04-000733PL Jim Horne, As Commissioner Of Education vs. Mark S. Sanchez Status: Closed Recommended Order on Friday, October 29, 2004.

Summary: Misuse of a classroom computer warrants suspension retroactive to the date of termination, followed by five years` probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, AS COMMISSIONER OF )

EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0733PL

)

MARK S. SANCHEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pu rsuant to notice, a formal hearing was held in this case

on August 19, 2004, in Clearwater, Florida, and on August 20,

2004, by telephone at sites in Tampa, Tallahassee, and

Jacksonville, Florida, before Florence Snyder Rivas, a duly -

designated Administrat ive Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Robert E. Sickles, Esquire

Broad and Cassel

100 North Tampa Street, Suite 3500

Post Office Box 331 0

Tampa, Florida 33601 - 3310

For Respondent: Joan Stewart, Esquire

FEA/United

118 North Monroe Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whethe r Respondent committed the violations alleged in the

Administrative Complaint dated December 17, 2003, and, if so,

what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated December 17, 2003, the

Commissioner of Education (Pet itioner) charged Respondent, Mark

Sanchez (Respondent or Sanchez), with inappropriate use of his

classroom computer, the material allegations being:

During the 2000 - 2001 school year, the

Respondent used a school computer in his

classroom to access pornog raphic websites

while students were in the classroom.

Additionally, he used the school computer to

receive and send e - mails containing sexually

explicit language and profanity. On or

about August 8, 2001, he resigned his

position with the Pinellas County School

District effective that same date.

Based upon these allegations, Sanchez is charged with

violations of Sections 1012.795(1)(c), 1012.795(1)(f), and

1012.795(1)(i), Florida Statutes; and Florida Administrative

Code Rule 6B - 1.006(4)(c).

The identity of witnesses, exhibits and attendant rulings

are contained in the two - volume transcript of the August 19,

2004, proceedings filed on September 8, 2004. The one - volume

transcript of the August 20, 2004, proceedings was filed on

September 20, 2004.

Timely Proposed Recommended Orders were submitted and have

been carefully considered.

Statutory references are to Florida Statutes (2004).

References to rules are to rules promulgated in the Florida

Administrative Code (2003).

FINDINGS OF FACT

1. Petitioner, a s Commissioner of the Florida Department

of Education, is responsible to investigate and prosecute

complaints against individuals who hold a Florida educator's

certificate and are alleged to have violated provisions(s)of

Section 1012.795 and related Rules.

2. In cases where there is clear and convincing evidence

to support any alleged violation, Petitioner is responsible to

bring the case forward to the Education Practices Commission

(EPC) for the imposition of discipline.

3. At all times material to thi s case, Sanchez holds a

Florida educator's certificate and is certified to teach social

science.

4. Sanchez was employed as a social studies teacher at

Pinellas County's Northeast High School from January 1996 until

August 8, 2001. He resigned on that da te when confronted with

the allegations which give rise to this case.

5. Sanchez is a second - generation educator. Over the

years he has been an effective teacher in a variety of settings,

and has had a positive impact upon the lives of many students.

6. At times relevant to this case, Sanchez had personal

problems which he describes as "marriage problems, ex - wife

hassles, money issues, lack of focus."

7. In an effort to address the "money issues," Sanchez

took a part time job at Sam's Club (Sam's), wher e he continues

to work.

8. At times relevant to this case, Sanchez was considered

an excellent employee and team player by both Sam's and

Northeast High School.

9. At times relevant to this case, Sanchez shared a

classroom at Northeast High with a teach er colleague. Each was

provided by the Pinellas County school district with a classroom

computer with Internet access. The computers were to be used

exclusively for pedagogical purposes, including work related

communications.

10. Sanchez knew or should have known that the use of his

classroom computer for non - professional purposes, including the

exchange of sexually explicit or suggestive e - mail, or to

download pornography, was expressly prohibited by the Pinellas

County school district.

11. At all ti mes material to this case, the Pinellas

County school district protected all of its computers with a so -

called filter program called Net Nanny. The program's purpose

is to filter out inappropriate websites, including pornographic

websites. However, the N et Nanny filter is easily defeated if

an Internet service provider such as America On Line (AOL) is

installed on an individual computer.

12. For that reason, the Pinellas County school district

properly prohibited teachers from installing AOL on their

ass igned classroom computers.

13. Sanchez claimed not to know of this prohibition, but

the fact finder credits the testimony of Assistant Principal

Cynthia Hearn (Hearn), Northeast High's technology specialist,

who had a clear and precise recollection of hav ing personally

instructed Sanchez to remove AOL from his computer at least six

months prior to the events giving rise to this case.

