The Issue Whether Respondent is guilty of immorality, gross insubordination, or misconduct in office.
Findings Of Fact At all times relevant hereto Walter Phillips, Respondent, was a continuing contract teacher employed by the Pinellas County School Board, Petitioner, to teach woodshop, math, graphics and drafting at Largo High School. In the 1988-89 school year, Brent Roth, a senior at Largo High School, served as teacher's aide to Respondent. Roth was interested in guns and gun magazines and often engaged Respondent in conversation regarding hand guns. On one occasion while looking at a gun magazine at school, Roth showed Respondent an advertisement for a 9 mm Baretta pistol and asked Respondent would he like to own a Baretta. Respondent indicated yes. Several times thereafter Roth told Respondent that he (Roth) knew where he could purchase a gun at a large discount over the retail price, indicating the gun was "hot" or stolen in the robbery of a truckload of weapons. Respondent knew Roth was prone to exaggeration and didn't believe that Roth could obtain such a weapon. Nevertheless, Respondent decided to proceed with these discussions and, if Roth ever procured such a weapon, Respondent would call in the FBI. At no time did Respondent ever give Roth money to purchase a weapon, nor had Roth ever before purchased such a weapon. Respondent is a member of the Coast Guard Reserve and apparently considers himself a federal law enforcement officer, despite the fact that Coast Guard jurisdiction in law enforcement is limited to the navigable waters of the United States and then only to active duty personnel. Nevertheless, Respondent purported to conduct his own investigation. During the time Roth bragged to Respondent about his ability to acquire a Baretta pistol which had been stolen, and therefore, cheap, the Pinellas County Sheriff's Office was conducting an undercover investigation at Largo High School principally to find out if drugs were being dealt at school. They had an agent posing as a student. This agent, detective Wojciechowski, armed with a body recorder, taped several of the conversations in which Respondent, Roth and other students discussed the purchase of a stolen or hi-jacked gun or guns. The taped conversations were not transcribed and, although the undersigned devoted nearly two hours listening to this tape (Exhibit 3), the speakers were not identified and, without devoting an inordinate amount of time to the project, the speakers cannot be identified. Accordingly, from the posture of the evidence presented, Respondent's specific participation in the purported acquisition of a Baretta pistol cannot be determined. When confronted with the undercover deputy sheriff's tape of his conversations relative to the purchase of a stolen gun, Respondent acknowledged that he had engaged in such discussions for the purpose of discovering if the students actually had access to stolen weapons, but not for the purpose of acquiring such a gun. Had the student been able to get possession of a stolen weapon, Respondent would promptly notify the FBI (Exhibit 6). Respondent never notified his principal, Ms. Westfall, or the campus police regarding his "investigation" because he really didn't believe the student could obtain possession of such a weapon and he had insufficient evidence to support such an allegation. In the summary of the conference (Exhibit 6) between Respondent, the school principal, the school personnel officer and the PCTA member, prepared by Steve Crosby, the Director, Personnel Services, and signed by Respondent, the latter is reported to have acknowledged: If the student had been able to get the gun, he [Respondent] would have had him bring it to him at school, rather than taking a chance in meeting him alone. In his testimony at these proceedings, Respondent stated that he never intended for Roth to bring the pistol to school, only to bring some evidence that Roth could obtain such a weapon. If a weapon was to be delivered, Respondent would have arranged for an off-campus place of delivery and then notified authorities. Respondent's testimony is accepted as the factual version of this proposed transfer. It is significant in assessing the seriousness of the allegations that the closest any participant in the "plot" to purchase a gun ever came to a gun was a picture of a gun in a magazine. No money was ever exchanged, no fixed price for a gun was ever established and, in fact, no actor in this play had any real knowledge that the stolen gun or guns was available to be purchased. In his handling of the discussions pertaining to the purchase or acquisition of a presumed to-be-stolen-pistol, Respondent exercised poor judgment in failing to alert local authorities to these discussions. However, since no hard evidence was available that any student had access to such a weapon there was little to investigate; and it is unlikely that the police would have taken action other then ask Respondent to keep them advised of developments. Petitioner's expert witnesses opined that, by failing to report these conversations to school authorities and in planning the delivery of a gun on school premises, Respondent exercised poor judgement. This, in their opinion, created doubt of his ability to make a proper judgment at school and thereby impaired his effectiveness as a teacher. That part of these opinions predicated upon Respondent negotiating with a student for the purchase of a stolen gun to be delivered to the school premises did not have factual support and is disregarded. Respondent has been a certified teacher for fourteen years and, although he doesn't hold a bachelor's degree, he holds a teacher's equivalency. He has been employed by the Pinellas County school system on a continuing contract since 1979. At no time during the Respondent's tenure in the Pinellas County school system has he been subjected to disciplinary action as a result of charges being brought against him for an infraction of statute or rule.
