93-003795 Monroe County School Board vs. Stuart Kantor Status: Closed Recommended Order on Wednesday, March 16, 1994.

Summary: Teacher who made inappropriate sexual advances toward two students guilty of immorality and misconduct in office. Insubordination not established.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONROE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3795

)

STUART KANTOR, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, Claude B. Arrington, held a formal hearing in the

above-styled case on November 16 and 17, 1993, in Key West, Florida.

APPEARANCES

For Petitioner: John D. Gronda, Esquire

Muller, Mintz, Kornreich, Caldwell,

Casey, Crosland & Bramnick, P.A.

200 South Biscayne Boulevard, Suite 3600

Miami, Florida 33131-2338

For Respondent: Lorene C. Powell, Esquire

Florida Education Associated/United

118 North Monroe Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

Whether Respondent, a school teacher with a professional services contract,

committed the offenses set forth in the Petition for Dismissal and, if so, the

penalties that should be imposed.

PRELIMINARY STATEMENT

At all times pertinent to this proceeding, Respondent was employed by the

Monroe County School Board as a classroom teacher pursuant to a professional

services contract and was assigned to teach and coach at Marathon High School,

one of the public schools in Monroe County. On June 25, 1993, Robert G. Walker,

Petitioner's Superintendent of Schools, filed aPetition for Dismissal with the

School Board which contained factual allegations as to Respondent's conduct with

two femalestudents of Marathon High School and charged Respondent with

misconduct in office, immorality,and gross insubordination. The Petition

charged that Respondent'sconduct violated Sections 231.09, 231.36(6)(a), Florida

Statutes,and Rules 6B-1.001, 6B-1.006, 6B-4.009, 6B-5.003, 6B-5.005, 6B-5.006,

and 6B-5.010, Florida Administrative Code.

At the formal hearing, Petitioner presented the testimony of Debra Rafuse,

Jenifer Rafuse, Peggy Creech, Deborah Matthews, Dr. Edward Deane, and Glynn

Archer, Jr. Melissa Creech was also called by Petitioner as a rebuttal witness.

Tracey Ann Gaines was also called by Petitioner as a rebuttal witness.

Petitioner offered three exhibits, each of which was accepted into evidence.

The Respondent testified on his own behalf and presented the additional

testimony of Leslie Gail Gaskins, Laura Jeanine Hewlett, Mary Elizabeth Herbst,

Vivian Chisolm, Edgar Louis Hunt, Glynn Archer, Jr., and Robert G. Walker.

Respondent offered two exhibits, both of which were accepted into evidence.

A transcript of the proceedings has been filed. At the request of the

parties, the time for filing post-hearing submissions was set for more than ten

days following the filing of the transcript. Consequently, the parties waived

the requirement that a recommended order be rendered within thirty days after

the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. Rulings

on the parties' proposed findings of fact may be found in the Appendix to this

Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was employed by

the Petitioner as a classroom teacher pursuant to a professional services

contract. Respondent holds Florida teaching certificate number 626239, covering

the areas of English and ESOL (English Second Other Language), valid through

June 30, 1994. Respondent has been employed since August, 1987, as a teacher

and basketball coach at Marathon High School in the Monroe County, Florida,

School District, and he has held a professional services contract with

Petitioner since the beginning of the 1990-91 school year. Respondent's wife is

also a teacher at Marathon HighSchool.

2. Robert G. Walker has been employed with the School District ofMonroe

County for approximately twenty-six (26) years and has served as the

Superintendent ofSchools of the School District of Monroe County, Florida,

sinceJanuary 5, 1993. At all times pertinent to this proceeding Glynn Archer,

Jr. was the Assistant Superintendent of Schools. Mr. Archer is an experienced

educator who has extensive experience conducting investigations into allegations

of misconduct.

3. At all times pertinent to this proceeding Dr. Edward Deane was the

Principal of Marathon High School and Ms. Jesse Hobbs was the Assistant

Principal.

1990-91 SCHOOL YEAR: JENIFER RAFUSE

4. Jenifer Rafuse attended Marathon High School from the ninth through the

twelfth grades. Jenifer graduated with honors from Marathon High School at the

end of the 1992-93 school year. Jenifer is a female who was born June 28, 1972.

At the time of the formal hearing, Jenifer was eighteen years of age.

