03-001737PL Charlie Crist, As Commissioner Of Education vs. William F. Cook Status: Closed Recommended Order on Friday, November 7, 2003.

Summary: Respondent made sexually inappropriate comments to faculty and staff.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, )

AS COMMISSIONER OF EDUCATION, 1/ )

)

Petitioner, )

)

vs. ) Case No. 03 - 1737PL

)

WILLIAM F. COOK, )

)

Respondent. )

___________ ______________________)

RECOMMENDED ORDER

On September 11, 2003, a formal hearing was held in this

case. Authority for conducting the hearing is set forth in

Sections 120.569 and 120.57(1), Florida Statutes. The hearing

location was the Department of Environmental Protection,

Northeast District, Teleconference Room, Second Floor, the

Center Building, 7825 Baymeadows Way, Jacksonville, Florida.

The hearing was held before Charles C. Adams, Administrative

Law Judge.

APPEARANCE S

For Petitioner: Ron Weaver, Esquire

Post Office Box 279

Austell, Georgia 30168

For Respondent: Thomas A. Smith, Esquire

800 West Platt Street, Suite 3

Tampa, Florida 33606

STATEMENT OF THE ISSUE

Should discipline be imposed on Respondent's Florida

Educator's Certificate No. 611934, based upon the allegations

in the Administrative Complaint, Case No. 990 - 1149 - R, before

the State of Florida, Education Practices Commission?

PRELIMINARY STATEMENT

On Februar y 22, 2002, Charlie Crist, as Commissioner of

Education, State of Florida, brought the Administrative

Complaint against Respondent. It contained the following

material allegations:

Prior to November 24, 1999, Respondent made

inappropriate comments of a sexual nature

to B.B., a female student. Respondent

indicated to the student he had heard that

she had been 'trippin' and having sex while

she was 'trippin.' On or about January 18,

2000, Respondent received a letter of

reprimand for his conduct.

Duri ng the spring of 2000, Respondent

sexually harassed a female colleague and

made inappropriate comments to students of

a sexual nature. Respondent did not deny

the charges. On or about May 10, 2000, the

superintendent issued Respondent a notice

of termina tion and immediate suspension.

On or about June 6, 2000, Respondent was

terminated from his position.

Based upon the material allegations Respondent was accused of

violating Section 231.2615(1)(f) and (i), Florida Statutes,

together with Rule 6B - 1.00 6(3)(a) and (e), and (5)(d), Florida

Administrative Code, leading to the possible imposition of a

penalty in accordance with Section 231.2615(1), Florida

Statutes.

Respondent responded to the Administrative Complaint by

electing a formal hearing option i n executing the form related

to his rights. In addition, Respondent provided a written

statement concerning his position related to certain

provisions within the Administrative Complaint.

On April 5, 2003, the case was received by the Division

of Administrative Hearings upon the request by Kathleen M.

Richards, Executive Director, Education Practices Commission,

for assignment of an Administrative Law Judge to conduct the

hearing. Following a single continuance the hearing took

place on the date d escribed.

At the commencement of the hearing the parties entered

into a stipulation that paragraphs 1 and 2 to the

Administrative Complaint are true.

At hearing Petitioner presented the testimony of Aron

Muse, Morgan Hall, Debra Coleman, Charles Cryg ier, Lawrence

Yudin, and Susan Tidwell. Respondent testified in his own

behalf and presented David E. McConnell, Beth B. Riggsbee,

Diane M. Cook, Wesley Leake, Deloris Wooldridge, Lorri Song,

and Brandie Brinksma as his witnesses. No exhibits were

provid ed by the parties.

On October 6, 2003, the hearing transcript was filed with

the Division of Administrative Hearings. Petitioner and

Respondent filed proposed recommended orders which have been

considered in preparing the recommended order.

All citat ions are to Florida Statutes (2003), unless

otherwise indicated.

FINDINGS OF FACT

STIPULATED FACTS

1. Respondent holds Florida Educator's Certificate

No. 611934, covering the areas of History and Physical

Education, which is valid through June 30, 2004.

