04-003835 Broward County School Board vs. David Menke Status: Closed Recommended Order on Monday, August 13, 2007.

Summary: Respondent`s inappropriate communications with female students justified his termination of employment and the revocation of his certificate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3835

)

DAVID MENKE, )

)

Respondent. )

______________ ___________________)

JOHN L. WINN, AS COMMISSIONER OF )

EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 05 - 4189PL

)

DAVID MENKE, )

)

Respondent. )

___________ ______________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted on October 30

and 31, 2006, in Fort Lauderdale, Florida, before Administrative

Law Judge Claude B. Arrington of the Division of Administrative

Hearings (DOAH).

APPEARA NCES

For Petitioner Broward County School Board:

Mark A. Emanuele, Esq uire

Michael H. Nullman, Esq uire

Panza, Maurer & Maynard, P.A.

3600 North Federal Highway

Bank of America Building , 3rd Floor

Fort Lauderdale, Florida 33308

For Petitioner John L. Winn, As Commissioner Of

Education:

Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13 th Street

Fort Lauderdale, Florida 33160

For Respondent David H. Menke:

Karen Coolman Amlong, Esquire

William Amlong, Esquire

Amlong & Amlong, P.A.,

500 Northeast 4th Street, 2nd Floor

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

As to DOAH Case No. 04 - 3835, w hether Respondent engaged in

immoral acts and misconduct as alleged by the Broward County

School Board (“School Board ”) and, if so, whether those immoral

acts and misconduct provided grounds to suspend Respondent’s

employment without pay and to initiate this termination

proceeding.

As to DOAH Case No. 05 - 4189PL, whether Respondent committed

the offenses alleged in the Administrative Complaint filed

August 4, 2005, and, if so, the appropriate penalty that should

be imposed against his educator certificate.

PRELIMINARY STATEMENT

On August 24, 2004, School Board filed an Administrative

Complaint pursuant to Florida Admin istrative Code Rule s 60Q –

2.004 and 28 – 5.241, alleging Misconduct i n Office and Immorality

in violation of Section 1012.33 , Florida Statutes (2003) 1 , and

Florida Admin istrative Code Rule s 6B – 1.006 and 6B – 4.009 . 2 The

allegations pertained to i nappropriate, immoral, and sexually

explicit communications with minor students. On or about

September 21, 2004, Respondent requested a formal administrative

hearing to challenge the School Board's proposed action, and the

matter was referred to DOAH, where it was assi gned DOAH Case No.

04 - 3835.

Subsequent thereto, the Commissioner of Education

(Commissioner) filed the Administrative Complaint that underpins

DOAH Case No. 05 - 4189PL. After Respondent requested a formal

administrative hearing to challenge the allegations of the

Administrative Complaint, the matter was referred to DOAH and,

o n January 26, 2006 , the two cases were consolidated.

The Commissioner's allegations pertaining to Respondent's

conduct in Broward County mirror those of the School Board. In

additio n, the Commissioner's Administrative Complaint contains

allegations pertaining to Respondent's employment with the

School Board of Palm Beach County during the 2001 - 2002 school

year.

Respondent i nvoke d his Fifth Amendment privilege against

self - incrimina tion at the outset of the investigation that led

to DOAH Case No. 04 - 3835 and throughout that proceeding,

including at disposition and in response to other discovery.

Respondent also invoked his Fifth Amendment privilege at all

times subsequent to the fil ing of the Administrative Complaint

in DOAH Case No. 05 - 4189PL.

Petitioners alleged that while employed by the School

Board, Respondent engaged in inappropriate, immoral, and/or

sexually explicit communications with female students. Many of

these commun ications were in the form of instant messaging (IM)

to the students, each of whom had an account with America Online

(AOL) using AOL software and AOL screen names. There can be no

meaningful debate as to whether these online communications with

the minor females were inappropriate, immoral, and/or sexually

explicit; they clearly were. The dispute focused on whether the

admissible evidence presented by Petitioners proved that

Respondent was communicating online with the female students

under his screen nam e of FamAstro. Respondent correctly argued

that there was no direct evidence to establish the identity of

FamAstro, and Respondent objected to much of the evidence

offered by Petitioners. The rulings on Respondent's objections

have been preserved for the record. Petitioners assert that the

identity of FamAstro can and has been established by

circumstantial evidence.

The allegations also encompass inappropriate, sexually

charged, and profane communications to students in person.

Respondent argued that those direct communications were not

encompassed by the pleadings. The ruling against Respondent's

position on that issue has also been preserved for the record.

At Final Hearing, School Board called the following

witnesses: Gretchen Walker ( investigat or with the Office of

Professional Standards & Special Investigative Unit for the

School Board ) ; Samantha Stransky, ( former student of Respondent

at Coral Springs High ) ; Anne Lynch ( principal at Coral Springs

High School ) ; and Dr. Joseph Melita ( Executive Director of the

Office of Professional Standards and Special Investigative Unit

for the School Board ) . The School Board filed deposition

transcripts of the following individuals in support of its case -

in - chief: Amy Winston (mother of Sarah Winston), Mark Winston

(father of Sarah Winston), Gregory Hutchinson ( guidance

counselor at Coral Springs High at the time of the alleged

incidents ), Carrie Davis ( America Online contract specialist and

records custodian) , the direct examination of Gail Menke ( wife

of R espondent ), and the Respondent. The School B oard also filed

video depositions and transcripts of three former students of

Respondent at Coral Springs High School: Sarah Winston, Juliana

Mosquera, and Christie Farah .

The Commissioner of Education called the following

witnesses to testify live at Final Hearing: Karen Whetsell,

( Principal of Poinciana Elementary School ), Raymond Miller

( Investigator for Palm Beach County School District’s Department

of Professional Standards ), Terri Rouse (a para - p rofession al

employed by Pal m Beach County School District), and Van Lundy

( Palm Beach County School Board Director of Labor Relations ).

