04-000731PL Jim Horne, As Commissioner Of Education vs. Edward M. Baldwin Status: Closed Recommended Order on Monday, June 28, 2004.

Summary: Respondent made inappropriate comments about a student`s appearance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, AS COMMISSIONER OF )

EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0731PL

)

EDWARD M. BALDWIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on May 20, 2004, 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

(2003). The hearing was held by video - teleconferencing. The

administ rative law judge was located at a site in Tallahassee,

Florida. The remaining participants were located at a site in

Jacksonville, Florida. The hearing commenced at 10:00 a.m. The

hearing was conducted by Charles C. Adams, Administrative Law

Judge.

AP PEARANCES

For Petitioner: Ellen C. Pappas, Esquire

McFarlain & Cassedy, P.A.

305 South Gadsden Street

Tallahassee, Florida 32301

For Respondent: Edward M. Baldwin, pro se

(No appearance)

STATEMENT OF THE ISSUE

Should Petit ioner impose discipline on Respondent's Florida

Educator's Certificate No. 843208, covering the area of English,

based upon the allegations in the Administrative Complaint,

Case No. 023 - 1821 - R, before the State of Florida Education

Practices Commission?

P RELIMINARY STATEMENT

On November 5, 2003, Jim Horne, as Commissioner of

Education executed the Administrative Complaint. Respondent

replied to the Administrative Complaint asking for a formal

hearing to contest all allegations of misconduct that are set

forth in the Administrative Complaint, referred to as material

allegations as they implicate consideration of Counts 1

through 5, pertaining to alleged violations of statutes and

rules.

On March 8, 2004, the case was received by the Division of

Administ rative Hearings and assigned for an evidentiary hearing

to resolve material facts in dispute. The assignment was made

to the undersigned. Following the assignment the hearing was

conducted on the date described.

At hearing, Petitioner presented the te stimony of J.L.J.

and E.S.H., students. Petitioner's Exhibit numbered 1 was

admitted. That exhibit is the deposition testimony of C.D.C.,

another student.

A hearing transcript was filed on May 25, 2004. On June 7,

2004, Petitioner filed a Proposed Re commended Order, which has

been considered in preparing the Recommended Order.

FINDINGS OF FACT

1. The Respondent holds Florida Educator's Certificate

No. 843208, covering the area of English, which is valid through

June 30, 2003.

2. At all times p ertinent hereto the Respondent was

employed as an English teacher at Philip Randolph Academy School

(Randolph Academy), in the Duval County School District. 1

3. J.L.J. was a female student at Randolph Academy in the

school year 2002 - 2003. Her date of birth is October 29, 1987.

She was familiar with Respondent when he taught there.

4. J.L.J. had conversations with Respondent over time,

conversations in which Respondent would ask her questions she

deemed inappropriate and would follow with comments t hat she

found unacceptable. As will be revealed, her perceptions about

Respondent's conduct were correct.

5. Most of the conversations complained of took place in

the hallway or in a teacher's classroom. They made J.L.J. feel

uncomfortable. The conv ersations were in the presence of other

students and J.L.J. was embarrassed for that reason.

6. One example of the conversations took place on a day

when J.L.J. wore medical scrubs to school. Respondent commented

that J.L.J. should not wear the scrubs because he could not see

her curves. This is taken to mean that he was commenting on the

shape of J.L.J.'s body.

7. On other occasions Respondent would comment on J.L.J.'s

attire. He would tell her that she should not wear a certain

"outfit" because it made her look a certain way or didn't make

her look a certain way.

8. At one point in time at school Respondent asked J.L.J.

if she had "black in you." Respondent followed his question by

commenting that he had asked her that because J.L.J. was "s haped

like a black girl."

9. Respondent told J.L.J. that she was "sexy." He told

her that her "butt" was big and that it was sexy.

10. Respondent commented about J.L.J.'s hair and make - up.

He would suggest to her certain ways that her hair should b e

styled and how her make - up should be presented.

11. At a point in time, J.L.J. asked Respondent to leave

her alone, referring to his remarks about her appearance. For a

couple of days Respondent made no further comments but he began

to act the same w ay that he had before in relation to comments

about J.L.J.'s body, specifically her "butt" and her hair.

