stones. After locating a parking place at the Florida Mall, Respondent needed to urinate. He went to the men's room adjacent to Sears Optical. Respondent had to wait for a urinal to become available. November 29, 1996, was the day after Thanksgiving, and the men's room was crowded. Respondent went to the first urinal that became available. He was at the urinal for no more than two minutes. When Respondent first attempted to urinate, he felt some pain in the kidney area. Respondent leaned forward to reduce the pain. He placed his left hand against the wall to avoid touching the urinal. Respondent was not sure he had voided all of the urine from his urinary tract. Respondent has no feeling in his penis due to an automobile accident that occurred in 1988. The automobile accident caused nerve damage. The loss of feeling makes it difficult for Respondent to determine whether or not he has emptied all of the urine from his urinary tract. To be sure all of the urine was eliminated from his urinary tract on November 29, 1996, Respondent shook and stroked his penis several times. Respondent's penis was not erect. Respondent can not have an erection without injection of a specific medication. Respondent has not had an injection since 1991 because the injections are painful and last for only a brief period. Deputy Franklin observed Respondent's hands and penis for less than two seconds and incorrectly concluded that Respondent was masturbating. In fact, Respondent was making sure there was no urine remaining in his urinary tract. While Respondent was at the urinal, he neither spoke to anyone nor touched anyone else. He was not aware of those around him other than a man standing behind him at the electric hand dryer who later identified himself as Deputy Franklin. After Respondent finished urinating, he washed his hands and left the men's room. He was arrested outside the men's room. Deputies Franklin and Durden also arrested the male who had used the urinal next to Respondent. The deputies escorted Respondent to a hearing aid store across from the waiting room of Sears Optical and told him to sit down. The deputies brought the other man to the area where Respondent was sitting. They asked Respondent and the other man if they knew each other. Both men stated that they did not know each other. The deputies searched and hand cuffed both men. The deputies detained both men for approximately 15 minutes. During that time, Respondent asked why he had been arrested but received no answer. The deputies then took both men in handcuffs through the mall to a security office near the hotel in the mall. Respondent remained at the security office for approximately three to four hours. While Respondent was in the security office, the deputies informed Respondent of the charges against him. Respondent repeatedly denied the charges. Respondent was taken to the 33rd Street jail at about 4:00 p.m. He was booked, photographed, finger printed, and placed in a holding cell. He was allowed to make a telephone call at about 5:00 p.m. Respondent telephoned one of his two sons and asked his son to provide bail. Respondent was allowed to leave the jail at about 8:00 p.m. As soon as Respondent reached his son's house, Respondent attempted to report the incident to Principal John Beall. Principal Beall was not available. Respondent telephoned Assistant Principal Karen Turner, who subsequently reported the incident to the principal. The decision to suspend Respondent with pay was made by Petitioner after a meeting on December 3, 1996, between Respondent, his representatives, and representatives for Petitioner. Petitioner did not undertake an independent investigation of the matter but relied solely on the police report, the arrest, statements by Petitioner's director of human resources, and the attorney for the Board. At the meeting, Respondent disclosed his medical condition and offered to provide documentation. He subsequently signed a medical authorization to release those records. At a meeting of the Board on December 17, 1996, Petitioner suspended Respondent without pay. Respondent did not have an opportunity to discuss his case with the Board. The Board relied on the advice of its counsel who in turn relied solely on the criminal arrest and underlying documents. Two local newspapers covered the arrest and suspension of Respondent. The articles were first published after the Board voted to suspend Respondent without pay on December 17, 1996. Respondent's effectiveness as a teacher is not impaired. A copy of a newspaper article was gratuitously distributed at Kissimmee in early January 1997. The publicity has not impaired Respondent's effectiveness with students, faculty, or parents. Approximately a dozen students, out of a student body of approximately 400, referred to the incident in class. The discussions were brief and dissipated after four or five days. Many of the students who discussed the matter in class have moved on to high school and are no longer at Kissimmee. Respondent has a very good rapport with students, even though he is strict and does not play or horse around with them. Teachers have not observed inappropriate behavior between Respondent and his students. Fellow teachers would like for Respondent to return to Kissimmee. Parents have not expressed any concern to Respondent's fellow teachers. One parent did complain to Assistant Principal Turner about Respondent. Respondent is a very competent and very dynamic teacher who exceeds the minimum requirements as a teacher at Kissimmee. He goes to great lengths to help students learn and communicate effectively. He assists parents and fellow teachers. Prior to Respondent's arrest, Respondent received excellent job evaluations. Principal Beall considered Respondent to be an excellent teacher who was creative, effective with students, a good manager of the classroom, and demonstrated independent initiative. Principal Beall chose Respondent to serve as a temporary dean and encouraged Respondent to attend a program designed to qualify Respondent as an assistant principal. Principal Beall and several other witnesses for Petitioner would not hesitate to reinstate Respondent at Kissimmee if the charges against him are not proven. Respondent has obtained an education that significantly exceeds the minimum educational qualifications prescribed in Section 231.17(1)(c) for an elementary or secondary teacher. Respondent earned a bachelor's degree and master's degree in education and geography, respectively, and also earned a PhD. degree in Christian counseling. Respondent has over 20 years of teaching experience in Virginia and Florida. Prior to this case, Respondent has never been disciplined by a school district in which he taught. Respondent has never been arrested prior to this case. Respondent is certified to teach in