03-002271PL Jim Horne, As Commissioner Of Education vs. Christopher Ebrahimoff Status: Closed Recommended Order on Tuesday, July 27, 2004.

Summary: Petitioner alleged, but failed to prove by clear and convincing evidence, Respondent`s misconduct with a student.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, AS COMMISSIONER OF )

EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2271PL

)

CHRISTOPHER EBRAHIMOFF, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case

on January 28 and 29, 2004, in Orlando, Florida.

APPEARANCES

For Petitione r: Aaron W. Proulx, Esquire

Broad and Cassel

100 North Tampa Street, Suite 3500

Post Office Box 3310

Tampa, Florida 33601 - 3310

For Respondent: Joseph Egan, Jr., Esq uire

Egan, Lev & Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802 - 2231

STATEMENT OF THE ISSUE

Should Petitioner impose discipline on Respondent's Florida

Educator's Certificate No. 782510, based upon the allegations in

the Amended Administrative Complaint, Case No. 012 - 0456 - m,

before the Department of Education, Education Practices

Commission?

PRELIMINARY STATEMENT

On May 7, 2003, Petitioner, Jim Horne, as Commissioner of

Education, filed an Administrative Complaint setting forth

factual allegations attributed to Respondent, Christopher

Ebrahimoff, which allegedly violated certain Florida Statutes

and Florida Administrative Code rules. Respondent disputed the

allegations and request ed a hearing before an Administrative Law

Judge of the Division of Administrative Hearings.

The case was received by the Division of Administrative

Hearings on June 18, 2003. An Initial order was sent to both

parties on June 19, 2003. The case was initia lly scheduled for

final hearing on August 11, 2003, in Orlando, Florida.

Respondent's Motion for Continuance, dated July 25, 2003,

was granted; the case was rescheduled for final hearing on

September 22, 2003.

On September 9, 2003, Respondent flied a Motio n for Leave

to Amend the Administrative Complaint. This motion was granted,

which necessitated continuing the scheduled final hearing. The

final hearing was rescheduled for November 25, 2003.

Petitioner's Emergency Motion for Continuance dated

November 2 1, 2003, was granted; the final hearing was

rescheduled for January 28 and 29, 2004.

The case was presented as rescheduled. At the final

hearing, Petitioner presented the testimony of the following

witnesses: A.C. and H.P., Boone High School students and

friends of A.S.; Robin McCormick, Belynda Thomas, Kim

Porterfield, Hugh Hattabaugh, and Cheryl Pleicones, Boone High

School faculty members; Don Shearer, an Orange County School

Board administrator; and James Cooney, a Dr. Phillips High

School faculty mem ber. The depositions of Beverly Middleton, a

Boone High School faculty member, and A.S., the complaining

student, were received in lieu of their live testimony.

Petitioner offered nine evidentiary documents at the final

hearing, which were received into e vidence and marked

Petitioner's Exhibits B, D, E, F, H, I, J, K, L, and M. Two

additional documents became part of the evidence by their

attachment to the deposition of A.S. dated October 21, 2003.

They were identified as Petitioner's Exhibits 1 and 2.

R espondent testified on his own behalf. In addition,

Respondent presented the testimony of the following witnesses:

C.R. and M.C., Boone High School students, and Pam Covert,

Judith Zeek, Arthur Harmon, and Ann Calendrino, Boone High

School faculty member s. Hal Litchford, Esquire, a parent of a

former Boone High School student, also testified. Respondent's

Composite Exhibit 1 was received into evidence.

Subsequent to the final hearing, on February 13, 2004, the

deposition of Beverly Middleton was taken a nd, as mentioned

above, was received in lieu of her live testimony.

The Transcript of Proceedings was filed on April 13, 2004.

The parties requested, and received, extensions for filing

proposed recommended orders. Both parties filed Proposed

Recommended Orders on June 22, 2004.

FINDINGS OF FACT

Based on the testimony and demeanor of the witnesses, and

the documentary evidence presented, the following findings of

fact are made:

1. Respondent was a mathematics teacher at Boone High

School in Orlando, Flor ida, during the 2000 - 2001 and 2001 - 2002

school years. He also was an athletic coach at Boone,

Dr. Phillips and Apopka High Schools during this same period.

He held Florida Educators Certificate No. 782510.