Recommendation It is recommended that the charges of immorality, gross insubordination, and misconduct in office preferred against Walter Phillips be dismissed, his suspension vacated, that he received back pay for the period his pay has been suspended, and that he be restored to his former status as a continuing contract teacher with the Pinellas County School Board. DONE AND ENTERED this 7th day of July, 1989, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1989. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Scott N. Rose, Ed.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618-4688 Sydney H. McKenzie General Counsel The Capitol, PL-08 Tallahassee, Florida 32399-0400 Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Lawrence D. Black, Esquire 152 Eighth Avenue, SW Largo, Florida 34640 ================================================================= AMENDED RECOMMENDED ORDER =================================================================
The Issue Whether Respondent's state teaching certificate should be suspended or revoked pursuant to Chapter 231, , Florida Statutes, asset forth in Petition, dated May 21, 1979. This is an administrative proceeding whereby the Petitioner seeks to take adverse action concerning the teaching certificate of the Respondent based on two counts of misconduct arising from the teacher/pupil relationship. The first count alleges that the Respondent had sexual intercourse with a seventh grade student on one or more occasions during the 1972 school year. The other alleges that during the 1978 school year, the Respondent kissed a female student on the lips on one or more occasion. The Petitioner herein was filed pursuant to directions of the State Commissioner of Education who, on May 18, 1979, found probable cause to justify disciplinary action under the provisions of Section 231.28, Florida Statutes. Respondent requested an administrative hearing by his answer to the Petition, dated June 20, 1979.
Findings Of Fact Respondent holds Florida Teaching Certificate No. 157255, Graduate, Rank II, valid through June 30, 1989, covering the areas of English elementary education, and junior college. He received a Maser's Degree in education from South Carolina State College in 1969, and obtained Florida teaching certification in August, 1969. At the time of the incidents alleged in the Petitioner, Respondent was employed as a teacher in the public schools of Orange County. (Testimony of Respondent, case pleadings) During the 1971-72 school year, Respondent was a sixth grade teacher at the Grand Avenue Elementary School, Orlando, Florida. At some undisclosed time subsequent to the end of the school year, an Information was filed against Respondent by the State Attorney, Ninth Judicial Circuit of Florida, as a result of allegations that he had engaged in sexual intercourse with one of his twelve- year-old female students in 1972. The case was thereafter nolle prossed by the State Attorney for insufficient evidence. (Testimony of Nagel, Bailey) The alleged victim, Harriett Moten, testified at the hearing that on a number of occasions during the period January or February through May, 1972, while a twelve-year-old student in Respondent's sixth grade class, Respondent had sexual intercourse with her in a storage area behind the stage of the school auditorium. She testified that such incidents occurred approximately twice a week at about 11:00 A.M. during a class period. At those times, Respondent allegedly sent her out of class on an errand, such as obtaining film, and then joined her in the backstage area. She stated that these encounters would consume approximately 20 or 25 minutes by the time she returned to class, and the Respondent came back to class a short time later. Although music classes were conducted in the auditorium practically every day of the school week during the times in question, Moten testified that she never saw the auditorium in use or heard music while she was behind the stage. She stated that she submitted to Respondent's advances because she was afraid of him. She further testified that on one occasion Respondent had brought another female student to the rear of the stage who observed his activities with her. The deposition testimony of another former student, Thomas Grier, was admitted in evidence wherein he testified that he had once observed Respondent lying on top of the student who supposedly had once witnessed Respondent and Moten behind the stage. This incident also allegedly took place behind the auditorium after a music class. He further testified that he had observed Respondent enter the classroom on a number of occasions with one or the other of the tow female students. The witness was deposed at Zephyrhills Corrections Institute, Zephyrhills, Florida, where he was incarcerated for possession of a firearm. It was his third conviction of a felony. Harriet Moten testified that she gave birth to a child in January 1973. Although her blood type and that of Respondent is 0, she was informed by an Assistant State Attorney that her child's blood type was A. She had been a failing student during her sixth grade year and had been paddled a number of times by Respondent for disciplinary reasons. She informed her mother of Respondent's actions in the summer of 1972 when she experienced irregular menstrual periods and was found to be pregnant after her mother took her to a physician. She had not informed her mother earlier concerning the matter because they did not get along with each other. She claimed that she had not had sexual relations with anyone other than Respondent. Respondent denied the allegations at the hearing and said that, although the student had been one of his "problem children" whom he had to discipline on occasion, she had appeared to like him and was the only student who had brought him a Christmas present in 1971. From the foregoing, it is considered that the improbable and uncorroborated testimony of Harriet Moten, when