02-002999PL Charlie Crist, As Commissioner Of Education vs. Jacki Mitchell Status: Closed Recommended Order on Friday, March 14, 2003.

Summary: Use/possession of pornographic material in privacy of teacher`s home: not proven intentional; no evidence students had access; no public notoriety; therefore, no immorality or lack of moral turpitude; no loss of effectiveness. Dismiss Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2999PL

)

JACKI MITCHELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for Administrative

Hearing before P. Michael Ruff, duly - designated Administrative

Law Judge of the Division of Administrative Hearings, in

Chipley, Florida, on November 14, 2002. The appearances were as

follows:

APPEARANCES

For Petitioner: J. David Holder, Esquire

24357 U.S. Highway 331 South

Santa Rosa Beach, Florida 32459

For Respondent: Thomas W. Brooks, Esquire

Meyer & Brooks, P.A.

Post Office Box 1547

Tallahassee, Florid a 32302

STATEMENT OF THE ISSUES

The issues in this case involve whether the Respondent has

engaged in acts of misconduct alleged in the Administrative

Complaint, and if so, whether the Respondent's Florida

educator's certificate should be revoked o r other disciplinary

sanction imposed.

PRELIMINARY STATEMENT

This cause arose upon the filing of an Administrative

Complaint by the Commissioner of Education seeking to impose

discipline on the Respondent's Florida Educator's Certificate

based upon allega tions that she, in essence, accessed and loaded

pornographic material onto a laptop computer assigned to her by

the Washington County School District, her employer. The

Petitioner alleges that the conduct was an act of immorality or

gross immorality; cons tituted personal conduct which seriously

reduced the Respondent's effectiveness of an employee in the

School Board and violated principles of professional conduct by

constituting a failure to make reasonable efforts to protect

students from conditions harm ful to learning and/or to the

students mental health, physical health or safety. The

Petitioner thus alleges that the conduct described in the

complaint amounted to violations of Section 231.2615 (1)(c),

(f), (i), Florida Statutes and Rule 6B - 1.006(3)(a), Florida

Administrative Code.

The Respondent elected to dispute the allegations of the

complaint and sought a formal proceeding to contest the matter

before the Division of Administrative Hearings. The cause was

transferred to the Division of Administrat ive Hearings and

ultimately assigned to the undersigned administrative law judge

for conducting a formal proceeding. The cause came on for

hearing in accordance with duly issued notice on November 14,

2002.

The Petitioner presented the testimony of seven witnesses

and six exhibits which were admitted into evidence at the

hearing.

The Respondent testified on her own behalf and offered nine

exhibits which were received into evidence.

Upon concluding the hearing, the parties ordered a

transcript and requ ested a period of time to submit proposed

recommended orders after the filing of the transcript. The one -

volume transcript was filed on December 4, 2002. Those proposed

recommended orders have been considered in the preparation of

this recommended order.

FINDINGS OF FACT

1. The Petitioner is an agency of the State of Florida,

charged with regulating the standards for entry into practice as

a teacher, including licensure and the regulation of practice of

teachers once they are licensed. The Respondent is a licensed

Florida Educator (teacher) holding certificate 795510, covering

the area of mathematics. That license is valid through June 30,

2003.

2. During the 1999 - 2000 and 2000 - 2001 school years the

Respondent was employed with the Washington County Sc hool

District as a teacher at Vernon Middle School. From September

1999 through December 2000 the Respondent was assigned to teach

low - functioning exceptional student education (ESE) students.

ESE students are those who have learning disabilities or

phys ical impairments which adversely affect the ability to

learn. In January 2001, the Respondent sought and obtained a

transfer from her ESE assignment to a position teaching

mathematics classes, which was within the scope of her

certificate. She continued to teach mathematics until her

suspension with pay in April 2001. During the 1999 - 2000 and

2000 - 2001 school years the Respondent also taught adult night

school courses.

3. When the Respondent became employed as an ESE teacher

the Washington County School District issued her a laptop

computer for the purpose of preparing individual education plans

(IEP) and other paperwork required in the ESE program. The

Vernon Middle School guidance counselor and its other ESE

teacher were also issued laptop computers f or ESE paperwork

purposes. Witness Heather Miller, testifying for the

Petitioner, stated that all ESE teachers received a letter

limiting the use of the laptop to ESE purposes. The Respondent

testified that she did not receive any letter or other

instruc tions limiting her use of the computer. Ms. Miller

admitted on cross - examination that she was not present when any

such instructions may have been delivered to the Respondent. Be

that as it may, the gravaman of the charges in the

administrative complaint do not involve use of the ESE laptop

computer for personal purposes versus employment - related

purposes. The Respondent may have been instructed not to use

the computer for anything other than ESE instructional - related

purposes or may not have been given such instructions, or may

simply not recall getting such instructions. Whether or not she

received such instructions is immaterial to the charges in the

administrative complaint, however.