2. A.S. was a student at Boone High School; 20 00 - 2001 was

her junior year, and 2001 - 2002 was her senior year. She was a

member of the Boone High School varsity cheerleading squad

during both school years.

3. While Respondent was not A.S.'s classroom teacher, he

held positions of responsibility which could occasion his

contact with any student at Boone High School, including A.S.

For example, he participated in a Florida Comprehensive

Assessment Test (FCAT) prep program, was a faculty member of the

"SAFE Team," and assisted in the anger management pr ogram and

the American Lung Association student non - smoking program.

4. "Program Excellence" was a program held after school in

which Respondent volunteered to help students prepare for the

FCAT.

5. The SAFE Team is comprised of faculty members who are

a vailable to counsel students with personal problems; these

faculty members are encouraged to conduct open discussions with

students. Students are encouraged to discuss their personal

problems with the SAFE Team members whose names appear on a

published li st of SAFE Team members posted in classrooms. The

Boone High School principal, Hugh Hattabaugh, testified that it

would not be atypical for a SAFE Team member to interrupt a

class to talk to a student.

6. In addition to his classroom teaching responsibil ities,

Respondent, as did a significant number of other teachers, had

"hall duty" where the teachers would post themselves in the

school passageways to monitor students who were passing to and

from classes.

7. Respondent also provided assistance to studen ts who

were having difficulty with mathematics. Some of these students

were not his classroom students. In addition, Respondent

assisted students, particularly athletes, who were attempting to

obtain college athletic scholarships by contacting college

co aches and athletic departments on behalf of the student

athletes. A parent of a Boone High School student who received

a college scholarship as a result of Respondent's efforts

testified and confirmed that he was aware that Respondent

similarly helped oth er students obtain scholarships.

8. Petitioner's Amended Administrative Complaint contains

material allegations that Respondent engaged in "inappropriate

conduct with students." These instances of inappropriate

conduct are discussed below.

9. Responde nt invited A.S. to dinner. A.S. testified that

Respondent invited her to dinner; she does not recall when or

for what reason. Respondent acknowledged that he did invite

graduating seniors to dinner after graduation. One witness, a

faculty member, testif ied that A.S. had advised her that

Respondent invited her to dinner after graduation. Respondent

testified that while at Dr. Phillips High School, he became

aware that teachers invited graduating seniors, typically in

groups, out to dinner. He anticipate d starting such a

"tradition" at Boone High School. This is not inappropriate

conduct.

10. Respondent repeatedly pulled A.S. from class to

discuss non - academic matters. A.S.'s testimony, which is

unclear, at best, recalls at least three occasions during her

junior year and one, possibly more occasions, during her senior

year when Respondent came to a class and asked the teacher to

speak to A.S. These conversations were all very brief and

occurred immediately outside the classrooms. Most discussions

inv olved cheerleading; on one occasion, A.S. reports that

Respondent commented that her boyfriend, who was a freshman in

college, would not be faithful to her or words to that effect.

11. The Boone High School principal testified that it

would not be atypi cal for a SAFE Team faculty member to pull a

student from class. In addition, because Respondent was

coaching at another high school, which required him to leave the

Boone High School campus immediately at the end of the final

school period, he found it n ecessary to communicate with

students who were not in his classes by visiting with them while

they were in class. Respondent testified that on one occasion,

during A.S.'s senior year, he sought A.S. out to speak to her

during class because her cheerleadin g coach had told him that

A.S. was having difficulty. These contacts were not

inappropriate.

12. Respondent made inappropriate comments about A.S.'s

physical attributes. In her deposition, A.S. stated Respondent

commented that he "liked the way that my chest looked in the

shirt that I wore." In a December 31, 2001, written statement

A.S. reported that Respondent said "I like that shirt on you, it

makes your boobs look nice." She maintains that he made other

comments about her appearance, but she can re member nothing

specific. Respondent denies making any comment about A.S.'s

breast size. There are no other witnesses to this accusation.

The evidence does not establish clearly and convincingly that

Respondent made the alleged comments.

13. Respondent called A.S. on her cell phone. A.S.

reports that Respondent called her two times on her cell phone.

The occasion she remembers clearly occurred during the summer

between her junior and senior years while she was attending

cheerleading camp at the Univers ity of Central Florida. He

called seeking the phone number of another student that he was

attempting to assist in obtaining a baseball scholarship.

Respondent needed to contact this student athlete immediately.