5. During the 1990-1991 school year, Respondent taught a fifth period

writing class at Marathon High School. Jenifer Rafuse, then fifteen (15) years

old and a sophomore, was a student in that class. Jenifer experienced severe

personal problems during her sophomore year. Her parents were experiencing

financial difficulties and marital discord, which resulted in a dissolution of

their marriage. Jenifer was also experiencing problems with her boyfriend.

6. A few months into that school year, Respondent and Jenifer began

talking personally and privately during the writing class. At first, these

conversations were merely exchanges between a concerned teacher and a troubled

student. Gradually, the relationship between Respondent and Jenifer changed

from a student/teacher relationship to what Jenifer described as "friends".

Respondent and Jenifer would frequently have these conversations about her

boyfriend and her parents.

7. The writing class was relatively small and the students would commonly

be given time to work on their individual writing projects. It was during these

times that Respondent and Jenifer would have personal discussions about her

boyfriend and personal problems. Other students were present in the classroom

when these discussions took place. Although these were not whispered

conversations, the conversations were private between Respondent and Jenifer and

were not intended to be overheard by the other students in the classroom.

8. Respondent began asking Jenifer different types of questions about the

two of them going out or doing things alone together. One day during class,

Respondent approached Jenifer and asked her if she had ever been white-water

rafting. After Jenifer replied that she had not, Respondent told her that he

planned to go rafting in Gainesville, Florida, within the next couple of weeks

and asked her if she would like to go with him. He told Jenifer that they could

go and drink Margaritas so that he could get her drunk and take advantage of

her. Jenifer understood this clearly to mean that Respondent wanted to have a

sexual relationship with her. The conversation about Gainesville, Florida, and

Respondent's sexual advance made Jenifer feel extremely uncomfortable, nervous,

and scared.

9. At about the same time during one of the conversations in the

classroom, Respondent asked Jenifer if she would come to his house to baby-sit

his small child. It was not unusual for Respondent or his wife to ask students

to baby-sit for their son. Jenifer at first agreed to baby-sit for the

Respondent and later became evasive because she was no longer comfortable with

the Respondent. The Respondent asked her four or five times in the span of a

week to come to his house to baby-sit. These repeated inquiries are not found

to be harassment because Jenifer was being evasive, because there was no

evidence that Respondent had an ulterior motive for asking her to baby-sit, and

because there was no evidence that the Respondent knew that Jenifer did not want

to baby-sit for his child.

10. During this period that Respondent was attempting to learn whether

Jenifer would baby-sit for him, he called Jenifer at her home and asked her

again about baby-sitting. During this conversation, Respondent told Jenifer

that if she was still having any problems, she could talk to him, "that they

could go out and have a drink, or have a beer" and talk.

11. This telephone conversation made Jenifer very uncomfortable and

apprehensive about talking to Respondent in any context or being placed in a

situation alone with him. She declined to ever baby-sit for him and felt that

her relationship with the Respondent was no longer "friendly". As a result, she

wanted to completely avoid Respondent, and began leaving school every day at

lunchtime and not returning, so that she completely avoided seeing him or

attending his class.

12. Jenifer's mother, Debra Rafuse, received a call at home from

Respondent, who was inquiring as to why Jenifer was not in school and whether

she was okay. Later that day, Mrs. Rafuse received a call from Jesse Hobbs,

Assistant Principal at Marathon High School. Ms. Hobbs informed Mrs. Rafuse

that Jenifer had been missing classes. Mrs. Rafuse was understandably concerned

and confronted Jenifer about skipping school when Jenifer came home. Jenifer

told her mother that she had been attending classes in the morning, but leaving

at lunchtime and not returning. When Mrs. Rafuse asked Jenifer why she was

doing that, Jenifer broke down and started crying. She then told her mother

that Respondent had made advances toward her, had asked her to go away to

Gainesville, Florida, for the weekend with him, and had talked to her about

giving her Margaritas so she would get drunk and he could take advantage of her.

Jenifer also told her mother that Respondent had said that if she ever needed to

talk to him, they could go out to dinner or have afew beers and discuss whatever

was bothering her.

13. Respondent also sent Jenifer a personal greeting card, assuring her

that she could confide in him and that everything would work out. Respondent

admitted to sending the card as a "pick me up". Jenifer was not offended by the

card. The sending of the card, in and of itself, was not shown to be

inappropriate.

