02-002527PL Charlie Crist, As Commissioner Of Education vs. Brian M. Glassford Status: Closed Recommended Order on Friday, December 20, 2002.

Summary: Petitioner failed to prove that Respondent made sexual advances upon his student.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2527PL

)

BRIAN GLASFORD, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administ rative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Miami, Florida, on September 4, 2002.

APPEARANCES

For Petitioner: Charles T. Whitelock

Whitelock & Associates, P.A.

30 0 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316 - 1924

For Respondent: Leslie A. Meek

United Teachers of Dade

Law Department

2200 Biscayne Boulevard, Fif th Floor

Miami, Florida 33137

STATEMENT OF THE ISSUES

The issues are whether Respondent is guilty of

inappropriate sexual conduct with a female student, so as to

constitute gross immorality, in violation of Section

231.2615(1)(c), Florida Statutes; personal conduct that

seriously reduces Respondent's effectiveness as an employee of

the School Board, in violation of Section 231.2615(1)(f),

Florida Statutes; failure to make a reasonable effort to protect

a student from conditions harm ful to learning or her mental

health or physical safety, in violation of Rule 6B - 1.006(3)(a),

Florida Administrative Code; intentional exposure of a student

to unnecessary embarrassment or disparagement, in violation of

Rule 6B - 1.006(3)(e), Florida Adminis trative Code; or

exploitation of a relationship with a student for personal gain

or advantage, in violation of Rule 6B - 1.006(3)(h), Florida

Administrative Code. If guilty of any of these violations, an

additional issue is what penalty that Petitioner shou ld impose.

PRELIMINARY STATEMENT

By Administrative Complaint dated July 27, 2001, Petitioner

alleged that during the summers of 1998 and 1999 Respondent made

inappropriate advances toward B. L., a female student born on

November 3, 1982. The Administrati ve Complaint alleges that

this conduct violates one or more of the provisions cited above

and seeks any available discipline, ranging from reprimand to

revocation.

Respondent timely requested a formal hearing on the

allegations.

At the hearing, Petitione r called four witnesses and

offered into evidence five exhibits. Respondent called two

witnesses and offered into evidence one exhibit. All exhibits

were admitted.

The court reporter filed the transcript on October 10,

2002. The parties filed their pro posed recommended orders by

November 22, 2002.

FINDINGS OF FACT

1. Respondent is a certified teacher, holding certificate

number 649196. He was first employed by the Miami - Dade School

District in January 1989. After working as a substitute

teacher, Resp ondent was hired in a permanent capacity in 1990 or

1991. At the time of the alleged incidents, Respondent was a

teacher at Coral Reef Senior High School, where he was the head

basketball coach and assigned to teach English classes in the

Center for Stude nt Instruction.

2. In the summers of 1998 and 1999, Respondent taught in

the Summer Youth Employment Program that took place at Coral

Reef. In this program, high - school students from Coral Reef and

elsewhere attended classes to develop job skills and rec eived

monetary compensation while so enrolled.

3. B. L. was born on November 3, 1982. She graduated from

Coral Reef in 2000. During the summers of 1998 and 1999, B. L.

took classes at Coral Reef that were sponsored by the Summer

Youth Employment Program . The first summer she took a class in

business and finance, and the second summer she took a class in

legal and public affairs. Respondent was a coinstructor for

both classes.

4. During the summer of 1998, B. L., who was not a

discipline problem, engag ed in an argument with two other

classmates, who were sisters. Respondent and his coinstructor

intervened before any blows were exchanged. The coinstructor

took the sisters and counseled them, and Respondent took B. L.

and counseled her. Respondent remo ved B. L. from the classroom

momentarily to talk to her outside of the hearing of her

classmates and advise her that he was disappointed in her

because she was one of the top - performing students and she

should not "lower her standards" to the level of the sisters

with whom she had been arguing. Respondent told B. L. that she

was a "bright student, . . . articulate," that she was a

"beautiful young lady [with] a lot going for her," that she

seemed to have come from a "good family" and "had good

standards," and that Respondent did not think that she should

conduct herself like that in class. In the context in which it

was said, "beautiful" refers to the totality of a person,

including intelligence, attitude, and personality," and is not

an inappropriate focu s upon a person's physical appearance.

5. After a couple of minutes of talking to B. L. outside

the classroom, Respondent returned her to the classroom. He

then spoke to the coinstructor and reported the incident to the

counselor who dealt with classroom discipline. Respondent was

unaware of what, if any, further action the counselor took

against B. L. or the sisters.

6. Respondent's other contact with B. L. was unremarkable

that summer. A couple of times, he and the coinstructor cited

B. L. for violat ions of the dress code. Generally, though, he

taught her and treated her as he did the other students in his

class.

7. The following summer, B. L. signed up for Respondent's

legal and public affairs class. Concerned that B. L. would be

duplicating some of the material that they had covered the

previous summer, Respondent spoke with the job counselor, who

worked in his classroom. She and Respondent then advised B. L.

to transfer to another class, but B. L. refused to do so.

8. During this summer, B. L. confided in a classmate that

she had a crush on Respondent and that her relationship with her

current boyfriend was unsatisfactory. Nothing significant

occurred during that summer between B. L. and Respondent, who

again treated her as he did his other stu dents.