14. Sanchez freely admits that at all times relevant, AOL

was on his classroom computer and frequently utilized because he

considers it "an amazing resource for teachers."

15. At all times relevant to this case, AOL users have

access to an "instant message" service. Sanchez claims that at

relevant times, he confined his use of this service to brief

messages such as "I'm on the way home" to his then - wife.

16. Sanchez also admits to using the instant message

service "on a fairly regular basis" to participate in informal

work - related discussion chat rooms with "several colleagues

that had . . . similar set ups on their comp uters at work as

well. . . ."

17. Sanchez' description of his use of AOL was less than

forthcoming. At times relevant to this case, Sanchez

established Internet accounts in names such as

"[e-mail]" and used these accounts to access

the I nternet via AOL for purposes of exchanging sexually

explicit and sexually suggestive e - mail with a woman with whom

he was having an extra - martial affair.

18. In addition, at times relevant to this case Sanchez

downloaded a substantial amount of adult porn ography to his

classroom computer.

19. Some of these unauthorized uses of the classroom

computer occurred during hours when students were in the

classroom.

20. There is no evidence regarding what, if any, specific

pornographic images or sexually inappr opriate e - mail was viewed

by any student.

21. Sanchez' misuse of the classroom computer came to the

attention of Northeast's administration on March 6, 2001, when

two students from Sanchez' class were sent to the office of

Assistant Principal Harry Brow n on disciplinary referral.

22. The girls alleged to Brown that Sanchez was using his

computer for personal e - mail and further claimed they had seen

pictures of girls on his computer.

23. After school, Brown, accompanied by Hearn, entered

Sanchez' classr oom and turned on the computer assigned to

Sanchez.

24. Brown noticed an AOL icon and asked Hearn to launch

the program. She did so, and immediately the AOL instant

messenger program opened and revealed messages directed to

Sanchez.

25. Hearn reviewed the computer's records of websites

which had been accessed that day. Some appeared to be teen -

oriented sex sites.

26. The computer assigned to the teacher who shared

Sanchez' classroom was also turned on and its content reviewed.

No inappropriate websit es or programs were found.

27. Brown and Hearn seized the central processing unit of

Sanchez' computer and locked it in a closet in the main office.

The following day, Michael Bissette (Bissette), chief

investigator for the Pinellas County school distric t's Office of

Professional Standards, reviewed the history as recorded on the

central processing unit with regard to websites which had been

accessed on Sanchez' computer.

28. Finding a number of pornographic sites, Bissette

turned the central processin g unit over to law enforcement to

determine if any crimes had been committed.

29. It is the policy of the Pinellas County school

district not to conduct any administrative investigation of an

employee during the pendency of a criminal investigation, nor t o

allow a teacher to teach while under criminal investigation.

Accordingly, the Pinellas County school district made

arrangements to have a substitute teacher cover Sanchez' classes

indefinitely pending the outcome of the criminal investigation.

30. Sanch ez was at first unaware he was under

investigation because for much of March 2001, he was on leave

for reasons related to the illness and subsequent death of his

father.

31. Upon his return from leave on or about March 29, 2001,

Sanchez went to his clas sroom to prepare for the day and was

soon confronted by an assistant principal who told Sanchez to

gather his things. Sanchez was thereafter escorted off campus.

32. Months later, law enforcement returned the case to the

Pinellas County school district, having determined that there

was no evidence that any crime had been committed. However, an

analysis of the central processing unit revealed that thousands

of adult pornographic images had been downloaded to the computer

assigned to Sanchez.

33. Pursua nt to Pinellas County school district

procedures, Bissette arranged a meeting with Sanchez and his

union representative Betty Shields (Shields) to be held on

August 8, 2001.

34. At that meeting, and on other occasions prior to the

final hearing, Sanchez a dmitted accessing adult pornography

sites. He has consistently denied accessing teen pornography.

35. This is a distinction without a difference in context

of this case, because at all relevant times, the Pinellas County

school district had a zero toler ance policy with reference to

the use of its computers to access pornography of any kind.

Employees believed to have abused computer access in this manner

are in all cases offered the opportunity to resign in lieu of

termination proceedings.

36. Pursua nt to that policy, Sanchez was offered, and

accepted, the opportunity to resign his teaching position with

the Pinellas County school district.

37. At hearing, Sanchez insisted that Bissette coerced his

resignation through the use of tactics which were im proper and

possibly illegal. Sanchez further testified that he submitted

to Bissette's coercive tactics in part because he had

incompetent union representation. Shields died prior to the

hearing and thus was unable to be present to defend herself.