This information (student athlete's phone nu mber) was provided

by another cheerleader who participated in the phone

conversation.

14. Although A.S. does not recall the topic of the second

conversation, Respondent acknowledges the conversation and

advises that the subject was A.S.'s interest in se eking

enrollment at the University of Kentucky with which Respondent

had indicated he would assist. He had a brief conversation with

A.S. to advise that he had been playing "telephone tag" with the

University of Kentucky cheerleading coach. A.S. does not know

how Respondent got her cell phone number; Respondent testified

that it was given to him by A.S. so that he could contact her

regarding his efforts assisting in her enrollment at the

University of Kentucky. Respondent testified that the only

subjects of his phone conversations with A.S. were school -

related. These telephone contacts were not inappropriate.

15. Respondent made inappropriate comments regarding

A.S.'s personal life. It is alleged that Respondent said that

A.S.'s boyfriend was going to cheat on her while he was away in

college. A witness confirmed that Respondent told A.S. to be

careful regarding her boyfriend, who was away at college,

because he didn't want her to get hurt. Respondent testified

that the only discussion he had with A.S . regarding her

boyfriend was initiated by A.S. and is the same discussion

referred to and in the presence of the above - referenced witness.

Respondent testified that he advised her to worry about her

grades, not her boyfriend, or words to that effect. Th e witness

supports Respondent's recollection of the circumstances and

specifics of the comments regarding A.S.'s boyfriend.

16. Respondent sought A.S. out between classes. The

evidence reflects that Respondent had hall duty, as did other

teachers, which would occasion his presence in the school

passageways. A.S. vaguely testified that on several occasions

Respondent and A.S. would have brief contact while she was going

from class to class.

17. Respondent kissed A.S. on the head. On one

deposition, A.S. reported this activity; it was not reported on

a second deposition or on two written statements. Respondent

denies this accusation. There are no other witnesses to this

accusation. The evidence is insufficient to demonstrate clearly

and convincingly th at this incident actually occurred.

18. Respondent pulled A.S.'s cumulative folder without

authorization and shared its contents with another student.

While there is a great deal of discussion regarding what is

"authorized access to student records" and the procedure for

obtaining same, the testimony from the various teacher/witnesses

suggests that these rules, if there were any, were not followed.

It appears that Respondent accessed the cumulative folders for

A.S. and her friend, H.P. The testimony ind icates that his

interest in both folders was incidental to recommendations he

was preparing to make for both students to colleges. In

addition, H.P. wanted to take two math courses during her senior

year and had asked Respondent if it was advisable; he wa s

checking her math background in her folder. On one occasion,

while both A.S. and H.P. were in his classroom the cumulative

folders for both students were on his desk; Respondent

apparently referred to A.S. by a nickname he learned from the

folder and sh owed both A.S. and her friend, H.P., a photograph

in the folder that was taken of A.S. when she was younger.

There is no evidence that any other contents were disclosed to

any third party. Respondent should not have revealed private

information from A.S. 's cumulative folder, although his reasons

for accessing the two cumulative folders in question are

meritorious.

19. Although A.S. testified that she did not recall

seeking Respondent's assistance with mathematics, an academic

area in which she had great difficulty, a fellow student

testified that he repeatedly saw her, among other students, in

Respondent's sixth period class receiving assistance with

mathematics. Respondent testified that he regularly assisted

A.S. with mathematics as many as two or thre e times a week from

February through May of the 2001 - 2002 school year. Respondent

even obtained an Algebra II book from A.S.'s teacher in an

effort to assist her.

20. The following is uncontraverted: A.S. volitionally

visited Respondent's classroom on n umerous occasions during her

junior year; she suggested, if not requested, that she be made

his classroom assistant for her senior year (this apparently

occurred after the reported discussion of her breasts); whether

she requested his assistance or not, sh e readily consented to

his proffered assistance in her efforts to be accepted at the

University of Kentucky; she requested and received Respondent's

recommendation for participation in the Boone High School

cheerleading squad; and there was no attempted ph ysical contact

by Respondent with A.S. before or after school or off campus.

21. A.S. has remarkably poor recollection of events

significant to her allegations. Critical testimony given by

A.S. is inconsistent and contradicted by independent witnesses.

The cumulative effect diminishes A.S.'s credibility.