14. Mrs. Rafuse and her husband became outraged when they learned of

Respondent's actions toward their daughter and immediately scheduled a meeting

with Ms. Hobbs, the Assistant Principal. Initially present at that meeting were

Mr. and Mrs. Rafuse, Jenifer, and Ms. Hobbs. Jenifer explained to Ms. Hobbs

what had transpired over the past few months with Respondent. The four of them

proceeded to Dr. Edward Deane's office, who was the Principal at Marathon High

School at all times pertinent to this proceeding, where Jenifer related the

circumstances again, this time to Dr. Deane. After Dr. Deane understood

Jenifer's allegations, Respondent was called into the meeting.

15. Dr. Deane explained to Respondent the nature of the charges Jenifer

had made against him. Respondent looked down at the floor during the entire

meeting. When asked by Dr. Deane what his response was Respondent simply stated

that he had no comment. During the meeting, he never admitted or denied making

the advances to Jenifer regarding a trip to Gainesville, Florida. Jenifer

believed that the Respondent looked smug during this meeting, which she

resented. Respondent apologized to Jenifer as he left the meeting.

16. Respondent, after apologizing to Jenifer and her parents, stated that

perhaps Jenifer had misunderstood him. At the formal hearing and in his post-

hearing submittal, the Respondent asserts that Jenifer must have misunderstood

him. Jenifer testified that she is certain that she did not misunderstand

Respondent. This conflict in the evidence is resolved by finding, based on the

greater weight of the evidence and after considering the credibility of the

witnesses, that Respondent invited Jenifer to go to Gainesville, Florida, with

him, that he invited her to drink Margaritas, and that he implied that he wanted

to have a sexual relationship with Jenifer. It is further found that Respondent

asked Jenifer out to drink beer if she wanted to talk to him about her problems.

It is also found that Jenifer did not encourage or provoke Respondent's behavior

towards her. Jenifer had no motive to fabricate her version of the events that

occurred between herself and the Respondent and she had no interest in having

Respondent's employment terminated.

17. After Respondent left the meeting, Dr. Deane suggested to Jenifer's

parents that she be taken out of Respondent's writing class, and his wife's

English Honors class as well. Accordingly, her class schedule for the remainder

of the school year changed. She was placed in a lower level English course and

a business English course taught by other faculty members.

18. Following this meeting, Respondent and Dr. Deane had a private meeting

to discuss the situation. Dr. Deane discussed with Respondent the serious

implications of Jenifer's allegations, such as the negative impact on his

character and reputation, on his career as a teacher, and on his family.

Respondent testified that he understood Dr. Deane's admonishment. Respondent

understood that these or similar allegations could ruin his family life, his

reputation in the community and his career. Dr. Deane testified that he was

sure Respondent listened, acknowledged, understood, and clearly agreed that for

whatever he might have done, Respondent was at that point in time implying that

it was never going to happen again. Dr. Deane felt that whatever transgressions

may have taken place, that his conversation with Respondent would prevent this

kind of situation from ever happening again.

19. Two years later, when Jenifer was in twelfth grade, she enrolled in a

dual enrollment English course, which would allow her to receive both high

school credits and college credits at the sametime. When she got to the class,

however, she discovered that Respondent would be her teacher. After discussing

the situation with her mother, she decided to stay in the course. Jenifer was

aware that the course would be helpful in college, that no other teachers at

Marathon High School taught the course, and that she was not presented with any

viable alternatives for dual credit. Her mother felt that it would be

acceptable if Jenifer thought she could handle it, because she was more mature

at seventeen (17) than she had been at fifteen (15). Jenifer and Respondent got

along without any problem during Jenifer's senior year at Marathon High School

until Jenifer learned of Respondent's conduct with Melissa Creech. Jenifer gave

Respondent a signed senior class photo of herself, as did many of the other

seniors at Marathon High School. Jenifer wrote on the back of her picture that

she enjoyed Respondent's class and that his class was a "blast". Jenifer

considered Respondent to be a good teacher. Jenifer also signed Respondent's

yearbook her senior year and again told him that she appreciated how much he

taught her and helped to open her mind to creative writing. Jenifer's attitude

toward Respondent changed again when she heard about Respondent's conduct with

Melissa Creech.

SCHOOL YEARS 1991-92 AND 1992-93: MELISSA CREECH

20. Melissa Creech was a classmate of Jenifer's at Marathon High School

and the two were acquaintances, although not good friends. Both girls attended

Marathon High School from their freshman through their senior years, and both

graduated in 1993.

