04-001725PL Jim Horne, As Commissioner Of Education vs. Michael Brooks Holland Status: Closed Recommended Order on Friday, February 25, 2005.

Summary: Respondent is guilty of violating the Principles of Professional Conduct for the education profession and of an act of moral turpitude and gross immorality.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, AS COMMISSIONER OF )

EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1725PL

)

MICHAEL BROOKS HOLLAND, )

)

Respondent. )

)

RECOMMENDED OR DER

Pursuant to notice, a final hearing was conducted on

October 27, 2004, in West Palm Beach, Florida, and on

October 28, 2004, in Boca Raton, Florida, before Administrative

Law Judge Claude B. Arrington of the Division of Administrative

Hearings (DOAH). The record closed with the filing of a video

deposition on January 3, 2005.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Petitioner: Barry M. Silver, Esquire

1200 South Rogers Circle, Suite 8

Boca Raton, Florida 33487 - 5703

STATEMENT OF THE ISSUES

Whether Respondent committed the offenses alleged in the

Amended Administrative Complaint and the penalties, if any, that

should be imposed.

PRELIMINARY STATEMENT

Petitioner filed its Administrative Complaint against

Respondent who timely requested a formal administrative hearing.

Th e matter was referred to DOAH, and this proceeding followed.

By Order entered August 27, 2004, Petitioner was authorized to

amend its administrative complaint.

At all times relevant to this proceeding, Respondent was a

classroom teacher at Boca Raton Hi gh School (BRHS), a public

high school in Palm Beach County, Florida. The Amended

Administrative Complaint contained allegations pertaining to

three separate incidents. The first set of facts allegedly

occurred at the end of the 1985 - 86 school year and i nvolved four

female students (including K.P. and B.K.) who were about to

graduate from BRHS. The second set of facts also allegedly

occurred during 1986 and involved another female student (L.E),

who also graduated from BRHS in the class of 1986. Some of the

alleged facts pertaining to L.E. occurred prior to her

graduation and others occurred after her graduation. The third

set of facts, which allegedly occurred at the end of the 2001 - 02

school year and the beginning of the 2002 - 03 school year,

involved another female student (K.S.) who attended BRHS.

Based on the factual allegations of the Amended

Administrative Complaint, Petitioner charged that Respondent

violated the following:

Count I: Section 1012.795(1)(c), Florida

Statutes (2004). [1 ]

Count I I: Section 1012.795(1)(i), Florida

Statutes.

Count III: Florida Administrative Code

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

Count IV: Florida Administrative Code

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

Count V: Florida Administrative Code Rule

6B - 1.006(3)(g).

Count VI: Florida Ad ministrative Code

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

Count VII: Florida Administrative Code

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

Count VIII: Florida Administrative Code

Rule 6B - 1.006(4)(e).

At the final hearing, Petitioner presented the live

testimony of K.F. (the female student formerly known as K.P.);

David F. (the husband of K.F.); K.S.; Kathryn Marie Kane (a data

processor employed at BRHS); Christine Valentine (a former

student at BRHS); Robert O’Leath (a teacher and administrator

employed at BRHS); Kathleen Adams (a former supervisor at the

Kmart that employed K.S.); Robert Walton (a detective with the

Palm Beach County School Police); James Sapyta (an officer

employed by the Palm Beach County School Police); and Paul

LaChance (a former investigator with the Palm Beach Count y

School Office of Professional Standards). Petitioner offered

pre - numbered Exhibits 1 - 4, 7 - 12, and 14 - 20. There were no

Petitioner Exhibits numbered 5, 6, or 13. All Petitioner’s

exhibits were admitted into evidence, except Petitioner’s

Exhibit 8, whic h was rejected. Petitioner’s Exhibit 1 is the

deposition of the Respondent. Petitioner’s Exhibit 2 is the

deposition of L.E. Petitioner’s Exhibit 3 is the deposition of

Jennifer Tillison (a former student at BRHS). The video

deposition of B.M. (the fem ale student formerly known as B.K.)

was filed January 3, 2005, and has been marked and admitted into

evidence as Petitioner’s Exhibit 21.

Respondent testified on his own behalf and presented the

additional testimony of the principal of BRHS, fellow teach ers

at BRHS, students at BRHS, and parents of students at BRHS.

A Transcript of the proceedings was filed on November 18,

2004. At the request of the parties, the deadline for the

filing of proposed recommended orders was extended to

January 31, 2005. Ea ch party filed a Proposed Recommended

Order, which has been duly - considered by the undersigned in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent

held Florida Educator Certificate 47777 7, covering Physical

Education and Social Sciences. Respondent’s certificate is

valid through June 30, 2005.