4. The Respondent had the laptop computer in her classroom

when it was first issued to her, while she was learning how to

use it. Sometime early in her use of it she installed a program

called "Clue Finder" which is a software program for children

for the third to fifth grade. She allowed the students to use

this softw are in class. The laptop had never been connected to

the internet at the time she permitted students to use it in her

classroom and her classroom did not have internet access at that

time.

5. She ceased permitting students to use the laptop after

she ha d a discussion with the other ESE teacher, Julie Johnson,

about her not permitting her students to use her laptop. The

Respondent's students were not permitted to use the laptop

from that point forward, which was sometime in the month of

February 2000 .

6. Each laptop was equipped with a "zip drive" and "zip

disc" in order to download the "GibCo Dynamo Program," the

program used for ESE paperwork purposes. Therefore, it was

unnecessary for ESE employees to access the internet using their

school board - issued laptop. ESE employees were permitted to

remove and transport their laptops away from school premises so

that they could work on IEP and other ESE paperwork at other

locations, including their homes.

7. The Respondent took her laptop home sometim e during or

after February 2000 and began becoming acquainted with the GibCo

Dynamo Program, which helps ESE teachers correctly complete

IEP's and other paperwork. It was necessary to periodically

update the GibCO Program to reflect changes in the ESE fo rms.

The Respondent already had the laptop at home and did her IEP

work there because she did not have time to do it in class.

Therefore, she asked Brenda Miller, the ESE resource person from

the county office, if she could use her laptop to update her

G ibCo program through her home internet service provider. She

received permission and did so in late February or early

March 2000.

8. On one occasion prior to the end of the spring 2000

school term, the Respondent permitted one of her adult

alternativ e education students to use her laptop to complete a

paper he was writing. She assisted him in using the laptop and

was present the entire time he was using it. This incident

occurred before she had begun any personal use of the laptop or

put any of her programs on it. Therefore, the use occurred

before the material contained in Petitioner's Exhibit one was

received or stored on the laptop.

9. The Respondent did not teach during the summer of 2000

and spent more time accessing the internet through the school

laptop for personal purposes. Although they were still living

in the same home, the Respondent and her husband had become

estranged and were ultimately divorced. During the summer of

2000 the Respondent used the ICQ program to communicate with an d

strike - up non - sexual relationships with other people, including

males. The ICQ program is a forum or "chat room," with the

exchange of ideas and information on virtually any subject.

Users fill out a personal profile which informs other users

about the person's interests or subjects the person is

interested in receiving or sending communications about. The

Respondent contends that her ICQ profile only contained her

name, age and gender. When such a user starts his or her

computer other users are alert ed to that user's presence and

availability for communication. The user may send or receive

communications to or from others, which communications can

contain attachments, such as documents or pictures.

10. During the time she was using the laptop to access the

ICQ program, the Respondent's husband, her baby - sitter and her

baby - sitter's mother also had access to the laptop at various

times in her home. The Respondent's laptop was connected to the

internet at her home for approximately three and one - ha lf to

four months. Sometime during the summer of 2000 lightening

struck her modem and destroyed it. The laptop was never

connected to the internet after that event.

11. During the time the laptop was connected to the

internet in the Respondent's home t he documents contained in

Petitioner's exhibit one were received on the laptop and placed

on the hard drive in fifty - eight program folders. The

Respondent maintains that she did not realize that the materials

contained in Petitioner's Exhibit One, which w ere on her

computer, had been recorded on her hard drive. She admits to

seeing some of those documents in Petitioner's exhibit one but

maintains that she had not seen all of them. She maintains that

she did not see many of the items in Petitioner's Exhib it One,

especially items which indicate the ICQ identification name

"Hotrod," which was that of her husband.

12. The Respondent claimed that she never knowingly or

intentionally accessed or "downloaded" any pornographic

materials on her school laptop, nor did she solicit such

material from anyone else. During the time her laptop was

operating on the internet, through the ICQ program, she would

sometime receive messages with documents attached. On some

occasions she states that she would discover sexua lly explicit

material when she opened the document and that when she did so

would immediately close the file and assumed that it had been

deleted.