viewed against Respondent's unequivocal denial of the allegations, is insufficient upon which to predicate a finding that Respondent had sexual intercourse with the student, as alleged in the complaint. The deposition testimony of Grier which, in part, supports the allegations, is not deemed credible. (Testimony of Moten, Grier (deposition, Petitioner's Exhibit 3), Respondent, Petitioner's Exhibit 5, Respondent's Exhibits 1, 2, 5). During the 1978-79 school year, Respondent taught sixth grade at the Cypress Park Elementary School, Orlando, Florida. On November 20, 1978, one of his students, Patricia Foster, accompanied by another member of her class, Lola Ortega, reported to the school principal that in the preceding October, Respondent had kissed her in the classroom during a-recess period when no one else was present. Lola told the principal that she had opened the classroom door at the time and observed the incident. The principal reported the matter to a school board Area Administrator who interviewed the two girls on the following day. Patricia told this official that Respondent had kissed her twice on the lips during the recess period and that, after the first kiss, he had said he "didn't mean it." Patricia said that on the second occasion, she looked up and saw Lola open the door and then close it. She further stated that she had not told her parents of the incident because her stepfather would have become angry, and that she had not told the principal earlier because she didn't want to get Respondent in trouble. Lola told the Area Administrator that she had opened the door to the classroom and observed Respondent stoop over and kiss Patty on the lips, at which time she closed the door and returned to the playground. At the hearing, Patricia testified that Lola had opened the door when Respondent kissed her the first time. Lola testified that at the time she opened the classroom door, Respondent had his back toward her and that she only saw him bend over the desk. She conceded that she had not seen Respondent actually kiss Patricia and denied that she had told anyone that she had. However, upon further inquiry, she admitted telling the principal that she had seen Respondent kiss the student and could not explain why she had done so. Patricia later told one of her classmates at a "slumber party" about the incident. That girl, Michelle Cridelle, testified that she thought Patricia had told her Respondent had kissed her twice on different days. Respondent had disciplinary problems with Lola during the previous school year and at the beginning of the 1978-79 school year. Also, on a prior occasion, she and another female student had fabricated a letter purportedly written by a male student to them containing coarse language which she admitted was designed to get the boy in trouble when it was delivered to her father. In another instance, Patricia and Lola had been untruthful in telling Patricia's mother where they had been on one occasion. Lola had been a frequent disciplinary problem for the school principal who considered her to be a leader and catalyst in creating problems at school. Respondent testified that, on the day of the alleged kissing incident, another student was in the classroom with Patricia during the recess period, and that he had simply gone to her desk and colored some leaves on a box. He denied kissing her on this or any other occasion. The school principal is of the opinion that Respondent is a very truthful individual. It is considered that the improbable, contradictory, and uncorroborated testimony of Patricia concerning the alleged kissing incident, coupled with Respondent's denial of the same, is insufficient upon which to base a finding that Respondent committed the acts alleged in the Petition. (Testimony of Foster, Richardson, Ortega, Cridelle, Cossairt, Taylor, Brady, Respondent, Petitioner's Exhibit 1). Respondent was relieved of his duties as a classroom teacher by the Superintendent of Orange County Public Schools on November 28, 1978, and reassigned to an Assistant Superintendent's office to perform administrative duties pending investigation of the 1978 allegations by Petitioner. He had been supervised by the principal of the Cypress Park Elementary School for a period of six years. The principal testified that the other teachers respected him, but that he should not be working with children due to his abrasive personality with students. During the three year period 1976-78, Respondent's performance evaluations were uniformly "Satisfactory," except in those areas reflecting his relations with students and parents, and in his support of "state laws and county policies." It was noted in the 1977 and 1978 evaluations that improvement was needed in those areas. Narrative comments of the evaluations further indicated his lack of rapport with students and parents, lack of support of corporal punishment practices, and his ridicule of students. One fellow teacher at Cypress Park Elementary School submitted a letter to Petitioner in January, 1978, stating that Respondent had always conducted himself properly with students and parents on the occasions when she had observed him at the school and during school functions. (Testimony of Cossairt, Petitioner's Exhibit 2, Respondent's Exhibit 3, supplemented by Respondent's Exhibit 4).
Recommendation That the charges against Respondent Isadore Smith be dismissed. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of February, 1980. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire 110 North Magnolia Drive Suite 224 Tallahassee, Florida 32301 Edward R. Kirkland, Esquire 126 East Jefferson Street Orlando, Florida 32801 Professional Practices Council 319 West Madison Street - Room 1 Tallahassee, Florida 32301
The Issue The issue in this case is whether the Petitioner, the School Board of Pinellas County, should dismiss or suspend the Respondent, Larry Lynn, on charges of gross insubordination and misconduct in office.