Petitioners filed "Petitioners' Joint Exhibit List" on

April 11, 2007, that set forth the exhibits each Petitioner

filed. As ref lected on the exhibit list, the School Board

adopted cert ain exhibits designated as COE E xhibits and COE

adopted certain exhib its designated as School Board E xhibits.

The fol lowing pre - marked School Board E xhibits were admitted

into evidence, either as a separate exhibit or as an attached

exhibit to one or more depositions: Composite SB1 - SB7, SB8e,

SB9 - SB12, SB18 - SB23. Each of the foregoing Exhibits was

adopted as an E xhibit by the Commissioner of Educa tion (COE).

The following COE E xhibits were a dmitted into evidence: COE1 -

COE5, COE7, COE9 - COE13, COE16, COE18 - COE21, COE23 - COE26,

and COE30. The School B oard adopted the following COE E xhibits:

COE1 - COE3, COE5, COE12, COE13, COE18 - COE21, COE23 - COE26,

and COE30.

Respondent called no witnesses , but offered two E xhibits ,

both of which were admitted into evidence at the Final Hearing.

Respondent proposed to offer a portion of what was subsequently

marked and admitted into evidence as COE30, which is the entire

transcript (as opposed to the portion Respondent was planning to

offer ) of a pre - disciplinary proceeding.

The hearing in DOAH Case No. 04 - 3835 was initially

scheduled for January 2005. That hearing was rescheduled on the

School Board’s motion and showing of good cause. Thereaf ter, a

discovery dispute resulted in an interlocutory appeal to the

Fourth District Court of Appeal. The undersigned abated DOAH

Case No. 04 - 3835 pending resolution of the appeal. The issue on

appeal was resolved in favor of Respondent’s position by orde r

entered September 30, 2005. In November 2005, the Commissioner

filed DOAH Case No. 05 - 4189PL against Respondent. In the

interest of judicial economy, the two cases were consolidated in

January 2006. After discovery as to both cases was completed,

the hearing in these consolidated cases w as conducted on

October 30 and 31, 2006.

As ordered prior to the hearing, Petitioners were allowed

to take three depositions of witnesses who became unexpectedly

unavailable for the formal hearing.

Also as ordered p rior to the hearing, Respondent was

afforded the opportunity following the hearing to make page and

line objections to the depositions entered into evidence by

Petitioners at the formal hearing, including the late - filed

depositions. Petitioners were affor ded the opportunity to

respond to Respondent’s objections. The foregoing process took

longer to complete than any of the parties (or the undersigned)

anticipated. After the undersigned ruled on Respondent’s

objections and on Respondent’s motion for clari fication, the

deadline for the filing of proposed recommended orders was

established. On June 26, 2007, Respondent filed a motion to

dismiss these proceedings on the grounds stated therein. On

June 28, 2007, the undersigned denied the motion to dismiss a nd

extended the deadline for the filing of proposed recommended

orders.

Both Petitioners filed Proposed Recommend ed Orders, which

have been duly - considered by the undersigned in the preparation

of this Recommended Order. Respondent did not submit a prop osed

recommended order.

FINDINGS OF FACT

Background Information

1. During the 2001 - 2002 school year, Respondent was

employed as a teacher by the Palm Beach County School Board.

Respondent served as the planetarium director for Poinsettia

Elementary Sch ool. Respondent's contract was not renewed at the

end of that school year.

2. Respondent began employment as a physics teacher with

the School Board at the beginning of the 2002 - 2003 school year.

The School Board assigned Respondent to teach at Coral Springs

High School (CSHS), which is a public high school located in

Broward County, Florida. During the 2003 - 2004 school year,

Respondent's assignments included teaching a class entitled

Honors Physics.

3. At all times relevant to these proceedings, Respondent

had an account with AOL with the following screen names:

FamAstro, DrDHMenke, and CSHSPhysics. The use of these screen

names was password protected. Respondent frequently changed his

passwords to protect the security of his accounts. Respon dent's

wife also used the AOL account, but under the screen name of

GailShots.

4. At all times relevant to these proceedings, Respondent

maintained a homepage on AOL under his FamAstro screen name.

Palm Beach County

5. On August 30, 2001, Respondent h ad the responsibility

to supervise a class of third grade students during the class

visit to the school planetarium. While the class was lined up

to enter the planetarium, Respondent instructed the students to

". . . push the child in front of you." The children followed

Respondent's instruction and, as a result, a female student was

pushed to the ground and suffered an injury (the injured girl).

Ms. Rouse, a paraprofessional who witnessed the event, took the

child to the clinic for treatment.

6. When M s. Rouse returned with the injured girl from the

clinic, she observed three boys in the foyer of the planetarium

who were supposedly under Respondent's supervision engaged in

unsupervised wrestling. The three students told Ms. Rouse that

Respondent had pl aced them in the foyer because they had been

disruptive inside the planetarium. The door to the planetarium

had been closed so that Responde nt could not observe them.

Ms. Rouse entered the planetar ium with the injured girl.

Ms. Rouse left the door to th e planetarium open so she could

observe the three boys in the foyer. After Respondent asked her

to close the door to the planetarium, Ms. Rouse brought the boys

inside of the planetarium and closed the door to the

planetarium.

7. Ms. Rouse also observe d Respondent inappropriately

discipline two third grade students during the planetarium show.

Respondent poured water on the head of a female student who had

fallen asleep. When she awakened, the other studen ts laughed at

her . Thereafter Respondent obse rved a male student who had

fallen asleep. Again, Respondent poured water on the student's

hea d until the student awakened; h is c lassmates laughed at him .