2. At all times relevant to this proceeding, Respondent

was employed by the Palm Beach County School Board and assigned

to a classroom at BRHS, w here he taught psychology and history.

In recent years, Respondent has taught advanced placement

classes. The evidence established that Respondent is well - liked

by students, parents, and faculty. The present principal of

BRHS, who was not at the school during the 1985 - 86 or 2001 - 2002

school years, considers Respondent to be an asset to the school.

FACTS PERTAINING TO K.P. AND B.K.

3. Prior to the end of the 1985 - 86 school year, Respondent

invited several female senior students to join him for dinner i n

celebration of their upcoming graduation. Respondent was 33

years old at that time. Each of these females was either 17 or

18 - years - of - age. K.P. (now known as K.F.) was 17 and B.K. (now

known as B.M.) was 18. K.P. and B.K. were invited to and

attende d the dinner and subsequent celebration. The dinner

invitations were extended by Respondent, who was their teacher,

during the school year. There was a conflict in the evidence as

to when this dinner engagement occurred. 2 That conflict is

resolved by fi nding that the dinner engagement occurred at the

Cork and Cleaver restaurant in Boca Raton prior to the

graduation ceremonies for the class of 1986.

4. At least four female seniors were invited to

Respondent’s celebration. K.P., B.K., and two other fema le

students attended the dinner. All four of the students consumed

alcohol at the restaurant that was purchased by Respondent.

Respondent knew that the drinking age was 21 and he knew that

each of the girls was under that age. Respondent also consumed

a lcohol at the restaurant. Following the meal, K.P. and B.K.

sat on a bench outside the restaurant and continued to drink

alcoholic beverages with Respondent. After approximately five

bottles of champagne and/or wine had been consumed, Respondent

K.P. and B.K. went from the bench outside the restaurant to

Respondent’s house. The three of them were alone in

Respondent’s house for several hours. At Respondent’s house

they drank four to five additional bottles of wine.

5. The quantity of alcohol consumed b y Respondent, B.K.,

and K.P. that evening impaired their judgment. By all accounts,

K.P. was inebriated and incapable of consenting to the acts that

followed.

6. Both B.K. and K.P. were excellent students who had

little or no experience with alcohol. During the 1985 - 86 school

year, K.P. had been a member of BRHS’s varsity teams in

basketball, volleyball, and softball. During that school year,

B.K. had been a member of BRHS’s varsity tennis team.

7. After K.P. became inebriated, Respondent and K.P. went

to Respondent’s bedroom where Respondent had inappropriate

sexual relations with her. There was a conflict in the evidence

as to whether Respondent had sexual intercourse with K.P. K.P.

testified, credibly, that Respondent had sexual intercourse wit h

her and that she suffered bleeding and discomfort the following

day. K.P. also testified, credibly, that she had been a virgin

up until that evening. Respondent admitted that K.P. was with

him in his darkened bedroom with little or no clothes on, but h e

denied having sexual intercourse with her. Respondent admitted

that he fondled K.P.’s breasts and engaged in what he described

as “heavy petting.” The undersigned finds Respondent’s denial

that he had sexual intercourse with K.P. also to be credible.

In view of conflicting, credible testimony and the absence of

corroborating evidence to substantiate the fact of sexual

intercourse as opposed to the fact that there was the

opportunity for sexual intercourse, the undersigned is

constrained to conclude tha t Petitioner did not prove by clear

and convincing evidence that Respondent engaged in sexual

intercourse with K.P.

8. Petitioner established by clear and convincing evidence

that K.P. did not consent to Respondent’s inappropriate sexual

behavior becaus e she was too intoxicated and too young to do so.

Respondent knew or should have known that K.P. was incapable of

consenting to his behavior.

9. After Respondent and K.P. entered Respondent’s bedroom,

B.K. left Respondent’s house and drove around the b lock in her

car for approximately 20 minutes. Because she was concerned

about K.P., B.K. returned to Respondent’s house. When she

returned to Respondent’s house, B.K. looked for K.P. She

stepped into the doorway of Respondent’s bedroom and saw

Responden t and K.P. in bed together. K.P. was not fully

clothed, and the clothes she had on were in disarray. K.P. told

B.K. to come in and get in the bed with them. K.P. grabbed

B.K.’s arm and pulled her toward the bed. B.K. entered the

bedroom and briefly lay on the bed with Respondent and K.P.

10. Shortly thereafter, B.K. got up and left Respondent’s

bedroom. Because she was feeling dizzy, B.K. lay down on a

mattress in another bedroom.

11. There was a conflict in the evidence as to what next

occurred. It is clear that K.P. either intentionally cut

herself or accidentally opened a cut on her hand. Respondent

testified that K.P. accidentally opened up a cut on her finger

while in his bedroom and then went to the kitchen. K.P.

testified that she went f rom Respondent’s bedroom to the kitchen

and intentionally cut herself in reaction to what had happened

with Respondent. How the cut occurred is not relevant. It is

relevant that Respondent went in the kitchen and helped K.P.

stop the bleeding.

