03-004052 Brevard County School Board vs. Benjamin Leon Gary Status: Closed Recommended Order on Thursday, June 24, 2004.

Summary: Respondent`s inappropriate comments to and teaching of students constituted just cause for dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BREVARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4052

)

BENJAMIN LEON GARY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to no tice, a final hearing was held in this case

on February 10 through 12, 2004, in Viera, Florida, before

Susan B. Kirkland, a designated Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Benjamin B. Garagozlo, Esquire

3585 Murrell Road

Rockledge, Florida 32955

For Respondent: Mark S. Levine, Esquire

Levine, Stivers & Myers

245 East Virginia Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

Whether Respondent violated Florida Administrative Code

Rules 6B - 1.001, 6B - 1.006(3)(a), 6B - 1.006(3)(e), 6B - 1.006(3)(f),

6B - 1.006(3)(g), and 6B - 1.006(3)(h), and, if so, whether such

condu ct is just cause for dismissal of Respondent pursuant to

Subsection 1012.33(6)(a), Florida Statutes (2003).

PRELIMINARY STATEMENT

On October 14, 2003, by a Petition for Dismissal,

Richard A. DiPatri, Superintendent of the Brevard County Scho ol

Board, recommended to Petitioner, the Brevard County School

Board (School Board), that Respondent, Benjamin Leon Gary

(Gary), be dismissed from his employment with the School Board.

The Petition for Dismissal was presented to the School Board,

which ap proved Gary's dismissal. Gary requested an

administrative hearing on October 20, 2003. The case was

forwarded to the Division of Administrative Hearings on

November 3, 2003. The case was originally assigned to

Administrative Law Judge Daniel M. Kilbride and was reassigned

to Administrative Law Judge Susan B. Kirkland to conduct the

final hearing.

At the final hearing, Petitioner called the following

witnesses: Benjamin Gary, A.H., L.D., K.S., Angela D. Poppell,

Tina Hall, Candice Rosa, John Lau, S.D., M .G., D.B., M.R., C.J.,

Geila Jernigan, Delaney Chapman, S.L., Patricia Morgan, J.W.,

Jolynn Chapman, Richard DiPatri, and Terrance Humphrey.

Petitioner's Exhibits 1, 2, 4 (also identified as Petitioner's

Exhibit 24), 16 through 19, 21, and 27 were admitte d in

evidence. Petitioner's Exhibits 3, 20, and 29 were not accepted

in evidence.

At the final hearing, Respondent testified in his own

behalf and called the following witnesses: Michelle Knight,

Andrea Palmer, N.M., S.H., A.B., J.D., D.R., Ann Cissell , H.C.,

J.G., K.M., C.W., L.B., and Leroy Berry. Respondent's

Exhibits 1 and 2 were admitted in evidence.

The four - volume Transcript of the final hearing was filed

on April 5, 2004. The parties agreed to file their proposed

recommended orders on or befor e April 15, 2004. The parties

timely filed their proposed recommended orders, which have been

considered by the undersigned in rendering this Recommended

Order.

FINDINGS OF FACT

1. During the 2002 - 2003 school year, Gary was employed by

the School Board a s a band and orchestra director at James

Madison Middle School (Madison). Gary had been employed by the

School Board for two years previous to the 2002 - 2003 school

year.

2. Prior to the incidents which are at issue in this case,

Gary had been thought of by the Madison school administrators,

students, and parents as an excellent teacher, who was able to

inspire and motivate students.

3. Gary taught C.J., a ninth - grader, advanced band and

intermediate band during the 2002 - 2003 school year. Sometime

dur ing that school year, Gary noticed a dead dragonfly on a

window in the band classroom. The dragonfly was removed from

the window and placed in a trash receptacle. C.J. said that he

would eat the dragonfly for a dollar. Another student said that

he would give C.J. a dollar, and Gary said, "Okay." C.J.

retrieved the dead dragonfly from the trash can and ate the

insect. Gary gave C.J. a dollar.

4. C.J.'s parents learned of the dragonfly incident

through a younger cousin of C.J., who also attended Madison .

C.J.'s mother went to see Gary to discuss the incident. Gary

indicated to the mother that he was sorry for what had happened

and that it was poor judgment on his part. C.J.'s mother felt

that they had addressed the issue during their conversation and

left the meeting satisfied about the issue. Gary did not advise

school administration about C.J. and the dragonfly.

