06-000797 Sarasota County School Board vs. Walter Gilbert Status: Closed Recommended Order on Wednesday, June 7, 2006.

Summary: Respondent had inappropriate sexual contact with a minor female student. Held: Petitioner should terminate Respondent`s employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARASOTA COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 06 - 0797

)

WALTER GILBERT , )

)

Respondent . )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on May 23 , 2006, in Sarasota , Florida.

APPEARANCES

For Petitioner: Arthur S. Hardy, Esquire

Matthews, Eastmore, Hardy,

Crauwel s & Garcia, P.A.

Post Office Box 49377

Sarasota, Florida 34230 - 6377

For Respondent: Robert E. Turffs, Esquire

Robert E. Turffs, P.A.

1444 First Street, Suite B

Sarasota, Florida 34236 - 5705

STATEMENT OF THE ISSUE

The issue is w hether Walter Gilbert should be terminated

from employment by the Sarasota County School Board.

PRELIMINARY STATEMENT

On June 8, 2005, Walter Gilbert (Mr. Gilbert), who was

employed by the School Board of Sarasota County (the Board) as

an aide at Sarasot a High School, was placed on administrative

leave with pay , based on an investigation into allegations that

he had inappropriate contact with female student D . B. On

February 14, 2006, he was informed by the Superintendent that he

had found probable cause to terminate his employment.

On February 22, 2006, Mr. Gilbert informed the Board

through counsel that he wished to contest termination and

requested a hearing. He was given notice of termination by the

Board in a letter dated March 7, 2006, which infor med him that

he was terminated effective March 8, 2006.

The parties stipulated that, "If the allegations of

inappropriate behavior with a student against Mr. Gilbert are

proven, the School Board has just cause to terminate his

employment." It was furthe r stipulated that criminal charges

which arose out of the alleged activities of Mr. Gilbert were

nolle prosequi by the State Attorney.

At the hearing the Board called D . B . , Sarasota Police

Detective Corrine Stannish, Sarasota High School Principal

Jeffrey Hradek, Amy Mazner, and Scott J. Lempe. The Board

offered four exhibits , whic h were accepted into evidence.

Exhibit 1 is the transcript of a deposition of School Resource

Officer Brian Woodring. Exhibit 4 is a group exhibit consisting

of letters and a m ail receipt.

Mr. Gilbert testified and offered no exhibits.

No transcript was ordered. After the hearing Petitioner

and Respondent filed their Proposed Findings of Fact and

Conclusions of Law on June 2, 2006. References to statutes are

to Florida Statute s (2005).

FINDINGS OF FACT

1. The Sarasota County School Board is the agency

responsible for the administration of the Sarasota County School

System.

2 . Mr. Gilbert is a 53 - year - old man who has worked for the

Board since 1998. He has been employed as a security aide since

2000 , and was so employed during the 2004 - 2005 school year . It

is his job to protect students a t Sarasota High School .

3. Mr. Gilbert has been a football coach, has been active

in the Youth Football League, and is prominent i n the com munity.

He is married, has seven children , and is a grandfather.

4 . D . B . is a 2006 graduate of Sarasota High School . She

was born November 26, 1987. She was 17 years old in the winter

and spring of 2005, when the events that will be related herein ,

occ urred.

5 . Sarasota High School is a large school and comprise s

numerous buildings. Approximately 2500 students attend the

school. The campus includes a field house, a football field,

the original building, a cafeteria, a library, and numerous

classrooms .

6 . D . B . ha s been an acquaintance of Mr. Gilbert for

several years . She frequently talked to him , and his long - time

friend John Jones (Mr. Jones) , beginning in the ninth grade.

She would talk to Mr. Gilbert and Mr. Jones , who is also a

security aide, a lmost every day. She was advised by Principal

Hradek not to talk to Mr. Jones so much. Principal Hradek

counseled Mr. Gilbert on at least one occasion to act

professionally in his conduct with regard to students .

7 . Before Christmas 2004, D . B . and Mr. G ilbert discussed

lingerie. Sometime after these discussions Mr. Gilbert

presented her with lingerie. This occurred around Christmas

2004. D . B . described this lingerie on some occasions as three

thongs , and on at least one other occasion, two thongs and a

pair of "regular" panties that did not fit her .

8 . D . B . said Mr. Gilbert on at least one occasion asked

her to show him her underwear, which she was wearing. She

showed him the thong underwear by pulling it upwards over her

pants although on another occasion she said she did this by

removing , or at least lowering, her pants.

9 . In January 2005 D . B . , engaged in fellatio with

Mr. Gilbert under a stairwell in Building 13 of Sarasota High

School during the school day. The stairwell was not readily

acce ssible to students.

10 . Subsequently , during the s pring of 2005, she had

sexual intercourse in the Building 13 stairwell with Mr. Jones,

in the Building 13 maintenance room with Mr. Jones, in the

Building 13 stairwell with Mr. Gilbert, in a Building 13

ma intenance storeroom with Mr. Gilbert, in a Building 13

maintenance room with Mr. Jones, in a coach's office in the

field house with Mr. Gilbert, and in the field house bathroom

with Mr. Gilbert.

