The Issue The issue is whether Respondent's Teaching Certificate should be revoked or otherwise disciplined based on the acts alleged in the Administrative Complaint. The Petitioner presented the testimony of Linda Rondone, Jane E. Vowell, Susan C. Vassilev, Kyril P. Vassilev, III and Johnny B. McKenzie. Petitioner's Exhibits 1-5 were admitted in evidence. Official recognition, pursuant to Section 90.202, Florida Statutes, was taken of the statutes and violations charged in the case of State of Florida v. Jeffrey Siegfried, 85-1568 MMA02, and the Code of Ethics of the Education Profession in Florida, Section 6B--1.01, Florida Administrative Code. The Respondent, Jeffrey W. Siegfried, failed to appear for the formal hearing despite notice to him personally and to his former counsel who was granted leave to withdraw. Petitioner submitted proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part of this Recommended Order.
Findings Of Fact At all times material hereto, the Respondent held Teaching Certificate Number 440229, issued by the Department of Education for the State of Florida. The Respondent's Teaching Certificate covers the areas of English and Reading. On or about June 13, 1978, the Respondent applied for a teaching certificate for the State of Florida. The Respondent filled out the application and answered "No" to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" The Respondent signed the application in front of a notary on June 13, 1978, certifying that all information pertaining to the application was true and correct. Petitioner presented charging documents from the Court of Common Pleas of Montgomery County, Pennsylvania, in which the Respondent was charged with three crimes alleged to have occurred on June 7, 1975, to wit: Unlawful Possession of a Controlled Substance, Corruption of Minors and Disorderly Conduct. Further, the documents indicated that the Respondent was sentenced on December 4, 1975, to the Program of Accelerated Rehabilitative Disposition on the charges of Possession of Marijuana and Corruption of Minors. The program involved a twenty four (24) month probationary period and payment of $350.00 restitution. The charge of Disorderly Conduct was nolle prossed. On July 20, 1979, the Respondent filled out an Application of Instructional Position for Palm Beach County, Florida. The Respondent in said application again made no mention of his criminal history. He again checked off "No" to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" The Respondent signed the application certifying that all the answers given were true. In the fall of 1980, the Respondent was employed by the Palm Beach County School District. On January 24, 1986, an Information was filed in the County Court of Palm Beach County, Florida, charging the Respondent with Possession of Marijuana on January 15, 1985 and Child Abuse on December 23, 1984. Susan C. Vassilev, mother of Kyril Vassilev, testified that she had been friends with the Respondent for 3 or 4 years preceding December of 1984. Throughout their acquaintance, the Respondent was employed as a full time teacher for the Palm Beach County School Board. Mrs. Vassilev's son, Kyril, occasionally did yard work and odd jobs for the Respondent. On December 23rd of 1984, Mrs. Vassilev reminded her son about a Christmas Eve dinner invitation at the Respondent's house. He answered her, "No, I'm not going there. He's a fag. I don't want anything to do with him." Mrs. Vassilev than testified as to what her son told her which was again reiterated by her son when he testified later in the hearing. In November and December, 1984, Kyril Vassilev was thirteen (13) years old. He had met the Respondent through his mother and knew the Respondent to be a teacher in Palm Beach County. Kyril went to the Respondent's house in late November or early December of 1984 to do some yard work for the Respondent. The Respondent picked Kyril up and while in the Respondent's van, the Respondent suggested that he knew a way for Kyril to earn a lot of money and only work two hours a day, 2 or 3 times a week. After Kyril mowed the Respondent's yard, he came into the Respondent's house for a drink. He asked the Respondent how he could make such easy money. The Respondent told him it was called child pornography and explained that it involved Kyril posing for nude photographs. The Respondent showed Kyril photographs of a nude boy in a magazine and claimed that he had helped the boy earn money by arranging for him to pose nude. Kyril told the Respondent that he wasn't interested and went back outside to continue staining the backyard fence. After a while, Kyril went back inside for another drink. The Respondent at that point told Kyril that the photographers had called and were willing to pay him $200.00 for posing nude. Kyril again told the Respondent that he was not interested. After finishing work, Kyril again came into the house and the Respondent told him the photographers had called again and upped the price to $500.00. Kyril told the Respondent no again. The Respondent sent Kyril to buy camera film at Eckerds. Kyril testified that he was afraid, but he went and got the film