06-000331 Pinellas County School Board vs. Mark C. Fronczak Status: Closed Recommended Order on Wednesday, September 13, 2006.

Summary: Respondent`s actions of inappropriately touching students and digitally penetrating one student constitute just cause for his dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 06 - 0331

)

MARK C. FRONCZAK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to not ice, a hearing was held on May 9 and 10,

2006, in Largo, Florida, before Carolyn S. Holifield, an

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Pet itioner: David A. Koperski, Esquire

Laurie Dart , Esquire

Pinellas County School Board

Post Office Box 2942

Largo, Florida 33779 - 2942

For Respondent : Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUES

Whether Respondent engaged in the misconduct alleged in the

charging document; and, if yes, whether such offenses are

violations of P inellas County School Board Policy 8.25 and the

Code of Professional Conduct and/or constitute "just cause" for

his dismissal as a teacher in the Pinellas County School

District.

PRELIMINARY STATEMENT

By letter dated May 30, 2004, the s uperintendent of

Pin ellas County Schools advised Respondent, Mark Fronczak

(Respondent), that he was recommending to the Pinellas County

School Board (School Board or Pinellas County School Board) that

Respondent be dismissed from his employment. The basis for the

recommenda tion was Respondent's having been arrested on

April 28, 2004, and subsequently charged with capital sexual

battery and lewd and lascivious behavior on a child. Respondent

requested a formal hearing to challenge the recommendation.

Pending the outcome of the administrative proceeding, Respondent

was suspended without pay by the School Board.

The School Board forwarded the matter to the Division of

Administrative Hearings on January 26, 2006, after Respondent

was tried in criminal court on the charges note d in the

attachment to the above - referenced May 30, 2004, letter.

By Notice issued February 8, 2006, the final hearing was

set for April 10 through 12, 2006. Subsequently, at the request

of the parties, the hearing was continued and was rescheduled

and he ld as noted above.

At hearing, Petitioner presented the testimony of eight

witnesses. Respondent testified on his own behalf and presented

the testimony of ten witnesses. The parties' Joint Exhibit 9

and Petitioner's Exhibits 1, 2, and 4 through 8 were a dmitted

into evidence. Prior to the hearing, the parties filed a

Pre - Hearing Stipulation in which they stipulated to certain

facts that required no proof at hearing.

A Transcript of the hearing was filed on June 2, 2006.

Respondent requested and the par ties were granted an extension

of time in which to file proposed recommended orders.

Petitioner and Respondent filed Proposed Recommended Orders on

June 14, 2006, and June 15, 2006, respectively. Both Proposed

Recommended Orders have been considered in p reparation of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner, the Pinellas County School Board , operates

the public schools in Pinellas County, Florida.

2. Respondent has been a teacher for 25 years. The last

18 years , he has worked as a music t eacher in the Pinellas

County s chools. From 1986 to 1993, Respondent taught music at

Dixie Hollins High School. From about August 1993 until about

April 28, 2004, Respondent worked as a music teacher at Southern

Oak Elementary School (Southern Oak). Re spondent transferred to

Southern Oak because his two sons were attending school there.

3. At all times relevant to this proceeding, Respondent

taught music to students in kindergarten through fifth grade at

Southern Oak. The classroom teachers brought th eir classes to

the music room where Respondent taught music and return ed to

pick up the students at or near the time the music class was

over.

4. The music room at Southern Oak was a large room , which

included the open area where the students sat during t heir music

class. In addition to the area where Respondent taught the

various classes, the music room also included an office, a

practice room, and three storage rooms. The music room had

several large windows facing outside.

5. As part of the music cla sses, Respondent worked with

the children on rhythm movement, singing, playing instruments,

and active listening , where the children were asked to keep the

beat of the music that was playing on either the television or

compact disc player.

6. In the 2003 - 2004 school year, Respondent used a music

curriculum that was about two years old. This music curriculum

included a variety of videos and lessons. As part of his

teaching and implementation of this curriculum, Respondent

showed these curriculum - related v ideos to the students in his

music classes.

7. During the 2003 - 2004 school year, C.L., St.H. , and

Sa.H. were students at Southern Oak. C.L. was seven years old

in second grade . St.H. and Sa.H., who are sisters, were about

seven years old and in first gr ade. Like all other students at

Southern Oak , C.L., St.H. , and Sa.H. went to Respondent for

music.

8. C.L., St.H., a nd Sa.H. were all in different classes

and, therefore, they did not attend music class during the same

class period. Rather, they went to music with their respective

classes at the time scheduled.

9 . At all times relevant to this proceeding, C.L. did not

know either St.H. or Sa.H. Also, at all times relevant to this

proceeding, neither St.H. nor Sa.H. knew C.L.

Situation Related to C.L.

1 0 . On December 1, 2003, while C.L. was in the tub, her

mother, Ms. L., picked up C.L.'s panties from the floor and

noticed that there was blood in the panties. Ms. L. asked C.L.

questions about the blood, but C.L. could not say when the

bleeding had star ted.

1 1 . The following day, Ms. L. took C.L. to see

Jeanette Moss, M.D. She also took two pairs of C.L.'s panties

to the doctor's office to show the doctor. Because Ms. L. first

discovered the blood in C.L.'s panties on December 1, 2003, she

did not kn ow and, thus, could not state with absolute certainty

when this episode of bleeding began. However, Dr. Moss' medical

report for that office visit indicated that C.L. was brought in

by her mother because of suspected vaginal bleeding for the last

five day s.

1 2 . Dr. Moss did not conduct a vaginal examination, but

looked in C.L.'s vaginal area to see if there was still bleeding

and determined that there was no t . Dr. Moss inquired about the

possibility of sexual abuse, but Ms. L. did not think this was

poss ible because she believed that C.L. was always properly

supervised.

1 3 . After December 1, 2003, Ms. L. became aware that C.L.

had two more episodes of bleeding, one in early January 2004 and

one in late January or early February 2004. Following the early

January 2004 episode, Ms. L. took C.L. to a medical office,

where a nurse, Rene Nolan, looked at C.L.'s vaginal area, but

did not conduct a vaginal examination. At the time of this

visit, there was no bleeding. Nurse Nolan asked Ms. L. about

the possibi lity of sexual abuse. Still, Ms. L. did not believe

this was possible.