Findings Of Fact Larry Lynn (hereinafter 1,Lynn") holds a Teaching Certificate, 563002, issued by the State of Florida. The School Board of Pinellas County, Florida, has employed Lynn as a teacher, since the 1986/1987 school year, and although Lynn is currently suspended without pay, he is employed by a Professional Service Contract. For the first semester of the 1986/1987 school year, Lynn was assigned to Largo High School. For the second semester of 1986/87 school year, Lynn was transferred to St. Petersburg High School. While Lynn was at St. Petersburg High School, one of his female students requested a transfer from Lynn's class due to her perception that Lynn was injecting sexual innuendo into his classroom presentations. Although Lynn denied using such terms, he was counseled by administrators on two occasions to avoid using language that could be construed as containing sexual references. Lynn also received a rating of "I," for "Improvement Expected (growth necessary)" in the judgment category on his annual evaluation for that school year, with a notation that Lynn was "conscious of the need to eliminate off-hand remarks within the lesson." For the 1987/1988 school year and for all further times relevant to the issues presented in this cause, Lynn was assigned to Pinellas Park High School. On September 25, 1987, Richard Allen, an Assistant Principal at Pinellas Park High School, held an initial conference with Lynn to reference the incident at St. Petersburg High the year before and to remind Lynn of the need to avoid using language that was susceptible of being construed as having sexual content. During the 1988/1989 school year, Lynn was seen leaving campus with a female student named Sherry Biafore during lunch time without authorization. It is against school policy to accompany students off campus, or to allow students to leave campus, during school hours without authorization. It also was brought to the attention of the school administration that Lynn allowed Sherry Biafore to be present in his classroom when she was not assigned to that class. At a conference with Marilyn Heminger, the Principal of Pinellas Park High School, to discuss the information the administration had received concerning Biafore, Lynn told her that he had been "counseling" Biafore and that he only left campus with her one or two times. He also admitted to having written two hall passes for Biafore during the fifth period. In fact, Lynn and Biafore had left campus without permission on approximately ten occasions, not just the one or two occasions to which they had admitted. Also, Lynn allowed Biafore to be in his classroom when she was assigned to another class on numerous occasions and at different times during the day. When she was there, in the presence of the students assigned to his class, Lynn would allow her to sit on his lap, to hug and kiss him, and to call him "daddy." He would call her "sweetie cakes," or other terms of endearment, and would give her cigarettes. During the 1988/1989 and 1989/1990 school years, a student named Erica Howell, (DOB 5/25/72), was an office assistant and had to obtain attendance records from teachers who delayed turning them in. Lynn was frequently late in turning in his attendance records, and Howell often had to retrieve this, as well as other information, from Lynn. On one occasion during the fall of the 1989/1990 school year, when Howell had to get attendance records from Lynn, Lynn made comments that could reasonably be perceived as containing sexual innuendo and which were so perceived by Howell, such as "that's not all you can come and get." Also during the 1989/1990 school year, when Howell entered Lynn's classroom to get attendance records, Lynn placed his hands on Howell, in her buttocks area, put his arm around her waist, and around her arm, and touched her on the breast. These actions by Lynn, together with others the previous two years (see Findings 18 through 20, below), disturbed Howell so much that she asked not to be forced to get records from him anymore. When Heminger, the Pinellas Park Principal, heard about the incident, and heard that Erica Howell's parents had called the school to complain, she decided to refer the entire matter to Stephen Crosby, the Pinellas School System's Director of Personnel Services. Crosby began his investigation by interviewing Howell. Howell not only reported the incident during the fall of the 1989/1990 school year, but she also reported incidents which had happened during the 1987/1988 and 1988/1989 school years. 1/ During the 1987/1988 school year, Lynn gave Erica Howell and a foreign exchange student a ride to Howell's home, but instead of going directly home, Lynn took a circuitous route of great length, which concerned Erica Howell and caused the exchange student to cry. During the 1988/1989 school year, when Howell, acting as an office assistant, went to Lynn's classroom to ask for attendance reports, Lynn, in the presence of the students in the class, made remarks that could be reasonably construed as containing sexual innuendo, and which were so perceived by Erica Howell. For example, when Howell asked if she could have the attendance report Lynn would say: "That's not all you can have." On another occasion during the 1988/1989 school year, Lynn overheard Howell and a friend talking about "making connections" with boys during an upcoming weekend. Lynn commented: "I'll be your connection any time." Howell then gave Crosby the name of a friend named Laura Mackie, (DOB 4/6/72), also a former student of Lynn, and reported what Mackie had told her. Crosby next interviewed Mackie. 