13. She claims that she had no idea the information was

being saved on the computer's hard drive. If the Respondent

received unsolicited, sexually explicit material from someone

she had wanted to chat with she states that she would inform

them not to send that type of information if they wanted to

continue to communicate with her.

14. During the time perio d in question the Respondent also

received unsolicited e - mail of a sexually explicit nature which

indicated that she had subscribed to it, although she states she

never had. The fact that an e - mail indicates that the recipient

is a subscriber does not mea n that the recipient actually

solicited or subscribed to the e - mail. Rather, the recipient's

name could have been obtained from another source merely upon

the receiver's profile having been provided to a particular

site.

15. It is unclear how the mate rial contained in

Petitioner's Exhibit One was saved on the hard drive of the

Respondent's laptop. It can not be precisely determined who

saved a particular file or who if anyone opened and viewed a

particular file, primarily because the Respondent did no t have

sole access to the computer while it was in her home. It is

probable that the Respondent did obtain some of the material

that was present on her laptop hard drive, as she did

acknowledge having seen some of the material in the past, when

confronted with the presence of it by her employer. It cannot

be determined from a review of the laptop hard drive that the

Respondent named or saved any specific file contained in the

Petitioner's exhibit one.

16. After the laptop's modem was destroyed by lighti ng,

the Respondent continued to use the laptop for her IEP's until

she returned the computer to the school in September 2000, at

the request of Ms. Harrell.

17. The Respondent specifically requested permission to

lock the computer up and Ms. Harrell told her she could keep it

in a locked storage room, which she did. The storage room was

in the administration building, which was next to the building

in which her classroom was located.

18. The laptop remained in the locked storage room until

October 2000 , when the Respondent was assigned a new ESE

student. She brought the laptop to the classroom for a short

time on that one occasion to work on the new student's IEP, but

the students never had access to the computer nor were they ever

in a position to see what she was doing on the computer.

19. In January 2001, the Respondent was re - assigned, at

her request, from the ESE position to the position of math

teacher, which was within her area of certification. She had no

further use for the laptop and believ ed she had removed from it

all programs, games and other information she had put on the

computer as a result of her personnel use.

20. The Respondent removed her internet service program,

Digital Express, and the ICQ Program, believing that this action

r emoved anything associated with these programs from the

computer. She was unaware that there were separate program

files for the ICQ Program saved to the hard drive. If she had

known of this she would have deleted them.

21. Gerald Fender, the Washingto n County School District

Computer Technician indeed saw evidence that an attempt had been

made to remove information from the Respondent's laptop when he

inspected it.

22. The Respondent's laptop was turned over to her

successor, Aubrey Herndon, the new ESE teacher, who placed it

into a locked closet in his classroom. The computer remained

there until approximately April 10, 2001, when Mr. Herndon

removed it to learn how to use it to prepare his IEP.

23. On April 10, 2001, Heather Miller was assistin g

Mr. Herndon with transferring information from a zip disc to the

laptop when she noticed two sites listed on the "favorites"

screen, "ALT.Sex Stories" and " Asclepius Himself ."

24. Upon seeing these items, Ms. Miller took the laptop

and reported wh at she had found to the principal, Ms. Harrell

and the School Resource Officer, Deputy Mark Collins.

25. Ms. Miller and Officer Collins searched the computer

for other suspicious files but were unable to locate any.

26. The next day, Gerald Fender, the school board computer

technician was called in and asked to search the computer.

After an extensive search, Mr. Fender located the ICQ Program in

the program files.

27. In the afternoon of April 11, 2001, the Respondent was

called to Ms. Harrell's offi ce and confronted with some of the

information contained in Petitioner's Exhibit One. The first

document the Respondent was shown was page eighteen of

Petitioner's Exhibit One from a program called "pal talk" which

was supposed to be a program which enabl es a person to speak to

another person over the internet.

28. The Respondent was shocked when she was shown this

document because she had thought she had deleted the entire pal

talk program and the file containing this document, after she

had received th e document when she first accessed the pal talk

program. She was shocked when this sexually explicit document

appeared through a program she had understood to be a voice

program and which she thought she had immediately taken off the

computer.

29. The R espondent was also shown a copy of page twenty -

nine of Petitioner's Exhibit One, which was a sexually explicit

picture of a man standing in a shower. She recognized that

picture as also coming from her computer. She acknowledged that

the two pictures sh e was shown were from her computer and then

she told "them" that they did not have to show her anymore.