2. At all times pertinent hereto, the Respondent was

employed as a social studies teacher at Sandalwood High School

(Sandalwood) in the Duval County School District.

ADDITIONAL FACTS

3. Morgan King was a female student at Sandalwood at

time s relevant to the inquiry. Following her marriage she is

known as Morgan Hall. Although Ms. Hall was not a student in

Respondent's classes at Sandalwood, she became acquainted with

Respondent.

4. Ms. Hall's involvement with Respondent was

principally d uring sixth period of the school day. At that

time Ms. Hall would routinely leave her history class at the

end of the period and go to Respondent's classroom where she

had many friends. When Ms. Hall arrived at Respondent's

classroom Respondent and the s tudents, to include Ms. Hall

would "hangout and talk."

5. Some of the conversations that Ms. Hall participated

in with Respondent and other students in his classroom were of

a sexual nature. These conversations followed an earlier

conversation in a p rior year when Respondent told Ms. Hall a

story about a girlfriend that he had when he was a young

teenager. He explained that he and the girlfriend would stay

up all night together. The girlfriend had kids. Respondent

told Ms. Hall about the sexual rel ations which he had with the

girlfriend while Respondent was a teenager. Beyond that

conversation, while in his classroom at Sandalwood Respondent

followed the theme in his discussion with Ms. Hall concerning

sleeping with numerous women, so many women th at he could not

remember how many he had slept with. He went on to comment to

Ms. Hall that when you are married you could not do that, but

it was acceptable conduct before marriage. Respondent's

comments to Ms. Hall about having sex with a girlfriend be fore

marriage and about the number of women he had slept with

before marriage were voluntarily remarks made to Ms. Hall.

She did not begin the discussions.

6. Respondent told Ms. Hall about another female student

that had come to his classroom after ot her students had left

and flipped up the backside of her skirt revealing the thong

underwear she was wearing.

7. While in this classroom in sixth period, friends of

Ms. Hall would make fun of her by talking about her

"backside," saying that she had a "big butt." Respondent

would participate in the conversation, remarking in what

Ms. Hall considered to be a joking manner, about Ms. Hall's

"butt being big." This comment was made by Respondent a few

times.

8. Ms. Hall had conversations with Responde nt that

insinuated discussion about his penis. As Ms. Hall perceived

it, part of what he said was something to the effect that

Respondent "could suck his own penis."

9. Ms. Hall in response to Respondent's remarks of a

sexual nature would tell him that , "You are a sick old man.

That's gross." She would make these comments in a joking

manner, but at the same time recognizing that this was a

serious matter. She did not want to be rude and offend

Respondent, thus the lighter nature of her remarks.

10. On one occasion while in Respondent's classroom,

Ms. Hall was sitting on the floor next to his desk against a

cabinet. Ms. Hall asked Respondent why it was so cold in the

room. He replied, "You know why I like it to be cold, you

know why I want it t o be cold," while raising his eyebrows.

Ms. Hall described how other girls would sit hanging over

Respondent's desk with their "boobs are like right there in

his face. And everybody's nipples are hard." That was the

circumstance that caused Respondent t o raise his eyebrows.

11. On the subject of female students being around

Respondent's desk in his classroom, Ms. Hall perceived that

those students felt comfortable around Respondent. Respondent

created the impression that he was like a friend to Ms. H all

and other female students. He was enjoyable company,

according to Ms. Hall. She described his conduct as being

disgusting a little of the time, but not all of the time. In

these exchanges Respondent allowed the female students to act

disgusting in t heir own right.

12. The discussions of a sexual nature at times were

promoted by Respondent, at other times they were promoted by

the students.

13. Ms. Hall discussed a computer website entitled

"Banged Up.com" with Respondent in the classroom . That

website contains subject matter with sexual connotations.

14. Debra Coleman was another student at Sandalwood

during the relevant time period. She was in Respondent's

tenth grade world history class. She had conversations with

Respondent of a sexual nature. Ms. Coleman went to Respondent

to talk to him about her sex life. Other students talked to

Respondent about sex in her presence. Respondent was open to

those conversations.