Both students were visibly upset by Respondent's conduct.

8. Respondent announced to the class t hat pouring water on

a student's head is what he does to students who fall asleep in

his class.

9. Following its investigation into Respondent’s conduct

pertaining to the students at the planetarium, the Palm Beach

County School District suspended his employment without pay for

five days.

10. During the course of the investigation, Respondent

communicated with employees of the Palm Beach County School

Board using his AOL screen name FamAstro.

BROWARD COUNTY

11. Respondent taught Honors Physics at C SHS from t he

beginning of the 2002 – 2003 school year until he was removed

from the classroom on October 13, 2003, which is part of the

2003 - 2004 school year.

12. Samantha Stransky (“Stransky”) was a student at C SHS

during the 2002 – 2003 and 2003 – 2004 school years . She was

not a student in any of Respondent ’s class.

13. Sarah Winston (“Winston”), Christie Farah (“Farah”),

and Juliana Mosquera (“Mosquera”) were all registered students

in Respondent ’s H onors P hysics class at C SHS during the 2003 –

2004 school year. The H onors P hysics class is only available to

a student with an exemplary academic record . A student must

obtain recommendations from a teacher and guidance counselor

prior to being permitted to enroll in an honors class .

14. Duri ng the first week of his Honors Physics class in

the 2003 - 2004 school year, Respondent requested each student

in the class to provide his or her e - mail address, which created

the opportunity for Respondent to contact each of his students

via e - mail .

15. In addition to e - mail accounts, AOL has Instant

Messenger software that enables one AOL user to chat "real - time"

with another AOL user by using IM. The “real - time” chat over IM

allows for a conversation between two AOL IM users using a

screen name. An IM session is analogous to a telephone

conversation, but uses text - based, rather than voice - based ,

communication. Each user has the ability in real - time to type a

string of text and send it to the other user, creating a back -

and - forth conversation inst antly displayed. During an ongoing

IM session, an individual can make a record of the conversation

as it appears on the computer sc reen by copying the text and

thereafter pasting the copied text into a format that can be

saved, such as a Microsoft Word do cument or an e - mail . Unless

specifically saved, the text of an IM conversation is lost when

the session is ended.

16. Once a user signs up and opens an account with AOL,

the user's AOL screen name for instant messaging is the same as

the user's AOL e - mai l address, minus the “@aol.com.” In other

words, if you have an AOL user's e - mail address, you also have

the user's IM screen name, because they are one and the same,

with the minor alteration. For example, Respondent's AOL e - mail

address of “FamAstro@ao l.com” a utomatically registers with AOL

the instant message screen name of “FamAstro” so that the person

receiving the IM will be notified that the IM is from

“FamAstro.”

17. Because he had the e - mail for each student in his

Honors Physics class, Responde nt had the ability to IM each

student with an AOL e - mail address by using the AOL Instant

Messenger software.

18. At all times relevant to these proceedings, Winston,

Farah, Mosquera , and Stransky had accounts with AOL. As will be

discussed further, each of these students received IM

communications from the AOL user with the screen name Fam Astro.

FamAstro’s Communications With Student Juliana Mosquera

19. FAmAstro initiated IM communications with Mosquera on

at least two occasion s during the first part of the 2003 – 2004

school year. Mosquera did not save any of these IM

communications, but she did testify, credibly, as to their

contents.

20. Mosquera believed at the time of the IM communications

that Respondent was FamAstro. She formed that be lief because

Respondent had told Mosquera and his other students in his

Honors Physics class that “FamAstro” was a screen name he used,

because of the contents of the IMs (which will be discussed

below), and because of events that happened in the classroom

after the communications (which will also be discussed below).

21. At the times relevant to this proceeding Mosquera

utilized the AOL screen name of “xxJewel621xx . ”

22. During Mosquera’s online communications with FamAstro,

the topi c of conversation included issues related to ongoing

matters in the Honors Physic’s class that only Respondent would

have known . During the school year, Respondent allowed his

students to complete extra credit assignments. Mosquera

participated in online communications wi th FamAstro re garding

instructions for faxing - in extra credit assignments for

Respondent's class. S he thereafter faxed those assignments to

Respondent at the number provided by Respondent to students .

FamAstro confirmed receipt of that extra credit work.

Respondent gave Mosquera credit for that extra credit work.

23. On more than one occasion, FamAstro asked Mosquera

online whether she wanted a bagel, or some other types of food ,

at school the following day. Following those online

communications, Res pondent fulfill ed FamAstro’s promise and

provide d the food to Mosquera the next day . Th e offer of food

was not extended to the entire class, but , rather , was a unique

offer to Mosquera. For example, Respondent would bring a bagel

to class for her as oppo sed to bringing bagels for the whole

class.

24. FamAstro sent IMs to Mosquera mocking other students

in his class in an inappropriate and derogatory manner.

Specifically, in an online communication with Mosquera, FamAstro

called Winston a “prostitute” and a “streetwalker, ” and made

regular references to the size of Winston's breasts.

25. During the online communications with Mosquera,

FamAstro use d vulgarities such as “fuck” and “shit” and made

inappropriate, sexually charged, statements.

26. D uri ng one of the IM online conversations between

Mosquera and FamAstro, FamAstro inquired whether Mosquera had

ever experienced an orgasm. Following that inquiry , Mosquera

ignored FamAstro. Mosquera thereafter received an e - mail from

FamAstro that apologize d for making her feel uncomfortable. The

following day at CSHS, Mosquera spoke directly with Respondent ,

who asked if Mosquera had received his e - mail, referencing the

apology the student received from FamAstro . When Mosquera spoke

with Respondent in per son , Respondent indicated he was sorry for

offending Mosquera during the online communications. 3

27 . Petitioners proved by the requisite evidentiary

sta ndards, to be discussed in the conclusions of l aw section of

this Recommended Order, that at the time s relevant to the

allegations pertaining to Winston, Respondent acted as FamAstro

in communicating with Mosquera.