and brought it back. Again the Respondent asked Kyril if he would reconsider. Kyril, again, declined. Before Kyril left, the Respondent informed him that he couldn't tell his mother or anyone else. The Respondent told Kyril that he need not worry about his mother finding out, because the Respondent would open a secret bank account for him, where he could keep the money. Before leaving for the day, Kyril testified that, the Respondent told him "they" had called and were now willing to pay up to $1,000. The Respondent took Kyril home and enroute again tried to talk him into posing nude. Kyril again declined. The Respondent indicated that Kyril could make even more money doing things with other boys in front of the camera. Kyril was waiting until after Christmas to tell his mother, but because of the invitation to the Respondent's residence for Christmas Eve dinner, he decided to tell his mother on December 24, 1984. Mrs. Vassilev confronted the Respondent with her son's allegations and he claimed to be working undercover for school security to infiltrate a child pornography ring. Johnny B. McKenzie testified that as Director of Security for Palm Beach School Board that he had no knowledge of the Respondent working for school security. On July 11, 1985, the Respondent pled no contest to Count I, Possession of Marijuana less than 20 grams and Count II, Child Abuse. Judge Karen Martin, County Court Judge in and for Palm Beach County, Florida, withheld adjudication as to Count I and adjudicated the Respondent guilty of Count II. The Respondent was placed on twelve (12) months probation with special conditions that he: (1) make no contact with any child under the age of 18 years without another adult being present; (2) make no contact with the mother of the victim and/or the victim, himself; (3) undergo substance abuse evaluation and treatment if needed; and, (4) undergo psychological evaluation and counseling if needed. Ms. Jane E. Vowell, then acting as Assistant Superintendent, testified that on or about January 17, 1985, the Respondent was called into her office and she informed him of the charges against him, and told him that she would recommend to the Superintendent that he be suspended with pay and given an opportunity to resign. The Respondent resigned on February 4, 1985. Ms. Vowell testified that the Respondent's teaching certificate should be permanently revoked because he lacked the moral character needed to be a teacher responsible for children. On March 6, 1985, the Respondent submitted an Application for Instructional Position to the Broward County School Board. The Respondent again answered "No" to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" He again signed the application certifying that all the information given on the application was true and correct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking the teaching certificate of Jeffrey W. Siegfried. RECOMMENDED this 5th day of February 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2020 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Proposed findings of fact 1-33 are adopted in substance in Findings of Fact 1-33. COPIES FURNISHED: Craig R. Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Jeffrey W. Siegfried Post Office Box 172 Truro, Massachusetts 02666 Marlene T. Greenfield Administrator Professional Practices Services 319 West Madison Street Tallahassee, Florida 32301 Karen Barr Wilde Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32301
The Issue May Petitioner, Polk County School Board (Board), terminate the employment of Respondent, Stephen Brown, as an instructional employee based upon the conduct alleged in the letter from Assistant Superintendent Dennis F. Dunn, dated January 24, 2013, asserting that Mr. Brown engaged in serious misconduct, providing just cause to terminate his employment.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: The Board employed Mr. Brown as a classroom teacher through a Professional Services Contract. By letter dated January 24, 2013, Assistant Superintendent Dennis Dunn advised Mr. Brown that Polk County School Superintendent John Stewart intended to recommend his termination to the Board for improper use of the "Board issued laptop computer due to pornography and sexually inappropriate images" found on the computer. Mr. Brown has been a teacher for 18 years. Ten of those years, including 2012, Mr. Brown taught at the Board's Inwood Elementary School (Inwood). This was not the first time the school took action against Mr. Brown. On March 31, 2011, Inwood Principal Amy Heiser-Meyers gave Mr. Brown a letter confirming a verbal warning that she gave him during a conference that day. The letter stated: When redirecting or addressing a student's behavior, refrain from getting into their face and also refrain from making inappropriate comments and actions that are disparaging and harmful to the student's mental health. As the authority figure in the classroom, it is not appropriate to use your body and physical proximity to intimidate the student. Your actions towards the student violated the Code of Ethics and The Principles of Professional Conduct of The Education