12. E.S.H. was another female student at the Randolph

Academy in the school year 2002 - 2003. Her date of birth is

August 7, 1987. Respondent was her teacher. Respondent had

conversations involving J.L.J. and E.S.H. on an almost daily

basis. As had been identified by J.L.J., these conversations

took place in the hallways and in a teacher's classroom.

13. The substance of the conversations to whic h E.S.H. was

privy, coincide with those recounted by J.L.J. and were

principally directed to J.L.J. concerning J.L.J.'s hair, face,

and overall appearance.

14. E.S.H. was there when Respondent commented about the

scrubs worn by J.L.J. She recalls Respo ndent saying that J.L.J.

should not wear the scrubs because they made J.L.J. look like

everyone else and did not show her shape, her curves. J.L.J.

complained to E.S.H. about these remarks when Respondent walked

away from that conversation.

15. As E.S .H. recalls, J.L.J. and E.S.H. went to

Respondent and complained about the comments that he made to

J.L.J. concerning J.L.J.'s appearance. Respondent apologized

but he also said that if the two female students went to the

principal to complain that it wou ld be his word against theirs.

16. E.S.H. explained that about two days later J.L.J. came

to her complaining about Respondent. This agrees with J.L.J.'s

recollection of the place and time in which Respondent returned

to his habit of making inappropriat e comments about J.L.J.

17. E.S.H. overheard Respondent comment to J.L.J. about

J.L.J.'s "butt" and how it was getting big, and how that it was

shaped like a "black girl."

18. If J.L.J. were wearing certain clothes, Respondent

would ask J.L.J. if her body was spreading because to him it

looked as if J.L.J.'s "butt" was getting bigger. Those remarks

were overheard by E.S.H.

19. E.S.H. was also present when Respondent commented

about J.L.J.'s face and her make - up, whether it was too much, or

whether n ot enough time had been spent by J.L.J. applying make -

up that morning.

20. These encounters between Respondent and J.L.J. left

E.S.H. with the impression that Respondent was attracted to

J.L.J.

Disciplinary History

21. There is no indication that Respondent has been

subjected to prior discipline.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

proceeding in accordance with Sections 120.569 and 120.57(1),

Florida Stat utes (2003).

23. The Administrative Complaint contains five counts

related to alleged violations of various statutes and rules.

Count 1 refers to Section 1012.795(1)(c), Florida Statutes

(2002). Count 2 refers to Section 1012.795(1)(i), Florida

Statute s (2002). Count 3 refers to Florida Administrative Code

Rule 6B - 1.006(3)(a). Count 4 refers to Florida Administrative

Code Rule 6B - 1.006(3)(e). Count 5 refers to Florida

Administrative Code Rule 6B - 1.006(3)(g). In turn the statutes

and rules state:

§ 1 012.795, Fla. Stat. (2002)

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,

thereby 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, . . . or

may impose any other penalty provided by

law, provided it can be shown that the

person:

* * *

(c) Has been guilty of gross immorality or

an act involving moral turpitude.

* * *

(i) Has violated the Principles of

Professional Conduct for Education

Profession prescribed by State Board of

Education rules.

Fla. Admin. Code R. 6B - 1.006

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and /or to the student's mental

and/or physical hea lth and/or safety.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

* * *

(g) Shall not harass or discriminate

against any student on the basis of race,

color, religion, sex, age, national or ethic

origin, 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.

24. As can be seen, to t he extent that any violations have

been shown in relation to Counts 3, 4, and 5 they would also

constitute a violation of Count 2.

25. The reasons for the violations are set forth in the

Administrative Complaint, wherein it is stated:

3. During the 20 02 - 2003 school year, the

Respondent made inappropriate comments to

J.L.J., a female student whose date of birth

is October 29, 1987. The comments included,

but are not limited to, asking her if she

"had an black in her," telling her "you look

sexy," "I li ke your butt," "Your booty is

getting big," and "Damn, who is that?"

[referring to J.L.J.]. On or about March

14, 2003, the Respondent was given a letter

of reprimand and suspended for five (5) days

without pay. He was subsequently reassigned

to Bull's B ay and continues to be employed

there.