5. After the dragonfly incident another situation arose

involving Gary and C.J.'s eating an inappropriate item. Gary

and some students, i ncluding C.J., were eating lunch in the

cafeteria. Gary was eating baked ziti and began chewing on a

particularly hard piece of ziti. He removed the ziti from his

mouth and placed it on the side of his plate. Gary offered C.J.

12 dollars to eat the ziti , saying, "I bet you won't eat this

piece of baked ziti." C.J. replied, "Oh, yes, I will." Gary

then told C.J. not to eat the chewed food. Other students were

egging C.J. on to eat the ziti, and C.J. picked the food off

Gary's plate and ate it.

6. One of C.J.'s cousins related the ziti incident to

C.J.'s mother, and C.J.'s mother paid Gary another visit. The

mother was not happy about the ziti episode and spent more time

discussing the issue with Gary than she did when she visited him

concerning the d ragonfly. Gary told C.J.'s mother that he had

bet C.J. 12 dollars to eat the ziti. The mother told Gary not

to pay C.J. the money. Before she left the school on the day of

the ziti discussion, she went to see Gary a second time to

inquire about the stat us of his health because C.J. had eaten

food that had previously been in Gary's mouth. Gary assured her

that he was in good health. Gary did not advise school

administration about the ziti incident.

7. Gary was provided a copy of the school district's " Code

of Ethics" which contained a section entitled "How to Use Common

Sense and Professional Judgment to Avoid Legal Complications in

Teaching." On of the admonishments in this section was "[k]eep

your hands and other parts of your body to yourself."

8. During the 2002 - 2003 school year, Gary put his hands

inside students' pockets and searched for candy, chewing gum,

notes, and money. He admitted searching the pockets of D.B.,

S.D., M.R., N.M., D.R., and L.B. Such actions were

inappropriate and caused so me of the students to feel

uncomfortable. If a teacher suspects that a child has candy,

chewing gum, or notes in his pocket, the correct procedure is to

have the child empty his pockets so that the contents can be

viewed. The teacher is not to put his ha nds in the student's

pockets.

9. L.D. was a student at Madison during the 2002 - 2003

school year, and Gary was her band instructor. L.D. considered

Gary to be a "really good friend" as well as a teacher. During

the 2002 - 2003 school year, L.D. was sitting on the stairs in the

band room playing her band instrument. She played incorrectly,

Gary came up to her, aggressively grabbed her neck, and said

"urrr." She told him to stop, and he did. She did not think

that his actions were sexual in nature, but did feel that they

were inappropriate for a teacher.

10. During the 2002 - 2003 school year, J.W. attended

seventh grade at Madison. Gary was her band teacher. J.W. has

hugged Gary, and he has hugged her back. J.W. has seen Gary hug

other students at Madiso n.

11. D.B. was a honor roll student at Madison. During the

2002 - 2003 school year, she was in Gary's first period orchestra

class. She played the violin, and, during a two - week period

when her violin was broken, she helped Gary in his office.

12. Gar y's office was located within the band room. The

office had a door with a glass window, which took up at least

three - quarters of the upper half of the door. Adjacent to the

door, there was a large picture window which was on

approximately the same level with the door window, but which was

almost twice the size of the door window. A desk with a

computer on it was located underneath the picture window. The

top of the computer monitor came just below the bottom of the

picture window. Occupants of the offi ce could be seen from the

band room; however, the evidence does not establish that the

occupants could be seen fully from the band room.

13. Gary made inappropriate comments to D.B., including

telling her that she had sexy lips and telling her that she

sm elled good. These comments made D.B. feel uncomfortable.

Gary also inappropriately touched D.B. While she and Gary were

in his office, Gary "touched her inner thigh" and "rubbed it"

and asked her if she knew how beautiful she was. In a second

incident, Gary held her hand and rubbed her arm while she in his

office to file papers during first period orchestra. During a

third incident, Gary put his fingers inside her shorts at her

waist, pulled her toward him, and asked her what she wanted.

This incident took place when the door to the office was open.

In another incident, D.B. asked Gary to tune her violin, and he

put his hand up the bottom of her shirt. All the incidents

happened during first period orchestra class when students were

in the band room.

14. Gary argues that D.B.'s testimony is not credible

because of a conversation D.B. had with some fellow classmates.

J.D., a classmate of D.B., was talking with D.B. and another

classmate K.S. during fifth period of the 2002 - 2003 school year

while Gary was still teaching at Madison. K.S. said, "You know

what's being said about Mr. Gary is not true," and D.B. said,

"Yeah, it's not true, don't say anything." The evidence did not

establish what was being said about Gary and whether it

concerned D.B.'s al legations against Gary. Thus, the evidence

does not establish that D.B. was fabricating her allegations

about Gary.