Profession in Florida: State Board of Education Rule 6B-1.006 FAC (a)(e)[sic]. The letter also advised that the conference was a first step of the progressive discipline outlined in the Teacher Collective Bargaining Agreement and cautioned that further discipline, up to and including termination, might be imposed for additional "unacceptable behaviors." On April 23, 2012, Principal Heiser-Meyers delivered Mr. Brown a letter confirming a discussion during a conference that day. This letter was "not to be construed as disciplinary in nature, but rather as a letter of concern." It addressed the importance of meeting deadlines and processing paperwork, specifically not having student award certificates ready in time for a scheduled lunch awards presentation. In a June 6, 2012, letter, Ms. Heiser-Meyers confirmed a verbal warning that Mr. Brown violated "The Principles of Professional Conduct of the Education Profession in Florida [sic] (a) Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. AND (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement." Principal Heiser-Meyers' letter stated that she conducted the conference "pursuant to Section 4.4-1 of the Teacher Collective Bargaining Agreement" and that it was the first step of progressive discipline outlined in that section. It also cautioned that continued "unacceptable behaviors" could result in disciplinary action up to and including termination. On June 4, 2012, and on August 31, 2012, Mr. Brown signed the Board's Employee Equipment Use Contract for a laptop computer assigned to him. The contract included these conditions: I AGREE TO RETURN THE ABOVE EQUIPMENT IN THE SAME CONDITION IT WAS IN UPON CHECKOUT AND AGREE TO PAY FOR REPLACEMENT DUE TO LOSS OR DAMAGE BEYOND REPAIR THAT MAY OCCUR WHILE IT IS ASSIGNED TO ME. REPLACEMENT COST IS CONSIDERED THE COST TO PURCHASE NEW EQUIPMENT. I AGREE TO USE THE EQUIPMENT FOR SCHOOL BOARD PURPOSES ONLY, AND UNDERSTAND THAT I WILL BE RESPONSIBLE FOR INJURY OR DAMAGES CAUSED BY ANY INAPPROPRIATE OR UNAUTHORIZED USE OF THIS EQUIPMENT. I WILL NOT BE HELD RESPONSIBLE FOR ANY REPAIRS RESULTING FROM NORMAL AND ORDINARY USE OF SUCH EQUIPMENT. Mr. Brown took his school-issued laptop computer home around November 30, 2012. He used it to search for information about cash advance loans he could obtain to repair his automobile. While Mr. Brown was searching for loan information, a red screen displaying the title "FBI Federal Bureau of Investigation" appeared. The screen advised that the computer had been locked and stated that Mr. Brown was subject to several federal criminal charges, including possession of child pornography and gambling, unless he paid $200.00 within 48 hours to a designated account. Mr. Brown shut down his computer. He tried restarting and shutting down the computer a few times to see if the message would go away and the computer would operate. Mr. Brown then called the FBI office to report the incident. The individual to whom Mr. Brown spoke told Mr. Brown that he was describing a frequently reported virus and that he would need professional help removing it. Mr. Brown took the laptop to the office supply store, Staples, the following day to obtain its virus removal service. He paid for the service and purchased an extended warranty for $199.00. Mr. Brown took the computer to Staples, instead of to the school's information technology office, because he thought that, since the virus appeared while he was using the computer for personal purposes, the terms of equipment-use contract made him responsible for repairs. Mr. Brown did not report the problem to the school's technology office. Staples was unable to service the computer for three days. When Staples did service the computer, it removed the virus. But the Staples technicians could not repair damage to the hard drive and replaced it. The technicians also re- configured the laptop's original hard drive as an external hard drive with Mr. Brown's documents and other files on it. While Mr. Brown's laptop awaited service at Staples, he tried to use the school computer of his colleague, Penny Humphrey. Ms. Humphrey reported his efforts to the school's computer network manager, Marilyn Layton. Ms. Layton reported the issue to the principal, who advised school board investigator Barry Marbutt that he was concerned Mr. Brown might have inappropriate material on his laptop. Mr. Marbutt interviewed Mr. Brown, who told him of the FBI virus and the repairs by Staples. Mr. Marbutt took Mr. Brown's laptop. Mr. Marbutt later learned from a Staples representative about the old hard drive being reconfigured as an external drive. He then obtained the external drive from Mr. Brown. Sid Lee, senior manager of the Board's electronic equipment repair and support department, examined Mr. Brown's laptop and software to determine if the computer held any inappropriate material. Mr. Lee did not conduct any tests or analyses to determine if Mr. Brown's report of a virus was accurate. The computer and associated external hard drive contained over 200 pornographic images, admitted as Exhibit 6. They were located at the address “D/Documents and Settings\stephen.brown\Local