1 4 . Following the episode of bleeding in late January or

early February 2004, C.L. was referred to Dr. Diamond, an

endocrinologist. Dr. Diamond saw C.L. in April 2004 and

reported to Ms. L. that there was no indication that the

bleeding was related to puberty. With Ms. L . 's permission and

in her presence, Dr. Diamond looked at C.L.'s vaginal area and ,

based on that observation , reported to Ms. L. that the vaginal

opening "was not rig ht for a seven - year - old" and indicated he

believed there was some kind of sexual abuse. He told the

mother to call the Child Protective Team (Child Protective Team

or CPT) and have a full examination done.

1 5 . Ms. L. contacted the Child Protective Team t he day

after she and C.L. went to Dr. Diamond's office, but was told

that a police report had to be filed before an examination could

be performed. Since C.L. had denied that anything inappropriate

had happened, Ms. L. was reluctant to file a police repor t.

16 . Ms. L. contacted Nurse Nolan and shared her concerns

about filing a police report. She also updated Nurse Nolan

about what had been happening with C.L. since the January 2004

office visit. Nurse Nolan then referred Ms. L. to Dr. Cheek, a

physicia n who had previously worked with the Child Protective

Team.

17 . On or about April 16, 2004, C.L . was examined by

Dr. Cheek. After examining C.L., Dr. Cheek told Ms. L. that she

was able to see C.L.'s hymen and determined that there was

missing tissue , and there was also scar tissue. Dr. Cheek told

Ms. L . that she suspected some type of abuse and reported her

suspicion to the child abuse authorities.

18 . On or about April 20, 2004, a nurse practitioner with

the Child Protective Team conducted a full e xamination of C.L.

That examination, like the one performed by Dr. Cheek, showed

loss of hymenal tissue and scarring. The medical record,

completed by the nurse practitioner , stated that the loss of

hymenal tissue with scarring observed during the examin ation "is

consistent with penetrating trauma."

19 . Notwithstanding C.L.'s repeated denials that any

sexual abuse had taken place, the nurse practitioner told Ms. L.

that based on the findings of the examination, she believed that

C.L. had been sexually ab used.

20 . After C.L. was examined by the nurse practitioner with

the Child Protective Team, C.L. and her mother met with a

counselor at the CPT office. The counselor told C.L. that if

someone had touched her, she should tell her mother and the

counselor. C.L. did not verbally respond, but became visibly

upset. The counselor then left the room, afterwhich, Ms. L.

reiterated that C.L. should tell if someone had touched her and

made her feel uncomfortable.

2 1 . After the counselor left the room and in resp onse to

her mother's question, C.L. stated that the only person who

touched her was her music teacher. C.L.'s mother then asked,

"Your music teacher?" C.L. then replied, "You know, the one I

said was creepy." In describing how her music teacher touched

her, C.L . said only that he would hold her on his lap real

tight. C.L. then began crying. About that time, the counselor

returned to the room , and Ms. L. told her what C.L. had just

revealed to her.

2 2 . In making the comment, "You know, the one I said w as

creepy," referred to in paragraph 21 , C.L. was referring to an

earlier conversation she had with her mother about the music

teacher. I n or about November 2003, when C.L. came home from

school, she told her mother that the music teacher was "creepy."

M s. L. then asked C.L. what did she mean. In response, C.L.

told her mother, "He makes me sit on his lap."

23. At or near the time C.L. made the statements to her

mother noted in paragraph 22 , C.L . 's parents discussed what C.L.

told her mother. At that t ime, the parents did not suspect

sexual abuse. So after discussing the matter, C.L.'s parents

decided they did not want to get an innocent person in trouble,

but if it happened again, they would "address it."

24. After Ms. L. told the counselor what C.L. had said

while the counselor was out of the room, the counselor asked

Ms. L. what she knew about the music teacher. Ms. L. told the

counselor about an incident that occurred at or near the

beginning of school when she attended that school's open house.

According to Ms. L., when she visited the music teacher's room

during the open house, he flirted with her. However, there is

no indication of exactly what the music teacher did to lead

Ms. L. to that conclusion.

25. It is unclear whether C.L. was in th e room or had left

the room when her mother told the counselor about the "flirting"

incident.

26. After Ms. L. told the counselor that C.L. had said the

music teacher held her on his lap, the counselor asked C.L. if

that was all that he had done and did i t make her feel

uncomfortable. C.L. answered, "Yes," and said that the music

teacher had just held her tight and would not let her get up.

27. After leaving the Child Protective Team office, Ms. L.

went to a fast food restaurant before taking C.L. back t o

school. While at the drive - thru window, Ms. L. noticed that

C.L. was clutching a stuffed animal and was crying. Ms. L.

asked C.L. what was wrong. C.L. told her mother that she needed

to tell her what had happened. After Ms. L. pulled over in the

park ing lot, C.L. told her mother, "It was him." Ms. L. asked

C.L., "Who is him?" C.L. answered, "My music teacher." In

response to her mother's asking what was her music teacher's

name, C.L. said, "Mr. Fronczak."

28. Immediately after C.L. made the rev elations described

in paragraph 27 , Ms. L. went home and called her husband.

Mr. and Mrs. L. then called the Pinellas County Sheriff's

Office.

29. Subsequently, C.L. revealed additional details

concerning the number of times and how Respondent touched h er.

30. During the 2003 - 2004 school year when C .L. was a

second grade student at Southern Oak , her class went to

Respondent for music once a week . Each music period class

lasted about 30 to 45 minutes.

31. Every other week, Respondent showed the studen ts a

curriculum - related video, which would be played on the

television which was located at the front of the classroom. The

students in C.L.'s class would always sit on the floor to watch

the video s. Whenever Respondent showed a video to C.L.'s class,

th e lights in the classroom were turned off , and the vertical

blinds at the windows were closed.