Communications With Student Sarah Winston

28 . Fa mAstro began sending Winston IM s on a regular basis ,

beginning the first or second week of th e 2003 – 2004 school

year. Winston knew that FamAstro was Respondent’s screen name

and believed that she was communicating with Respondent during

her IM communications with FamAstro.

29 . Winston testified, credibly, that when she was

originally contac ted by “FamAstro” via IM communication, he

expressly identified himself as Menke. Winston did not save

that initial IM communication.

30 . Thereafter, Winston saved s everal IM communication

transcripts between herself and FamAstro by the process of

cop y ing a particular IM and then pasting the copied material

into the body of an e - mail. Winston saved copies of the IMs

with FamAstro because she was concerned as to the content of the

communications she had received from FamAstro. Winston

testified , credib ly, that the c ommunications as documented in

Exhibit SB4 represent a true and accurate transcript of the

saved communications between Sarah Winston as xo3Sarah30x and

FamAstro. School Board Exhibit SB4 is incorporated herein by

reference.

31 . There wer e additional IM communications between Sarah

Winston and FamAstro , including the initial IM communication,

which were not s a ved, and therefore not included in School Board

Exhibit SB4.

32 . FamAstro ’s IM communications with Winston contained

profane lan guage and were replete with inappropriate sexual

statements.

33 . As detailed on page 6 of School Board Ex. SB4, Winston

initiates a conversation with FamAstro, asking why e - mails she

had sent to [e-mail] were blocked. After FamAstro

indicates that he blocks all e - mail, he provides Winston with

the e - mail address [e-mail] as an alternate.

34 . Within the communications documented in School Board

Exhibit SB4, FamAstro referred to the C SHS assistant p rincipal,

Dr. Kadlacek in derogatory terms, stating that Dr. Kadlacek was

upset “because his dick is smaller.”

35 . FamAstro follow ed up the comment regarding

Dr. Kadlacek by stating to Winston, “maybe if I g ave him a blow

job he’d back off.” That was a reference to performing oral sex

on the assistant principal.

36 . Winston testified that she started ignoring FamAstro

online and her grades in Respondent’s class began to go down.

While she maintained these communications with FamAstro , she was

able to choose any answer on her assignments and have it marked

correct. In some situations, when students would do a group

project or assignment and all had the same answers, Winston

would receiv e a higher grade than others. W hen, Winston began

to ignore FamAstro ’s online communications , her grades dropped

from one of the highest in the class to one of the lowest.

Winston discussed the situation with FamAstro on instant

messenger, asking why her grades dropped from a n “A” to a “F.”

FamAstro responded that she could “come in before school or

after class . ” While that comment was interpreted by Winston to

mean that if she engaged in sexual acts with her teacher, her

grades would go back up , there was no other evidence to support

that interpretation of the communication.

37 . Petitioners proved by the requisite evidentiary

sta ndards, to be discussed in the conclusions of l aw section of

this Recommended Order, that at the times relevant to the

allegations pertaining to Winston, Respondent acted as FamAstro

in communicating with Winston.

38 . FamAstro's conduct had an adverse impact on Winston.

Her parents observed a significant change in their daughter

following the incident s described above.

39 . As a result of the c omplaints to Mr. Hutchinson,

Respondent was removed from his classroom. After that removal ,

some students blamed Winston . Some students harassed her to the

point that she had to be reassigned to another class for her own

well - being.

Communications With Student Christie Farah

40 . FamAstro began sending IMs to Farah at the beginning

of the 2003 – 2004 school year. Farah’s e - mail address was

[e-mail] , and she communicated online with FamAstro

via IM utilizing the screen name Finsfan9954.

41 . At the times she was communicating with FamAstro,

Farah believed that she was communicating with Respondent.

Farah formed that belief because she knew that FamAstro was a

screen name Respondent used and becaus e of the contents of the

IM communicat ions. Farah testified that Fam Astro identified

himself as Respondent during the first time she and FamAstro

communicated online. Farah did not save the initial IM

communications she received from FamAstro.

42 . Aft er Farah learned that her classmate, Mosquera, had

received IMs from FamAstro, Farah saved an IM communication from

FamAstro. Exhibit SB5 is the IM communication saved by Farah

and is incorporated herein by reference. It is in e - mail form

because Farah c op ied and pasted the content of her online

communications with FamAstro into an e - mail and sent the content

to Mosquera . Farah testified , credibly, that Exhibit SB5 is a

true and accurate copy of an IM communication between FamAstro

and Farah. School Boa rd Exhibit SB5 is incorporated herein by

reference.

43 . School Board Exhibit SB5 reflects that Farah

repeatedly referred to FamAstro as “Menke” or “Dr. Menke” and

FamAstro referred to his class and to his students. FamAstro

refers to himself as being a physics teacher.

44 . School Board Exhibit SB5 reflects that FamAstro’s

onl ine communications with Farah were sexually explicit , and

intimately inappropriate. Many of FamAstros ’s replies to

Farah's communications were sexually charged.

45 . Within Fa rah’s communications wi th FamAstro, FamAstro

references Sarah Winston as being a “street walker” or a

“prostitute . ” Reference is also made to a dark - skinned Hispanic

student in Respondent’s class named Mike, as being Sarah’s

“black slave . ”

46 . Other dis paraging and inappropriate references made by

FamAstro within his communications with Farah include, but are

not limited to, the following:

“Any man would be very, very ‘lucky’ to

have you as a companion or wife” .