11 . Also during this period, she and Mr. Gilbert were in

an unused school resources office in Building 5 together but did

not engage in sex acts. When they left that room they went into

an elevator but only kissed while on the elevator .

12 . On one occasion, Mr. Gilbert took her into a room in

Building 5 that had a chair in it. D . B . 's clothes were removed

and Mr. Gilbert attempted intercourse but was unable to do so.

Thereafter Mr. Jones entered the room and had intercourse with

D . B . while Mr. Gilbert watched.

1 3 . As the end of the 2004 - 2005 school year approa ched ,

she ended her relationship with Mr. Gilbert but continued

engaging in sex acts with Mr. Jones.

1 4 . All of the sexual activity between Mr. Gilbert and

D . B ., and Mr. Jones and D . B . was consensual. All of the sexual

activity took place on campus, duri ng school hours, and in

places generally inaccessible to students. Mr. Gilbert and

Mr. Jones were gentle and kind with her, according to D . B. She

did not wish to cause them trouble with the authorities.

1 5 . Near the end of the 2004 - 2005 school year, As sistant

Principal Downes became aware of rumors that D . B . was having a

sexual relationship with a member of the school staff and as a

result called D . B . into his office. When confronted by him , she

denied the allegation. She also denied it to the police and to

her mother. Eventually , she admitted to her mother that she had

a sexual relationship with Mr. Jones and the appropriate

authorities were notified and an investigation ensued.

1 6 . Subsequently, she revealed he r relationship with

Mr. Gilbert and participated in a controlled telephone

conversation with him while in the company of Detective Corrine

Stannish.

1 7 . After the revelation of these encounters D . B . met with

Detective Stannish, Deputy Brian Woodring, who is the School

Resource Officer, and a Sarasota Police Department evidence

technician on the Sarasota High School Campus. This occurred

after the end of the school year in 2005.

18 . D . B . was asked to describe to the officers the site of

each sexual encounter. After some initial confusion over

whether she was going to Building 13 or 14, buildings which are

mirror images of each other , she led the officers to Building

13, and to the other places in which she had encounters with

Mr. Gilbert and Mr. Jones.

19 . The places where D . B . led the officers were places

that students would not normally access. Many of the sites were

locked. D . B . was able to describe with remarkable precision the

interior of these sites before she entered them with the

officers.

20 . The evidence technician used a "b lack light" in an

effort to locate semen. Semen fluoresces when exposed to a

black light. No residue of semen was found.

21 . Subsequent to a report from a custodian during August

2005, Assistant Principal Downes and Deputy Woodring discovered

keys in Mr . Gilbert's locker in the field house. These keys

included two Sarasota High School master keys, a golf cart key,

an elevator key and a gate lock key. The master keys would open

Building 13.

22 . Although , D . B . offered contradictory testimony with

regard to the description of lingerie presented to her by

Mr. Gilbert , and offered confusing and sometimes contradictory

testimony with regard to the location and the identity of the

participant with regard to some encounters, and preliminarily

denied certain a spects of her activities to her assistant

principal, police officers, and her mother, on the whole it is

proven by a preponderance of the evidence that D . B . had sexual

liaisons with Mr. Gilbert during the time she was a minor

student at Sarasota High Schoo l.

CONCLUSIONS OF LAW

23 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat.

24 . The burden of proof is on the party asserting the

affirmative of an issue be fore an administrative tribunal,

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981). To meet this burden, the

Board must establish facts upon which its allegations of

misconduct are proven by a preponderance o f the evidence. Dileo

v. School Board of Dade County , 569 So. 2d 883 (Fla. 3rd DCA

1990) and Sublett v. Sumter County School Board , 664 So. 2d 1178

(Fla. 5th DCA 1995). See also § 120.57(1)(j).

25 . Because the parties stipulated that, "If the

allegation s of inappropriate behavior with a student against

Mr. Gilbert are proven, the School Board has just cause to

terminate his employment," it is necessary only to determine

that Mr. Gilbert engaged in inappropriate behavior. It is found

by a preponderance of the evidence that Mr. Gilbert had sexual

relations with a minor on the campus of Sarasota High School .

The behavior proved is inappropriate behavior.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that the S chool B oard of Sarasota County,

Florida, uphold the termination of Walter Gilbert 's employment .

DONE AND ENTERED this 7th day of June , 2006, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative H earings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of June , 2006 .

COPIES FURNISHED :

Arthur S. Hardy, Esquire

Matthews, Eastmoore, Hardy ,

Crauwels, & Garcia, P.A.

Post Office Box 49377

Sarasota, Florida 34230 - 6377

Robert E. Turffs, Esquire

Robert E. Turffs, P.A.

1444 First Street, Suite B

Sarasota, Florida 34236 - 5705

Dr. Gary W. Norris

Superintendent of Schools

Sarasota County School Board

1960 Landings Boulevard

Sarasota, Florida 34231 - 3365

Daniel J. Woodring, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallah assee, Florida 32399 - 0400

Honorable John Winn

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.