32. While the video was showing, Respondent sat in a chair

in the back of the room, with the students seated in front of

him, a few feet away . The students wer e facing the television

and had their backs to him. The chair in which Respondent sat

had no sides or arms.

33. C.L. did not always sit on the floor during the entire

time the video was playing because Respondent would whisper to

her, "Come over here." C.L. reasonably understood Respondent's

statement to mean that he wanted her to come to where he was

seated. In response to the directive, C.L. usually would get up

from the floor where she was sitting with the other students and

go to Respondent . She wo uld then be required to sit in his lap.

If C.L. did not get up when Respondent whispered to her, he

would pull her or pick her up and take her to his chair and put

her on his lap.

3 4 . Even though C.L. was unable to state the exact time

that the incidents described in paragraph 33 occurred, her

credible testimony was that the incidents occurred about four or

five times dur ing the 2003 - 2004 school year.

3 5 . The first time C.L. was required to sit in

Respondent 's lap, he touched her inappropriately in her " private

area," either under or over her clothes. This encounter lasted

about five or ten minutes, and less time than the video played.

While C.L. was sitting on Respondent 's lap, she did not say

anything, but she did try to get up. However, she could no t get

up because Respondent was holding her down.

3 6 . In a second incident, Respondent touched C.L. in her

private area. C.L. testified that she thought, in this

instance, Respondent touched her under her clothes, put his hand

in her underpants, and put his fingers inside her. When

Respondent put his fingers inside her, C.L. did not scream, even

though it hurt and felt like "needles went through" her.

3 7 . During a third incident , Respondent touched C.L. in

her private area, but over her clothes . On th at particular day,

C.L. was sitting on the floor near the back of the music room.

Respondent whispered to her, "Come over here." C.L. just turned

around , but did not go to Respondent . However, after C.L. did

not come to him, Respondent again told C.L. t o come to him.

After the second directive from Respondent, C.L. got up and went

to him. In this instance, C.L. was on Respondent's lap for five

or ten minutes, during which he touched C.L. over her underwear .

3 8 . During a fourth incident, Respondent tou ched C.L.

inside her underwear and put his fingers inside her. He may

have used two hands, but only one hand at a time. Respondent

used one hand to hold her on his lap while his other hand was

inside her underwear and/or inside her. He would then someti mes

change or alternate hands. When Respondent put his fingers or

finger inside C.L., it hurt, but, again, she did not scream.

C.L., as she had during the past incidents, tried to get up from

Respondent 's lap, but she was unable to do so because Responde nt

was holding her down. When it was over, Respondent let C.L. up ,

and she went back to her seat on the floor .

39 . The foregoing incidents did not occur every time C.L.

was in music class. However, when each incident occurred , the

lights in the classroo m were out , the vertical blinds were

closed, and Respondent was seated in his chair (which did not

have sides/arms) , in the back of the classroom behind the

students.

4 0 . During these incidents, C.L. did not sit in

Respondent 's lap the entire class perio d or the entire time the

video was playing.

4 1 . Given that the incidents happen ed more than two years

ago, when C.L. was only about seven years old, she could not

specifically identify the time during the 2003 - 2004 school year

that the incidents occcurred .

42. C.L. could not recall, in each of the incidents

described above, whether Respondent touched her private area

over or under her clothes. However, C.L. clearly recalled that

in the two or three instances when Respondent touched her under

her clothes, she was wearing a skirt.

43. Even though C.L. was unable to identify the precise

dates and to describe the exact inappropriate touching that

occurred in each instance, C.L. 's testimony that four or five

such incidents happened during the 2003 - 2004 school year in

Respondent 's class is found to be credible.

44. C.L. recalls that at some point, there was blood in

her panties. However, she does not recall whether there was

bleeding after Respondent touched her in her private area.

45. Prior to the inciden ts described above, C.L.'s parents

ha d told her about "good touch, bad touch." C.L. believed that

what Respondent was doing to her was inappropriate. However,

until April 2004, she did not tell her parents or anyone else

that Respondent had been touching her in her private area, even

though she had been specifically asked if anyone had touched her

in that area.

46. C.L. initially told the law enforcement officers who

were investigating her allegations that she was not afraid of

anyone. However, the reas on C.L. did not initially tell anyone

that Respondent touched her inappropriately was that she was

afraid that she would get in trouble with "the teacher."

Another reason C.L. did not tell anyone what happened was that

she was afraid that if she told anyo ne, Respondent would come

and hurt her whole family.

47. In April 2004, C.L. finally told her mother that

Respondent had touched her because she was "tired of having to

go to [medical] exams and missing out on class activities."

48. Despite C.L.'s denyin g several times that anyone had

touched her in an inappropriate manner, those earlier denials

are not a basis for discounting her testimony that the incidents

described above occurred. In cases such as this, children

frequently delay for a significant per iod of time that they have

been the victims of sexual abuse.

49. Prior to C.L.'s disclosing that Respondent had touched

her, no one suggested to her that Respondent had done anything

to her. C.L.'s reason for stating that Respondent touched her

was that he had done so. In fact, C.L.'s credible testimony was

that no one had ever touched her in her "privates" like

Respondent did.

The Testimony of Sally Smith, M.D.

50. Sally Smith, M.D., is board - certified in pediatrics

and has worked in the field of chil d abuse for 19 or 20 years .

During that time, Dr. Smith has handled at least 1 , 000 sexual

abuse cases. In or about 2002, Dr. Smith became the medical

director for the Pinellas County Child Protective Team. As

medical director, Dr. Smith conducts examina tions of children

for the Child Protective Team. In addition to conducting such

examinations, Dr. Smith also supervises the two nurse

practitioners with the Child Protective Team who also conduct

such examinations, including the nurse practitioner who exa mined

C.L. in April 2004 .

51. According to the medical report, at the time C.L. was

examined by the nurse practitioner at the CPT office , C . L . had

not reported any abuse.

52. The nurse practitioner who examined C.L. documented

seeing an abnormality of the hymen, the membrane that covers

part of the opening of the vagina. According to the medial

report, t he back part of C.L.'s hymen, the part near the rectum,

was abnormal in that there was an area of the hymen that was

about 25 percent missing, which in dicated th e abnormality was

caused by a laceration. Also, t here was also some scarring in

that area, which indicated healing of the laceration.