21. Respondent taught Melissa a journalism class during the 1991-92 school

year when Melissa was a junior. Melissa described her early relationship with

Respondent as a normal student/teacher relationship. During the course of the

year, Melissa began to discuss with Respondent a young man she was interested in

dating. These discussions occurred in class and became as frequent as three to

four times per week. More than once during the course of the journalism class,

Respondent asked Melissa when she was going to give him a try or a chance.

Respondent also asked Melissa to baby-sit for him, but Melissa declined his

requests.

22. During the time that Respondent was Melissa's teacher, Melissa had a

job at the drive-through window at the local McDonald's. Respondent would often

appear at the drive-through while Melissa was working, sometimes with his wife

and child, but more often than not he was alone. At least once while Melissa

was working, Respondent initiated a conversation at the drive-through window

wherein he told her he was counting down the days until she was eighteen (18) so

that they could legally go out together.

23. Melissa was not offended by Respondent's conduct during her junior

year, and she made no complaint during her junior year about Respondent to her

parents or to school officials.

24. When Melissa became a senior she did not have any regular classes with

Respondent as a teacher. Respondent would, however, serve as a substitute

teacher from time to time for classes in which Melissa was a student. One day

in June, 1993, very close to graduation, Respondent was acting as a substitute

teacher for a class Melissa was in and he mentioned to her that he had a copy of

the Keynoter newspaper that had her picture on the front page. He told her that

he had an extra copy of the newspaper in his classroom and that she should come

to his classroom to pick it up if she wanted it.

25. When Melissa went to his classroom, there was nobody else in the room.

She went over to his desk where Respondent had a calendar opened to the month of

July. Respondent showed Melissa that he had already marked his calendar for a

business trip to Orlando and mentioned that he was not taking his wife and

child. He then asked Melissa what she was doing on those dates and whether she

wanted to go to Disney World with him to "have some fun". Melissa clearly

understood this comment to mean that Respondent wanted to have a sexual

relationship with her. Furthermore, Respondent also asked Melissa whether she

was going to have a car, because if she was, she could drive the two of them to

Orlando.

26. Melissa was scared and left the room. Melissa had not encouraged

Respondent to make such advances toward her. On a later day, Respondent

approached Melissa as she was leaving her second period class and asked her

whether she had thought about it and whether she wanted to go to Disney World;

she simply told him "No".

27. After that conversation about going to Orlando, Melissa began avoiding

Respondent because she was frightened of him and she did not want to see him.

Whenever he would see her, he would ask her to come to his room to sign his

yearbook, but she never went. Respondent asked at least one of her friends,

Tanya Niblit, to have Melissa come to see him because he needed to talk to her.

Respondent also asked Melissa at least twice in person to sign his yearbook.

28. Melissa believed that Respondent was harassing her, but she did not

tell her parents about Respondent's conduct because she was afraid of what they

would do. Instead, she told her best friend, Miranda Grice, about it.

29. Miranda Grice knew Jenifer Rafuse and she knew of the problems Jenifer

had encountered with Respondent in her sophomore year. Miranda subsequently

told Jenifer that Melissa was having some of the same problems that she had with

Respondent and that she wanted Jenifer to talk to Melissa.

30. Jenifer eventually did speak with Melissa about the situation while

the two of them were at school. Melissa told her that Respondent had asked her

to go away with him and that she was uncomfortable. While the two were talking,

Respondent noticed them and called out to Melissa. Melissa pretended not to

hear him and kept on walking. Melissa began shaking and crying and told Jenifer

that she did not know what to do because Respondent would not leave her alone.

Jenifer explained to her that it would be best if the school authorities were

notified of the situation because nothing could be done if they were not.

Jenifer eventually approached Ms. Hobbs, the Assistant Principal, and told her

that Melissa was having the same problems she had with Respondent.

31. Melissa was then called to Ms. Hobbs' office and asked to explain the

situation in front of Jenifer, Ms. Hobbs and Ms. Matthews, the counselor.

Melissa was very nervous and was trembling. She began crying when she started

talking and cried for some time. Melissa stated that she was very frightened of

Respondent and was adamant that she knew his advances were sexual in nature.