“Maybe I can just d rop by the house some

time . . . ”

“ If I were your ‘guy’ I’d fall all over

myself to make your family happy”

“you are too precious to just fuck around

with”

“ with your fair skin and blue eyes . . .

you don’t look AT ALL Arab”

“yet, you seem to understand about sex,

penis, etc. ”

“don’t tell anyone, but I really love you,

Miss Farah . . . ”

“I am happy to get whatever you ask for”

“You could easily pass for 25..; you’re

mature, beautiful, a “lady” in the good

sense, feminine, intelligent..; what more

can a man want?; if I were younger..; I’d

still get arrested; since you’re under 18”

Communications With Student Samantha Stransky

47 . Although Stransky was not a student in Respondent ’s

class, she did have occasion to enter his classroom and

participat e in conversations with Respondent . The conversations

began during finals week at the end of the 2002 – 2003 school

year . Stransky entered Respondent ’s classroom because she was

intrigued by the music Respondent was playing. This occurred

after classes, but with Respondent present. On one specific

occasion, while other students, Ashley Ar e ndt and Brandon

Schmula were present, Respondent made references to the students

regarding how he could sneak vodka into the school by injecting

the alcohol inside of oranges. The conversation continued, and

Respondent discussed having sex in Jell - O. During this face to

face conversation, Respondent asked Stransky and Ar e ndt if they

were virgins. Respondent’s comments made Stran sky feel

uncomfortable because she cons idered that Respondent had spoken

to her in a personal and sexual manner.

48 . During the first part of the 2003 – 2004 school year,

Stransky received IMs from FamAstro. FamAstro did not identify

himself to Stransky as being Respondent. However, Stransk y

believed that the IMs were from Respondent because she had

previously reviewed another student’s weblog (i.e. “blog”), on

which that student stated she had received a “weird IM” from

Respondent using the screen name FamAstro. She also believed

that Resp ondent was communicating as FamAstro because she had

been told by her friend Ashley Ar e ndt that Ashley had given

Respondent Stransky’s AOL e - mail address.

49 . In order to save the content in her e - mail archives,

following the conclusion of the conversat ion, Stransky

separately cop ied t wo online communication s and pasted each in

e - mails that she sent to herself. Stransky saved the content of

the communication because she knew at the time it was

in appropriate . Stransky testified , credibly, that School Bo ard

Exhibit SB6 is a true and accurate “word - for - word” copy of the

two saved IM communications Stransky participated in with

FamAstro in September 2003. In these communications, Stransky

communicates under her screen name “D O L C E 4 L . ” School

Board Ex hibit SB6 is incorporated herein by reference.

50 . Within the conversation documented in School Board

Exhibit SB6, the following dialogue occurs between “D O L C E 4

L” and “FamAstro” :

. . .

FamAstro : want a map?

FamAstro : or a shot of Vodka?

FamAstro : what do you like to drink?

D O L C E 4 L : water

FamAstro : get out

FamAstro : you can’t get high on water

FamAstro : or a buzz

FamAstro : I can’t bring you oranges with shots of

water inside

D O L C E 4 L : you cant bring me oranges with shots of

anything in it lol

FamAstro : sorry . . . I thought you wanted them. . . .

FamAstro : Isn’t this Samantha, the friend of Ashley

Arendt?

D O L C E 4 L : lol yes it is

FamAstro : last year you were all excited about that sh

. . . stuff . . . now you are into water instead?

D O L C E 4 L : no i like to drink

FamAstro : kewl

FamAstro : but what’s the deal? Of course, probably not

in school . . . but at parties, dances, etc.,?

D O L C E 4 L : oohhh . . . pretty much anything i

guess

FamAstro : I can and will get you what you’d like . . .

if you want me to . . . just let me know

FamAstro : hello? You don’t want stuff?

D O L C E 4 L : sorry . . . i was away

. . .

51 . Later in the same conversation, the topic changes from

providing the minor student with alcohol, to getting arrested

for engaging in intimate acts:

FamAstro : hey, Sam . . . if I were younger . . . I’d

still get arrested

D O L C E 4 L : arrested for what?

FamAstro : if I were “intimate” with you, geekette

D O L C E 4 L : but why would you think of something

like that

FamAstro : gee . . . I dunno . . . maybe ‘cause you ar e

a very sexy woman . . .

FamAstro : don’t you know that?

FamAstro : then you say . . .

FamAstro : . . . rea lly? But I’m just a little girl

. . .

FamAstro : then I say . . .

FamAstro : etc.

FamAstro : hmm . . . maybe sh e’s blind

FamAstro : hmmm

FamAstro : Earth to Sam . . . Earth to Sam . . .

FamAstro : Houston . . . we’ve lost Sam . . .

FamAstro : zzzz. . . . Boom . . . crash and burn . . .

D O L C E 4 L : dude you’re a cool teacher and all but

this is defin itely not someth ing you talk about with

students

. . .

52 . Stransky correctly interpreted these “inappropriate

gestures” of a sexual connotation to mean that Respondent wanted

to be intimate with her .

53 . In the second saved e - mail, the following

communications occur red between Respondent and Stransky:

. . .

D O L C E 4 L : sorry i’m reading mail

FamAstro : you can read?

D O L C E 4 L : surprisingly yes

FamAstro : LOL

FamAstro : when did they te a ch women that?

FamAstro : Don’t tell anyone, but I thought about you

over the summer

D O L C E 4 L : lol

FamAstro : I got to know you only at the end of last

school year,

FamAstro : and I enjoyed your free spirit,

FamAstro : love of adventure., etc.

D O L C E 4 L : well thank you

FamAstro : no problemo

FamAstro : If I were a senior man thi s year, I’d want

to spend time with you, since you are fun, and very

enjoyable to be around

D O L C E 4 L : yeah everyone loves me haha

FamAstro : everyone has made love to you?