5 3 . The type of abnormality found in C.L. is one of the

few types of abnormalities considered specific for pen etrating

trauma. Based on her review of the examination and the

photographs related thereto, Dr. Smith could not say

definitively what caused the laceration. However, based on her

review of the report and the photographs of C.L.'s genital area,

Dr. Smith 's credible testimony was that the photographs and

examination report indicate that C.L. had a significant episode,

or perhaps one or more episodes of penetrating trauma to the

hymen - vaginal area. I t takes at least several weeks to develop

scar tissue. A ccordingly, the fact that the area was scarred at

the time of the examination indicates that the injury occurred

several weeks to a month prior to examination.

5 4 . Respondent suggested that the injury to C.L.'s hymen

may have been caused by an injury to t he genital area , but

presented no evidence to support this suggestion . Contrary to

this proposition, C.L. has no history of previous penetrating

trauma to her genital area due to an accidental injury.

5 5 . The type of injury/abnormality of C.L.'s hymen

do cumented during examination is not the type seen in a straddle

injury. Because t he hymen is located a half inch to an inch

above the surface and is protected by the outer labia in the

genital area , straddle injuries do not result in hymenal

injuries.

5 6 . Respondent suggests that the injury to C.L.'s hymen

may have been caused by masturbation, but presents no evidence

to support this suggestion. Contrary to Respondent's assertion,

the credible testimony of Dr. Smith is that t he abnormality or

injury to C. L.'s hymen that was seen at the time of C.L.'s

examination in April 2004 is not the type of injury seen in

children who masturbate. Moreover, the abnormality or injury

observed in C.L. could not be caused by C.L. 's inserting her own

finger into the vagina l opening. The reason is that the child's

own finger is similar in size to that of the opening of her

vagina , so her finger would not cause the lacerations or trauma.

However, a grown man's finger could cause such lacerations or

trauma.

5 7 . T he credible testimony of Dr. Smith is that the injury

to C.L.'s hymen is evidence of sexual abuse. Moreover, the

abnormality or injury to C.L.'s hymen was consistent with C.L.'s

late reporting of how Respondent had inappropriately touch her.

5 8 . The medical report prepared at or near the time C.L.

was examined by the nurse practitioner at t he Child Protective

Team office noted that C.L. had had three episodes of vaginal

bleeding over the preceding four months, one of which lasted

about ten days. This information wa s provided by C.L.'s mother.

5 9 . In this case, the episodes of bleeding can not be

linked to the times that C.L. experienced the penetrating trauma

described above. However, because injuries such as the one that

C.L. had do not necessarily result in blee ding, such a link is

not dispositive in determining when or how the injuries

occurred. The credible and undisputed testimony of Dr. Smith is

that the hymen of a child C.L.'s age, prior to puberty, is a

relatively thin membrane that does not have a lot of blood

vessels , and, therefore, a laceration of the hymen may not bleed

like a cut on the skin. However, a "fair percentage" of

children that have an incident of penetrating trauma to the

genital area may have some fluid/discharge associated with such

trau ma, but not necessarily bleeding.

60 . In this case, there is no definitive medical

explanation for the cause of C.L.'s bleeding.

6 1 . C.L.'s vaginal bleeding occurred from December 2003

through February 2004, but did not occur after Respondent was

removed from the school in late April 2004 .

6 2 . The trauma necessary to tear the hymen would be

associated with some sensation for the child. However, often,

in in cidents such as those described in paragraphs 36 and 38 ,

the child may not react, cry out, or make any verbal response to

the penetration and / or significant trauma .

6 3 . According to the credible testimony of Dr. Smith,

children frequently delay divulging, for a significant period of

time, that they have been sexually abused.

Testimony of Wade M e yers, M.D.

6 4 . Wade M e yers, M.D., is a child and adolescent

psychiatrist and forensic psychiatrist. Dr. M e yers is currently

a professor at the University of South Florida, where he is

c hief of the Division of Child Psychiatry in the Department of

Psychiatry.

6 5 . During this proceeding, Dr. M e yers testified regarding

his opinion of the credibility of the students who made the

allegations that are at issue in this proceeding. In

preparation for giving his opinion, Dr. Meyers reviewed

materials which included de position transcripts, videotaped

depositions , and a number of Pinellas County investigative

reports. 1 Dr. Meyers did not specify which documents he reviewed

for each particular student. However, Dr. Meyers did not review

any videotaped depositions or vid eotaped interviews of C.L., but

only her deposition transcript(s).

6 6 . Based on Dr. Meyers' review of the materials described

in paragraph 65 , he opined that C.L.'s allegations regarding

Respondent were not credible and that she had not been abused

sexual ly in any way by Respondent. Dr. Meyers based his

conclusions and/or opinions on the four reasons set forth below.

6 7 . First, Dr. Meyers testified that C.L.'s allegations

cannot be validated as the medical evidence and the timing do

not fit logic that wo uld match digital penetration in a young

girl. This assertion is based on the medical record which

indicates that the bleeding started in December 2003 and went on

for five or eight to ten days. Dr. Meyer s noted when the

bleeding was first observed , duri ng the Thanksgiving holiday,

when students were out of school. Also , when the bleeding was

first observed, C.L. had not been in school for several days and

had not been in Respondent's class for about two weeks.

Dr. Meyers apparently believed that the b leeding was necessarily

related to C.L.'s allegations that Respondent had digital ly

penetrat ed her . Based on this belief, Dr. Meyers concluded that

because C.L. had not been in Respondent's music class for about

two weeks prior to Ms. L.'s discovering blo od in C.L. 's

underwear, Respondent could not have penetrated C.L. ' s hymen.

6 8 . Dr. Meyers ' conclusion, that the medical evidence and

timing do not logically coincide with the allegation that

Respondent digitally penetrated C.L., is not persuasive. This

c onclusion or assertion is contrary to the credible and

per suasive testimony of Dr. Smith that there is not necessarily

bleeding associated with digital penetration of a child C.L.'s

age. Therefore, the truth regarding C.L.'s allegation that

Respondent dig itally penetrated C.L. need not be tied or related

to any specific episode of bleeding.