38. T he trier - of - fact carefully observed the demeanor of

Bissette and Sanchez as they testified regarding all aspects of

this case, including the circumstances surrounding the

resignation. Under all of the circumstances, including the

documentary evidence; the motivation to recall events in a

particular light; and the level of detail one would reasonably

expect each to be able to recall after three years and in light

of the relative significance of the meeting to each man who was

present, it is determined that Bissette's recollection of the

circumstances surrounding the resignation is much closer to the

truth than Sanchez'. In particular, it is determined that

Sanchez' resignation was not coerced.

39. The fact that Sanchez resigned voluntarily is not

deemed to be an admission of any nor all of the conduct alleged

in the Administrative Complaint, and has not been considered

with respect to the matter of whether or not the alleged

violations were committed by Sanchez.

40. In addition to accusing Bissette and S hields of

incompetence or worse, without corroborating evidence of any

kind, Sanchez also repeatedly suggested -- again without

corroboration of any sort -- that other individuals were

responsible for some or all of the pornography found on his

computer.

41. Specifically, Sanchez attempted to cast suspicion upon

student helpers, workers involved in construction projects at

Northeast High, and even the teacher with whom Sanchez shared

his classroom. This tactic was ill - advised and unavailing.

42. Sanchez d oes not contend, nor could he, that anyone

but he was responsible for the e - mail exchanges between himself

and his mistress.

43. With reference to the pornographic websites, it is

emphatically noted that there is not a shred of evidence

connecting anyone but Sanchez to such websites.

44. Sanchez appealed for sympathy for his personal

problems, and made repeated efforts to draw attention to his

years of exemplary teaching service. It is not necessary to

decide when, if ever, a professional's personal prob lems would

justify seeking refuge in pornography and an extramarital

affair, inasmuch as Sanchez seeks exoneration, not mercy.

45. Sanchez' blanket denial that he downloaded pornography

is not credited. In addition to making baseless accusations

against innocent third parties, Sanchez' credibility was tainted

by deceptive testimony at hearing about even inconsequential

matters.

46. For example, Sanchez was asked if he visited his

mistress on the way to school in the mornings. He replied, "On

occasion, y es." Under follow - up questioning, he acknowledged,

"It was actually a fairly regular visit."

47. To take another example, in the course of attempting

to implicate others in the misuse of the computer, Sanchez

intimated that former students, present in t he classroom to

"grade papers," had access to the computer. Asked to explain

why former students would have been grading papers, Sanchez

amended his testimony to say that former students would come by

his class to "help out," but not to grade papers.

48. The lack of candor exhibited by Sanchez in his hearing

testimony is not, of course, proof of the charges set forth in

the Administrative Complaint. It does, however, provide an

extra measure of confidence in the proof offered by Sanchez'

colleagues who t estified regarding their knowledge of and

concerns regarding his trustworthiness and continued efficacy as

a teacher.

49. Pursuant to the Pinellas County school district's

above - described zero tolerance policy, Sanchez will not be

restored to employment as a teacher in that district, regardless

of the outcome of these proceedings.

CONCLUSIONS OF LAW

50. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties pursuant to Sections 120.569 and 120.57 (1).

51. Petitioner seeks to revoke Sanchez' educator's

certificate. Therefore, Petitioner has the burden of proving

the material allegations in the Administrative Complaint by

clear and convincing evidence. See Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987); McKinney v. Castor , 667

So. 2d 387 (Fla. 1st DCA 1995).

52. The clear and convincing standard

. . . r equires that the evidence must be

found to be credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony must be precise

and explicit and the witnesses must be

lacking in confusion as to the facts in

issue. The evidenc e must be of such weight

that it produces in the mind of the trier of

fact a firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

53. As p reviously noted, Petitioner contends that Sanchez

used his classroom computer to download pornography and to send

and receive sexually explicit e - mail and in so doing violated

three provisions of Sections 1012.795(1), specifically:

(c) Has been guilty o f gross immorality

or an act involving moral turpitude.

* * *

(f) Upon investigation, has been found

guilty of personal conduct which seriously

reduces that person's effectiveness as an

employee of the district school board.

* * *

(i) Has vio lated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

54. In addition, Petitioner contends that Sanchez' use of

his classroom computer to download pornography and to send and

receive sexua lly explicit e - mail co nstitutes a violation of Rule

6B - 1.006, which provides in pertinent part:

(4) Obligation to the public requires

that the individual:

* * *

(c) Shall not use institutional

privileges for personal gain or advantage.