32. After she was finished relating the facts in Ms. Hobbs' office,

Melissa was sent back to her classroom. At that point, Ms. Matthews met

privately with Ms. Hobbs and Dr. Deane, the principal, and discussed reporting

Melissa's case to the Department of Health and Rehabilitative Services (HRS) as

a possible sexual abuse case. Because Ms. Matthews suspected possible sexual

abuse, she did call HRS on the Abuse Hot Line. However, an HRS counselor

advised Ms. Matthews when she called that they could not investigate the case

because Melissa was already eighteen (18) years old.

33. Ms. Hobbs then called Mrs. Creech at work and asked her to come to the

school. When she arrived, Melissa was called out of class and the group met in

Dr. Deane's office, where Melissa again went over the incidents between

Respondent and her for the benefit of Dr. Deane and her mother. When Melissa

was finished telling her story, Dr. Deane called Respondent into the meeting.

34. When Respondent arrived at the meeting, Dr. Deane asked Melissa to

tell him what she had already told everyone else present. Dr. Deane at that

point asked Respondent whether he had any response and Respondent stated that he

had no comment. At that point, the conversation became very emotional and

heated, and Mrs. Creech began to ask questions of Respondent. Mrs. Creech asked

Respondent what motivation he had for asking her daughter to go to Disney World

with him. His response was that he didn't mean anything by that. Respondent

apologized to Mrs. Creech. Both Ms. Matthews, who had a good working

relationship with Respondent, and Mrs. Creech understood Respondent's answer to

be an admission of guilt. When Mrs. Creech asked Respondent a second time what

could have motivated him to ask her daughter to go away with him, he just put

his head down and declined to comment.

35. The Respondent asserts that Melissa Creech had misunderstood him and

that he never invited her to go to Orlando with him. The conflict in the

evidence is resolved by finding that Respondent did invite Melissa to Disney

World and that the invitation implied that he wanted to have a sexual

relationship with her. Melissa had no motive to fabricate her version of the

events that occurred between herself and the Respondent and she had no interest

in having Respondent's employment terminated.

36. Dr. Deane reported the incidents involving Jenifer and Melissa to the

central school board office and recommended that Respondent's employment be

terminated. The incidents involving Jenifer and Melissa were investigated on

behalf of the School Board by Glynn Archer, the Assistant Superintendent of

Schools. Thereafter, Mr. Archer submitted his investigative report and his

recommendation to Robert G. Walker, the Superintendent of Schools. Mr. Walker

thereafter recommended to the School Board that Respondent's employment pursuant

to the professional services contract be terminated. At the time of the formal

hearing, the Respondent had been suspended with pay by the School Board.

37. Respondent's effectiveness as a teacher in the Monroe County School

District has been impaired by this misconduct.

CONCLUSIONS OF LAW

38. The Division of Administrative Hearings has jurisdiction of the

subject matter of and the parties to this proceeding. Section 120.57(1),

Florida Statutes.

39. Petitioner has the burden of proving by a preponderance of the

evidence the allegations contained in the Petition for Dismissal. See, Rule 28-

6.08(3), Florida Administrative Code. See also, Florida Department of

Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981), Allen v.

School Board of Dade County, 571 So.2d 568 (Fla. 3d DCA 1990), and Dileo v.

School Board of Dade County, 569 So.2d 883 (Fla. 3rd DCA 1990).

40. Section 231.02(1), Florida Statutes, provides, in pertinent part, as

follows:

(1) To be eligible for appointment in any position in

any district school system, a person shall be of good

moral character . . .

41. Section 231.09, Florida Statutes, is as follows:

Members of the instructional staff of the public

schools shall perform such duties prescribed by rules

of the school board. Such rules shall include, but not

be limited to, rules relating to teaching efficiently

and faithfully, using prescribed materials and methods;

record keeping; and fulfilling the terms of any

contract, unless released from the contract by the

school board.

42. The provisions of Section 231.36(1)(a), Florida Statutes, provide, in

pertinent part, as follows:

(1)(a) Each person employed as a member of the

instructional staff in any district school system . . .

shall be entitled to and shall receive a written

contract. . . . All such contracts, except continuing

contracts as specified in subsection (4), shall contain

provisions for dismissal during the term of the

contract only for just cause. Just cause includes, but

is not limited to, misconduct in office, incompetency,

gross insubordination, willful neglect of duty, or

conviction of a crime involving moral turpitude.