6 9 . Second, Dr. Meyers asserted that C.L.'s initial denial

and subsequent denials that any sexual abuse had occurred are a

basis for not believing her later statements that Respondent

engaged in the alleged conduct. 2 According to Dr. Meyer s , a

victim of sexual abuse usually reveals such abuse in the initial

interview.

70 . Dr. Meyers' conclusion, in paragraph 69 , based on his

assertion that victims of sexual abuse usua lly reveal such abuse

in their initial interview, is not persuasive. Dr. Smith's

credible testimony , that victims of sexual abuse or acts alleged

by C.L. frequently do not disclose this information until some

time after the incidents have occurred , is per suasive.

7 1 . Third, Dr. Meyers testified that when evaluating

children for sexual abuse, it is important to not do multiple

interviews. According to Dr. Meyers, when children who have

initially denied that sexual abuse has occurred are interviewed

multip le times, the children may feel pressure d to change their

answer , and they may begin to doubt if they actually forgot what

happened. Therefore, their initial statements, not their

subsequent statements, are more credible. Where, as in this

case, C.L. was interviewed and/ or questioned multiple times,

Dr. Meyers testified that her subsequent statements, in which

C.L. alleged inappropriate touching by Respondent , are not

credible.

7 2 . Dr. Meyers' conclusion that C.L.'s allegations

regarding Respondent are not credible because she felt pressured

to make the allegations after she was questioned or interviewed

multiple times i s not persuasive. Admittedly, Dr. Meyers never

met or interviewed C.L. or viewed any videotaped depositions or

videotaped interviews of C.L. Therefore, a t most, his

conclusion and opinion are based solely on a review of written

documents ( i.e. the deposition transcript and /or investigative

reports). Moreover, those conclusions and opinions are contrary

to C.L.'s credible, persuasive, an d clear testimony presented at

this proceeding.

7 3 . Fourth, Dr. Meyers asserts that C.L.'s allegations

lack credibility because of the leading and suggestive

questioning techniques used during C.L.'s deposition and/or

interviews. 3 Dr. Meyers testified th at the techniques used were

not only improp er, but likely resulted in C.L.' s having a "false

memory" about the alleged incidents. According to Dr. Meyer s , a

false memory is one in which the source of the memory ( i.e. the

purported suggestive and/or leadin g questions) is false even

though to the child the memory is real.

7 4 . Dr. Meyers' conclusion that C.L.'s allegations

regarding Respondent are not credible, but instead are the

result of a "false memory" are not persuasive. Furthermore,

this conclusion a nd opinion are contrary to the credible,

persuasive, and clear testimony of C.L. presented at this

proceeding.

7 5 . For the reasons stated above, the conclusions and/or

opinions of Dr. Meyers , as they relate to C.L., are not

persuasive.

Situation Involvi ng St.H. and Sa.H.

76. When St.H. and Sa.H. were in first grade, their

mother, Ms. H. asked them how was their day at school. The

girls never talked much about their teachers. However, in

response to their mother's question, the girls reported that

Res pondent stroked their hair. Ms. H. wondered about this

behavior and asked a teacher whether a teacher's stroking

students' hair was normal behavior. After the teacher told

Ms. H. that that was just the way Respondent was, Ms. H. thought

that Respondent' s behavior (stroking the girl s ' hair) was not

necessarily inappropriate. Based on her conversation with the

teacher, Ms. H. never discussed the matter with Respondent.

77. When St.H. was in first grade, Respondent was her

music teacher. During music cl ass, Respondent would call St.H.

to come up to him , and he would "take [her] waist" and sit her

on his lap. While St . H. was sitting on Respondent's lap, he

would stroke her hair and rub her neck and stomach.

78. When St.H. was in Respondent's music class , the

vertical blinds at the windows were always closed.

79. St.H. recalled that she sat on Respondent's lap every

music period.

80. St.H. sat on Respondent's lap when the students in the

music class were playing instruments, but did not stay on his

lap the entire music period. When Respondent was showing the

students how to play the various instruments, he would make

St.H. get off his lap.

81. Respondent also had St.H. to sit in his lap when he

showed videos to the class. After Respondent turned the

television on, he would go back to his chair, he'd then pat his

leg. St.H. would then go to Respondent and sit in his lap. The

reason St.H. went to Respondent and sat on his lap is because

she knew what that sign, patting his leg, meant "because he does

[did] that a lot and that means [meant] for me to go to him."

82. Even though sitting on Respondent's lap made St.H.

feel uncomfortable, she never told Respondent how she felt.

However, St.H. did ask him why he had her sit on his lap.

Respondent then to ld St.H. that her older sister (who at this

time was about 15 years old) had sat in his lap, presumably when

she was in his class.

83 . St.H. wrote about Respondent's actions in her journal,

but she later disposed of the journal because the journal

entries reminded her of the bad memories.

84 . St.H. would not want Respondent as a teacher again

because she would not want to go through the experience she had

with Respondent again.

8 5 . When Sa.H. was in first grade, Respondent showed

videos during music cl ass. Respondent turned out the lights

when he showed the videos .

8 6 . W hen the video was showing and the lights were out,

sometimes Sa.H. would have to sit on Respondent's lap. Sa.H.

did not sit in his lap the entire class period, but only sat

there abou t five minutes. When Sa.H. was sitting on

Respondent's lap, he would rub her stomach and back and tap her

legs.

8 7 . At this proceeding, more than two years after the

events related to Sa . H. o ccurred, she could not recall when she

first sat on his lap or how she knew to go to Respondent and sit

on his lap. However, Sa.H. did not want to sit on Respondent's

lap and felt nervous when she was on his lap.

88. Sa.H. never told Respondent that she did not want to

sit on his lap. Moreover, Sa.H. never told a nyone that she was

sitting on Respondent's lap during the time she was in first

grade.

8 9 . Sa.H. would not want Respondent as a teacher again

because of what he did to her. According to Sa.H., "It would be

very scary again."