There was some conflict in the testimony regarding the precise

number of pictures from Exhibit One which were shown to the

Respondent. It is unnecessa ry to resolve this discrepancy

because all of the testimony of all witnesses present is

consistent that the Respondent acknowledged that the pictures

were from her laptop computer after being shown a few of them

and no more were therefore shown.

30. The Respondent was asked whether the students had ever

used the computer and she said that they had, but that the

students were allowed to play games on the computer only during

the time before she had taken the computer to her home and

before the information contained in Petitioner's Exhibit One had

ever been received.

31. The Respondent also stated in that initial meeting on

April 11, 2001, that she had thought that she had deleted all

the information which she had been shown from the computer.

32. During this meeting the Respondent also made a

statement to the effect that she had used the laptop at night to

access her ICQ file when she "would get bored" while working on

class work. She was referring to working at home and not in the

classroom. Also, dur ing this meeting she told Officer Collins

that the students had never seen the objectionable information,

and he indicated that he would interview her students, which she

encouraged him to do. No student interviewed indicated that he

or she had seen any o f the information contained in the

Petitioner's Exhibit One.

33. Officer Collins also consulted with Captain Strickland

the Chief of Investigations of the Washington County Sheriff's

Department Capt. Strickland advised that there was no basis for

any cri minal charges.

34. The Respondent met with Superintendent Jerry Tyre in

his office on May 3, 2001, and submitted her resignation

effective May 14, 2001. The Respondent had already been

informed by Ms. Harrell before this incident that she was not

going to be recommended for renewal as an annual contract

teacher for the next year. By resigning rather than contesting

the superintendent's suspension, the Respondent believed that

she could resolve the situation quickly without any further

publicity or notor iety.

35. In June 2001, the Respondent applied for employment as

a teacher in Bay County, Florida. She submitted written

references from three former colleagues, Paul Parker, her

supervisor and director of the Washington County Technician

Center; Mary D avis, Adult Education Coordinator and Genevelyn

Brown, EAS Assistant. Each of the individuals was informed of

the circumstances surrounding the Respondent's resignation and

each was still willing to give her a positive reference.

36. The Respondent also solicited support from several

parents of students she had taught or tutored while employed in

Washington County, during the investigation of this matter by

the Department of Education. She informed each of these

individuals of the nature of the allegati ons against her and the

circumstances surrounding her resignation. Each of these

individuals, Rhonda Duren, Julie Bielinski, Brenda Richards and

Victor Marshall, submitted written statements supporting her

ability and their belief she should continue as a teacher in

Washington County or elsewhere.

37. The Respondent obtained employment as a teacher with

the School Board of Bay County at Mosely High for the 2001 - 2002

school year. She was still employed as a teacher in Bay County

at the time of this heari ng. She has had no disciplinary

problems of a similar nature to that to which occurred in

Washington County. It is not clear whether the authorities who

hired her in Bay County were aware of the circumstances

surrounding her resignation from her position in Washington

County. Both prior and subsequent to the events at issue in

this case, the Respondent has never had any accusations of any

similar misconduct and has no disciplinary record.

38. It has not been established that either the

intentional or i nadvertent accessing of sexually explicit

materials in the privacy of the Respondent's home (even though

on a school - issued computer), was immoral or grossly immoral.

The downloading of the materials and the presence of them on the

computer never became a ccessible to any students and no student

was ever aware that such information was on the computer. It

has not been established that the Respondent's failure to delete

the sexually explicit material from the computer prior to taking

it back to her place of employment constitutes immorality or

gross immorality. It has not been shown that the conduct

involved in this proceeding was a matter of any notoriety so

that her position in the education profession could be the

subject of any public disgrace or disres pect or that her service

to the community in that profession could be impaired.

39. There is no clear and convincing evidence that the

Respondent engaged in personal conduct which is seriously

reduced her effectiveness as an employee of the school boar d.

The Petitioner elicited opinion testimony from witnesses which

was conclusary and failed to specify precisely how the conduct

could seriously reduce her effectiveness as a teacher. The

opinion testimony was based on a factual assumption which was

not established by the evidence, namely that the Respondent's

students used her laptop after the sexually explicit material

had been received and thus had reasonable access to the laptop

with that material on it. In fact, the evidence of record

supports the o pposite conclusion; that the students had no such

access to the laptop after the sexually explicit material had

been received on it, so the opinions to the effect that her

effectiveness has been seriously reduced cannot be accepted

since they are based upo n an invalid assumption.