15. Respondent made a comment to Ms. Coleman and other

f emale students, that if they did not do their work he was

going to spank them and that they would like it.

16. On one occasion Ms. Coleman was allowed to have an

extended lunch period following a discussion in which

Respondent asked her if he could bite her lip. She said,

"No." Respondent then reached up and pinched her bottom lip.

17. On another occasion when Ms. Coleman was in

Respondent's class, Brandie Brinksma, a female student was

sitting next to her. Respondent pulled out a money clip. In

addressing the female students he said, "I'll give you $500 if

you, Brandie, turn to your right and kiss Carrie on the cheek.

And, Carrie, I want you to then turn around and act like you

are going to kiss her on the cheek and instead of just kissing

her o n the cheek like, Brandie will turn her head." And

beyond that point the students would "start making out."

Ms. Coleman was offended by those remarks from Respondent.

She got mad and walked out of class. She had never walked out

of class before. What Respondent said to the two students was

stated in front of the entire class.

18. During one instance when Ms. Coleman was at

Respondent's desk in the classroom, a Coke can was on the end

of Respondent's desk. Respondent told Ms. C oleman to pick up

the Coke can. Respondent placed a measuring ruler next to the

Coke can and stated "Imagine 9 1/2 inches of that, going up

you," while indicating the measurement on the ruler.

Ms. Coleman turned red and responded something to the effect

"O.K." and went back to her seat. That measurement was

perceived by Ms. Coleman to refer to Respondent's penis.

19. In classroom, in Ms. Coleman's presence, Respondent

made a comment about his ability to "Suck his own penis" in

the shower, to the effect that "He was able to go down on

himself." Some of the male students in the class commented

that this physical dexterity was not possible. Respondent

commented that he was able to perform this act on himself, but

that he had not done it in a while .

20. In April 2000, Aron Muse was the affirmative action

supervisor/equal employment opportunity coordinator for the

Duval County School Board. He was assigned to investigate

Respondent's conduct on the subject of Respondent's

conversations with the s tudents concerning sexually related

topics. Respondent told Mr. Muse that he was a friend of the

students and he was trying to assist them in life in

discussing subjects of a sexual nature and that he intended to

direct the students in a proper way. Resp ondent told Mr. Muse

that some of his conversations involved sexual jokes. These

discussions with students pertain to a bond which the students

and Respondent had, according to Respondent. As Respondent

told Mr. Muse, the discussions about sexual matters were

"nothing personal."

21. Brandie Brinksma was a student of Respondent's at

Sandalwood. She is referred to in the Administrative

Complaint as B.B. One of her friends was worried about her

while she was attending school, concerning Ms. Brinksma's u se

of drugs and having sex. It is reported that the friend of

Ms. Brinksma went to Respondent and asked that Respondent say

something to Ms. Brinksma to let Ms. Brinksma know that those

were not good choices on her part. Respondent took

Ms. Brinksma asid e and asked if he could talk to her.

Respondent remarked that the other student was worried about

Ms. Brinksma's conduct. Respondent advised Ms. Brinksma to

think about the consequences of her acts. Although this

discussion concerning drugs and sex was not at the instigation

of Ms. Brinksma's parents or the school district, Ms. Brinksma

was not offended by the discussion with the Respondent. More

specifically, in the conversation between Respondent and

Ms. Brinksma, Respondent mentioned that he had hear d that

Ms. Brinksma had been "trippin." This is a term attributable

to the other student who had arranged the conversation between

Respondent and Ms. Brinksma. Ms. Brinksma told Respondent

that she had been having sex and that she had tried the drug

Ecst asy once.

22. At times relevant Susan Tidwell, formerly Susan

Tabor, was a teacher at Sandalwood. She was acquainted with

Respondent. Respondent said "a lot of sexual things" to

Ms. Tidwell.

23. One of the Respondent's actions would be t o show his

bicep by flexing it in Ms. Tidwell's presence. He would say,

"If this is this big, guess what else is." This was perceived

by Ms. Tidwell as an insinuation that was sexual in nature.