90 . The testimony of St.H. a nd Sa.H. is found to be

credible , notwithstanding the conclusion of Dr. Meyers to the

contrary .

Respondent's Denies Alleged Inappropriate Conduct

91 . At this proceeding, Respondent testified that he never

touched any student inappropriately. According to Respondent,

this is evidenced by the fact that , in the criminal trial that

was based on the allegations of C.L., the jury acquitted him.

92 . At this proceeding, Respondent testified that he never

touched C.L. inappropriately and that she never sat in his lap.

93 . During his testimony at his criminal trial, Respondent

testified that he did not recall if C.L. sat on his lap during

the movies/videos. However, Respondent recalled that C.L. came

to him when she was feeling sad, but she was not on his lap.

R ather, Respondent recalled that C.L. stood next to him and sat

on his knee for a short period of time , and he asked her what

was wrong. Based on this testimony, Respondent appears to try

to make a distinction between C.L. sitting on his lap and

sitting on his knee.

94 . Contrary to his testimony at trial, at this

proceeding, Respondent testified that when C.L. was sad or

something was wrong, she came up to him and leaned on his knee.

According to Respondent, he taught about 700 students a week ,

and, when they are sad or something is wrong, they come up to

him as C.L. did.

9 5 . A t this proceeding, Respondent testified that he never

touched either St.H. or her sister, Sa.H. , or had them sit in

his lap.

9 6 . Notwithstanding Respondent's testimony at this

pr oceeding that he never allowed any student to sit in his lap,

during his deposition, he testified that he had kids in his lap

all the time. In explaining this seeming discrepancy in his

sworn testimony, Respondent explained that when he said students

were in his lap all the time, he meant that they were "standing

next to me" or "leaning on my knee when they come up to get

instruments." Respondent testified that this would happen

because this ( i.e. getting the musical instruments) was a fun

activity , and t he children would get excited. However,

according to Respondent, there was nothing sexual about the

children standing next to him or leaning on his knee. They

would simply get their instruments and return to their seats.

9 7 . Respondent gave several expl anations that he

apparently believed established that it would not be reasonable

for him to engage in the alleged misconduct in light of the

number of people who were regularly in and near his classroom,

often with no advance notice. First, many visitors, including

parents of prospective Southern Oak students, came to Southern

Oak to observe the school. During these visits, the visitors

sometimes went into the music classroom while class was in

session. Second, Robert Ammon , p rincipal of Southern Oak,

ci rculated throughout the school almost every morning. Even

though Mr. Ammon did not necessarily go into the music classroom

every day, he would walk in or near the general vicinity of

Respondent's classroom. Third, because there was a refrigerator

and mic rowave in the office in the music room, several teachers

were routinely in and out of Respondent's classroom each day to

get and/or warm their food.

9 8 . Respondent's explanations are not a sufficient basis

to support his assertion that it was not reasonab le for him to

engage in the alleged misconduct. In fact, the teachers who

were in and out of Respondent's classroom, or more specifically,

the office in the music classroom, on a regular basis, were

there for a specific purpose and only for a few minutes.

9 9 . Respondent 's testimony at this proceeding , in which he

denied inappropriately touching C.L., St.H., and Sa.H. , is not

credible.

Prior Complaints or Disciplinary Actions Against Respondent

100 . Prior to the matters at issue in this proceeding,

there have been three complaints filed against Respondent during

his tenure with the Pinellas County School District. Two of the

complaints were determined to be unfounded , and one resulted in

a letter of caution being issued to Respondent.

101 . The incident which resulted in Respondent's receiving

a letter of caution, involved an act of dishonesty.

Specifically, Respondent made a telephone call to someone, and ,

during that call, he misrepresented himself as someone calling

from the s uperintendent's office on behalf of a School Board

member.

102 . In the 2001 - 2002 school year, a complaint was made

against Respondent. In January 2002, the assistant principal at

Southern Oak notified the principal, Mr. Ammon, of allegations

that Respondent had inappropriately t ouched students. The

matter was reported to the Pinellas County School District's

Office of Professional Standards, which then reported the matter

to the Pinellas County Sheriff's Office. After an on - site

investigation was conducted, the allegations were determined to

be unfounded.

103 . The Office of Professional Standards received the

investigation determination of "unfounded" from the Sheriff's

Office.

104 . The Office of Professional Standards defines the term

"unfounded" to mean that the conduct alle ged never happened.

Accordingly, the allegations in the complaint discussed in

paragraph 10 2 were deemed not to have happened. Therefore, no

disciplinary action was imposed against Respondent.

10 5 . After the January 2002 complaint was investigated and

d etermined to be unfounded, Mr. Ammon met briefly and

"informally" with Respondent. Although no disciplinary action

was required or appropriate in this situation, Mr. Ammon

discussed with Respondent the need for him to not put himself in

a situation where such charges (inappropriate touching of

students) might come up. During this conversation, after

Mr. Ammon perceived that Respondent did not comprehend the

seriousness of the issue, Mr. Ammon directed Respondent not to

touch students for any reason.

10 6 . Mr. A mm on regularly conducted faculty meetings where

he cautioned teachers to exercise common sense in their physical

contact with students and reminded them of appropriate

boundaries in this context.

10 7 . During the 2002 - 2003 school year, a teacher rep orted

to Mr. Ammon that some students had come to her about Respondent

inappropriately touching them. The matter was then reported to

the Pinellas School District's Office of Professional Standards

and to the Pinellas County Sheriff's Office.

10 8 . As dir ected by the Office of Professional Standards,

Mr. Ammon interviewed the students. As with the previous

complaint, following the interview s and the investigation, the

allegations were determined to be unfounded, and possibly

retaliatory. As a result ther eof, the Office of Professional

Standards deemed that the alleged conduct never occurred , and no

disciplinary action was imposed on Respondent.

Superintendent's Recommendation of Dismissal

10 9 . On or about April 28, 2004, Respondent was arrested

and subse quently charged with capital sexual battery and lewd

and lascivious behavior on a child.