Virginia. He has met all of the requirements for renewal of his teaching certificate in Florida. He is awaiting the outcome of this proceeding before submitting the necessary paperwork for the renewal of his Florida teaching certificate. At the hearing, Petitioner charged for the first time that Respondent violated school regulations and policies contained in the faculty handbook. Petitioner argued that Respondent violated regulations and policies that prohibit faculty contact with students outside of the school by providing care and instruction to students after school. Respondent objected to the admission of evidence relevant to this charge on several grounds, including the ground that such evidence was not relevant to any charges in the charging document or in the responses to discovery and the ground that allowing such a charge to be made for the first time during the hearing violated essential due process requirements. The undersigned reserved ruling on the objection and heard evidence from both parties. Petitioner did not provide prior notice of the charge that Respondent violated regulations and policies in the faculty handbook. The failure to comply with essential requirements of due process precludes Petitioner from submitting evidence to support such charges. Even if Petitioner had complied with due process requirements, the evidence would not affect the outcome of this proceeding. Petitioner either failed to show by a preponderance of the evidence that Respondent violated relevant regulations and policies in the faculty handbook, or Petitioner condoned the violations committed by Respondent. Respondent had previously been selected by his team of teachers to visit a student named Josh Harweger and Josh's mother in their home to address learning and behavioral problems experienced by Josh. Respondent conferred with Josh's mother at her home, on the telephone, and at school in conjunction with other members of the teaching team. One evening at about 11:00 p.m., Josh's mother came to Respondent's residence without notice and asked Respondent to care for her son overnight while she took care of a family emergency. Respondent agreed to allow Josh to spend the night in his home, which Respondent shared with his son and daughter-in- law and Respondent's other son. The next morning, Respondent informed three members of the Kissimmee staff, including Assistant Principal Turner, of the situation. Josh's mother did not return the next day as promised. In fact, she did not return until approximately five days had passed. Each day, Respondent informed Assistant Principal Turner of the situation. Petitioner condoned each stay. No other student ever spent the night at Respondent's house. Augustine Rivera is the other student for whom Petitioner asserts a violation of regulations and policies in the faculty handbook. Respondent's relationship with Augustine was strictly professional and conducted with the knowledge and consent of Augustine's mother. Augustine has a learning disability and was a student in Respondent's classes for three years. Respondent tutored Augustine after class, even after Augustine's mother was informed of the arrest on November 29, 1996. Augustine's mother drove Augustine to Respondent's house after school for tutoring. Augustine is now in high school. Respondent continues to tutor Augustine once or twice a week after school in Respondent's house with the approval of Augustine's mother. Respondent's tutoring after school has significantly improved Augustine's academic performance and ameliorated Augustine's behavioral problems. Out of gratitude for Respondent's assistance, Augustine has performed various home maintenance tasks for Respondent, including mowing the yard. Respondent and other members of his teaching team created a study jam-session after school for students who wanted academic assistance. The study jam-program had the prior approval of the principal. The study jam-sessions were in addition to Respondent's regular duties and did not relieve Respondent of this regular teaching responsibilities. Approximately eight to ten students went to Respondent's home for a cookout as a reward for exceeding their goals in the study jams. The students came with their parents or had parental permission. Petitioner condoned the cookouts. Respondent obtained the prior approval of the principal for the cookouts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of the underlying factual allegations, finding that there is not just cause to terminate Respondent's employment, and reinstating Respondent with back pay from December 17, 1996. DONE AND ENTERED this 20th day of February, 1998, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1998. COPIES FURNISHED: Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel The Capitol, Plaza 08 Tallahassee, Florida 32399-0400 Dr. Thomas L. McCraley, Superintendent Osceola County School Board 817 Bill Beck Boulevard Kissimmee, Florida 34744-4495 G. Russell Petersen, Esquire 3339 Cardinal Drive, Suite 200 Vero Beach, Florida 32963 Joseph Egan, Jr., Esquire Egan, Lev and Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802
Findings Of Fact During times pertinent to this consolidated proceeding, the Respondent, Eugene Lamar Moore, has held teacher's certificate number 271828 issued by the State of Florida Department of Education for the subject areas of English and Bible studies. The Respondent was employed as a teacher by the Escambia County School District at Washington High School during times pertinent to the facts in this proceeding. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 231, Florida Statutes, as they relate to licensure of teachers and regulation - and enforcement of the practice standards which teachers are required to observe in the practice of that profession in the State of Florida. The Petitioner, Escambia County School Board, is a local government agency charged, as pertinent hereto, with regulating the practice and practice standards of teachers and professional conduct of teachers in its employ in the Escambia County school system. The Respondent was employed at times pertinent hereto by the Escambia County school system as a teacher at the Washington High School. He began teaching in the County under an annual contract of employment in 1970. At the conclusion of the 1973-74 school year, the Respondent was awarded a continuing contract of employment by the County School Board and has been employed by Escambia County as a continuing contract teacher ever since. On May 27, 1985, during a change of classes in his classroom, at a time when other students were present, the Respondent kissed student Rebecca Cleveland on the cheek. He had known her for approximately one year and eight months at the time the incident occurred. He felt he knew and understood her personality