43. Pursuant to the provisions of Section 231.36(6)(a), Florida Statutes,

the employment of a member of the instructional staff with a professional

services contract may be suspended or terminated at any time during the term of

the contract, but the charges must be based on "just cause" as that term is

defined by Section 231.36(1)(a), Florida Statutes.

44. Rule 6B-4.009, Florida Administrative Code, provide the following

definitions pertinent to this proceeding:

(2) Immorality is defined as conduct that is

inconsistent with the standards of public conscience

and good morals. It is conduct sufficiently notorious

to bring the individual concerned or the education

profession into public disgrace or disrespect and

impair the individual's service to the community.

(3) Misconduct in office is defined as a violation

of the Code of Ethics of the Education Profession as

adopted in Rule 6B-1.006, F.A.C., which is so serious

as to impair the individual's effectiveness in the

school system.

(4) Gross insubordination or willful neglect of duty

is defined as a constant or continuing intentional

refusal to obey a direct order, reasonable in nature,

and given by and with proper authority.

45. The provisions of Rule 6B-1.006, Florida Administrative Code,

constitute the "Principles of Professional Conduct for the Educational

Profession in Florida". Rule 6B-1.006(3), Florida Administrative Code,

provides, in pertinent part, as follows:

(3) Obligations to the student requires that the

individual:

(a) Shall make reasonable efforts to protect the

student from conditions harmful to learning. . . .

* * *

(e) Shall not intentionally expose a student to

unnecessary embarrassment or disparagement.

* * *

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

46. Immorality is not a separate basis for termination of Respondent's

employment under the provisions of Section 231.36(6)(a), Florida Statutes. The

statutory definition of the term "just cause" found in Section 231.36(1)(a),

Florida Statutes, is not all inclusive, and "immorality" is properly considered

to be a basis for the termination of an employee's professional services

contract. Compare, Sherburne v. School Board of Suwannee County, 455 So.2d 1057

(Fla. 1st DCA 1984) and the provisions of Section 231.02(1), Florida Statutes.

In this proceeding, Petitioner has established that Respondent was guilty of

"immorality" as that term is defined by Rule 6B-4.009(2), Florida Administrative

Code, by his unwarranted advances towards Jenifer and Melissa. Respondent is in

a position of special trust as a school teacher. His use of that position to

"hit" on Jenifer and Melissa is conduct that is "inconsistent with the standards

of public conscience and good morals" and is "sufficiently notorious to bring

the individual concerned or the education profession into public disgrace or

disrespect and impair [his] service to the community."

47. Petitioner has not established that Respondent is guilty of gross

insubordination. Although it is concluded that Respondent failed to follow Dr.

Deane's sage advice following the incident with Jenifer during her sophomore

year, that failure does not constitute a ". . . constant or continuing

intentional refusal to obey a direct order, reasonable in nature, and given by

and with proper authority" as the term "gross insubordination" is defined by

Rule 6B-4.009(4), Florida Administrative Code.

48. Petitioner established by a preponderance of the evidence that

Respondent engaged in misconduct in office in violation of Rule 6B-

1.006(3)(a),(e), and (h), Florida Administrative Code, and within the meaning of

Section 231.36(6)(a), Florida Statutes. Petitioner has established by a

preponderance of the evidence that Respondent used his position as a

schoolteacher to exploit Jenifer and Melissa in an effort to have a personal and

sexual relationship with them. His concern was for himself, not the two

students involved.

49. It is clear that Respondent has been a popular teacher and, except for

the misconduct found in this proceeding, a good teacher. Although the findings

of fact in this proceeding turn on the testimony of Jenifer and Melissa, these

two young women are found to be very credible witnesses. While the undersigned

recognizes the difficulty a teacher faces in defending against such allegations,

Respondent's denials of these allegations are found to be less than credible.

50. It is concluded that Respondent's effectiveness as a teacher in the

Monroe County School system has been impaired by this misconduct. This

conclusion is based, in part, on the nature of the misconduct, the impact of the

misconduct on Jenifer and Melissa, the reaction of their parents to the

misconduct, and on the reactions of the Respondent's principal, the assistant

superintendent of schools and the superintendent of schools. Further, from the

record in this proceeding, it is apparent that these incidents have generated

controversy in the community.

51. Petitioner has established that there exists just cause to terminate

the Respondent's professional services contract.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Petitioner enter a final order which adopts the

findings of fact and conclusions of law contained herein and which terminates

Respondent's professional services contract.