D O L C E 4 L : no thats not what I said

FamAstro : LOL . . . I know, geekette . . . I joke a

lot . . . can you tell?

FamAstro : and I’m a sarcastic son of a bitch

D O L C E 4 L : lol i can see that

FamAstro : I’m only serious when I am joking

FamAstro : LOL

FamAstro : Anyway, I miss you

FamAstro : meaning, I enjoyed getting to know you, and

since there is only one YOU, I’d like more of that

character

FamAstro : just me

FamAstro : I can recognize talent when I see it

D O L C E 4 L : talent?

FamAstro : fun loving, funny, sexy, intelligent, etc.

FamAstro : then you say. . . .

FamAstro : . . . maybe sh e died . . .

Students Report Violations To Mr. Hutchinson

54 . Mosquera was offended by the instant message

co mmunications with FamAstro, and was unsure what to do, if

anything, in response. Mosquera spoke with her classmates,

Farah and Winston , and disc overed those students also had

experienced online communications with FamAstro. Winston was

afraid to report these communications to a school official.

55 . For several years, Mosquera had known Gregory

Hutchinson (“Hutchinson”), one of C SHS ’s guidance counselors .

On the Friday, October 10, 2003, Mosquera told Hutchinson that

she needed to speak with him regarding an issue. Mosquera told

Hutchinson that Respondent was going to get himself into trouble

due to inappropriate e - mails and other contact with herself and

other students. Hutchinson advised the student that should she

have any proof of the allegations, she should bring it to his

office the following Monday.

56 . Prior to this incident, Mosquera had never filed a

complaint against a teacher. Mosquera testified, credibly, that

she came forward and spoke to Mr. Hutchinson about Respondent ’s

comm unications because she felt that he should not be teaching.

Mosquera understood that Winston was not going to report the

incidents to the administration because she was fearful of

retribution from Respondent . Winston had been afraid of coming

forward, and therefore Mosquera believed it was her

responsibility to report this behavior to Hutchinson.

57 . The following Monday (October 13, 2003) Mosquera a nd

Winston came to Hutchinson’s office and told them in greater

detail about the online communications that had been having with

FamAstro. Hutchinson thereafter allowed Winston to use his

computer to log in to her AOL account. Winston then printed a

copy of School Board Exhibit SB4 in Hutchinson’s presence.

58 . Winston was visibly upset as she discussed the

Respondent ’s communications with Hutchinson . Hutchinson was

immediately concerned after hearing of the allegations of

inappropriate sexual co mmunica tions between Respondent and his

students .

59 . Although Mosquera did not retain any copies of the IM

communications she had with FamAstro, Hutchinson understood that

sexually inappropriate conversations had occurred.

60 . After Winston’s e - mail s document ing her communications

with FamAstro (SB4) were printed from Hutchinson’s computer,

Hutchinson reviewed the content and provided it to the guidance

director, Connie Hohulin, following the appropriate chain of

command. Together, Hutchinson and Hohulin brou ght the situation

to the attention of the principal, Lynch, at which point

Hutchinson offered his understanding of the inappropriate

communications.

61 . Following the complaints of Mosquera and Winston, on

October 14, 2003, Hutchinson was approached by a nother student,

Farah, who reported communications with Respondent , similar to

that of Mosquera and Winston. In Hutchinson’s presence, Farah

logged onto her AOL account and printed for Hutchinson the

communications Farah saved between her and FamAstro, wh ich are

identified as School Board Exhibit SB5.

62 . Stransky, along with her parents, also brought in the

printouts of the two saved IMs she had with FamAstro.

Mr. Hutchinson Reports Co mplaints To Principal

63 . As the principal of C SHS , Lynch’s dutie s include, but

are not limited to dealing with complaints regarding her staff.

She is also responsible for disciplining staff following

complaints of any type.

64 . Hutchinson relayed to Lynch that several students had

complained about inappropriate e - mai ls and IMs from Respondent ,

and provided the principal with a copy of the documents which

detailed the nature of the conversations . Lynch ordered

Respondent to be removed from the classroom following complaints

received on October 13, 2003 , and initiated a larger

investigation . School Board Exhibit SB1 contains a true and

accurate copy of the complaint Lynch signed after Hutchinson

reported complaints made by Mosquera, Winston, and Farah, on

October 13, 2003 .

RESPONDENT IS FAMASTRO

65 . The parties dispu te whether Petitioners proved that

Respondent acted as FamAstro at the times relevant to this

proceeding. Based on the considerations that follow, the

undersigned concludes that Petitioners established by clear and

convincing evidence that Respondent enga ged in the

communications described above with Mosquera, Winston, Farah,

and Stransky using the screen name FamAstro. 4

66 . Respondent has been the owner and holde r of AOL

Account No. 105 - 1005 - 879 since August 29, 1997 . Respondent pays

for this account with a credit card that is in his name. The

AOL account information listed Respondent ’s address in

Plantation, Florida, as the account address and the AOL account

information contained Respondent’s home telephone number.

67 . The following screen names are listed for Respondent’s

AOL account: FamAstro, drdhmenke, cshsphysics , and GailShots .

These screen names are password protected. Respondent

frequently changes the passwords for his screen names to protect

the security of the accounts. There was no c redible evidence to

support the theory that someone had hacked into Respondent’s AOL

account and created the IMs that are the subject of these

proceedings using Respondent’s screen name of FamAstro.

68 . Respondent’s wife also uses Respondent’s AOL accou nt,

but under her screen name of GailShots. Mrs. Menke testified,

credibly, that she did not send the subject IMs. Respondent’s

son, the only other resident of the Menke house, is five - years

old and incapable of sending the subject IMs.