40. There is no clear and convincing evidence that the

Respondent failed to make a reasonable effort to protect

students from harmful conditions concerning learning or their

mental health or physical safety. The Respondent tried to

delete the material from her laptop, albeit unsuccessfully,

prior to returning it to school, based upon what she knew at

that time. She returned it to school thinking it was deleted

when it was not. Nevertheless, her conduct after the computer

was re turned to her school prevented the students from gaining

access to it since the computer was maintained in a locked

storeroom, one building removed from the building where her

classroom was located. Thus it was highly unlikely that the

students would have access to the sexually explicit material on

the computer. There is no evidence in the record that they did.

CONCLUSIONS OF LAW

41. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Se ctions 120.57(1) and 120.569, Florida Statutes.

42. The material factual allegations of the Administrative

complaint are that the Respondent, sometime prior to April 10,

2001, accessed and loaded on to a computer assigned to her by

the school district, po rnographic or obscene material. The

Petitioner has alleged that that conduct constituted immorality,

gross immorality or an act involving moral turpitude in

violation of Section 231.2615(1)(c), Florida Statutes (2001),

and that the Respondent is guilty of personal conduct which

seriously reduces her effectiveness as an employee of the school

board in violation of Section 231.2615(1)(f), Florida Statutes

(2001), and has also violated Rule 6B.1.006(3)(a), Florida

Administrative Code, by failing to make a rea sonable effort to

protect her students from conditions harmful to learning and/or

to the student's mental health and/or physical safety, also in

violation of Section 231.2615(1)(i), Florida Statutes (2001).

43. When the discipline of a teacher's certifi cate is at

issue, the Petitioner bears the burden of proofing the charges

alleged in the Administrative Complaint by clear and convincing

evidence. Ferris vs. Turlington , 510 So. 2d 292, (1987). In

determining whether a Respondent has violated provisions alleged

in an administrative complaint, a penal statute such as that at

issue must be strictly construed and no conduct is to be

regarded as included within it that is not reasonably proscribed

by it. If there are any ambiguities included, such must be

c onstrued in favor of the licensee. Lester vs. Department of

Professional and Occupational Regulation , 348 So. 2d 923, 925

(Fla. 1st DCA. 1977). Additionally, disciplinary action can be

based only upon the facts specifically alleged in the

administrative complaint. See MacMillan vs. Nassau County

School Board , 629 So. 2d 226 (Fla. 1st DCA 1993). Whether a

particular action constitutes a deviation from the required

standard of conduct for teachers is an ultimate finding of fact

which must be made in the c ontext of the alleged violation.

Langston vs. Jamerson , 653 So. 2d 489, (Fla. 1st DCA 1995).

44. The facts in this case do not involve, as the

Administrative Complaint implies, the intentional downloading of

pornographic material to a computer located in the classroom

where it could have been seen by students. Rather, this case

involves the receipt of unsolicited, sexually explicit material

on a school laptop computer in the privacy of the teacher's

home, according to her testimony. There is also the po ssibility

that some of the material could have been downloaded by other

members of the household who had access to the computer and,

based upon the Respondent's testimony, some of the material was

likely downloaded by the Respondent herself. In any event, the

Respondent believed that she had removed all such material

either immediately upon its receipt as unsolicited sexually

explicit material, but in all cases prior to the return of the

computer to the custody of the school or school personnel and to

the school location. There is no specific allegation or

evidence that any student was exposed or was reasonably likely

to be exposed to any inappropriate material left on the laptop

computer. Under the totality of the circumstances in this case

there is no c lear and convincing evidence that the Respondent

violated the statutory and rule provisions alleged in the

Administrative Complaint.

45. There is no clear and convincing evidence that the

Respondent is guilty of an act involving moral turpitude or

gross i mmorality. Neither "gross immorality" nor an "act

involving moral turpitude" is defined in Section 231.2615(1)(c),

Florida Statues (2001). However, Rule 6B - 4.009, Florida

Administrative Code, sets forth a definition of "immorality" and

an "act involving moral turpitude" which may be used to

determine the meaning of these terms as used in Section

231.2615(1)(c), Florida Statutes. Rule 6B - 4.009(2), Florida

Administrative Code, defines "immorality" as follows:

immorality is defined as conduct that is

inco nsistent with 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 individuals

service in the community.

In o rder to find a violation of this rule, it must be concluded

that the teacher engaged in conduct inconsistent with standards

of public conscience and good morals and that the conduct was

sufficiently notorious as to disgrace the teaching profession

and to i mpair the teacher's service in the community. See

McNiell vs. Pinellas County School Board , 678 So. 2d 476 477

(Fla. 2nd DCA 1996). Impairment may not be inferred, but must

by proved an element of the violation. McMillan vs. Nassau

County School Board , supra .