12. Aft er leaving the kitchen area, Respondent observed

B.K. lying on the mattress in the second bedroom. He lay down

on the mattress with B.K. with his body touching hers. He tried

to kiss B.K., but she resisted his efforts. Respondent engaged

in inappropriat e sexual behavior with B.K. by lying next to her

with his body in contact with hers and trying to kiss her.

Respondent was obviously attempting to sexually arouse B.K.

13. When K.P. saw Respondent and B.K. together in the

second bedroom, she yelled at B. K. that they needed to get out

of Respondent’s house. B.K. and K.P. then exited Respondent’s

house and they returned to their respective homes in B.K.’s car

without further incident.

14. The next day, Respondent contacted B.K. and K.P.

separately and a pologized to them for his conduct. Respondent

also apologized to B.K. for his conduct with K.P. Respondent

stated that he had been unable to resist their athletic bodies.

Respondent gave each of these girls a pair of diamond earrings

as a gift.

15. K .P. and B.K. did not report these events to any

authority figure until 1993. 3 As a result of difficulties K.P.

(then known as K.F.) was having with sex in her marriage, she

and her husband underwent counseling. It was during a session

she and her husband had with their therapist that she revealed

the events of the evening in 1986. Her husband, a teacher, felt

obliged to report the incident to the Palm Beach County School

District, which he did without naming K.P. and B.K. as being the

students involved. His wife became upset when she learned of

the report. After further reflection, K.P. revealed to the Palm

Beach County School District that she and B.K. were the students

involved with Respondent on the evening in question. The Palm

Beach School Distric t investigated the allegations, but it did

not report these allegations to Petitioner. Petitioner learned

of these events during its investigation of the facts pertaining

to K.S.

FACTS PERTAINING TO L.E.

16. L.E., a female, graduated from BRHS in 1986.

Respondent met L.E. when she was a freshman at BRHS and he

subsequently became attracted to her. During her senior year,

Respondent offered tickets to a Miami Dolphins football game to

L.E. and other students as a reward for helping him grade papers

in the class they took from him. Before she graduated,

Respondent told L.E. that after she graduated he wanted to take

her to dinner. There was insufficient evidence to establish

that Respondent engaged in an inappropriate relationship with

L.E. before she graduated.

17. After she graduated, Respondent treated L.E. to

dinner, 4 gave her a pair of diamond earrings, and told her he

wanted to be more than friends. Later during the summer of

1986, Respondent and L.E. went to Marathon, Florida, together

and al so traveled to San Francisco, California, at Respondent’s

expense.

DISCIPLINE PERTAINING TO K.S.

18. K.S., a female, attended BRHS for her freshman through

her senior years. She graduated in 2003. Respondent was K.S.’s

history teacher in her junior ye ar and her psychology teacher

her senior year.

19. During the 2001 - 2002 school year, K.S. confided

certain personal family matters to Respondent. Thereafter,

Respondent engaged in inappropriate conduct toward K.S. On at

least five occasions toward the e nd of the 2001 - 02 school year

Respondent came to her place of employment (a Kmart) looking for

her. On one occasion he left her a gift of a cheesecake and on

another he left a bag of M & M candy as a gift. These visits

upset and frightened K.S.

20. At the beginning of the 2002 - 03 school year,

Respondent physically hugged K.S. when he first saw her in his

psychology class. On several occasions Respondent put his hands

on K.S.’s shoulders and massaged them. On one occasion he

rubbed her hair. This typ e physical contact continued even

after K.S. told Respondent not to touch her. On one occasion

Respondent referred to K.S. in front of her classmates as being

his “baby.” Respondent’s conduct upset and embarrassed K.S.

21. K.S. complained to Robert O’ Leath, a dean of students

at BRHS, about Respondent’s behavior. Following an

investigation of these allegations, the School Board of Palm

Beach County suspended Respondent’s employment without pay for a

period of ten days and required him to attend divers ity and

sensitivity training. Respondent did not contest this

discipline.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.56 9 and 120.57(1),

Florida Statutes (2004).

23. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent. See

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Evans Packing

Co. v. Department of Agriculture a nd Consumer Services , 550

So. 2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge ,

645 So. 2d 398 (Fla. 1994). The following statement has been

repeatedly cited in discussions of the clear and convincing

evidence standard:

Clear and convincing e vidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

evidence must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact the firm belief of

(sic) 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 1 983).