69 . Respondent provided his students with a web page URL

where they were encouraged to check for assignments and other

class updates. There were several screen names connected to the

website that were utilized to ask Respondent about assignments,

one of which was FamAs tro.

70 . Th e class syllabus for Respondent ’s H onors P hysics

class at C SHS informed his students that FamAstro was one of

Respondent’s screen names.

7 1 . The content of the IM communications discuss events

that occurred in Respondent’s classroom, made reference to

students in the class, discussed grades and extra credit work

assignments, and offered food to students, which Respondent

provided the following day. The IM communications discussed face

to face conversations Respondent had had with Stransky.

Students in Respondent ’s class were permitted to complete extra

credit assignments to raise their grade. During an online

communication with FamAstro, Winston inquired whether she could

“send” the extra credit assignment. FamAstro requested Winston

fax the completed assignment to Respondent ’s home, which

Respondent must have received, because Winston was provided the

extra credit by Respondent . The fact that Winston sent her

extra credit assignment only to Respondent ’s home fax machine,

after invited t o do so by the individual communicating as

FamAstro, provides a direct link between the Respondent and the

communications of FamAstro. FamAstro displayed significant

knowledge of classroom activities, including specific knowledge

of grades given to studen ts in his class tha t only the teacher

would know. When asked how she could pull up her grade,

Respondent, as FamAstro, told Winston she could meet with him

before or after class.

72 . Farah re peatedly refer red to FamAstro as Menke or

Dr. Menke. FamAstr o referred to himself as a physics teacher and

made repeated reference to his class.

73 . FamAstro asked Mosquera online whether she ever

experienced an orgasm. Following the inquiry, Mosquera left her

home to go to the movies, and upon her return, disc overed

receipt of an e - mail from FamAstro apologizing for making her

feel uncomfortable. The next day in school, Mosquera

encountered Respondent in the hallway, who asked if she had

received the e - mail. In person, Respondent Menke said he was

sorry if he offended Mosquera during their online

communications.

74 . On more than one occasion, while speaking online,

FamAstro offered to bring food to class for Winston, Farah, and

Mosquera. On the following day, consistent with the online

discussions betwee n FamAstro (Menke) and the students,

Respondent would bring food from the teacher planning area for

these three students to eat.

Respondent Made Inappropriate Comments In Class

75 . Respondent made derogatory statements about

Dr. Kadlacek, the a ssistant p rincipal, to the entire class,

including calling him a “dick.”

76 . Respondent made offensive, inappropriate sexual jokes

in class regularly. Respondent repeatedly used inappropriate

terms such as “fuck” and “dick . ”

77 . Respondent asked two female s tudents (Stransky and

Arendt) whether they were virgins and discussed with them having

sex in jello.

Website Material

78 . T he AOL Hometown webpage registered to FamAstro is

titled, “Dr. Dave Menke’s Homepage” and contains a profile of

Respondent , a pict ure of him with his two sons, as well as

“Preferen ces and Interests” available at

http://www.hometown/aol.com/famastro.

79 . School Board Exhibit SB2 is a copy of Respondent’s

personal AOL Hometown webpage. 5 The identity of the author of

the website mater ial is clear because the printouts contained in

Exhibit SB2 are rife with photographs of Respondent and comments

about Respondent. School Board Exhibit SB2 contains a degrading

drawing and degrading comments pertaining to Winston. The

drawing was taken f rom a photograph Respondent took of Winston

and was easily recognized by the student witnesses in this

proceeding. Petitioners established that a great deal of the

material posted on the Respondent ’s AOL Hometown webpage was

used to intentionally and mali ciously retaliate against Winston

and the other student s involved in these proceedings for

reporting Respondent ’s inappropriate conduct to the school

administration.

80 . The School Board complied with all applicable rules in

investigating the allegations against Respondent and in the

process that led to the vote to suspend Respondent’s employment

without pay and to terminate that employment, subject to his

right to this due process hearing before DOAH.

CONCLUSIONS OF LAW

81 . DOAH has jurisdiction over the subject matter of and

the parties to this proceeding pursuant to Sections 120.569 ,

120.57(1), and 1012.796 (6), Florida Statutes (200 7 ).

82 . Because DOAH Case No. 04 - 3835 is a proceeding to

terminate Respondent’s employment with the School Board and doe s

not involve the loss of a license or certification, the School

Board has the burden of proving the allegations in its

Administrative Complaint by a preponderance of the evidence, as

opposed to the more stringent standard of clear and convincing

evidence. McNeill v. Pinellas County School Board , 678 So. 2d

476 (Fla. 2d DCA 1996); Allen v. School Board of Dade County ,

571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of

Lake County , 569 So. 2d 883 (Fla. 3d DCA 1990).

83 . The preponderance of t he evidence standard requires

proof by "the greater weight of the evidence," Black's Law

Dictionary 1201 (7th ed. 1999), or evidence that "more likely

than not" tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000)( relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

84 . S ection 1012.33 (1)(a), Florida Statutes, provides that

any member of the instructional staff may be susp ended or

dismissed at any time by a School Board for just cause, and

further provides

. . . Just cause includes, but is not

limited to, the following instances, as

defined by rule of the State Board of

Education: misconduct in office,

incompetency, gro ss insubordination, willful

neglect of duty, or conviction of a crime

involving moral t urpitude.

85 . In DOAH Case No. 05 - 41889PL, the Commissioner of

Education seeks to revoke Respondent’s educator’s certification.

Consequently, the Commissioner has th e 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 and

Consumer Services , 550 So.2d 112 (Fla. 1st DCA 1989); and

Inq uiry 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 evidence 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 1983).