2/ During the 1987/1988 school year, Lynn put his arm around Mackie, including around her waist, and on one occasion patted her on the buttocks with his hand. Laura Mackie was disturbed by this patting of her buttock by Lynn, and told her friend, Melissa Logue, as well as her track coach. Crosby also received information that both Lynn and Biafore had been dishonest in their statements about what had occurred during the preceding year. Crosby's new information was that Lynn and Biafore had left campus without permission on approximately ten occasions, not just the one or two occasions to which they had admitted. Also, he received information that Lynn allowed Biafore to be in his classroom when she was assigned to another class on numerous occasions and at different times during the day. When she was there, in the presence of the students assigned to his class, Lynn would allow her to sit on his lap, to hug and kiss him, and to call him "daddy." He would call her "sweetie cakes," or other terms of endearment, and would give her cigarettes. (See Finding 12, above.) Crosby next confronted Lynn with the allegations of Howell (see Findings 14, 15, 19 and 20, above) and Mackie (see Finding 22, above) and with the allegation that he in fact had left campus with Biafore on numerous occasions. Lynn denied the allegations and said he could prove that he did not leave the campus with Biafore more than once or twice. Crosby next interviewed the female students who were in Lynn's classes during the fall of the 1989/1990 school year. 3/ During the 1989/1990 school year, a female student named Jennifer Stroyan, (DOB 7/8/75), was adjusting her hair with one hand, while holding books with her other hand, when Lynn put his arm around her, under the arm with which she had been adjusting her hair. Lynn's hand touched her breast, and Stroyan removed Lynn's hand from her breast by a downward motion of her arm. This action by Lynn caused Stroyan to be uncomfortable around Lynn and to lose respect for him as a teacher. During the 1989/1990 school year, a student named Shonyelle Sampson, (DOB 1/19/75), answered a question in class incorrectly, and Lynn told her to use her "fucking head." The effect on Sampson was that she stopped volunteering to answer questions in Lynn's classroom. During the 1989/1990 school year, Lynn was talking with a female student named Keli Jo Girard, (DOB 8/4/73). Noticing that she was wearing a boy's jacket, Lynn asked her if she had a boy friend. When she replied that she did, Lynn asked her if she was still a virgin. When she replied that she was, Lynn stated that it was good to "wait," and then said that he (Lynn) waited until he was 12 years old. During the 1989/1990 school year, Lynn rubbed the neck and shoulders of a female student named Tracy Peterson, (DOB 1/22/75), and, at one point, put his arm around her so far that his hand touched her breast. Lynn's conduct was so disturbing to Peterson that she told her mother, who advised her to avoid Lynn in the future. Lynn frequently used the initials "S.O.B." and "G.D.M.F." in class. He says that he used "S.O.B." as attention- getting way of referring to "state of being" and that "G.D.M.F." actually was part of "G.D.M.F.T.D.," which was supposed to stand for "golly dern, mighty fine, that's dandy." But several of his students were not aware that they were supposed to stand for anything other than the vulgar expressions commonly understood by those initials. Crosby next interviewed female students who had been in Lynn's classes at Pinellas Park High School during previous years. 4/ During either 1987/1988 school year or the 1988/1989 school year, Lynn frequently spoke to a female student named Leslie Kemp, (DOB 5/22/71), while she was in the company of her friend, Keyma Mitchell, and used sexually suggestive terms in the conversations, including asking Kemp to go to a motel with him, and once asking Kemp if she would like her body licked. On another occasion, Lynn patted Leslie Kemp on the buttocks, which action Leslie Kemp reported to Leroy Kelly, a Pinellas Park Police Officer assigned to Pinellas Park High School. On several occasions during the 1988/1989 school year, Lynn placed his arm around the waist of a female student named Helen Seefeld, (DOB 8/11/73). Lynn's actions made Seefeld feel uncomfortable. She did not perceive similar attentions being paid to male students. During the 1988/1989 school year, Lynn rubbed the neck and shoulders of a female student named Melissa Martinez, (DOB 3/16/73), while showing movies to his class or when she asked questions in class. This disturbed Martinez to the point where she stopped asking for assistance in class. Melissa Martinez also heard Lynn remark in class that the woman with whom he was living was satisfying all his needs, which comment was said in such a way as to be reasonably susceptible of being construed as containing sexual innuendo. During the 1988/1989 school year, Erica Thomas (DOB 2/13/73), heard Lynn use the word "fuck" out loud in class. Lynn also rubbed her back and shoulders, which disturbed Thomas to the extent that she asked Lynn to stop. Several times during the 1988/1989 school year, Lynn placed his arm around Keli Jo Girard closely enough that on at least two occasions his hand brushed her breast. On several occasions during the 1988/1989 school year, Lynn placed his arm around the waist of a student named Angela Garrett, (DOB 3/22/72). When he persisted in asking her to be his assistant, it made her nervous, and she tried to avoid Lynn. Also during the 1988/1989 school year, Lynn would walk about his classroom and stop to rub the neck and shoulders of a student named Amber Wilkinson, (DOB 2/10/71), who disliked it and would tell Lynn angrily under her breath to keep his hands off her. During the 1988/1989 school year, Lynn patted a student named Alison Davis, (DOB 7/12/72), on the buttocks on at least three occasions. It then occurred to Crosby that, although they had evidence of allegations of Lynn's improper use of sexual innuendo when he was at St. Petersburg High, they had no similar information during his tenure at Largo High School. Crosby located a Largo High yearbook and picked out a few female students from the grades Lynn taught who appeared to Crosby from their yearbook pictures to be attractive. 