well enough to have no fear that lightheartedly kissing her on the cheek would embarrass her or offend her. It was not his intention to derive personal benefit or gratification by hugging or kissing Rebecca Cleveland on the cheek nor did he intend to offend, embarrass or expose her to disparagement in any way. Rebecca Cleveland acknowledged that the Respondent had never attempted to kiss her before that day and also acknowledged that she did not really believe Respondent intended to hurt her or to intentionally embarrass her. Michelle Clawson was another female student at Washington High School and contended in her testimony that the Respondent put his arm around her, attempted to kiss her and attempted to "french kiss" her. Indeed, the Respondent had put his arm around Michelle Clawson on a number of occasions for the purpose of generally encouraging her and encouraging her to take tests, but had not attempted to kiss her on any occasion. Ms. Clawson additionally contended that Mr. Moore was trying to maintain a good personal relationship with her by giving her undeserved high grades and stated that she asked several boys in the class to stay with her in Mr. Moore's room after class on the day he allegedly attempted to kiss her (presumably for protection). She also stated that Mr. Moore requested that she go to a football game with him, presumably as his date. This testimony is not credited, however, for a number of reasons. Firstly, Ms. Clawson's claim that Respondent tried to "french kiss" her was a recent addition to previous and different versions of the alleged kissing incident related in her previous statements. Concerning her charge that he was giving her undeserved good grades, it was established unequivocally that indeed Mr. Moore had actually given her an "F" during the grading period in question. Concerning her staying in his class after others had left and asking several boys to remain with her, Ms. Clawson was unable to explain why she remained in Mr. Moore's room in the first place, especially after the "boys" supposedly informed her that they could not stay with her. Concerning the alleged "football game date," she conceded that the entire class was present when the conversation occurred. It is very implausible that Mr. Moore would have asked Ms. Clawson for a date, had he been inclined to do so at all, in the presence of any other students, especially not the entire class. If such an incident had occurred it seems likely that there would have been at least one other witness to verify the nature of the conversation in question. It was also established by independent, uncontradicted proof that the Respondent was in charge of arranging buses and other logistics for football game trips and other school trips and served as a chaperone on some occasions for such events. The Respondent's version of this conversation to the effect that, if it occurred, he was merely trying to determine if Michelle Clawson would be able to attend the football game and offering to obtain permission for her from her parents, is accepted over Ms. Clawson's version. Ms. Georgette Floyd is another ninth grade English teacher at Washington High School, like Respondent. Michelle Clawson had been in Ms. Floyd's class the year previous to the one when the alleged incident supposedly occurred in the Respondent's class. Ms. Clawson did not pass Ms. Floyd's freshman English class and was required to repeat the course. She was thus assigned to repeat freshman English in the Respondent's class the year after she was in Ms. Floyd's class. Prior to the time Respondent had Michelle Clawson enter his class, Ms. Floyd warned him that Ms. Clawson might present some problems. Ms. Floyd had found that Ms. Clawson, on occasion, would attempt to provocatively expose parts of her body by sitting in a suggestive or provocative fashion and had been known to spread false comment about teachers, particularly Ms. Floyd. In summary, it is concluded that Michelle Clawson's testimony is not credible and is not credited herein. Her version of the events is simply not plausible in the face of the Respondent's and Ms. Floyd's testimony; further, she was shown to have a motive for giving an untruthful version of the events in question, to wit, her poor academic performance and failing grades in Respondent's and Ms. Floyd's classes. Ms. Floyd's testimony that Ms. Clawson had previously made a false accusation against her was uncontradicted. 1/ Concerning the charges about the Respondent's alleged loss of effectiveness in the school system, Mr. Sherman Robinson, the principal of Washington High School testified that he did not believe Mr. Moore was any longer an effective teacher at Washington High School. Mr. Robinson based this opinion on his belief that the Respondent's effectiveness was diminished as a result of the Rebecca Cleveland incident of May 1985. He conceded, however, that the Respondent had taught school at Washington High School for the entire following 1985-86 school year and indeed for a portion of the 1986-87 school year. The Respondent's formal teaching evaluation for the 1985-86 school year was prepared after the incident became known concerning Rebecca Cleveland. That evaluation covers areas involving professional responsibility (encompassing the types of conduct in question) as well as academic performance. The Respondent's evaluation for the 1984-85 school year demonstrates that he received the highest possible score in four out of five sub-categories. He received the next highest score in the remaining sub-categories. No part of that evaluation was unsatisfactory. The Respondent's formal teaching evaluation for the 1985-86 school year was prepared after the incident concerning Rebecca Cleveland became known. The Respondent's 1985-86 evaluation demonstrated that he received the highest possible score on that part of the evaluation that deals with professionalism or professional responsibility. All of the Respondent's teaching, after the Rebecca Cleveland incident occurred, was at Washington High School, and he received all satisfactory or higher evaluations on each category for that period of time after the Rebecca Cleveland incident.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Education Practices Commission dismissing the complaint by the Department of Education against the Respondent, Eugene Lamar Moore, in its entirety. It is Further RECOMMENDED that the Petition for Dismissal filed by the Superintendent of Schools for Escambia County should be denied and that the Respondent, Eugene Lamar Moore, should be reinstated to his position of employment as a continuing contract teacher with full back pay from the date of suspension. DONE and ORDERED this 12th day of October, 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 12th day of October, 1987.