Settings/Temporary Internet Files\content.IE5," which is also referred to as the browser cache. The parties stipulate that the images are pornographic. Many of the images depict sexual violence. Many depict scenes with several participants, bound females, or hooded or masked participants. None of the images, or the identifiable sources for them, match data sets of known or suspected child pornography, including the DHS-ICE Child Exploitation Hash set and data sets obtained from the FBI, state, and local law enforcement agencies. All of the images are generated by small files. The size of the files is consistent with the images being either "popup" or "thumbnail" images. A "pop-up" is a pop-up window on a computer screen.1/ A "thumbnail" is "a miniature computer graphic sometimes hyperlinked to a full-size version" of an image.2/ The files occur in a few clusters in the Internet browser cache of the laptop. On July 19, 2012, approximately 113 of the pornographic images were among 171 images downloaded into the laptop's browser cache between 1:54:06 p.m. and 1:57:11 p.m., a period of three minutes and five seconds. This means that they downloaded extremely quickly. For instance, Exhibit 6 shows that at 1:56:23 p.m., four images downloaded. At 1:56:24 p.m., six images downloaded. The average download rate for the time period was 1.08 seconds per image. This rate is not consistent with a person manually browsing the Internet. Seven of the images are plainly advertisements for pornographic websites or DVDs. Twenty have watermarks on them depicting several different website addresses. During the July 19, 2012, time period, when the files were downloaded, there were no contemporaneous log-ins to other websites, such as to an email service, Facebook, bank accounts, or news sites. During the July 19, 2012, time period one or more pop-ups attempted unsuccessfully to download malicious software. The analysis of the computer, however, showed frequent log-ins to Facebook at other times and days. The typical pattern of computer users is to perform more than one function or go to more than one website when logging on to the internet. On August 20, 2013, a single pornographic video was downloaded. There were no contemporaneous log-ins to other websites, such as to an email service, Facebook, bank accounts, or news sites at the same time. On November 29, 2012, 225 image files were downloaded between 3:59:44 p.m. and 4:12:26 p.m., a period of 12 minutes and 42 seconds. This indicates that the images downloaded quickly, at an average rate of one image per 3.4 seconds. This rate is not consistent with a person manually browsing the internet. At least 101 of the images were pornographic. As with the July 19, 2012, time period, there were no contemporaneous log-ins to other websites at the same time. The images included 12 advertisements for penis enlargement techniques or substances and 14 advertisements for services facilitating sexual encounters with local females. There were also images with website address watermarks; but the watermarks are not legible. Staples technicians determined the laptop was infected with the malware virus, “Reveton," also known as the "FBI virus." The virus has the ability to start a computer, access the Internet, visit websites, and download images without the computer owner's knowledge or participation. Using these abilities, the virus's masters can and do remotely operate enterprises that include "click jacking" and "ransoms." In "click jacking," the virus causes the host computer to activate, log on to the Internet and quickly visit websites to click on advertisements, including pop-ups. This generates revenue for the site hosting the advertisement or pop-up, since compensation is by "click." In "ransoms" the virus locks up the computer and displays a message like the one Mr. Brown's laptop received demanding payment and threatening law enforcement action, unless the computer operator sends a payment in a manner and to a recipient described in the "ransom note." Several indicators make it as likely as not that the pornographic images found in the laptop's cache were downloaded as the result of the FBI virus, rather than any action by Mr. Brown. Those indicators are: (a) there were no contemporaneous log-ons to any other websites; (b) the rapid speed at which the images downloaded; c) the fact that all of the images were small "thumbnail" or "popup" sized files; (d) there was no evidence of full-sized image files; and (e) Mr. Brown in his testimony and during the investigation has consistently denied using the computer to access pornographic images. In addition, the fact that Mr. Brown contacted the FBI indicates lack of apprehension about the consequences of contacting law enforcement authorities. Mr. Brown's decision to seek assistance from Staples was reasonable in light of the District's strict equipment use policies and the fact that the problem occurred when Mr. Brown was using the computer for personal reasons.