5/ While at Largo High School during the first semester of the 1986/1987 school year, Lynn touched his fingers to the chin of a female student named Lynn Smith, (DOB 9/26/71), and told her that she had a pretty face. On a separate occasion, the Respondent asked Smith to stay behind after class to pick up a paper. Lynn was sitting on the corner of his desk. As Smith came close to him, the Respondent quickly brought his legs together, stating that he almost got her that time. These two incidents made Smith very uncomfortable about Lynn as a teacher. Smith did not report either incident at the time because of her age and because she was nervous, but she is now glad the incidents are known. While at Largo High School, Lynn rubbed his hand on the cheek of another of his female students, Kim McGevna, (DOB 2/11/72), saying he did not believe that she was not wearing makeup. Kim McGevna told her mother, Jean McGevna, and her boy friend about Lynn touching her, and the comment that he made, and informed them that she did not like it. Jean McGevna told Lynn, over the telephone, that he had no business touching her daughter and that in the future he should keep his hands off her, and to speak to her only in the classroom and only about school work. Kim's boy friend expressed similar thoughts to Lynn when he and one or more of his friends approached Lynn after a basketball game in the school gymnasium. It is harmful to the learning process for a teacher to subject students to inappropriate touching or sexual comments. Such behavior by a teacher causes a student to lose respect for a teacher, thereby diminishing the teacher's effectiveness. Parents do not appreciate such behavior by a teacher towards their children, and therefore such behavior decreases parent support for the school. Honesty on the part of a teacher when discussing professional matters with administrators is important to the efficient operation of school. Dishonesty by a teacher is a breach of trust that diminishes the teacher's effectiveness. Neither Crosby nor any other school administrator confronted Lynn with the results of Crosby's further investigation (resulting in Findings 18 and 27 through 50), or the additional information regarding how often Biafore was in Lynn's classroom instead of where she was supposed to be (last two sentences of Finding 24) until the information was used as a basis for Lynn's suspension and the School Superintendent's recommendation that the School Board dismiss him. The Respondent has been a teacher for over fifteen years, the majority of the time teaching English. Except for the evaluation at St. Petersburg High that "improvement [in `judgment' was] expected," Lynn received all "excellent" and "good" evaluations during his teaching career. He never before has been terminated from a teaching job and never has been transferred in lieu of firing. Lynn is a friendly, outgoing, "arm-around" type of teacher, to both boys and girls, without the majority of them perceiving any sexual overtones by his general open nature. It is common for Lynn to place his hands on the neck, shoulder and waist of both boys and girls, and he does this openly, in front of others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, the School Board of Pinellas County, enter a final order dismissing the Respondent, Larry Lynn, as a teacher at Pinellas Park High School. DONE and ENTERED this 10th day of April, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1990.
The Issue An amended administrative complaint dated February 22, 1992 alleges that Respondent violated several provisions of Section 231.28(1), F.S. and Rule 6B- 1.006(5), F.A.C. Those alleged violations are based on incidents of criminal conduct in 1978 and 1989, and Respondent's failure to disclose the incidents on various employment or teaching certificate applications. The issue in this proceeding is whether the alleged violations occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Donny R. McCoy (McCoy) currently holds teaching certificate number 431066, in the areas of childhood education, mental retardation, elementary education and English as a second or other language. His recently- renewed certificate is valid through June 30, 1998. McCoy submitted applications for extension of his Florida teacher's certificate, signed and notarized October 1, 1982 and December 8, 1987. He also submitted an application for addition to his Florida teacher's certificate signed and notarized July 30, 1985. McCoy's application for a professional position with the Brevard County School District was dated September 1, 1990. In each of these applications, he responded "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?" McCoy was hired as a kindergarten teacher at Gardendale Elementary School in the Brevard County School District from July 15, 1991 until September 20, 1991. As a result of his employment, the school district ran a background check and through the Federal Bureau of Investigation (F.B.I.) learned that McCoy had been involved in two criminal proceedings, one involving illegally importing parrots and the other involving charges of indecent exposure. McCoy resigned from his position effective September 20, 1991, and the Department of Education, Office of Professional Practice Services was notified. That office commenced an investigation consisting primarily of gathering court documents regarding the criminal cases. The investigation addressed three issues: the arrest and conviction for importing parrots, the arrest for indecent exposure, and McCoy's failure to acknowledge the incidents on his applications described above. McCoy was twenty-three years old on January 29, 1978 when he and a friend were arrested and charged with illegally shipping two parrots from Mexico to the United States. The Judgement Order of the U.S. District Court for the Southern District of Texas, Brownsville Division, reflects that McCoy had counsel, pled guilty and was adjudged guilty. A fine of $100.00 was imposed. McCoy was scared and remembers only going to court and leaving. Discussions were held between the attorney and the magistrate and McCoy has no recollection of the guilty plea. He felt the case was dismissed; someone else, his friend or the friend's father must have paid the fine. From 1979 until 1991, McCoy worked as a teacher in various places, including Broward County, Florida; Tokyo, Japan, for the Department of Defense; Alachua County, Florida; and St. Louis, Missouri. He claims he has been fingerprinted and had background investigations for these positions and never before has he been informed of the smuggling conviction on his record. He has told people about