46. "Gross immorality," is therefore, misconduct that is

more egregious than mere "immorality," involving "an act or

conduct that is serious rather than minor in nature, and which

constitutes a flagrant disregard of proper moral standards."

Turlin gton vs. Knox , 3 FLAR 1373A, 1374A (EPC Final Order 1981).

In Walker vs. Highlands County School Board , 752 So. 2d 127

(Fla. 2nd DCA 2000) it was held that impairment may be inferred

if immoral conduct occurred in the classroom or in the presence

of the s tudents, but not if the misconduct was of a private

nature not involving students. Because the conduct in this case

was of a private nature and did not occur in the classroom or in

the presence of students, impairment may not be inferred even

under Walker and subsequent cases employing its rationale.

47. "Moral turpitude" is defined by Rule 6B - 4.009(6),

Florida Administrative Code, as follows:

Moral turpitude is a crime that is evidenced

by an act of baseness, vileness or depravity

in the private and soci al duties, which,

according to the accepted standards of the

time a man owes to his or her fellow man or

to society in general, and the doing of the

act itself and not its prohibition by

statutes fixes the moral turpitude.

48. There is no clear and convin cing evidence in this case

to prove that the Respondent engaged in conduct involving gross

immorality or an act of moral turpitude. In this modern era

(for good or ill) it simply is not a clear and convincing

departure from standards of public conscience and good morals to

download pornographic material in the privacy of one's own home

when similar material can be lawfully purchased in a publicly -

accessible store or newsstand. The fact that this use of the

school - owned computer violated the School Board' s policy

regarding its personal use is a collateral issue and not the

basis itself of a charge in the administrative complaint. The

Petitioner's own witnesses on the issue of gross immorality or

immorality were in conflict. One stated that merely looking at

such material was immoral and the other acknowledged that what

the Respondent did in her own home was her business and that it

was the potential accessibility of the material to students at

school, not the mere act of downloading the material that was

the basis for that witnesse's opinion.

49. The Respondent testified that the objectionable

material was unsolicited, that she never knowingly saved any of

it and attempted to delete it from the computer as soon as she

received it. Further, she testified that she attempted to

delete everything of a personal nature from the laptop before

she turned it over to her successor at the school. That attempt

was verified by the examination of the technology specialist,

Gerald Fender. Even if one deemed the eviden ce to support the

proposition that the Respondent intentionally downloaded all the

pornographic material present in Exhibit One, there is no

evidence that any of it was viewed or disseminated outside the

privacy of her own home.

50. Even if the Respondent 's conduct could be considered

immoral, in spite of her first amendment rights regarding what

activities she can engage in in her own home, the Petitioner did

not present evidence that this conduct obtained any notoriety in

the local community. There was no notoriety which could

arguably rise to the level of disgracing the teaching profession

and impairing the Respondent's service as a teacher in the

community. In fact, the Respondent herself minimized the

potential for notoriety by voluntarily resigning her employment,

rather than publicly contesting her dismissal on these charges,

having already been notified of the non - renewal of her annual

contract. Further evidence of the lack of notoriety lies in the

fact that this incident did not "follow her" to t he neighboring

county in which she has successfully worked as a teacher since

resigning her employment in Washington County.

51. Having failed to prove an act "immorality," the

Petitioner can not therefore meet its burden of proving "gross

immorality ."

52. There is no clear and convincing evidence that the

Respondent engaged in any personal conduct which seriously

reduced her effectiveness as an employee of the School Board.

Her conduct has three elements: (1) Personal use at home of the

school - iss ued laptop; (2) Receipt on that laptop of some

sexually explicit or pornographic material; (3) The failure to

remove this material from the hard drive of that computer when

it was returned to the school. There is no evidence that these

acts individually o r collectively resulted in a serious loss of

effectiveness.

53. Although Heather Miller testified that ESE teachers

who received laptops were given a letter which instructed them

not to make personal use of the computer, the Respondent denied

receiving su ch a letter or other instruction against personal

use and testified that she had requested permission to connect

the laptop to her home internet service provider prior to doing

so. While it is likely that the Respondent received this letter

or at least a verbal instruction regarding personal use of the

computer, the charges in the complaint do not relate simply to

personal use of the computer. The charges rather relate to acts

of immorality, gross immorality or the violation of the above

cited rule regard ing failure to make a reasonable effort to

protect students, etc. While she may have violated the School

Board policy, there is no clear and convincing evidence that the

Respondent's personal use of the laptop, in and of itself,

violated the rules or stat utes cited in the Administrative

Complaint and referenced herein. There is no evidence that her

personal use of her computer, primarily during the summer when

she was not working, reduced her effectiveness as a teacher.