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, rescind the termination of Respondent, Stephen Brown, and award him back pay and full benefits for the period during which he was suspended, which began January 20, 2013, when Mr. Brown requested a hearing. DONE AND ENTERED this 21st day of August, 2013, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 21st day of August, 2013.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint issued February 17, 2005, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Education is the state agency responsible for investigating complaints against teachers holding Florida educator certificates for violations of Section 1012.795, Florida Statutes, and, in those cases in which probable cause is found, the Commissioner is responsible for filing a formal complaint and prosecuting a person holding a Florida educator certificate. § 1012.796, Fla. Stat. Pursuant to Section 1012.795(1), Florida Statutes, the Education Practices Commission ("EPC") is the entity responsible for imposing discipline for any of the violations set forth in that statute. Mr. Sorensen holds Florida Educator Certificate No. 807290. In 1998, Mr. Sorensen was hired by the Broward County public school system as an exceptional student education teacher and coach, and, from 1998 to the times material to this proceeding, he taught and coached various sports teams at McArthur High School ("McArthur"). From 1992 until his employment as a teacher, Mr. Sorensen was employed by the Broward County public school system as an assistant coach, a teacher's aide, and a substitute teacher. Mr. Sorensen was a very popular teacher and coach with the students at McArthur. Mr. Sorensen was removed from the classroom in the spring of 2001, and he has not worked with children since that time. Mr. Sorensen resigned his position with the Broward County School Board in 2005. Mr. Sorensen married in April 2002, and he currently resides with his wife and two children in Ocala, Florida. Mr. Sorensen has not been the subject of any prior disciplinary action or complaint by a student or fellow teacher. R.J. began attending McArthur in the 1999-2000 school year as a freshman. During the 2000-2001 school year, R.J. was in the 10th grade. R.J. turned 16 years of age during the three months material to this proceeding. Until the events that are the subject of this proceeding, Mr. Sorensen did not know R.J., although he knew of her from having seen her around school. R.J. knew Mr. Sorensen from seeing him at school, and she eventually introduced herself to him. On the evening of March 1, 2001, R.J. and Officer Tomas Hernandez had a conversation at South Broward High School. R.J. was attending night classes to make up some high school credits, and Officer Hernandez was working on his off-duty hours as a security guard at the school. Officer Hernandez's normal assignment was as a school resource officer at McArthur. During the conversation, R.J. mentioned to Officer Hernandez that he needed to watch one of the teachers at McArthur. Officer Hernandez pressed R.J. to identify the teacher, and she told him it was "Coach" Sorensen. According to Officer Hernandez's report, R.J. told him that Mr. Sorensen had pictures of naked female McArthur students on his school laptop computer; that he had shown these photographs to her; and that, while she was chatting with Mr. Sorensen by computer, he told her that he had a place at the beach, and she "felt" he wanted her to go there with him.4 Officer Hernandez reported the information to the Hollywood Police Department early the next morning, March 2, 2001, and he was told to transport R.J. from McArthur to the police station for an interview. Officer Hernandez then contacted R.J.'s father and her sister.5 R.J. was taken out of her first-period class shortly after school started. Officer Hernandez took her by car to the Hollywood police station, where she was interviewed by Detectives Navarro and Horne. At this time, R.J. gave a sworn statement regarding her contacts with Mr. Sorensen. Investigations of the charges R.J. made against Mr. Sorensen were conducted concurrently by the Hollywood Police Department and the Broward County School Board. As a result of the investigation by the Hollywood Police Department, Mr. Sorensen was arrested and charged with lewd and lascivious conduct with a child, which is a felony. He pled nolo contendere to a lesser charge of contributing to the delinquency of a minor, a misdemeanor. Adjudication was withheld, and Mr. Sorensen was placed on probation for one year, which he successfully completed.6 Information about the accusations R.J. had made about Mr. Sorensen found its way to the media, and R.J. was pursued by reporters at school and at her home. R.J. felt that the students at McArthur were hostile towards her, and she claimed to have received threats from fellow students, both in person and on the Internet, in which she was told to drop the charges against Mr. Sorensen. R.J. spoke with Beverly James, the principal at McArthur, about her fears for her safety. Ms. James apparently did not allay her concerns, and R.J. moved to her sister's home and transferred to South Broward High School. R.J. quit school a few months later because she felt that the students and some of the teachers at South Broward High School "looked at [her] wrong" and