the parrot incident, but never put it on his application forms because he believed the case was dismissed. The application forms clearly inquire about convictions or adjudications withheld, not arrests. After the Brevard County background check, McCoy's attorney obtained an F.B.I. identification record on Donny McCoy. That record, dated 9/3/91, and provided to McCoy after he resigned from his Brevard County teaching position, reflects that the parrot charge was dismissed. On January 25, 1989 in Tazewell County, Illinois, McCoy was charged by information with three counts of "public indecency" in that he publicly "exposed his sex organ in a lewd manner." (Petitioner's Exhibit 6) Two of the counts were dismissed and the third was reduced to disorderly conduct. McCoy pled guilty to the count of disorderly conduct and adjudication was deferred on February 27, 1990. He was placed on twelve months supervision, was required to attend counselling, and was fined $100.00, plus $80.00 in court costs. After he complied with all the conditions of supervision, the case was dismissed on February 5, 1991. The case had not been dismissed as of September 1, 1990, the date of McCoy's Brevard County School District application. As of that date, he was still under supervision and adjudication was deferred. His "no" response described in paragraph 2, above, was untruthful. At some time prior to the hearing in this proceeding, McCoy, or his attorney sent to the Department of Education an affidavit that he had executed on February 7, 1992 and the copy of a polygraph report dated April 3, 1989. The polygraph report is referenced in the affidavit. The substance of these documents is an admission by McCoy that he had exposed his underwear and, at most, his pubic hair, but not his penis, to a high school youth he encountered on the street. He had done this on more than one occasion for the purpose of determining whether the individual might be gay. He did this because someone had done it to him. He participated in counselling and understood the reason for his behavior. He disavowed any desire to repeat the behavior. Throughout his teaching career, McCoy has received a series of excellent recommendations and commendations. He admits that none of the authors of those letters is aware of the Illinois incident. A criminal record does not automatically reduce a teacher's effectiveness or make him ineligible for licensure. The Department of Education, Office of Professional Practices Services looks beyond the criminal charge and disposition to the underlying incident and circumstances. In this case, it had McCoy's own explanation of the Illinois incident and it had the applications which he had submitted. These documents and the agency's long- standing policy of taking very seriously any sexual charges involving teachers, a policy reasonably based on the expectations of the public that children should be safe with people employed in schools, resulted in the agency's determination that McCoy is unfit to hold a teaching certificate in Florida.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that a final order be entered finding that Respondent, Donny McCoy violated Sections 231.28(1)(c), (f) and (h), F.S., and Rules 6B-1.006(5)(a), (g) and (h), F.A.C., and imposing the following penalty: three years suspension, followed by two years probation, under terms to be specified by the Educational Practices Commission, which terms should assist in insuring that Respondent does not represent a threat to the safety or well-being of students under his responsibility. DONE AND RECOMMENDED this 9th day of December, 1993, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, DOAH CASE NO. 93-2250 The following constitute rulings on the findings of fact proposed by each party: Petitioner's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 3. Adopted in paragraph 5 to the extent that the referenced exhibit reflects those findings. However, other evidence conflicts with, or supplements the disposition of the case. Adopted in paragraph 9. and 6. Adopted in paragraph 2. Adopted in paragraphs 3 and 4. Rejected as unnecessary. Adopted in paragraph 13. Adopted in paragraph 11. Adopted in paragraph 4. Respondent's Proposed Findings 1. and 2. Adopted in paragraph 1. Adopted in paragraphs 3 and 4, except that it was not established the resignation was "forced". Rejected as unsubstantiated by evidence. Reflected in the Administrative Complaint and unnecessary. Adopted in paragraph 5. Rejected as to the Illinois incident; adopted as to the Texas incident, see paragraph 6. Rejected as contrary to the weight of evidence. Adopted in paragraph 7. Rejected as unnecessary. Adopted in paragraph 9. Rejected as contrary to the weight of evidence. Adopted in paragraph 12. Rejected as contrary to the weight of evidence. COPIES FURNISHED: Gregory Chaires, Esquire Department of Education 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jill M. Boyd, Esquire Bond & Boyd, P.A. 411 East College Avenue Post Office Box 26 Tallahassee, Florida 32302 Thomas H. Lanham, Esquire 1900 South Harbor City Boulevard Melbourne, Florida 32901 Karen B. Wilde, Executive Director Education Practices Commission Florida Education Center, Room 301 Tallahassee, Florida 32399 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether the Respondent's teaching certificate should be disciplined in accordance with Sections 231.162(8) and 231.28(1), Florida Statutes, for alleged acts of misconduct as set forth in the Administrative Complaint, dated September 20, 1993, which alleged that Respondent has seriously reduced his effectiveness as an employee of the School Board of Orange County, Florida; violated the provisions of law or the rules of the State Board of Education; failed to make a reasonable effort to protect students from conditions harmful to learning or to their health or safety; intentionally exposed students to unnecessary embarrassment or disparagement; and exploited a professional relationship with a student for personal gain or advantage, in violation of Section 231.28, Florida Statutes, and the Florida Code of Ethics of the Education Profession, Rules 6B- and 6B-1.006, Florida Administrative Code.