9. Obviously, B. L. has testified differently. She

testified that, during the first summer, when Respondent had her

out in the hall, he told her that a blue dress that she had worn

the prior day had been driving him "crazy." She testified that

Re spondent asked her if she felt attracted toward him, and she

said that she did not. B. L. testified that Respondent

concluded the conversation by saying words to the effect, "if

you're 'bout it 'bout it, you know where I am." B. L. testified

that this me ant that if she was serious about getting intimate

with Respondent, such as kissing him, he would be available.

B. L. testified that this was the only inappropriate conduct the

first summer.

10. B. L. testified that the following summer, she and

Responde nt happened to see each other outside of school at a

shopping mall while B. L. was with her boyfriend. She testified

that they exchanged brief greetings. B. L. testified that the

following week at school Respondent brought up their chance

encounter and a sked if she recalled their conversation last

year. She testified that she answered that she did, and he

added, "if you want to talk about it, we can talk about it in a

private conversation." B. L. testified that this was the only

inappropriate conduct th e second summer.

11. B. L. testified that Respondent's conduct made her

feel "weird," but she was not scared. She testified that her

boyfriend was jealous of Respondent; she testified that he

probably thought that she was tempted to engage in an

inapprop riate relationship with Respondent. She testified that

she told her boyfriend of Respondent's advances, and he

threatened to tell B. L.'s parents and a school counselor if she

did not complain about Respondent. One time, while talking to

her boyfriend ab out this matter on the phone, B. L. began to cry

and her parents overheard enough of the conversation to learn of

B. L.'s claims against Respondent.

12. Several problems preclude crediting B. L.'s testimony.

First, she acknowledged that Respondent and th e job counselor

advised her to change classes the second summer, but she

declined to do so because it was too much trouble. Second, she

denied having a crush on Respondent, but she described any

attention from him as though it came from a "movie star." T here

is no doubt that she had a crush on Respondent based on her

description of Respondent at the hearing, the testimony of the

friend in whom she confided, and the testimony of the job

counselor, who added that B. L. was breathless and "lovesick"

and that she told B. L. that Respondent was happily married and

to "get over it."

13. It is likely that B. L.'s obvious infatuation with

Respondent bothered her boyfriend. It is plausible that stories

of resisted advances would gain B. L. credibility with her

bo yfriend, although B. L.'s motivation in fabricating these

claims against Respondent necessarily remains unknown.

Additionally, B. L.'s demeanor while testifying did not add to

her credibility. Frequently, her tone and expression suggested

that she felt u ncomfortable testifying, but her discomfort was

not due to victimization by Respondent. Unable to describe her

emotions at the time of these claimed advances, B. L.'s

discomfort was more likely attributable, at best, to a feeling

that Respondent's inappro priate behavior was too trivial for

this much attention or, at worst, to an admission of guilt over

fabricating these stories and causing Respondent so much

trouble. After considering the above - discussed factors, the

latter explanation of B. L.'s tone and demeanor is more likely

than the former.

14. In any event, Petitioner has failed to prove that

Respondent behaved inappropriately toward B. L. at any time.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes. All references to Rules are to the Florida

Administrative Code.)

16. Section 231.2615(1)(c), (f), and (i) provides:

(1) The Education Practices Commissio n may

suspend the teaching certificate of any

person as defined in s. 228.041(9) or (10)

for a period of time not to exceed 3 years,

thereby denying that person the right to

teach for that period of time, after which

the holder may return to teaching as

pr ovided in subsection (4); to revoke the

teaching certificate of any person, thereby

denying that person the right to teach for a

period of time not to exceed 10 years, with

reinstatement subject to the provisions of

subsection (4); to revoke permanently th e

teaching certificate of any person; to

suspend the teaching certificate, upon order

of the court, of any person found to have a

delinquent child support obligation; or to

impose any other penalty provided by law,

provided it can be shown that the person:

(c) Has been guilty of gross immorality

or an act involving moral turpitude.

(f) Upon investigation, has been found

guilty of personal conduct which seriously

reduces that person's effectiveness as an

employee of the district school board.

( i) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

17. Rule 6B - 1.006(3)(a), (e), and (h) describes certain of

the responsibilities that a teacher owes a student as follows:

( 3) Obligation to the student requires that

the individual:

(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.

(e) Shall not intentional ly expose a

student to unnecessary embarrassment or

disparagement.

(h) Shall not exploit a relationship

with a student for personal gain or

advantage.

18. Petitioner must prove the material allegations by

clear and convincing evidence. Department o f Banking and

Finance v. Osborne Stern and Company, Inc. , 670 So. 2d 932 (Fla.

1996) and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

19. For the reasons stated in the Findings of Fact,

Petitioner has failed to prove that Respondent committed the

sex ually inappropriate conduct of which B. L. has accused him.

RECOMMENDATION

It is

RECOMMENDED that the Education Practices Commission enter a

final order dismissing the Administrative Complaint against

Respondent.

DONE AND ENTERED this 20th day of Decemb er, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrat ive 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 20th day of December, 2002.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director

Department of Education

Florida Education Center

325 West Gaines Street, Room 224 - E

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Suite 224 - E

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street

1244 Turlington Building

Tallahassee, Florida 32399 - 0400

Charles T. Whitelock

Whitelock & A ssociates, P.A.

300 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316 - 1924

Leslie A. Meek

United Teachers of Dade

Law Department

2200 Biscayne Boulevard, Fifth Floor

Miami, Florida 33137

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.