24. Respondent said to Ms. Tidwell on more that one

occas ion that he wanted to "See Ms. Tidwell in black

straddling . . . " and then he would pause for the effect,

and add, "a Harley," referring to a motorcycle. Respondent

told Ms. Tidwell that he wanted her to lose her "good girl

image" and that black leather would be what he wanted to see

her in.

25. Respondent told Ms. Tidwell one time that he wanted

her to advertise for his lawn service business and that all

she had to do was to sit in the back of his pickup truck with

a bikini top and that would d rum up business.

26. Respondent told Ms. Tidwell at school, "Hey Susan,

do you know why God gave women vaginas." She responded that

she did not want to hear his joke. As she left a workroom at

the school when the bell rung, Respondent continued to ins ist

that Ms. Tidwell listen to the punch line of the joke. While

in the hall he delivered the punch line which was "So men

would talk to them." Ms. Tidwell was not amenable to hearing

the ending to the joke either.

27. Respondent, while Ms. Tidwell an d another female

teacher Christie Allen were in a school workroom with him,

told the two female teachers that he had a fantasy about being

stranded on a desert island with the two of them, so that they

could be on an island full of "little cookies."

28. Ms. Tidwell was bothered by Respondent's remarks

that have been reported and somewhat embarrassed to that point

in time.

29. Later in Respondent's classroom, Respondent told

Ms. Tidwell that he had talked to the class about her pending

divorce. In thi s conversation he said, "I guess it has been a

long time since you had any, so let me know if you need

something." Another part of the discussion at that time

involved some reference by David E. McConnell, a former

teacher at Sandalwood who was visiting t he school and was in

Respondent's room. Mr. McConnell brought up Respondent's lawn

business and commented that Ms. Tidwell needed her lawn done.

In response Respondent said to Ms. Tidwell "You know I have

something you need, you have something I need." Then he

grabbed his crotch. Ms. Tidwell considered the circumstances

that took place in Respondent's room on that occasion to be

intolerable. Ms. Tidwell reported Respondent's conduct to her

school department head and to the assistant - principal at the

sc hool, which led to an investigation by the Duval County

School District.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in

acco rdance with Sections 120.569, 120.57(1), and 1012.796(6).

31. Petitioner bears the burden of proving the

allegations in the Administrative Complaint by clear and

convincing evidence. Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987). The definiti on of clear and convincing evidence

is found in the case Slomowitz v. Walker , 429 So. 2d 797 (Fla.

4th DCA 1983).

32. Although the incidents referred to in the

Administrative Complaint took place when Section

231.28(1)(f)and (i), Florida Statutes ( 1999), and Section

231.2615(1)(f) and (i), Florida Statutes (2000), were in

effect, the substantive provisions in those sections are now

found at Section 1012.795(1)(c) and (i). With this change,

jurisdiction has been retained over the allegations in the

Administrative Complaint. Solloway v. Department of

Professional Regulation , 421 So. 2d 573 (Fla. 3rd DCA 1982).

33. The consequence of any violation of counts alleged

in the Administrative Complaint is described at Section

1012.795(1), where it s tates:

1012.795 Education Practices Commission;

authority to discipline. --

(1) The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01(2) or (3)

for a period of time not to exceed 3 years,

thereb y denying that person the right to

teach for that period of time, after which

the holder may return to teaching as

provided in subsection (4); may revoke the

educator 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); may revoke

permanently the educator certificate of any

person; . . . or may impose any other

penalty provided by law, provided it can be

shown that the person:

. . .

34. Count 1 to the Administrative Complaint charges

Respondent with a violation of Section 231.2615(1)(f), Florida

Statutes, now Section 1012.795(1)(f), in that Respondent

allegedly:

Upon investigation has been found guilty of

personal c onduct which seriously reduces

that person's effectiveness as an employee

of the school board.