110 . By letter dated May 30, 2004, Dr. J. Hinesley, then

superintendent of the Pinellas County School District,

recommended that the School Board dismiss Respondent a s a

teacher. According to the description of the agenda item

related to Respondent's dismissal, the rationale for the

s uperintendent's recommending dismissal was that Respondent's

alleged actions we re a violation of Pinellas County School Board

Policy 8.2 5(1)(a), (c), (n), (u), and (v). 4

111 . Pinellas County School Board Policy 8.25 has been

duly - adopted by the School Board. That policy enumerates

offenses for which disciplinary action may be imposed and sets

out the penalty or penalty range for each off ense.

112 . School Board Policy 8.25(1)(a) makes it an offense

for school board employees to engag e in inappropriate sexual

activity, including sexual battery and other activities. The

penalty for employees who engage in such conduct is dismissal .

113 . School Board Policy 8.25(1)(c) makes committing a

criminal act (felony) an offense for which the School Board

employees may be disciplined. The penalty range for this

offense is reprimand to dismissal.

114 . School Board Policy 8.25(1)(n) lists , as an off ense,

making i nappropriate or d isparaging r emarks t o or a bout s tudents

or e xposing a s tudent to u nnecessary e mbarrassment or

d isparagement. The penalty range for this offense is caution to

dismissal.

115 . School Board Policy 8.25(1)(u) lists , as an offen se,

insubordination. The penalty range for committing this offense

is caution to dismissal.

116 . School Board Policy 8.25(1)(v) lists , as an offense,

misconduct in office. The penalty range for this offense is

caution to dismissal .

117 . Prior to this p roceeding, and after the

s uperintendent recommended Respondent's dismissal, Respondent

was tried on the criminal charges and was found not guilty.

118 . Notwithstanding Respondent's being acquitted of the

criminal charges, in the instant administrative proceeding, it

is found that Respondent inappropriately touched C.L., St.H.,

and Sa.H. and also failed to observe the appropriate boundaries

in his physical contact with those students .

CONCLUSIONS OF LAW

119 . The Division of Administrative Hearings has

jurisdiction over the parties to an d subject matter of this

case. See §§ 120.569 , 120.57, and 1012.33(6), Fla . Stat .

(2005).

120 . The s uperintendent of the School Board has the

authority to make recommendations for dismissal regarding school

employees pu rsuant to Subsection 1012.27(5), Florida Statutes

(2004) . 5

121 . The School Board has the authority to dismiss school

board employees pursuant to Subsections 1001.42(5) and

1012.22(1)(f), Florida Statutes. Moreover, the School Board is

authorized to dismi ss instructional staff with professional

service contracts at any time if such dismissal is based on

"just cause." See § 1012.33(1), Fla. Stat.

122 . The School Board , as Petitioner , has the burden of

proof in this employee dismissal hearing and must meet that

burden by a preponderance of the evidence. Dileo v. School

Board of Dade County , 569 So. 2d 883 (Fla. 3rd DCA 1990); and

Allen v. School Board of Dade County , 571 So. 2d 568 (Fla. 3rd

DCA 1990).

123. In this case, the School Board alleges that

Resp ondent violated various provisions of School Board

Policy 8.25, a duly - promulgated policy , and that the alleged

violations constitute just cause for Respondent's dismissal

under Subsection 1012.33(1), Florida Statutes, 5 and Florida

Administrative Code Rul e 6B - 4.009.

124. School Board Policy 8.25 establishes offenses that

constitute “just cause” for dismissal of a teacher and the range

of penalties that may be imposed for committing a particular

offense.

12 5 . Pursuant to Subsection 1012.33(1), Florida Sta tutes,

or "just cause" is defined as follows:

Just cause includes, but is not limited

to , t he following instances as defined by

rule of the State Board of Education:

misconduct in office, incompetency, gross

insubordination, willful neglect of duty, or

conviction of a crime involving moral

turpitude.

12 6 . Section 1012.33, Florida Statutes, does not purport

to be an all - inclusive list of conduct that constitutes "just

cause" for dismissal. By specifically providing that “just

cause includes, but is no t limited to . . . ,” the Florida

Legislature gave school boards discretion to determine what

actions constitute just cause for suspension or dismissal. Carl

B. Dietz v. Lee County School Board , 647 So. 2d 217 (Fla. 2 nd

DCA 1994). Pursuant to this author ity, a school board may

define by policy conduct that constitutes “just cause” for

dismissal of an employee who has a professional service

contract.

12 7 . The School Board alleges that Respondent violated the

School Board Policy 8.25(1)(a), (c), (n), (u), 7 and (v), which

provides in pertinent part the following:

(a) Inappropriate sexual conduct

including, but not limited to lewd and

lascivious behavior, indecent exposure,

solicitation of prostitution, sexual

battery, possession or sale of pornography

inv olving minors, sexual relations with a

student

* * *

(c) Committing or conviction of a

criminal act - felony

* * *

(n) Inappropriate or disparaging remarks

to or about students or exposing a student

to unnecessary embarrassment or

disparagement

* * *

(u) Insubordination, which is defined as

a continuing or intentional failure to obey

a direct order, reasonable in nature, and

given by and with proper authority

* * *

(v) Misconduct in office

12 8 . The offens e, "misconduct in office," in School Board

Policy 8.25(1)(v) is also specifically listed in Subsection

1012.33(1) , Florida Statutes, as an offense which constitutes

"just cause" for a teacher 's dismiss al .

12 9 . Florida Administrative Code Rule 6B - 4.009 , wh ich

defines the charges listed in Section 1012.33, Florida Statutes,

and upon which dismissal action against teachers may be pursued ,

provides in pertinent part the following:

The basis for charges upon which dismissal

action against instructional person nel may

be pursued are set forth in Section 231.36

[currently 1012.33], Florida Statutes. The

basis for each of such charges is hereby

defined:

* * *

(3) Misconduct in office is defined by

state board rules as a violation of the Code

of Ethic s of the Education Profession as

adopted in Rule 6B - 1.001, F.A.C., and the

Principles of Professional Conduct for the

Education Profession in Florida as adopted

in Rule 6B - 1.006, F.A.C, which is so serious

as to impair the individual's effe ctiveness

in the school system.