86 . Section 1012.795, Florida Statutes (2007), provides,

in pertinent part, as follows:

1) The Education Practices Commission may

. . . 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 ca pacity requiring direct contact with

students for a period of time 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

t o teach or otherwise be employed by a

district school board or public school in

any capacity requiring direct contact with

students . . .

* * *

(c) Has been guilty of gross immorality

or an act involving moral turpitude.

* * *

(f) Upon i nvestigation, has been found

guilty of personal conduct which seriously

reduces that person's effectiveness as an

employee of the district school board.

87 . Section 120.569(2) ( g), Florida Statutes (2007),

applies to this administrative proceeding and p rovides, in

relevant part, as follows:

(g) Irrelevant, immaterial, or unduly

repetitious evidence shall be excluded, but

all other evidence of a type commonly relied

upon by reasonably prudent persons in the

conduct of their affairs shall be

admissible, whether or not such evidence

would be admissible in a trial in the courts

of Florida. . . .

88 . Both Petitioners in these consolidated proceedings met

their respective burdens of proof. The evidence , both direct

and circumstantial, clearly and convin cingly established that

Respondent committed the acts set forth in the foregoing

f indings of f act section of this Recommended Order.

89 . T he P rinciples of Professional Conduct for the

Educational Profession in the State of Florida and the Standards

of Co mpetent Professional Performance for the Education

Profession in the State of Florida are set forth in Florida

Admin istrative Code Rule 6B - 1.006, which provides, in relevant

part, as follows:

(3) Obligation to the student requires

that the individual:

(a) Shall make a 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 o r

disparagements;

90 . Respondent’s communications with students face to face

in his classroom constitute misconduct in office which seriously

reduced his effectiveness as an employee of the district school

board . He used profane language in class, told dirty jokes in

class, referred to an assistant principal as a “dick ,” asked two

female students if they were virgins, and discussed having sex

in jello with those two students. Those communications justify

the termination of his employment and the revoca tion of his

educator’s certification .

91 . Florida Administrative Code R ule 6B - 4.009(2) contains

the following definition of the term immorality:

(2) Immorality is defined as conduct that

is inconsistent with the standards 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.

92 . Respondent’s online communications with these minor

fe male students constituted gross immorality and acts involving

moral turpitude within the meaning of Section 1012.795(1)(c) ,

Florida Statutes .

93 . In making the recommendations that follow, the

undersigned has considered the recommended disposition set forth

in the respective Proposed Recommended Orders filed by

Petitioners.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby RECOMMENDED :

As to DOAH Case No. 04 - 3835, it is RECOMMENDED that the

School Board en te r a final order adopting the f indings of f act

and c onclusions of l aw set forth herein. The School Board’s

final order should terminate Respondent’s employment.

As to DOAH Case No. 04 - 4189PL, it is RECOMMENDED that the

Education Practices Commission en te r a final order adopting the

f indings of f act and c onclusions of l aw set forth herein. The

final order should permanently revoke Respondent’s educator

certification.

DONE AND ENTERED this 13th day of August, 2007 , in

Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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

ww w.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of August, 2007 .

ENDNOTES

1/ Unless otherwise noted, all statutory references are to

Florida Statutes (2003).

2/ Unless otherwise noted, all references to rules are to the

version of the rule in existence at the time of the alleged

offenses.

3/ Winston was present when Respondent acknowledged FamAstro’s

online apology to Mosquera. Winston’s testimony corroborated

Mosquera’s.

4/ Petitioners relied on circumstantial evidence to establish

that Respondent acted as FamAstro in sending the IMs that are at

issue in this proceeding. The following excerpt, from 24 Fla.

Jur. 2d Evidence and Witnesses 484, accurately states the

general rule as to the sufficienc y of circumstantial evidence in

a civil or administrative proceeding:

The proper test for the sufficiency of

circumstantial evidence in civil [or

administrative] cases is that circumstantial

evidence need not exclude every other

reasonable hypothesis t han the one contended

for, but must outweigh all contrary

inferences to such extent as to amount to a

preponderance of all reasonable inferences

that might be drawn from the same

circumstances. . .

The following excerpt, from 24 Fla. Jur. 2d Evidence and

Wi tnesses 485 , accurately states the more stringent rule that

applies in a criminal proceeding :

When circumstantial evidence is relied

upon to convict a person charged with a

crime, the evidence must not only be

consistent with the defendant’s guilt, b ut

must be inconsistent with any reasonable

hypothe sis of his or her innocence.

(Citations omitted).

* * *

The undersigned has applied the civil rule in the School Board’s

Case (DOAH Case No. 04 - 3835). Because the Commissioner’s case

(DOAH Case No . 05 - 4189PL) is penal in nature, the undersigned

has applied in that case the more stringent criminal rule. The

findings that are reflected in this portion of the Recommended

Order do not turn on whether the civil or criminal standard is

applied. The dir ect and circumstantial evidence clearly and

convincingly established that Respondent acted as FamAstro in

sending the IMs at issue in this proceeding.

5/ These materials were posted to Respondent’s web page after he

was removed from his classroom, but b efore either of the two

Administrative Complaints that underpin these proceedings were

prepared.

COPIES FURNISHED :

Karen Coolman Amlong, Esquire

Amlong & Amlong, P.A.

500 Northeast Fourth Street, Second Floor

Fort Lauderdale, Florida 33301 - 1154

Mark A. Emanuele, Esquire

Panza, Maurer, & Maynard, P.A.

Bank of America Building, Third Floor

3600 North Federal Highway

Fort Lauderdale, Florida 33308

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224

Tallahassee, Florida 32399 - 0400

Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

James F. Notter, Superintendent

Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301

Jeanine Blomberg

Interim Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Fl orida 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 i ssue the Final Order in this case.