The Issue Whether Respondent's teacher's certificate should be revoked or otherwise disciplined.
Findings Of Fact Respondent held Florida Educator's Certificate No. 609670, covering the areas of Physical Education, General Science, and Education Leadership. The certificate expired on June 30, 2000. However, Respondent has the option to ministerially renew his certificate. In 1989, Respondent was a teacher at Pensacola High School. During the summer of 1989, Dona Snyder, then 18 years old, was a student at Pensacola High School. Respondent would often speak with Dona at school and telephone her at home to ask her to go out with him. She turned him down. However, the day before summer school ended Dona and Respondent engaged in romantic hugging and kissing. The last day of school they went to eat at a local restaurant. Later in the year, after Ms. Snyder had graduated, Dona and Respondent engaged in sexual intercourse, which resulted in the birth of a child. From 1994-1998, Respondent was employed as a Physical Education teacher at Pine Forest High School, in Escambia County. In 1994, M.M., aged 14, was a ninth-grade student at Pine Forest High School. She met Respondent during that year. When M.M. was in the tenth grade, Respondent chaperoned M.M's. ROTC class to Seattle, Washington. M.M. and Respondent became more familiar with each other during the trip. They became very comfortable with each other and Respondent began making comments of a sexual nature about M.M's. appearance. M.M. developed a crush on Respondent. When Respondent and M.M. returned from the Seattle trip, they visited each other at various locations at Pine Forest High School. In April 1996, towards the end of M.M.'s tenth grade year, Respondent told M.M. that he would like to see her away from school. Respondent made it clear that he was interested in a sexual relationship with M.M. M.M. was around 16 years old at the time. Respondent encouraged M.M. to either lie to her mother or sneak out of her home at night in order to meet him. At first, M.M. refused Respondent's suggestions. She did not think sneaking out was right. Later in 1996, Respondent and M.M. saw each other at a football jamboree. Respondent gave M.M. his telephone number. M.M. later telephoned Respondent and they decided to meet at the University Mall. It was agreed that M.M. would concoct a pretextual reason to go to the mall which she would tell her mother. After they met at the mall, Respondent took M.M. to his home. They went to his bedroom and had sex. After this first sexual encounter, Respondent and M.M. started meeting each other and having sex almost every weekend for more than a year. M.M., with Respondent's encouragement and complicity, would sneak out of her mother's home from her bedroom window at approximately 2:00 a.m. Respondent would pick her up several blocks away from her house. They would go to Respondent's house and have sex. Afterwards, Respondent would take M.M. back to the place where he picked her up. M.M. would then walk back to her house and enter through her bedroom window. Clearly, Respondent placed M.M. in a dangerous situation by encouraging and facilitating these late-night excursions. Respondent and M.M. had sex in various places, such as Respondent's home, Respondent's car, Belleview ball park, the school baseball field, and the baseball locker room. On one occasion, Respondent took M.M. and another female high school student to a local hotel for group sex. Respondent provided alcohol to the girls. He directed the girls to have sex with each other. While the girls had sex with each other, Respondent watched. Respondent had sex with the other student and then had sex with M.M. During their relationship, Respondent told M.M. not to tell anyone about their affair because he could lose his job and go to prison. Respondent also talked M.M. into foregoing her desire to pursue college and ROTC. Through this relationship, he directly contributed to M.M.'s grades deteriorating and a loss of self-esteem. The good relationship she had with her mother deteriorated. M.M. was known as Coach Bragg's girlfriend. He encouraged her to lie to her mother. None of these behaviors should be encouraged or promoted by a teacher. The relationship between Respondent and M.M. came to light when M.M's. mother woke one night and discovered her daughter missing. She confronted M.M. when M.M. was attempting to get back into her bedroom through the window. M.M's. mother telephoned the police. Later, Respondent lost his effectiveness as a teacher when he was removed from his teaching position. Respondent was arrested and charged with unlawful sexual activity with a minor. On or about July 7, 1998, the case against Respondent was nolle prosequi by the court because Respondent had instructed M.M. to lie about their relationship. During the time of the prosecution, Respondent also caused M.M. to ignore her subpoena to testify at Respondent's trial and go into hiding until the prosecution was dismissed. However, a bench warrant was issued for M.M. Once it became clear that the prosecution would be pursued, M.M. returned to Escambia County and was arrested and jailed on a bench warrant which had been issued for her failure to appear at trial. Respondent concocted a story for M.M. to tell to the prosecution. He talked her into marrying a best friend of Respondent's so that she could say she was seeing this friend instead of seeing Respondent. Respondent's lack of moral character is apparent. As a teacher, Respondent held a position of trust towards M.M. and Dona Snyder. Clearly by engaging in a sexual relationship with them he breached that trust and violated both the Florida Statutes and Florida Administrative Code. Respondent has repeated this predatory behavior over the course of his teaching career and cannot be trusted to protect female students from his amorous intentions. Clearly, Respondent does not have the moral character to be a teacher and should not be permitted to hold or renew his teaching certificate.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Education Practices Commission permanently revoking Respondent's Florida Educator's Certificate No. 609670. DONE AND ENTERED this 15th day of February, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 15th day of February, 2001. COPIES FURNISHED: Ron Weaver, Esquire 528 East Park Avenue Tallahassee, Florida 32301 Michael D. Tidwell, Esquire 811 North Spring Street Pensacola, Florida 32501 Kathleen M. Richards, Executive Director Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Education Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
The Issue The issue to be resolved in this proceeding concerns whether the Respondent, an educational support employee, has committed conduct which shows him to be not of good moral character, as envisioned in Section 231.02, Florida Statutes, and whether good cause exists to terminate him from his employment with the Petitioner as a result of this conduct.