130 . The School Board established by a preponderance of

the evidence that Respondent engaged in inappropriate sexual

conduct with C.L. by digitally penetrating C.L.’s vagina and

touching her private area.

131 . The School Board also estab lished by a preponderance

of the evidence that Respondent engaged in lewd and las civious

behavior with C.L., St. H., and Sa.H. by having them sit on his

lap and holding them there. The preponderance of evidence also

established that Respondent engaged in l ewd and lascivious

behavior with St.H. and Sa.H. by stroking their hair and rubbing

their backs, necks, and /or stomachs without any educational

purpose.

13 2 . Respondent's conduct , as noted in paragraphs 1 30

and 13 1 , constitutes an offense included in Sch ool Board

Policy 8.25(1)(a) and is a basis for taking disciplinary action.

133 . The School Board established by a preponderance of

the evidence that Respondent is guilty of "committing a criminal

act" that is deemed a felony ( i.e. digitally penetrating C .L.'s

vagina). By committing this offense, Respondent is subject to

the disciplinary penalty provided for in School Board Policy

8.25(1)(c).

13 4 . The School Board established by a preponderance of

the evidence that Respondent is guilty of "exposing a stu dent to

unnecessary embarrassment or disparagement," the offense noted

in School Board Policy 8.25(1)(n). By engaging in the conduct

with C.L., St.H., and Sa.H., as described above , Respondent

exposed the students to unnecessary embarrassment.

135 . The S chool Board established by a preponderance of

the evidence that Respondent intentionally refus ed to obey

Mr. Ammon’s clear and reasonable directive, given on January 22,

2002, to not have any physical contact with students . A s

evidenced by Respondent's s ubsequent conduct and inappropriate

physical contact with C.L., St.H., and Sa.H. , Respondent is

guilty of insubordination, the offense listed in School Board

Policy 8.25(1)( u ).

13 6 . The School Board established by a preponderance of

the evidence that Resp ondent committed the offense in School

Board Policy 8.25(1)(v), "misconduct or misconduct in office,”

by engaging in the inappropriate touching and physical contact

with C.L., St.H., and Sa.H.

1 3 7 . By engaging in conduct that constitutes "misconduct

or mi sconduct in office," School Board Policy 8.25(1)(v),

Respondent also violated the following provisions of Florida

Administrative Code Rule 6B - 1.006, which provides in relevant

part the following:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

* * *

(3) Obligation to the student requires

that the individual:

(a) Shall make reasonable effort to

protect the student from conditions harmful

to learning and/o r to the student’s mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

* * *

(h) Shall not exploit a relationship with

a student for person al gain or advantage.

* * *

(5) Obligation to the profession of

education requires that the individual:

* * *

(d) Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual’s performa nce

of professional or work responsibilities or

with the orderly processes of education or

which creates a hostile, intimidating,

abusive, offensive, or oppressive

environment; and, further, shall make

reasonable effort to assure that each

individual is pr otected from

such harassment or discrimination.

13 8 . The penalty for committing the offense in School

Board Policy 8.25(1)(a) is dismissal. The range of penalties

for committing a criminal act, an offense listed in School Board

Policy 8.25(1)(c) , is fro m suspension to dismissal. The range

of penalties for the offenses listed in School Board Policy

8.25(1)(n), (u) , and (v) is from caution to dismissal.

13 9 . The School Board has established by a preponderance

of the evidence that Respondent committed the offenses in School

Board Policy 8.25(1)(a), (c), (n), (u), and (v).

140. The School Board established by a preponderance of

the evidence that Respondent violated Florida Administrative

Code Rule 6B - 1.006(3)(a), (e), (h), and (5)(d).

141 . The offenses wh ich Respondent committed constitute

“just cause” for Respondent’s dismissal as a teacher in the

Pinellas County School District.

142 . Here, the School Board seeks the most severe penalty,

dismissal from employment. In this case, dismissal is not only

wit hin the prescribed penalty range for those offenses, but is

required based on Respondent's committing offenses included in

School Board Policy 8.25 (1)(a).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Pinellas County School Board

enter a final order that dismisses Respondent from his position

as a teacher with the Pinellas County School District.

DONE AND ENTERED this 13th day of September , 2006, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

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.f l.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of September , 2006.

ENDNOTE S

1/ No testimony or evidence was presented to establish the

dates and the purpose of the these depositions ( i.e. whether

they were given in p reparation for this proceeding or for

Respondent's criminal trial).

2/ Dr. Meyers testified that C.L. made such denial nine times

( three times to her mother, once to her father, and five times

to health care professionals who examined and/or looked at he r).

3/ The deposition transcript to which Dr. Meyer s referred was

not offered into evidence. Therefore, no determination could be

made as to whether the questions were, in fact, leading or

suggestive.

4/ The original charging document did not allege a violation of

School Board Policy 8.25(1)(u), which relates to

insubordination. However, the Pre - Hearing Stipulation executed

by both parties lists that provision as a basis for Respondent's

dismissal.

5 / All references to Florida Statutes are to Flori da Statutes

(2004), unless otherwise indicated.

6 / The charging document referred to Section 231.36, Florida

Statutes. However, the Pre - Hearing Stipulation, executed by

both parties, correctly notes that the relevant statutory

provision is now Section 1 012.33 , Florida Statutes .

Section 231.36, Florida Statutes, was repealed, effective

January 7, 2003, by Section 1058, Chapter 2002 - 387, Laws of

Florida. The relevant language in Section 231.36, Florida

Statutes (2001), is now contained in Section 1012.3 3, Florida

Statutes, which was enacted by Section 707, Chapter 2002 - 387,

Laws of Florida, and became effective January 7, 2003.

7/ See note under Endnote 4.

COPIES FURNISHED :

David A. Koperski, Esquire

Laurie Dart, Esquire

Pinellas County School Board

Post Office Box 2942

Largo, Florida 33779 - 2942

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Daniel J. Woodring, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Honorable John Winn

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Clayton M. Wilcox, Superintende nt

Pinellas County School Board

Post Office Box 2942

Largo, Florida 33779 - 2942

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 issue the final order in this case.