This violation has not been shown. As will be discussed in

relation to subsequent counts in the Administrative Complaint,

Respondent is guilty of misconduct by his remarks to students

of a sexual nature and his sexual harassment of a female

colleague but the proof was not made sufficient to demonstrate

a violation pertaining to Count 1. The actual consequences of

his misconduct concerning Respondent's ability to continue as

an effective employee of the school district has not been

established from the perspective of teachers, students,

parents, guardians, or the overall community. See Braddock v.

School Board of Nassau County , 455 So. 2d 394 (Fla. 1st DCA

198 4); and MacMillian v. Nassau County School Board , 629 So.

2d 226 (Fla. 1st DCA 1993).

35. Count 2 to the Administrative Complaint charges

Respondent with a violation of Section 231.2615(1)(i), Florida

Statutes, now Section 1012.795(1)(i), where it is al leged that

Respondent:

Has violated the Principles of Professional

Conduct for the Education Profession

prescribed by State Board of Education

Rules.

For these purposes, the Principles of Professional Conduct for

the Education Profession are described in the remaining counts to

the Administrative Complaint. Therefore, a violation of any

count beyond Count 2 would also constitute a violation of Count

2.

36. Count 3 to the Administrative Complaint charges

Respondent with a violation of Florida Admini strative Code

Rule 6B - 1.006(3)(a) which states his obligation to the student

where it makes it incumbent upon Respondent to:

Make reasonable effort to protect the

students from conditions harmful to

learning and/or to the students' mental

and/or phy sical health and/or safety.

The remarks which Respondent made to students, in particular,

to Ms. Hall and Ms. Coleman, are harmful to learning. As a

consequence, Respondent violated Florida Administrative Code

Rule 6B - 1.006(3)(a).

37. Count 4 to the Administrative Complaint charges

Respondent with a violation of Florida Administrative Code

Rule 6B - 1.006(3)(e) which states that Respondent:

Shall not intentionally expose a

student to unnecessary embarrassment

or disparagement.

Respondent in his remarks to Ms. Hall and Ms. Coleman

intentionally exposed those students to unnecessary

embarrassment and disparagement. By this conduct Respondent

has violated Rule 6B - 1.06(3)(e), Florida Administrative Code.

38. Count 5 to th e Administrative Complaint charges

Respondent with a violation of Florida Administrative Code

Rule 6B - 1.06(5)(d) which reminds Respondent that he:

Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual's performance

or professional responsibilities or with

the orderly processes of education or which

creates a hostile, intimidating, abusive,

offensive, or oppressive environment; and,

further, shall make reasonable effort to

assure that each individual is protected

from harassment or discrimination.

39. Respondent's sexual harassment of Ms. Tidwell, a

fellow teacher, unreasonably interfered with her performance

of her professional and work responsibility in the orderly

process of education. He create d an abusive and offensive

working environment. Respondent failed to make reasonable

effort to ensure that Ms. Tidwell was protected from sexual

harassment. For these reasons Respondent violated Florida

Administrative Code Rule 6B - 1.006(5)(d).

RECO MMENDATION

Based upon the Findings of Fact and Conclusions of Law

reached, it is

RECOMMENDED:

That a final order be entered finding Respondent in

violation of Counts 2 through 5, dismissing Count 1, and

permanently revoking Respondent's educator's certi ficate.

DONE AND ENTERED this 7th day of November, 2003, in

Tallahassee, Leon County, Florida.

S

__

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hear ings

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 A dministrative Hearings

this 7th day of November, 2003.

ENDNOTE

1/ When this case began Charlie Crist was Commissioner of

Education. He was elected Attorney General of Florida, and

Jim Horne became the Commissioner of Educ ation.

COPIES FURNISHED:

Ron Weaver, Esquire

Post Office Box 279

Austell, Georgia 30168

Thomas A. Smith, Esquire

800 West Platt Street, Suite 3

Tampa, Florida 33606

Kathleen M. Richards, Executive Director

Education Practices Commission

De partment of Education

325 West Gaines Street, Room 224E

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Room 224E

Tallahassee, Florida 323 99 - 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 exceptions

to this recommended order should be f iled with the agency that

will issue the final order in this case.