55. Ru le 6B - 1.006 (4)(c) must be read in its context as a

subsection of Rule 6B - 1.006, the Principles of Professional

Conduct for the Education Profession in Florida. This Rule

provides that a violation of any of the principles embodied in

the Rule shall subjec t the offender to revocation or suspension

of his educator's certificate, or other penalties as provided by

law.

56. As set forth in detail in the Findings of Fact,

Petitioner has proved the material allegations of the

Administrative Complaint by clear an d convincing evidence.

57. Sanchez' improper use of his classroom computer was a

serious and ongoing violation, over an extended period of time,

of Section 1012.795(1)(f) and (i), and of Rule 6B - 1.006 (4)(c).

Sanchez knew or should have known that his c lassroom computer

was provided to him for his use and benefit in performing

teaching - related duties. Yet, Sanchez chose to use the computer

to access pornography and to send and receive sexually explicit

e - mail.

58. In furtherance of his desire to use the computer for

impermissible purposes, Sanchez installed prohibited software,

specifically AOL, for the purpose of bypassing computer security

protocols. It is difficult to imagine a clearer case of use --

indeed, abuse -- of institutional privileges, speci fically

computer access, for personal gain or advantage in gratifying

his sexual needs and in pursuing a personal relationship during

working hours.

59. Sanchez sought to persuade the trier of fact that he

did not download pornography on his classroom co mputer, and that

Petitioner’s evidence constituted "speculation, surmise and

suspicion" and as such cannot be considered a proper basis upon

which to impose discipline. See , e.g., Tenbroeck v. Castor , 640

So. 2d 164, 168 (Fla. 1st DCA 1994). In truth, it was Sanchez

who sought to inject speculation into the proceeding, intimating

that everybody from teaching colleagues to construction workers

could have been responsible for having downloaded pornographic

websites. Sanchez offered no explanation for the s exually

explicit e - mail exchanges with his lover which, standing alone,

constitute a serious violation of the rules governing the use of

the classroom computer.

60. Clear and convincing evidence supports the conclusion

that Sanchez' conduct was "so seriou s as to impair [Sanchez']

effectiveness in the school system." § 1012.795(1)(f).

61. The totality of the record, including the Pinellas

County School Board's zero - tolerance policy with reference to

the offenses proved, and the testimony of Sanchez' colle agues,

demonstrates compellingly that Sanchez, by his own profound lack

of judgment and self - restraint, has reduced his effectiveness as

an employee of the Pinellas County school district to a level

which renders him unemployable in that district, notwiths tanding

his excellent record as a teacher.

62. Even had such direct evidence been lacking, Sanchez'

poor judgment in using the classroom computer as a personal toy,

coupled with his failure to take responsibility, and his

unconscionable efforts to accuse innocent bystanders, support

the conclusion that Sanchez' impaired effectiveness may be

properly inferred. See , e.g. , Purvis v. Marion County School

Board , 766 So. 2d 492, 498 (Fla. 5th DCA 2000), Walker v.

Highlands County School Board , 752 So. 2d 127 (Fl a. 2d DCA

2000).

63. With reference to Section 1012.795(1)(c), Petitioner

has failed to prove by clear and convincing evidence that

Sanchez "[h]as been guilty of gross immorality or an act

involving moral turpitude."

64. It is noted that "gross immorali ty" and "an act

involving moral turpitude" are not defined in Chapter 1012.

Instead, Florida courts, and this forum, typically turn to Rule

6B - 4.009 for guidance in interpreting Section 1012.795(1)(c),

although strictly speaking the Rule applies only to dismissal

actions initiated by school boards against instructional

personnel.

65. Rule 6B - 4.009(2) defines "immorality" as follows:

Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is condu ct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or

disrespect and impair the individual's

service in the community.

66. "Gross immorality" has been defined as misconduct that

is more egregious than mere "immorality":

The term "gross" in conjunction with

"immorality" has heretofore been found to

mean "immorality which involves an act of

misconduct that is serious, rather than

minor in nature, and which constitutes a

flagrant disregard of proper m oral

standards." Education Practices Commission

v. Knox , 3 FALR 1373 - A (Department of

Education 1981).

Frank T. Brogan v. Eston Mansfiled, DOAH Case No. 96 - 0286 (EPC

Final Order 1996).

67. Rule 6B - 4.009(6) defines "moral turpitude" as follows:

Moral tur pitude is a crime that is evidenced

by an act of baseness, vileness or depravity

in the private 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, and the doing of the

act itself and not its prohibition by

statute fixes the moral turpitude.