15. Gary admits that he may have touched D.B. on occasion,

but that the touching was not sexual in nature or inappropriate.

16. M.R. wa s enrolled in Gary's second period and sixth

period band classes during the 2002 - 2003 school year. She

alleged that beginning in January 2003, Gary inappropriately

touched her person. M.R. alleged that on two occasions when she

was in Gary's office with the office door open and other

students were present in the band room, Gary touched the outside

of her clothing in her vaginal area. She also alleged that in a

third incident that Gary placed his hand inside her pants

underneath her underwear and rubbed h er vagina. The third

incident allegedly took place in the office with the door open

and while other students were present in the band room. On a

fourth occasion, M.R. alleged that Gary came up behind her in

the filing room, placed his hands inside her sh irt, and touched

her breasts.

17. The alleged incidents supposedly happened during third

period lunch when other students were in the band room eating

lunch or practicing. Of the students who testified at the final

hearing and spent most of their lunch periods in the band room,

none saw any inappropriate contact between Gary and M.R.

18. M.R. had wanted to be first chair flute in her band

class, but Gary made another student first chair. M.R. was

angry about Gary's selection for first chair and told h er friend

J.W. sometime after Christmas 2002 that she was going to get

even with Gary for not making her first chair. K.M., who was a

student at Madison, overheard M.R. tell another student that the

allegations and problems facing Gary were "what he deser ves for

not promoting me up in chair."

19. M.R. does not have a good reputation in the community

for truth and veracity. Her testimony concerning inappropriate

touching by Gary is not credible, and it is found that those

incidents did not happen.

20. The School Board established other incidents of

inappropriate behavior by Gary. Such behavior included telling

a student that he could not wait until she was 21 so that he

could be all over her and that it was a good thing that she was

pretty because her brains would not get her anywhere; tickling

her at the end of class; pulling her against her will onto his

lap, and placing his arms around her arms and waist. Gary would

also sit with students in the same chair in his office. Gary

failed to tell school administrators of possible sexual

misconduct between two students in the student restroom, when he

became aware that some misconduct probably occurred between the

two students. Although, the School Board proved these

incidents, the School Board failed to allege the incidents in

the Petition for Dismissal.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2000).

22. The School B oard seeks to dismiss Gary pursuant to

Subsection 1012.33(6)(a), Florida Statutes (2003), which

provides that instructional staff of the school districts may

be dismissed for just cause. Just cause includes misconduct in

office, which is defined by Flori da Administrative Code

Rule 6B - 4.009(3) as follows:

Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B -

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profe ssion in Florida as adopted in Rule 6B -

1.006, F.A.C., which is so serious as to

impair the individual's effectiveness in the

school system.

23. The Petition for Dismissal which serves as the basis

for Gary's dismissal alleges the following factual allega tions:

(a) During the 2002 - 2003 school year

Respondent did on several occasions make

sexually suggestive comments to and did

inappropriately touch a minor female

student, Jane Doe, by placing his hands in

her pockets and under her clothing, by

rubbing h er thigh and stomach area and

putting his arms around her in a sexually

suggestive way.

(b) During the 2002 - 2003 school year

Respondent did on several occasions

inappropriately touch a minor female

student, Mary Doe, by placing his hands in

her pants an d under her shirt and fondling

her private areas.

(c) During the 2002 - 2003 school year

Respondent did inappropriately touch other

minor female students by placing his hands

in their pockets, rubbing their necks,

hugging, and otherwise failing to maintai n a

professional distance between himself and

the students.

(d) During the 2002 - 2003 school year

Respondent did bet a minor male student in

his class to eat spit out food and an insect

resulting in the student ingesting both

items.

24. The School Boar d must establish the allegations in the

Petition for Dismissal by a preponderance of the evidence.

McNeil v. Pinellas County School Board , 678 So. 2d 476 (Fla. 2d

DCA 1996); Sublett v. Sumter County School Board , 664 So. 2d

1178 (Fla. 5th DCA 1995).

25. The School Board alleged that Gary's above - referenced

actions violated the Code of Ethics of the Education Profession

in Florida, Florida Administrative Code Rule 6B - 1.001, which

provides:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2 ) The educator's primary professional

concern will always be for the student and

for the development of the student's

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integ rity.

(3) Aware of the importance of

maintaining the respect and confidence of

one's colleagues, of students, of parents,

and of other members of the community, the

educator strives to achieve and sustain the

highest degree of ethical conduct.