Findings Of Fact The Petitioner is the School Board of Marion County, Florida. The Respondent, Carlton L. Wilkerson, at times pertinent hereto, was an employee of the Petitioner. He was employed as an academic skills coach and as such, was an “educational support employee”. The Respondent was hired by the Petitioner on August 15, 1994. He was suspended from employment, with pay, on March 20, 1996 and subsequently was suspended, without pay, by the Petitioner on April 10, 1996. “Susan” is the name used for purposes of this proceeding to identify a white, female high-school student at Forest High School in Ocala, Florida. At times pertinent to this proceeding, she was 15 years of age and in the ninth grade. At the time of the hearing, she was 16 years of age and in the tenth grade. The name “Susan” has been assigned to her by agreement of the parties as a fictitious name to protect her confidentiality. Her actual name and those of the other female students involved in the purported conduct at issue appears in Petitioner’s Exhibit 1, which is an exhibit placed under seal in this record. On Susan’s first day of school in the ninth grade school year (1995-1996), she was assigned to a practical arts class. She was then 15 years of age. Upon her entry into the practical arts class, she first encountered the Respondent. He was a teacher’s aide in that class. This was the first time the Respondent had ever encountered Susan. On the day in question, while Susan was seated in the back of the room, she was approached by the Respondent. He engaged in a conversation with her and asked Susan if she had ever had sex and also asked her if she had ever had oral sex. She was taken aback and embarrassed greatly by this and responded in the negative. He also asked her if she would have “sex with a ‘black guy’ and oral sex with a ‘black guy’”. The Respondent is black and Susan is white. She answered “no” to these questions and left the classroom when the bell rang. About three to four months into that school year in a different class, where the Respondent was also present, he asked Susan why she would not have sex with him. She replied that she did not want to and walked away. On another occasion, outside the school disciplinary office, the Respondent approached Susan and asked, in effect, that since she was having sex with a certain male student, why would she not have sex with him also. She denied that this was occurring and rejected his overture. He also asked her to check with another female student, whom he named, about what had happened between that student and himself. Susan stated that the female student confirmed that she had been having sex with the Respondent in the boy’s locker room of the gymnasium for some time. 0n another occasion, in Mr. Mackey’s class (one of Susan’s teachers), the Respondent was standing by Mr. Mackey’s desk at the front of the room conversing with him. Susan went to ask Mr. Mackey a question about a paper at the desk, whereupon the Respondent, standing next to her as she leaned over, and with his back toward Mackey, rubbed her genital area with his hand, without her permission. Mackey saw this and told him “. . . don’t be doing that in my classroom . . . you’re going to get yourself in trouble.” Susan picked up her paper and retreated. In March of 1995-1996 school year, the Respondent telephoned Susan at her home asking when he could have sex with her and asking for her to meet him at a carnival, which she was attending that evening. In that conversation, he told her not to identify who she was talking to anyone at her home. In none of the incidents referenced did Susan accept the Respondent’s solicitations or encourage further interaction with him concerning sexual matters. In fact, his actions caused her great embarrassment and engendered great distrust of him. The incidents also caused fear in Susan, such that she did not report the incidents to school authorities or discuss them with other than a close friend because she knew that the Respondent was popular with a large block of students at the school, and she feared that the students “would be against her” and might retaliate. On the occasion of each of the incidents described herein, Susan was only 15 years old. “Sarah” is the name used in this proceeding to identify a female, African-American, Forest High School student. Sarah was 17 years of age at the time of the hearing and in the twelfth grade. During the 1995-1996 school year, Sarah was in the eleventh grade and was assigned to a practical arts class, in which the Respondent was a teacher’s aide. On a day in February in the practical arts class, the Respondent approached Sarah and asked her if she would like to have sex with him and if so, that she should return to that classroom at about 12:35 p.m., during the lunch hour. In response, Sarah simply left her seat and walked away from him. Sarah had only had incidental contact with the Respondent prior to that incident and had no contact with him afterwards. She reported the incident to her mother, her boyfriend, and to school officials. The school officials took no action because there were no corroborating witnesses, and they apparently chose to believe that nothing could be done if they were faced with a situation of only Sarah’s word against that of the Respondent. Put another way, apparently no effort was made to judge the credibility of either of the protagonists. The Respondent was not responsible for assigning grades to Sarah. There had been no occasions before that incident in which she and the Respondent had become angry with each other or had been involved in any sort of argument or altercation. Sarah was shown to have no motive to fabricate the story. The same situation is true of Susan, who was shown to have no motive, such as revenge or otherwise, for fabricating a false story concerning the Respondent. “Tracy” is the name used in this proceeding to identify a white, female, Forest High School student. Tracy, at the time of the hearing, was 17 years of age and in the twelfth grade. At the time of the incidents in question, she apparently was 16 years of age and was in the eleventh grade. She became acquainted with the Respondent when passing him and his friend, Mr. Mackey, a teacher, on her way to and from certain of her classes each day. She saw him occasionally in a weight-lifting