68. The court in State ex rel. Tullidge v. Hollingsworth ,

146 So. 660, 661 (1933), observed that moral turpitude

involves the idea of inherent baseness or

depravity in the private soci al relations or

duties owed by man to man or by man to

society. . . . It has also been defined as

anything done contrary to justice, honesty,

principle, or good morals, though it often

involves the question of intent as when

unintentionally committed thro ugh error of

judgment when wrong was not contemplated.

69. In determining whether a teacher is guilty of gross

immorality or an act involving moral turpitude in violation of

Section 1012.795(1)(c), Florida Statutes, it must be remembered

that "[b]y virtu e of their leadership capacity, teachers are

traditionally held to a high moral standard in a community."

Adams v. Professional Practices Council , 406 So. 2d 1170, 1171

(Fla. 1st DCA 1981).

70. Sanchez' abuse of his computer was deplorable, but it

is not clear that his activities demonstrated gross immorality

or moral turpitude as those terms are defined above and/or

construed by Florida decisional law.

71. Rule 6B - 11.007(3) sets forth the disciplinary

guidelines to be applied in this case. Aggravating and

mitigating factors are to be considered.

72. Respondent intentionally ignored policy in installing

AOL on his computer for purposes of abusing his computer

privileges. He knew or should have known that his conduct was

impermissible, yet he repeated t he offenses over an extended

period of time. When confronted, he did not admit wrongdoing;

rather, he sought to discredit innocent third parties.

73. At least two students were aware to some degree of his

improper use of the computer; however, there is no clear and

convincing evidence that they or any other students were in fact

exposed to pornography or to any particular e - mail or otherwise

harmed by Sanchez' activities.

74. In mitigation, it may be considered that Respondent

has no previous disciplina ry history and his teaching

performance was exemplary over the course of a lengthy career.

He has made a real difference in the lives of many students.

The loss of certification would adversely affect Respondent's

livelihood.

75. It is disturbing tha t Sanchez is unwilling to take

responsibility for his inappropriate conduct. Sanchez'

unsuccessful attempt to deflect suspicion upon innocent third

parties; to portray himself as a victim; and to baselessly and

gratuitously accuse others of improper or in competent job

performance cannot be excused by the fact that his career is on

the line. Yet, on balance, it is premature to conclude that he

should not be afforded an opportunity to obtain appropriate

counseling and to attempt to regain the trust of his c olleagues.

76. It is accordingly recommended that Sanchez' teaching

certificate be suspended retroactive to August 8, 2001, through

and including the date of the entry of a Final Order by

Petitioner, followed by five years of probation under conditions

de emed appropriate by the Education Practices Commission. Such

conditions may reasonably include evaluation by a mental health

professional with training in pornography addiction to determine

if Sanchez poses any risk of repeating the conduct which gave

ris e to this case; and denial of access to a classroom computer

and/or periodic examination of any classroom computer by

appropriately trained personnel.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law, it is

hereby RECOMMENDED that Peti tioner enter a Final Order finding

Respondent not guilty of violating Subsection 1012.795(1)(c),

Florida Statutes; finding Respondent guilty of violating

Subsections 1012.795(1)(f) and (i), Florida Statutes, and

Florida Administrative Code Rule 6B - 1.006 (4 )(c). It is further

RECOMMENDED that Respondent’s teaching certificate be suspended

retroactive to August 8, 2001, through and including the date of

the entry of a Final Order by Petitioner, followed by five years

of probation under conditions deemed appr opriate by the EPC.

Such conditions may reasonably include evaluation by a mental

health professional with training in pornography addiction to

determine if Sanchez poses any risk of repeating the conduct

which gave rise to this case; and denial of access to a

classroom computer and/or periodic examination of any classroom

computer by appropriately trained personnel.

DONE AND ENTERED this 29th day of October, 2004 , in

Tallahassee, Leon County, Florida.

S

___________________________________

FLORENCE SNYDER RIVAS

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 29th day of October, 2004 .

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Education Practices Commission

Department o f Education

325 West Gaines Street, Room 224

Tallahassee, Florida 32399 - 0400

Robert E. Sickles, Esquire

Broad and Cassel

100 North Tampa Street, Suite 3500

Post Office Box 3310

Tampa, Florida 33601 - 3310

Joan Stewart, Esquire

FEA/United

118 North Monroe Street

Tallahassee, Florida 32301

Honorable John Winn

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Buildin g

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 shou ld be filed with the agency that

will issue the Final Order in this case.