26. Th e School Board also alleged that Gary violated

the Principles of Professional Conduct for the Education

Profession in Florida by violating Florida Administrative Code

Rules 6B - 1.006(3)(a), (e), (f), (g), and (h), which provide:

(3) Obligation to the s tudent requires

that the individual:

(a) Shall make reasonable effort to

protect the student from conditions harmful

to learning and/or to the student's mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a

stu dent to unnecessary embarrassment or

disparagement.

(f) Shall not intentionally violate or

deny a student's legal rights.

(g) Shall not harass or discriminate

against any student on the basis of race,

color, religion, sex, age, national or

ethnic o rigin, political beliefs, marital

status, handicapping condition, sexual

orientation, or social and family background

and shall make reasonable effort to assure

that each student is protected from

harassment or discrimination.

(h) Shall not exploit a r elationship

with a student for personal gain or

advantage.

27. A teacher's ineffectiveness in a school system may be

inferred from the teacher's misconduct. See Walker v. Highlands

County School Board , 752 So. 2d 127 (Fla. 2d DCA 2000). The

misconduct in this case involves Gary's inappropriate comments

to students, inappropriate touching of students, and betting a

student money to eat an insect and to eat food chewed by Gary.

The misconduct goes to the very heart of a teacher's

relationship to his stu dents. As such, it can be inferred that

such conduct impairs Gary's effectiveness in the Brevard County

School system.

28. The School Board did establish that Gary's actions

regarding C.J. and the ingestion of a dragonfly and chewed ziti

violated Florida Administrative Code Rules 6B - 1.006(3)(a)

and 6B - 1.001. The first incident involving the dragonfly might

be viewed as a lapse of good judgment, but the second incident

involving the baked ziti can only be construed as misconduct in

office, especially in l ight of C.J.'s mother's conversation with

Gary concerning her displeasure over the eating of the

dragonfly.

29. The School Board did establish that Gary violated

Florida Administrative Code Rules 6B - 1.001 and 6B - 1.006(3)(a) by

searching the pockets of s tudents for chewing gum, candy

wrappers, notes, and money. It is inappropriate for a teacher

to place his hands in a student's pocket and search the student.

Gary's actions constitute misconduct in office.

30. The School Board did establish that Gary vi olated

Florida Administrative Code Rules 6B - 1.006(3)(a) and 6B - 1.001,

by rubbing L.D.'s neck aggressively when he was displeased with

her playing of her band instrument. Such violation is

misconduct in office.

31. The School Board did establish that Gary 's

inappropriate comments to D.B. and his inappropriate touching of

D.B. violated Florida Administrative Code Rules 6B - 1.006(3)(a),

(e), (f), (g), and (h), and 6B - 1.001. Such violations

constitute misconduct in office.

32. The School Board did not establ ish the allegations in

the Petition for Dismissal relating to Gary's placing his hands

in M.R.'s pants and under her shirt and fondling her private

parts.

33. During the final hearing, the School Board established

other violations of misconduct in office as set forth in

paragraph 20 above. These facts were not alleged in the

Petition for Dismissal and, therefore, cannot be used as a basis

for Gary's dismissal. See McMillian v. Nassau County School

Board , 629 So. 2d 226, 229 (Fla. 1st DCA 1993). However, the

violations of misconduct that the School Board has alleged and

established constitute just cause for Gary's dismissal.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a Final Order dismissing Benj amin Leon

Gary for just cause from his employment as a teacher with the

School Board.

DONE AND ENTERED this 24th day of June, 2004, in

Tallahassee, Leon County, Florida.

S

SUSAN B. KIRKLAND

Administrative Law Judge

Divi sion 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

thi s 24th day of June, 2004.

COPIES FURNISHED :

Harold T. Bistline, Esquire

Stromire, Bistline, Miniclier & Griffith

1970 Michigan Avenue, Building E

Post Office Box 8248

Cocoa, Florida 32924 - 8248

Mark S. Levine, Esquire

Levine, Stivers & Myers

245 East V irginia Street

Tallahassee, Florida 32301

Benjamin B. Garagozlo, Esquire

3585 Murrell Road

Rockledge, Florida 32955

Dr. Richard A. DiPatri, Superintendent

Brevard County School Board

2700 Judge Fran Jamieson Way

Viera, Florida 32940 - 6699

Daniel J. W oodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Honorable Jim Horne, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

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 age ncy that

will issue the Final Order in this case.