class or activity she was involved in at the school, as well, when he would come to the weight room. Near the end of November or early December in that school year, she happened to be passing the Respondent between classes and he asked her if she would meet him to have sex with him during the lunch period, which she declined. Similar solicitations took place in the same manner at the same place on or 15 different occasions. On three or four occasions during the 1995-1996 school year, the Respondent telephoned Tracy at home asking her to have sex with him. The content of the solicitation conversations, whether in person or over the telephone, with this student, as with Susan, were questions concerning whether she had ever had sex with a “black guy” or whether she would ever have sex or oral sex with black persons. When she answered all such questions in the negative, he informed her that she was “missing out”. Tracy declined the solicitations in every instance. She did not initially report the conversation to her parents because she did not intend to respond to them and she was embarrassed and afraid to discuss such graphic, repulsive language and conduct in front of her parents. The Respondent was not in a position to influence Tracy’s grades nor had she or the Respondent had any angry words or other altercation between them before or after the solicitation incidents. She was shown to have had no motive, such as revenge or other motive, to impel her to fabricate her account of these events. The content and language employed by the Respondent in these solicitation conversations with all the students involved in this action was graphic in the extreme. The Respondent solicited sexual favors from these students in the most grossly, vulgar, obscene and repulsive street language imaginable. The language he used is depicted in the transcript of the victims’ testimony. The students were disparaged by such conduct, such intent, and such language, were greatly embarrassed by it and rendered fearful, to some extent, of the consequences to them of their reporting it. “Mary” is the name used for purposes of this proceeding to identify a female, African-American, Forest High School student. At the time of the hearing, Mary was 15 years of age and in the tenth grade. She was 14 years of age at the beginning of her ninth grade year, the 1995-1996 school year, and turned 15 on January 9, 1996. This is the school year when the incidents described below happened. Mary first encountered the Respondent during the 1995- 1996 school year outside of his friend, Mr. Mackey’s room. At the time, she was bending over and tying her shoes. She had not been acquainted with him before that time but knew that he was a school employee. During their first encounter, the Respondent asked Mary if she were wearing shorts under her skirt and asked her what color and kind her panties were and whether he could “get into them.” She simply laughed and walked away. Sometime later in the school year, Mary encountered the Respondent at another location at the school. He asked her where she lived, if she was a virgin, and if she had been with an older man. He asked her whether she would like to be with an older man. Sometime later, she encountered the Respondent after school by the football field and he asked her if she wanted to “do something” with him. He asked her to meet him behind the auto mechanics building and told her to take an opposite route to the building from a route he would take, so that they would not be seen together. She met him at the auto mechanics building and on that occasion she and the Respondent had vaginal sexual intercourse. No one else was present. From sometime before Thanksgiving of 1995 through March of 1996, starting when she was 14 years of age and in the ninth grade, the Respondent and Mary had vaginal sexual intercourse on occasions at the following locations: behind the auto mechanics building; in Mr. Mackey’s classroom during a lunch break; in a classroom during “Saturday school”; in an aerobics workout room at the school; and in a van in the auto mechanics garage at the school. On one additional occasion, the Respondent met Mary at a school basketball game. He took her to his apartment during the game and had oral sex with her and returned her to the school before the game was completed. The last sexual encounter between the Respondent and Mary occurred on March 18, 1996. Shortly after that, Mary sought medical treatment for what she believed was a urinary tract infection. In fact, it was chlamydia and genital warts, both sexually-transmitted diseases. At the request of the medical personnel she had contact with, she identified the Respondent as the person with whom she had been having sex. Other than a brief conversation immediately following her first visit to the doctor, Mary had no further contact with the Respondent after the time she identified him to medical authorities. It was apparently by this means of identification that proceedings were instituted against the Respondent by the School Board authorities and by the State’s Attorney. No evidence whatever was offered by the Respondent and certainly none to contradict the testimony of the four students. There was no evidence presented that any of these students knew each other, were aware of the Respondent’s actions with respect to each other, or had any reason or motive to falsely accuse him for purposes of revenge or other reasons.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Carlton L. Wilkerson, be terminated from his position with the Petitioner, Marion County School Board.DONE AND ENTERED this 23rd day of February, 1997, in Tallahassee, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1997. COPIES FURNISHED: Frank T. Brogan Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 John Smith, Superintendent Marion County School Board Post Office Box 670 Ocala, Florida 34478-0670 William C. Haldin, Jr., Esquire RICHARD, BLINN & HALDIN, P.A. 808 Southeast Fort King Street Ocala, Florida 34471 Jack Maro, Esquire Post Office Box 3868 Ocala, Florida 34478
The Issue The issue is whether Respondent inappropriately touched a female student in violation of Sections 231.28(1)(c), (f), or (i), Florida Statutes, or Rule 6B-1.006(3)(a) or (e), Florida Administrative Code, and, if so, what penalty should be imposed.