24. Section 1012.795(1), Florida Statutes, provides, in

part, as follows:

(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 5 years,

th ereby denying that person the right to

teach or otherwise be employed by a district

school board or public school in any

capacity requiring direct contact with

students for that period of time, after

which the holder may return to teaching as

provided in s ubsection (4); may revoke the

educator certificate of any person, thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students for a

period of tim e not to exceed 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or pu blic school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon order

of the court, of any person found to have a

delinquent child support obligation; 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 the Education

Profession prescribed by State Board of

Education rules.

25. Florida Administrative Code Rule 6B - 1.006 provides, in

part, as follows:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of an y of these principles

shall subject the individual to revocation

or suspension of the individual educator’s

certificate, or the other penalties as

provided by law.

(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 health 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 origin,

political belief, marital status,

handicapping condition, sexual orientation,

or social and family background and shall

make reasona ble effort to assure that each

student is protected from harassment or

discrimination.

(h) Shall not exploit a relationship with

a student for personal gain or advantage.

* * *

(4) Obligation to the public requires

that the individual:

* * *

(c) Shall not use institutional

privileges for personal gain or advantage.

* * *

(e) Shall offer no gratuity, gift, or

favor to obtain special advantage.

26. The following definitions, set forth in Florida

Administrative Code Rule 6B - 4.0 09(2) and (6), pertain to grounds

for dismissal of instructional personnel by a school district

and can be used in the interpretation of Section 1012.795(1)(c),

Florida Statutes:

(2) Immorality is defined as conduct that

is inconsistent with the standar ds of public

conscience and good morals. It is conduct

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.

* * *

(6) Moral turpitude 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.

27. Petitioner established by clear and convincing

evidence that Respondent was guilty of acts of gross immorality

and acts involving moral turpitude in violation of the

provisions of Section 1012.795(1)(c), Florida Statutes, as

alleged Count I of the Amended Administrative Complaint. The

violations were established by Respondent’s conduct with K.P.

and by his conduct with B.K. At a minimum, Respondent is guilty

of contributing to the delinquency of these minor students and

sexual battery on K.P.

28. Petitioner also established by clear and convincing

evidence that Respondent was guilty of violating the Principles

of Professional Conduct for the Education Profession as alleged

i n Count II of the Amended Administrative Complaint.

Specifically, Respondent’s conduct with K.P. and B.K. violated

the Principles alleged in Counts 3, 4, 6, 7, and 8 of the

Amended Administrative Complaint. Respondent’s conduct with

K.S., while not as eg regious as his conduct with K.P. and B.K.,

nevertheless violated the Principles alleged in Counts 3, 4, 6,

7, and 8 of the Amended Administrative Complaint.

29. Petitioner has the discretion to impose against

Respondent any penalty provided by Section 1 012.795(1), Florida

Statutes. The penalty sought by Petitioner, the permanent

revocation of Respondent’s certificate, is within its

discretion. Considered alone, Respondent’s conduct with K.S.

does not warrant the revocation of his certificate, but it do es

warrant the imposition of an administrative fine and a term of

probation. Considered alone, Respondent’s conduct with B.K.

would not warrant the revocation of his certificate, but it

would warrant its suspension for a period not to exceed five

years. Considered alone, Respondent’s conduct with K.P.

warrants the permanent revocation of his certificate. The

conclusion that Respondent’s educator certificate should be

permanently revoked is buttressed when Respondent’s conduct with

K.S. and B.K. are consi dered in addition to his conduct with

K.P.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner enter a final order

adopting the Findings of Fact and Conclusions of Law set forth

in this Recomme nded Order. It is further recommended that the

final order permanently revoke Respondent’s educator

certificate.

DONE AND ENTERED this 25th day of February, 2005, in

Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRI NGTON

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

Divi sion of Administrative Hearings

this 25th day of February, 2005.

ENDNOTES

1/ All references to statutes are to Florida Statutes (2004).

All references to rules are to the version of the rule published

in Florida Administrative Code as of the date of t his

Recommended Order.

2/ There were several conflicts in the evidence. This is

attributed to not only the passage of time, but the quantities

of alcohol consumed by the participants. The findings resolving

those conflicts are based on clear and conv incing evidence.

3/ K.P. and B.K. separately told close friends in broad terms

what had happened. K.P. and B.K. never discussed what happened

between K.P. and Respondent that evening, even though they

subsequently became roommates at the University of F lorida.

4/ L.E. was the only guest at this dinner, which was after the

dinner attended by K.P. and B.K.

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224 - E

Tallahassee, Florida 32399 - 0400

Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Barry M. Silver, Esquire

1200 South Rogers Circle, Suite 8

Boca Raton, Florida 33487 - 5703

Daniel J. Woodring, General Counsel

Department of Education

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, Room 224 - E

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 a gency that

will issue the Final Order in this case.