22. The Boone High School principal testified that

Respondent's effectiveness at Boone High School was reduced. He

equivocated when asked if the reduced effectiveness extended

throughout the county. R espondent's teaching assessments, the

testimony of the only parent presented, and several of

Respondent's teaching contemporaries suggest that Respondent was

an exceptional teacher and motivator who had a genuine interest

in teaching and students.

CONCLUSI ONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding in accordance with Section 120.569 and Subsection

120.57(1), Florida Statutes (2003).

24. The Amended Administrative Com plaint in this case

charges Respondent with violations of Subsections

1012.795(1)(c), (f), and (i), Florida Statutes (2003), within

Counts 1 through 3, respectively. In addition, alleged

violations of Florida Administrative Code Rule 6B - 1.006(3)(a)

and ( b) are found in Counts 4 and 5.

25. Petitioner bears the burden of proving the allegations

in the Amended Administrative Complaint by clear and convincing

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

The definition of clear and convincing evidence is found in the

case Slomowitz v. Walker , 429 So. 2d 797 (Fla. 4th DCA 1983).

26. The consequence of any violation of the counts alleged

in the Amended Administrative Complaint is described at

Subsection 1012.795(1), Florida Statutes (2003), whe re it states

that:

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,

thereby denying that person the right to

teach for that period of ti me, 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 th e provisions of

subsection (4); may revoke permanently the

educator certificate of any person; . . . or

to impose any other penalty provided by the

law provided it can be shown that such

person: . . .

27. Count 1 of the Amended Administrative Complaint

alleges misconduct in violation of Subsection 1012.795(1)(c),

Florida Statutes (2003), in that Respondent has been guilty of

gross immorality or an act involving moral turpitude. This

allegation has not been proven by the requisite quantum of

proof.

28. Count 2 of the Amended Administrative Complaint

alleges that Respondent has engaged in misconduct by violating

Subsection 1012.795(1)(f), Florida Statutes (2003), in that

Respondent has been found guilty of personal conduct which

seriously reduces that pe rson's effectiveness as an employee of

the district school board. This allegation has not been proven

by the requisite quantum of proof. Prior to the allegations

associated with this case, Respondent presents as an outstanding

teacher. There is no real evidence of notoriety associated with

the reported incidents which would have diminished his

effectiveness. In addition, Respondent is not guilty of the

acts alleged. See Braddock v. School Board of Nassau County ,

455 So. 2d 394 (Fla. 1st DCA 1984) and B aker v. School Board of

Marion County , 450 So. 2d 1194 (Fla. 5th DCA 1984).

29. Count 3 to the Amended Administrative Complaint

alleges misconduct in violation of Subsection 1012.795(1)(i),

Florida Statutes (2003). This count alleges general violation

of specific provisions within the Principles of Professional

Conduct for the Education Profession in Florida addressed in

Counts 4 and 5 of the Amended Administrative Complaint.

30. Count 4 of the Amended Administrative Complaint

alleges misconduct in viola tion of Florida Administrative Code

Rule 6B - 1.006(3)(a), in that Respondent has failed to make

reasonable effort to protect the student from conditions harmful

to learning and/or to the student's mental health and/or

physical safety. This allegation has n ot been proven by the

requisite quantum of proof.

31. Count 5 of the Amended Administrative Complaint

alleges misconduct in violation of Florida Administrative Code

Rule 6B - 1.006(3)(e), in that Respondent has intentionally

exposed a student to unnecessary embarrassment or disparagement.

That allegation has not been proven by the requisite quantum of

proof.

32. Having failed to prove the allegations in Counts 4

and 5, Petitioner has also failed to prove the allegations in

Count 3.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner, Jim Horne, as Commissioner of

Education, dismiss the Amended Administrative Complaint filed

against Respondent, Christopher Ebrahimoff.

DONE AND ENTERED this 27th d ay of July, 2004, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 96 75 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of July, 2004.

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Education Practices Commission

D epartment of Education

325 West Gaines Street, Room 224

Tallahassee, Florida 32399 - 0400

Aaron W. Proulx, Esquire

Broad and Cassel

100 North Tampa Street, Suite 3500

Post Office Box 3310

Tampa, Florida 33601 - 3310

Joseph Egan, Jr., Esquire

Egan, Lev & Si wica, P.A.

Post Office Box 2231

Orlando, Florida 32802 - 2231

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

1244 Turlington Building

325 West Gaines Street

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 exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.