DONE AND ENTERED this 16th day of March 1994 in Tallahassee, Leon County,

Florida.

___________________________________

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of March 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3795

The following rulings are made on the proposed findings of fact submitted

by the Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 9, 11,

12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 27, 28, 29, 30, 31, 32, 33,

34, 35, 36, 37, 38, 39, 42, and 51 are adopted in material part by the

Recommended Order.

2. The proposed findings of fact in paragraph 8 are adopted in part by the

Recommended Order. The proposed findings of fact in the second sentence of

paragraph 8 are unnecessary to the conclusions reached.

3. The proposed findings of fact in paragraph 10 are adopted in part by

the Recommended Order. The proposed findings of fact in the last two sentences

of paragraph 10 are unnecessary to the conclusions reached.

4. The proposed findings of fact in paragraphs 24, 43, 44, 45, 46, 47, 48,

49, and 50 are rejected as being unnecessary to the conclusions reached.

5. The proposed findings of fact in paragraph numbered 31 on page 13 of

Petitioner's Proposed Recommended Order are adopted in material part by the

Recommended Order. This paragraph is misnumbered.

6. The proposed findings of fact in paragraphs 40, 41, and 53 are

subordinate to the findings made.

7. The proposed findings of fact in paragraph 52 are adopted in part by

the Recommended Order or are subordinate to the findings made.

The following rulings are made on the proposed findings of fact submitted

by Respondent.

1. The proposed findings of fact in paragraphs 1, 5, 6, 7, 8, 9, 10, 12,

13, 14, 15, 16, 20, 21, 22, 24, 30, 32, and 37 are adopted in material part by

the Recommended Order.

2. The proposed findings of fact in paragraphs 2, 4, 18, 19, 25, and 26

are subordinate to the findings made.

3. The proposed findings of fact in paragraph 3 are adopted in part by the

Recommended Order. The proposed findings of fact in paragraph 3 pertaining to

Jason Rafuse are rejected as being unnecessary to the conclusions reached.

4. The proposed findings of fact in paragraph 11 are rejected as being

contrary to the greater weight of the evidence and to the conclusions reached.

5. The proposed findings of fact in paragraph 17 are adopted in part by

the Recommended Order. There was no evidence that any other reason or problem

contributed to her cutting class.

6. The proposed findings of fact in paragraph 23 are adopted in part by

the Recommended Order. The proposed finding as to Miranda's relationship to

Jenifer's stepfather is rejected as being unsubstantiated by the record and

unnecessary to the conclusions reached.

7. The proposed findings of fact in paragraphs 27, 34, and 35 are rejected

as being unnecessary to the conclusions reached and, in part, as being

unsubstantiated by the record.

8. The proposed findings of fact in paragraphs 28, 29, and 31 are rejected

as being unsubstantiated by the record.

9. The proposed findings of fact in paragraphs 33, 36, and 38 are rejected

as being unnecessary to the conclusions reached since it was not established

that Mrs. Grice harbored any ill feelings towards the Respondent or that she

influenced any of the witnesses in this proceeding.

10. The proposed findings of fact in paragraph 39 are rejected as being

unnecessary to the conclusions reached since the matter of penalty is at issue

in this proceeding. The proposed findings are not relevant as aggravating or

mitigating evidence.

11. The proposed findings of fact in the first sentence of paragraph 40

are subordinate to the findings made. The proposed findings of fact in the

remainder of paragraph 40 are rejected as being unsubstantiated by the evidence.

12. The proposed findings of fact in paragraphs 41, 42, and 43 are

rejected as being unnecessary to the conclusions reached and as being irrelevant

to any matter at issue in these proceedings.

COPIES FURNISHED:

John D. Gronda, Esquire

Muller, Mintz, Kornreich, Caldwell,

Casey, Crosland & Bramnick, P.a.

Suite 3600

200 South Biscayne Boulevard

Miami, Florida 33131-2338

Lorene C. Powell, Esquire

Florida Education Associated/United

118 North Monroe Street

Tallahassee, Florida 32399

Mr. Robert Walker, Superintendent

Monroe County School Board

Post Office Box 1788

Key West, Florida 33041-1788

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended

order. All agencies allow each party at least ten days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this recommended order. Any exceptions to this recommended order should be

filed with the agency that will issue the final order in this case.