Findings Of Fact Respondent is a 39-year old male who was born in Puerto Rico and moved to Florida in February 1992. Respondent is of Hispanic origin. His first language is Spanish and his second language is English. Respondent is married and has four children. Respondent holds Florida teaching certificate #695322, covering the area of art, which was valid through June 30, 1993. During the 1992-1993 school year, Respondent was employed as an art teacher at Ridgewood Park Elementary School, in the Orange County School District. Respondent began his employment at that school in August 1992. Respondent is a very demonstrative, expressive person. He regularly rewarded his students for good effort or a job well done with verbal affirmations, pats on the back or head, hugs, and, occasionally with the girls, a kiss on the forehead or cheek. In the fall semester of 1992, Respondent elicited the services of four or five children in his classes to help clean up his classroom, both before and after the school day. They were asked to pick up, clean and sweep the room. Jodi Witmer was one of the students who regularly volunteered her services to help in Respondent's classroom. Jodi Witmer is a female child who was nine years old during the relevant time period. During 1992-1993 school year, Witmer was a fourth grade student at Ridgewood Park Elementary School and was in Respondent's art class. Because Witmer helped out regularly in Respondent's classroom, performing such duties as sweeping and sorting papers, she received pats and hugs regularly from Respondent. Respondent also kissed her on the forehead and cheek, at least a couple of times for her efforts. Witmer testified that Respondent did not touch her or attempt to touch her in any way other than by giving her hugs or pats. Witmer also denied that Respondent attempted to have Witmer touch him in any inappropriate way. Specifically, she denied that Respondent tried to put his or her hand on his pants and touch his penis, as alleged in the administrative complaint. Autumn Smith is a female child who was nine years old during the relevant time period. During the 1992-1993 school year, Smith was a fourth grade student at Ridgewood Park Elementary School and was in Respondent's art class. Respondent hummed the song, "Autumn of My Dreams" when Smith walked by on two or three occasions. This made her feel uncomfortable or "weird." Respondent did not grab Smith by the buttocks. Chrystal Brown is a female child who was nine years old during the relevant time period. During the 1992-1993 school year, Brown was a fourth grade student as Ridgewood Park Elementary School and was in Respondent's art class. On one or two occasions, Brown and a friend asked if they could help Respondent clean up his classroom after school. Respondent gave permission for them to help clean up after school. On one occasion, while Brown and a friend were working in the back of the class and Respondent was at his desk, Respondent saw the girls dancing. He asked them what they were doing. They responded that they were "dancing nasty." Respondent told them to stop and they did. Brown later stated to school authorities that Respondent had asked them to "dance nasty" for him. This statement was not accurate. In December, 1992, rumors began circulating by some students that Respondent had kissed or "raped" some girl in his class. These rumors eventually came to the attention of other teachers in the school and they were reported to the school administration. In December 1992, the principal of Ridgewood Park Elementary School, Donna Smith, reported the alleged incidents of improper conduct against Respondent, as are described in the Administrative Complaint, to law enforcement, HRS and the School District. Respondent was arrested and relieved of duty with pay, and an investigation was undertaken by the School System, HRS and law enforcement. An information was not filed against Respondent concerning these charges. However, extensive pre-trial publicity was generated in the local news media about this case. On March 10, 1993, Respondent and the School System entered a settlement and release agreement. On April 22, 1993, Respondent resigned. Subsequent to the events set forth above and following his resignation, Respondent let his teaching certificate expire and moved with his family back to Puerto Rico.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued finding that Respondent, Elvin Gonzalez, did not violate the provisions of Sections 231.28(1)(f) or (i), Florida Statutes, or Rules 6B-1.006(3)(a), (e) or (h), Florida Administrative Code. It is further RECOMMENDED that a Final Order be issued DISMISSING all charges against Respondent for the above violations. DONE AND ENTERED this 13th day of January, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3 (but is irrelevant), 4 (irrelevant), 5 (irrelevant), 6 (irrelevant), 7, 8, 9, 10, 11, 12, 13, 17, 19 (but subsumed), 20, 21 (in part), 22 (in part), 26 (irrelevant). Rejected as against the greater weight of credible evidence: paragraphs 14, 15, 16, 18, 21 (in part), 22 (in part), 23, 24, 25, 27. Respondent's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 7, 8, 9 (in part), 11, 12, 21, 22, 24, 29, 45, 46, 51, 52 (irrelevant) 54 (irrelevant), 57, 59 (irrelevant). Rejected as irrelevant, immaterial, subsumed, or a comment on the testimony of a witness: paragraphs 6, 9 (in part), 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 23, 25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 48, 49, 50, 53, 55, 56, 58, 59 (in part). Rejected as against greater weight of credible evidence: paragraph 47. COPIES FURNISHED: Robert J. Boyd, Esquire 2121 Killearney Way Suite G Tallahassee, Florida 32308 Joseph Egan, Jr., Esquire P. O. Box 2231 Orlando, Florida 32802 Karen Barr Wilde Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Barbara J. Staros General Counsel The Capitol, PL-08 Tallahassee, Florida 32399-0400