were "cold" towards her.7 Photographs At or about the end of January or the beginning of February 2001, a member of McArthur's yearbook staff showed Mr. Sorensen the layout for the photographs of the wrestling team. Mr. Sorensen noticed that the photographs included several students who had been members of the wrestling team but who had quit the team after the photographs were taken for the yearbook. Mr. Sorensen felt it was unfair to include students in the yearbook photographs who were not, at the time, members of the team. Mr. Sorensen decided to provide the yearbook staff with some photographs of the then-current wresting team from his own collection to substitute in the yearbook for the out-dated photographs. Mr. Sorensen forgot to go through his photographs at home to choose the ones he wanted to give to the yearbook staff. He remembered one morning as he was getting ready to leave for school, and he grabbed a packet containing his personal photographs and tossed the packet into his duffle bag.8 Mr. Sorensen kept supplies for his wrestling team, such as tape and ointment, in the duffle bag. Mr. Sorensen put the duffle bag into his truck. At some point, while Mr. Sorensen was driving several members of his wrestling team to practice, two male students who were seniors at McArthur, opened the duffle bag, discovered the packet of photographs, and began looking through them. The students came across a photograph of a nude female and several other pictures of females who were semi-nude or wearing thong bikinis. When Mr. Sorensen noticed the two students looking at these photographs, he told them to put the photographs back in the duffle bag. Mr. Sorensen did not take the photographs from the students because he was driving at the time, but the students put the photographs back into the duffle bag. After practice, Mr. Sorensen went to McArthur and dropped off his duffle bag in his classroom. At some point, Mr. Sorensen took the packet of photographs out of the duffle bag and put them in the bottom left-hand drawer of the desk in his classroom. Mr. Sorensen later looked through some of the photographs and chose several photographs of the wrestling team that he wanted to include in the yearbook. R.J. often went into Mr. Sorensen's classroom during the school day, sometimes to see her friend, M., who was in Mr. Sorensen's special education class. R.J. regularly checked her e-mail on Mr. Sorensen's school computer and hung around his desk. At some point in the two weeks prior to her conversation with Officer Hernandez, R.J. went through the photographs in Mr. Sorensen's desk drawer. She saw two photographs of nude or semi-nude females, several photographs of females in thong bikinis, and a photograph of a McArthur student named Mandy, whom R.J. knew from school. Except for Mandy, R.J. did not know the identity of the females in these photographs. Contrary to her statements to Officer Hernandez and Detectives Navarro and Horne, R.J. did not see any photographs of nude or partially nude women on Mr. Sorensen's classroom computer or on his school laptop computer. After R.J. gave her statement to Detectives Navarro and Horne, a number of school and local police investigators, together with Ms. James, McArthur's principal, went to Mr. Sorensen's classroom and asked if they could look through his desk. Several photographs of nude, semi-nude, and scantily- clad females were found among the photographs in Mr. Sorensen's desk drawer. The investigators also confiscated Mr. Sorensen's computer, and it was sent to an Apple Computer technician located outside of Florida, who recovered one photograph of a partially nude woman from the computer's hard drive.9 About a week before Mr. Sorensen's desk was searched, Mandy, who was a 12th grade student at McArthur, gave Mr. Sorensen a photograph of herself wearing tight clothing and standing in a provocative pose; the student had written her name and telephone numbers on the back. Mr. Sorensen put the photograph in his desk drawer, with the other photographs. The photograph of Mandy was among those discovered in the search of Mr. Sorensen's desk drawer. In addition to the photographs he kept in his desk drawer, Mr. Sorensen had numerous photographs on the top of his desk, under glass or plastic, including photographs of ex- girlfriends, of females in both regular and bikini bathing suits, and of members of the various sports teams he coached. These photographs were visible to anyone who came into his classroom and had been on his desk for quite a long time. None of the photographs on the top of the desk were considered to be inappropriate by McArthur's principal. Even if Mr. Sorensen did not realize when he put the packet of photographs into his duffle bag that photographs of a nude and several scantily-clad females were among the other photographs he took from his house, it is reasonable to infer that he knew that these pictures were among the ones he put into his desk drawer because he knew that two members of his wrestling team had gone through the photographs in the duffle bag and had looked at these photographs. In addition, Mr. Sorensen had himself gone through a number