54. As previously stated, even som e of Respondent's the

witnesses conceded that what the Respondent accessed on the

internet in the privacy of her home is her own business. It is

also clear that, at law, private conduct thought to be immoral

by some does not itself constitute evidence of loss of

effectiveness. Walker vs. Highlands County School Board ,

752 So. 2d 127, (Fla. 2nd DCA 2000); McNiell vs. Pinellas County

School Board , 678 So.2d 476 (Fla. 2nd DCA 1996); Sherburne vs.

School Board of Suwannee County , 455 So. 2d 1057 ( Fla. 1st DCA

1984). The evidence establishes that the Respondent never had

the ability to access the internet at school and there is no

evidence that she ever accessed any of the objectionable

material contained in Exhibit One, or similar to that, at

scho ol. Consequently, her private conduct, even if it is

immoral, does not provide a basis for an inference of loss of

effectiveness, even in those jurisdictions which permit loss of

effectiveness to be presumed under some circumstances.

55. Likewise, the f act that she failed to completely

delete all of the objectionable material from the computer when

she returned it to school does not provide evidence of any loss

of effectiveness, much less a serious loss of effectiveness.

The Respondent testified without contradiction that she

attempted to delete all personal material (pornographic or

otherwise) from the laptop prior to turning it over to her

successor and thought that she had eliminated all ICQ files by

removing that program. She was simply unaware that the ICQ

files had been saved to the computer's hard drive so she did not

know how to delete them. This error does not provide any

evidence that she was not able to continue to be an effective

teacher.

56. The Petitioner presented three witnesses who tes tified

regarding the issue of loss of effectiveness. Their testimony

does not provide clear and convincing evidence that she has

incurred a serious loss of effectiveness.

57. The first witness to testify was the principal, Ozeal

Harrell. She admitted on cross - examination that her opinion

regarding loss of effectiveness and violation of the other

statutory and rule provisions at issue, was based on the

assumption that the Respondent was accessing the objectionable

material in the classroom. She also stat ed that in her opinion

it was immoral to even look at sexually explicit material,

regardless of where it occurred and that belief formed the basis

for her opinion on loss of effectiveness. Most significantly,

she admitted that she did not know for a fact whether the

Respondent could or could not be an effective teacher if she

were to come back to Washington County.

58. The next witness to testifying on loss of

effectiveness was Michael Welch. He based his opinion on the

assumption that the laptop was in the classroom "this material

was on the laptop and the students did have access to that

laptop and used it." He further stated that it was the act of

bringing the computer to school with the objectionable

information on it which he found to violate the st atute, whether

or not it was ever seen by any students and no matter how remote

the possibility of the students seeing it might be.

59. The third witness testifying on this issue was

Superintendent Jerry Tyre. He testified that his opinion was

based both on the fact that the Respondent accessed and

downloaded material he considered to be pornographic or obscene,

and in addition, the fact that the Respondent brought the

computer to school with this material on it which was available

to and in fact used by students in the classroom.

60. This testimony is not clear and convincing evidence of

a serious loss of effectiveness. First, each of these witnesses

assumed facts which have not been proven, primarily that

students used or had access to the computer aft er it had the

objectionable material on it. That access or use has in fact

been disproven. Consequently, this opinion testimony cannot

support a finding of a serious loss of effectiveness. Tenbroeck

vs. Castor , 640 So. 2d 164, 168 (Fla. 1st DCA 1994); M acMillan

vs. Nassau County School Board , supra . Secondly, this testimony

is conclusory and based upon the witnesse's personal view of

morality. There is no specific evidence that the Respondent

would not have been able to continue as an effective teacher

despite this incident. Indeed this testimony constitutes

speculation which has been found not to be a basis for

disciplinary action against a teacher's license as shown in the

opinion the Tenbroeck case, at 640 So.2d 167. It is not logical

that even suc h a flagrant error in judgment and carelessness

exhibited by the Respondent necessarily results in a serious

loss of effectiveness.

61. There is no evidence that this incident created any

notoriety within the local community, which is the most frequent

reason cited for loss of effectiveness. Additionally, the

Respondent has been able to obtain a teaching job in a

neighboring county and teach effectively without this incident

"following her." Therefore, there is no significant evidence

which tends to s how any serious loss of effectiveness.