Findings Of Fact Respondent holds a Florida educator's certificate, number 700508. His certificate is valid through June 30, 2003, and covers the areas of varying exceptionalities, elementary education, English, specific learning disabilities, visually impaired, and primary education. During the 1995-96 school year, Respondent was employed as an exceptional student education (ESE) teacher by the Sumter County School District. Respondent was assigned to teach at the South Sumter Middle School. Respondent had taught at South Sumter Middle School since the 1994-95 school year. During the first year at the school, Respondent was the ESE math, science, and social studies teacher. During the 1995-96 school year, Respondent was the ESE team leader. During the 1995-96 school year, R. J. was an eighth- grade student at South Sumter Middle School. She was classified as emotionally handicapped (EH) and was assigned to an EH classroom. R. J. was not as disruptive as her EH classmates, so her teacher allowed her, after finishing her work, to leave the classroom and visit Respondent's classroom, in which the students were better behaved. R. J.'s teacher allowed R. J. to attend Respondent's class 1-2 hours weekly. While there, R. J. mostly tutored the other students. One day, in Mid-May 1996, while visiting Respondent's classroom, R. J. was watching a film with the rest of the class. She was seated in the back of the room with Respondent, who was doing some administrative work during the screening of the film. The room was half-lighted. At one point during the film, some servants were dressing a wealthy child. When they attached garters, one boy in the class shouted, "She's wearing a girdle." Respondent responded by saying that the garment was not a girdle, but a device to hold up socks. Sitting next to Respondent, R. J. asked him to explain further what a garter is. Respondent poked her knee to show her where the garter attached. Respondent did not move his chair closer to R. J.'s chair, nor did he run his hand up or down R. J.'s leg. Later the same day, the ESE department sponsored the weekly Coke Day. Respondent had started Coke Day because ESE students never went on field trips. Taking place late in the day on Fridays, Coke Day presented the opportunity for students who had behaved well during the preceding week to buy sodas donated by teachers, with the proceeds going to field trips. In addition to paying for ESE field trips and providing an incentive for good behavior, Coke Day also gave the ESE students a chance to socialize and receive praise for good work and good behavior. Toward the end of the time allocated to Coke Day, Respondent saw that someone needed to pick up discarded soda cans and other debris from the field where Coke Day took place. As Respondent was doing so, while the field was filled with students, R. J. approached Respondent closely and complained that another student had been flirting with her. Respondent told the other student to stop flirting with R. J. During this incident, Respondent was holding in one hand a plastic litter bag, into which he was placing empty soda cans. As he warned the other student to stop flirting with R. J., Respondent pushed her lightly on her hip with his hand holding the bag, as though to move her out of the way as he passed her. The bag may have also brushed against Respondent in the vicinity of her buttock thigh. Petitioner subpoenaed R. J. to testify in this case, but she refused to honor the subpoena. Petitioner therefore presented R. J.'s testimony in the form of a videotaped deposition taken on October 11, 1996, in the criminal case, which did not result in a conviction. In her deposition, R. J. testified that Respondent rubbed the tips of his fingers up one time and down one time along the front of her thigh when demonstrating the location of a garter. She also testified that Respondent lightly squeezed her buttock for two or three seconds on the field during Coke Day. Fifteen years of age at the time of the deposition, R. J. testified haltingly. Although not appearing overly nervous about testifying, R. J. required repeated prompting when asked to describe in detail the touches and, even then, her testimony was vague. At times, R. J.'s attempts to describe in detail what she claimed Respondent had done had an invented quality, as R. J.'s replication of Respondent's movements seemed to lack any real conviction or certainty. R. J. claims that she has been the victim of sexual abuse several times, naming as perpetrators her step-father and uncle, and she says that hugs from her father make her uncomfortable. R. J. also admitted that a friend had had sexual intercourse with her, while she was asleep after an evening of drinking. R. J. describes a troubled family life, testifying that her mother and step-father accuse her of being promiscuous. An eyewitness to the Coke Day incident, D. P., gave conflicting statements at the time of the investigation. At some point after the day of the incidents, D. P. became R. J.'s boyfriend. At the hearing, D. P. testified contradictorily about whether he saw any inappropriate touching. There is little doubt that he saw nothing. An agent of the Florida Department of Law Enforcement testified at the hearing. The agent is a coordinator of crimes against children. Shortly after the incidents, the agent visited the school. After speaking to a school administrator and possibly reading R. J.'s statement, but before talking to her, the agent interviewed Respondent. Not taping the interview, the agent misinformed Respondent that he had talked to R. J., and other students had joined in her claims of inappropriate contact. When Respondent denied any inappropriate contact, the agent, during this initial interview, accused Respondent of lying. The agent testified that Respondent admitted that he had pulled R. J.'s chair closer prior to demonstrating the location of a garter. This is something that he has later denied. However, the matter is inconsequential, even for the limited purpose of trying to assess Respondent's credibility. As for the Coke Day incident, the agent