of the photographs after he put them in the desk drawer. In placing and leaving these photographs for over a month in his classroom desk where they were accessible to students, Mr. Sorensen created conditions that were potentially harmful to learning and to the mental health of any student who might happen to see the photographs in his desk. This conduct also exposed students to unnecessary embarrassment if a student were to come across the inappropriate photographs in Mr. Sorensen's desk. The evidence presented by the Commissioner is, however, not sufficient to establish clearly and convincingly that Mr. Sorensen showed the photographs to any students.10 Inappropriate communications of a sexual nature Mr. Sorensen maintained an Internet access account with America Online ("AOL"), and he had a screen-name he used for instant messaging feature on the Internet. One feature of AOL instant messaging is a "buddy list" in which a person can list the screen-names of other AOL instant-messaging users; when a person logs onto the Internet, all users who have that person's screen-name on their "buddy lists" are alerted that the person is online. Mr. Sorensen gave his AOL instant-messaging screen- name to numerous students at McArthur, including students in his class and members of the various teams he coached, so they could contact him about school work and schedules. If he was on the "buddy list" of any of these individuals, they would be alerted whenever he logged onto the Internet through AOL, and they could send him instant messages. Mr. Sorensen logged onto AOL to check his e-mail every night, and he would regularly receive instant messages from McArthur students. For the most part, these messages had no substance but consisted primarily of students and Mr. Sorensen asking each other what was going on. Mr. Sorensen and R.J. exchanged instant messages on an average of every other day for about four months prior to March 1, 2001.11 On most occasions, their exchanges consisted of short discussions of events at school. On several occasions, R.J. and Mr. Sorensen discussed R.J.'s boyfriend, and R.J. confided in Mr. Sorensen that she was pregnant and intended to get an abortion.12 R.J. did not report any inappropriate sexual communications from Mr. Sorensen until her conversation with Officer Hernandez, even though, on more than one occasion, Officer Flasher observed R.J. instant messaging Mr. Sorensen on the computer owned by Officer Flasher and questioned her about e-mailing a teacher.13 In considering and weighing the evidence submitted in this case relating to Mr. Sorensen's alleged inappropriate sexual communications with R.J., the undersigned has been mindful that, as discussed further in the Conclusions of Law below, the Commissioner bears the burden in this case of proving by clear and convincing evidence the factual bases for the statutory and rule violations alleged in the Administrative Complaint. The Commissioner presented evidence to the effect that Mr. Sorensen engaged in the sexual misconduct described in the Administrative Complaint, but the totality of the evidence presented by the Commissioner is not sufficiently persuasive to constitute clear and convincing evidence that Mr. Sorensen committed the acts of sexual misconduct alleged in the Administrative Complaint.14
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order: Dismissing Counts 1, 2, 6 and 7 of the Administrative Complaint; Finding Dana Sorensen guilty of having violated Section 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a) and (e); and 2. Placing Mr. Sorensen on probation for a term of two years and under such conditions as the Education Practices Commission shall deem appropriate. DONE AND ENTERED this 21st day of February, 2006, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 21st day of February, 2006.
The Issue Should Respondent be terminated from the Polk County School System based on the allegations contained in the letter from Gene Reynolds, Superintendent of Schools (Superintendent), Polk County, Florida, dated March 15, 1999?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner Polk County School Board is the county agency responsible for providing public primary, secondary, and adult education in Polk County, Florida, and to facilitate that responsibility the Board hires certified teachers for classroom and administrative activity. Respondent is employed by the Board as an elementary classroom teacher, a position he has held since March 8, 1993. During the 1998-99 school year, Respondent was employed as a kindergarten classroom teacher at Eastside Elementary School, located in Haines City, Florida. During his employment as a classroom teacher with the Board, Respondent has received satisfactory evaluations. Prior to the events giving rise to this proceeding, Respondent has had no disciplinary problems during his employment as a classroom teacher with the Board. In January 1999, Respondent missed three days of school as a result of an ankle injury. While Respondent was absent, a substitute teacher taught his classes. While looking for a video tape to show the class, the substitute teacher discovered