26. 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 definition of clear and convinc ing evidence is found in the

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

27. In considering the outcome of this case, it is with

the recognition that educators are expected to conform to higher

moral standards. The court has held, "by virtue of their

leadership capacity, teachers are traditionally held to a higher

moral standard in the community." Adams v. Professional

Practices Council , 406 So. 2d 1170, 1171 (Fla. 1st DCA 1981).

28. As an educator, it is not necessary that Responden t

" . . . be charged with or convicted of a crime in order to be

subject to revocation of a certificate based on conduct

reflecting gross immorality or moral turpitude. . . ." Walton

v. Turlington , 444 So. 2d 1082, 1084 (Fla. 1st DCA 1984).

29. Count 1 refers to acts of gross immorality or moral

turpitude. To understand the meaning of those terms, resort is

made to provisions within Florida Administrative Code Rule 6B - 4,

which defines terms for the benefit of district school systems

in disciplining i nstructional staff.

30. Florida Administrative Code Rule 6B - 4.009(2), defines

immorality as:

Conduct that is inconsistent with standards

of public conscience and good morals. It is

conduct sufficiently notorious to bring the

individual concerned or the educational

profession into public disgrace or

disrespect and impair the individual's

service in the community.

For the conduct to be grossly immoral, it would need to be a

form of immorality that is obvious and inexcusable.

31. In connection wi th the discipline to be imposed by a

district school system for its instructional staff, "moral

turpitude" is defined at Florida Administrative Code

Rule 6B - 4.009(6), as:

Crime that is evidenced by an act of

baseness, vileness, or depravity in the

privat e and social duties, which, according

to the accepted standards of the time a man

owes to his or her fellow man or to society

in general, in the doing of the act itself

and not its prohibition by statutes fixes

the moral turpitude.

In the word again, it is not necessary that a crime be committed

in order to demonstrate moral turpitude.

32. While Respondent's conduct was reprehensible in his

treatment of the student J.L.J., it did not evidence gross

immorality or moral turpitude. There is no violatio n of

Section 1012.795(1)(c), Florida Statutes (2002).

33. Proof is clear and convincing that Respondent failed

to make a reasonable effort to protect J.L.J. from conditions

harmful to her learning. Thus he has violated Florida

Administrative Code Rul e 6B - 1.006(3)(a), set forth in Count 3.

His comments directed to her concerning her physical appearance

and heritage were offensive to her and were such as to harm her

opportunities to learn as a student.

34. Clear and convincing evidence has been pre sented to

establish a violation of Count 4, in that Respondent's remarks

about J.L.J.'s person exposed her to unnecessary embarrassment

or disparagement as a student in violation of Florida

Administrative Rule 6B - 1.006(3)(e).

35. Clear and convincing e vidence has been presented to

show a violation of Count 5. Respondent harassed J.L.J. based

upon her sex by his remarks. This is a violation of Florida

Administrative Code Rule 6B - 1.006(3)(g).

36. Having violated Counts 3 through 5, clear and

convinc ing evidence has been presented to show a violation of

Section 1012.795(1)(i), Florida Statutes (2002), related to

Count 2.

37. In keeping with the expectations as set forth in

Section 1012.795(1), Florida Statutes (2002), and having in mind

the nature of the violations, a recommendation for punishment is

made.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law

reached, it is

RECOMMENDED:

That a Final Order be entered which finds Respondent in

violations of Counts 2 through 5, di smisses Count 1, and

suspends Respondent's Educator's Certificate for a period of 30

days.

DONE AND ENTERED this 28th day of June, 2004, in

Tallahassee, Leon County, Florida.

S

CHARLES C. ADAMS

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 28th day of June, 2004.

END NOTE

1 / The preceding paragraphs were set forth in the Administrative

Complaint under the heading "Jurisdiction." Those references

are found as fact, in that through Respondent's election for a

formal hearing, he has only contested allegations of miscon duct

which follow the section on jurisdiction and are referred to as

"Material Allegations."

COPIES FURNISHED :

Ellen C. Pappas, Esquire

McFarlain & Cassedy, P.A.

305 South Gadsden Street

Tallahassee, Florida 32301

Edward M. Baldwin

1704 East 24th S treet

Jacksonville, Florida 32206

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Educati on

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Suite 224 - E

Tallahassee, Florida 32399 - 0400

NOTICE OF RIG HT 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.