testified that Respondent said he might have touched, but did not grab, R. J.'s buttock. Absent additional detail, this admission does not establish an inappropriate touching or a lack of credibility The most significant part of the agent's testimony is his claim that Respondent admitted that he needed sexual counseling and asked what kind of deal he could get if he "told the truth." Respondent denied making these statements. Several possibilities exist concerning the agent's testimony describing these two statements. The agent may have misunderstood Respondent or may be misreporting what Respondent said. Respondent may have made these quoted statements. However, several facts are quite clear. First, nothing else in the record provides significant support for these statements, at least to the extent that they would also constitute implicit admissions of inappropriate touching. Second, the agent described Respondent as cooperative. Given the contrasting personalities of the agent, who is intense and focused, and Respondent, who is quiet-spoken to the point of passivity, it is quite possible that Respondent made statements substantially the same as reported by the agent in response to a coercive atmosphere perhaps inadvertently created by the agent. Although it is not possible to resolve the dispute in the testimony concerning the two statements that the agent claimed that Respondent made, it is clear that the record lacks clear and convincing evidence that Respondent touched R. J. in an inappropriate manner.
Recommendation It is RECOMMENDED THAT the Education Practices Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 15th day of June, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 15th day of June, 2000. COPIES FURNISHED: Kathleen M. Richards, Executive Director Florida Education Center 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 J. Wiley Horton Booth & Horton, P.A. Post Office Drawer 840 Tallahassee, Florida 32301 Mark Herdman Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
Findings Of Fact Respondent holds Florida teaching certificate 310395 covering the areas of biology and science. During the 1985-1986 school year, he taught ecology and science courses at Winter Park High School in the Orange County School District until he was relieved from duty on March 13, 1986, as a result of an investigation into the incidents and behavior described below. During the school day, Respondent repeatedly harassed the female students with sexual remarks, attempts at sexual humor, and requests for sexual favors and intimacies. The sexual harassment so permeated the classroom that Respondent was completely unable to discharge his professional teaching responsibilities. Faye Zentner was a senior at Winter Park High School during the 1985- 1986 school year. Notwithstanding the fact that Respondent knew that she was a student, he repeatedly asked her to go with him on a date, followed by dinner and bed. Unsolicited, he gave her his home telephone number and told her to call him. He frequently remarked on her clothing, advising her that she should not wear such nice clothes. He often communicated by notes that he would show her and then tear up. Ruth Evans was a senior at Winter Park High School during the 1985-1986 school year. She was in Respondent's science class. Respondent repeatedly complimented her on her dress. He would intentionally drop a pencil and watch her while she picked it up. At different times, Respondent told her that he "wanted her body" and thought that she had a "nice ass." He also told her that he wanted to "get between her legs." He asked her to go out with him and then to his place. One afternoon when Ms. Evans asked to leave class 10 minutes early for a school-sponsored softball game, Respondent's response was, "If you're not going to do anything for me, why should I do anything for you?" Kristen Fischer was a senior at Winter Park High school during the 1985-1986 school year. She was in Respondent's ecology class. Looking at her breasts and body while speaking, Respondent would frequently tell Ms. Fischer that he liked what he saw, including her tight jeans. As with the other female students, Respondent asked Ms. Fischer to go out with him and have a drink. The testimony of the remaining female students reiterated the above testimony and established a pattern of sexual harassment on the part of Respondent. Respondent summoned Juliana Gomes from the classroom and, in the hall, commented on her appearance and asked her out on dates. Ms. Gomes finally began reporting to school late in order to avoid her first-period class with Respondent. Respondent told jokes involving female body parts, such as the vagina, to Laurie Kreitner, another student. When she would not listen to these jokes privately at his desk, Respondent would tell them publicly to the entire class. Respondent regularly asked Sheila Buchanan, another of his students, what she was doing on that Friday night and where she would be. At spring break, he found out where she and her girlfriends would be staying at the beach and gave them his hotel room and telephone numbers with an invitation to call him. During the entire term in ecology, Respondent administered only one test and a couple of quizzes. Otherwise, the students and Respondent sat around and talked about movies and matters unrelated to the subject of the class. On more than one occasion, Respondent admitted that his grades were a reflection of whom he liked and whom he did not like. Respondent even allowed Ms. Buchanan to grade half of the finals, and she gave good grades to her friends.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Respondent's teaching certificate be permanently revoked. ENTERED this 3rd day of May, 1989, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 COPIES FURNISHED: Karen B. Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Martin Schaap, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 J. David Holder, Esquire Rigsby & Holder Suite 200 1408 North Piedmont Way Tallahassee, Florida 32312 Reginald Crooms 617 South Delaney Avenue, No. 19 Orlando, Florida 32801