what appeared to be a pornographic video tape in the cabinet next to the video cassette recorder where other video tapes used in the classroom were stored. The substitute teacher removed the video tape and delivered it to Josephine Howard, principal of Eastside Elementary School. The video tape contains explicit, graphic, hard-core pornographic sequences of adult men engaged in explicit sexual acts. Respondent purchased the video tape at a local video store and brought it to Eastside Elementary School for purposes of viewing the tape when students or other persons were not present. Respondent stored the video tape in the classroom in an unlocked cabinet next to the video cassette recorder with other video tapes used for educational purposes Respondent did not desire or intend to allow students to view the video tape. However, since the video tape was stored in an unlocked cabinet, students did have access to the video tape and could have inadvertently viewed the video tape. This incident has not been reported in any newspaper, including those covering the Polk County area, nor has there been any coverage by any radio or television station, including those covering the Polk County area. Other than the incident being brought to the attention of the Board for disciplinary purposes and the news release of the Board's action, the incident has not been made public. In fact, there has been a concerted effort by the Board, the Superintendent's office, and the office of the principal at Eastside Elementary School to prevent this matter from becoming public until after final action by the Board. Since the public is not generally aware of this matter, there has been no outcry of public, parental, or student demand for Respondent's dismissal. Likewise, there has been no demand by any parent that their child not be placed in Respondent's class. Although there has been no public "airing" of this incident, there has been an inquiry by at least one newspaper for the facts of this incident after final action by the Board. Therefore, it appears that there will be a public "airing" of the facts of this incident upon final action by the Board. Respondent has received numerous awards for his teaching technique and work in education. Additionally, Respondent has the support of his friends, associates, and fellow church members. Josephine Howard has taught or held positions as principal or as an assistant principal in the public schools in Haines City, Florida for approximately 30 and one half years. Sixteen and one half of those years have been as either a principal or as an assistant principal. Josephine Howard has lived in Haines City, Florida for approximately 34 years. Josephine Howard, based on her knowledge of, and experience with, the staff at Eastside Elementary School, and her knowledge of, and experience with, the community of Haines City and Petitioner's serious conduct of storing the video tape in a cabinet where persons other than school personnel would have access to such video tape, creating the possibility for children of such sensitive age to be exposed to the contents of the video tape, is of the opinion that upon this matter becoming public knowledge, Petitioner's effectiveness as a teacher at Eastside Elementary School, as well as other schools within the community of Haines City, would be impaired. Dennis Dunn has been employed by the Polk County School Board for 30 years, holding positions as a teacher (in elementary school, junior high school, and high school), assistant principal, principal (in junior high school and high school), deputy superintendent, and assistant superintendent for personnel. Mr. Dunn's work with the Polk County School System has brought him in touch with not only the community of Haines City, but all of the communities within Polk County, Florida Dennis Dunn, based on his knowledge of, and experience with, the staff of the several public schools in Polk County and his knowledge of, and experience with, the several communities that make up Polk County and Petitioner's serious conduct of storing the video tape in a cabinet where persons other than school personnel would have access to such video tape, creating the possibility for children of such sensitive age to be exposed to the contents of the video tape, is of the opinion that upon this matter becoming public knowledge, Petitioner's effectiveness as a teacher within all of Polk County would be impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order finding that Petitioner committed misconduct in office, that just cause for dismissal has been shown, and that Petitioner's contract of employment with the Board is terminated. DONE AND ENTERED this 20th day of August, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1999. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP Post Office Drawer 30 Bartow, Florida 33831 Phillip E. Kuhn, Esquire 1533 Tomahawk Trail, South Lakeland, Florida 33813 Mark S. Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Mr. Glenn Reynolds Superintendent of Schools Polk County School Board 1915 South Floral Avenue Bartow, Florida 33830-0391 Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