62. The Respondent was given positive references from her

employment with the Bay District School by three of her co -

workers after this incident occurred, as shown by the

Respondent's Exhibits One, Two, and Three. E ach of these

persons had knowledge of the events which led to the

Respondent's termination and indicated that they would re - employ

her in the same position and knew of no reason why the

"applicant" [Respondent] should not work with children. Her co -

worker s, including an administrator, would not be willing to

make such statements if the Respondent has suffered a serious

loss of effectiveness. The Respondent's Exhibits Six, Seven,

and Eight are letters the from parents of students which she

either taught or tutored while employed in Washington County.

These letters in support of the Respondent's effectiveness were

written by the three parents when they were aware of the

allegations against the Respondent. Thus, considering together

these exhibits, when wei ghed against the conclusory testimony of

the Petitioner's witnesses, results in the conclusion that the

clear and convincing evidence does not establish a serious loss

of effectiveness.

63. The clear and convincing evidence does not establish

that the Res pondent failed to make reasonable efforts to protect

student's from the conditions harmful to learning and/or to the

students mental health and/or physical safety. The evidence

establishes that the Respondent made a reasonable effort and

succeeded in prev enting the exposure of any students to any harm

resulting from her actions. No student ever saw the sexually

explicit material she inadvertently left on the computer nor was

there any reasonable likelihood that any student would have been

exposed to this material, as shown by the above findings of

fact, including those to the effect that the computer was kept

under lock and key after it was returned to the school site.

Thus, no violation of Rule 6B - 1.006(3)(a), Florida

Administrative Code, can be found. There is no evidence that

the students either used the computer after the objectionable

material was saved on it or easily could have been exposed to

such material. In fact, the facts established demonstrate to

the contrary.

64. The Respondent testifie d without contradiction that

none of her students used the laptop after she connected it to

the internet at her home. When she returned it to the school in

September of 2000, she placed it in a locked cabinet, in a

different building from her classroom, w here it remained until

she turned it over to her successor, with one exception. In

October of 2000, Ms. Mitchell had a new student assigned to her

class and she brought the computer in the class to briefly work

on the students IEP. At no time when the co mputer was in the

classroom for that limited purpose were any students given

access to it nor were they ever in a position to even see what

was on the computer screen.

65. This evidence shows that the Respondent took

reasonable steps to ensure that any in appropriate material was

removed from the computer. When she took it to her successor,

she had no reason to believe that there continued to be anything

objectionable on it and she had, from her own experience, every

reason to believe that the computer wou ld not be accessible to

students, whatever was on it. The fact that she had not removed

all of the objectionable material is unfortunate and amounts to

carelessness on her part, but does not mean she acted

unreasonably with regard to her students, as cont emplated by

this rule.

66. In addition to the fact she had no reason to believe

that students would have access to this computer, it was

virtually impossible for any student to have access to this

material accidentally. There is no evidence that access t o the

two sites in the "favorites" menu would have caused any harm to

any student who may have accessed it. Rather, the only

potential harm was to the ICQ program files which required

several adults and the skills of computer technician when they

knew tha t they were looking for something potentially improper.

The possibility that a student could have ever accessed any of

the objectionable material is so remote that it would be

unreasonable and beyond the scope and contemplation of this rule

to require the Respondent to have taken any actions other than

those which she took.

67. The Respondent's judgmentally weak and unwise use of

her laptop for her personal business obviously placed her

employment in jeopardy, and probably should have, but it did not

pr esent a reasonable possibility of harm to her students. Thus

the Petitioner failed to provide clear and convincing evidence

that this rule was violated by the Respondent.

68. In summary, the conduct at issue does not establish

immorality, moral turpitude or serious loss of effectiveness as

a teacher. It does constitute a serious lapse in judgment and

while costing the Respondent her job in Washington County, did

not subject any student to any harm. Therefore, the conduct

does not violate the provisions of Section 231.2615, Florida

Statutes, and the above - cited rule.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED:

That a Final Order be entered by the Commissioner of

Education dismissing the Administrative Complaint.

DONE AND ENTERED this 14th day of March, 2003, in

Tallahassee, Leon County, Florida.

__________________________ _________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of March, 2003.

COPIES FURNISHED :

J. David Holder, Esquire

24357 U.S. Highway 331 South

Santa Rosa Beach, Florida 32459

Thomas W. Brooks, Esquire

Meyer & Brooks, P.A.

Post Office Box 1547

Tallahassee, Florida 32302

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 Educators Speciali st

Department of Education

325 West Gaines Street, Room 224 - E

Tallahassee, Florida 32399 - 0400

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 exce ptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.