06-000952 Broward County School Board vs. Leroy Gibbs Status: Closed Recommended Order on Wednesday, August 23, 2006.

Summary: Petitioner had just cause to terminate Respondent who had a sexual relationship with a student.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOA R D , )

)

Petitioner, )

)

vs. ) Case No. 06 - 0952

)

LEROY GIBBS , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes, 1

before Stuart M. Lerner, a duly - designated administrative law

judge of the Division of Administrative Hearings (DOAH) , on

June 19, 2006, by video teleconference at sites in Lauderdale

Lakes an d Tallahassee, Florida.

APPEARANCES

For Petitioner: Donna M. Ballman, Esquire

Donna M. Ballman, P.A .

4801 S. University Drive, Suite 3010

Fort Lauderdale, Florida 3328

For Respondent: Robert F. McKee , Esquire

Kelly & McKee, P.A.

P.O . Box 75638

Tampa, Florida 33675 - 0638

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Amended Administrative Complaint and, if so, what d isciplinary

action should be taken against him.

PRELIMINARY STATEMENT

The instant case is before the undersigned on cha rges filed

against Respondent by Dr. Frank Till , the Broward Co unty

Superintendent of Schools . The charges are set forth in an

Amended A dministrative Complaint, which allege s that " just

cause " exist s to terminate Respondent's employment as a teacher

with the Broward County School Board (School Board) inasmuch as

Respondent engaged in conduct constituting "misconduct in

office,"" immorality ," and "acts of moral turpitude " by having a

sexual relationship with a student; "resid[ing] with two

different minor students while they were still students, without

permission [of] or notification to the School Board"; and

"engaging in corporal punishmen t of student s , contrary to School

Board policy."

Prior to the final hearing, the parties, as directed by the

undersigned, filed a Joint Pre - Hearing Stipulation, which

provided, in pertinent part, as follows:

A. Nature of the controversy

Whether or not t he Respondent engaged in

misconduct in office, immorality and/or

moral turpitude by having an affair with a

student, and/or residing with two minor

students without permission or notification

to the School Board, and/or engaging in

corporal punishment of s tudents.

B. Statement of the parties' positions

The School B oard is taking the position that

Respondent eng aged in the above acts, and

that termination [i]s more than justified

within the context of the applicable

statutes, rules, and regulations.

Respo ndent denies having the affair with the

student and, although he admits to both

residing with two minor students without

permission or notification and engaging in

corporal punishment, submits that such

misconduct was not either misconduct in

office, immor ality and/or moral turpitude

such as to warrant termination.

* * *

E. Stipulated facts

1. The agency is the School Board of

Broward County, Florida, which is located at

600 Southeast Third Avenue, For t Lauderdale,

Broward Coun ty , Florida 33301 .

2. Petitioner is the Superintendent of

Schools for Broward County, Florida.

3. Petitioner is statutorily obligated to

recommend the placement of school personnel

and to require compliance and observance

with all laws, rules and regu lations.

Petitioner is authorized to report and

enforce any violation thereof, together with

recommending the appropriate disciplinary

action against any instructional personnel

employed by the Broward County School Board.

4. Respondent, Leroy Gibbs (Gi bbs), is

employed by the Broward County School Board

as a teacher at Deerfield Park Elementary

School pursuant to a Professional Service []

Contract, and currently holds a Florida

education al certificate No. 525309.

5. The Respondent's address is . . . .

6. The complaining girl has provided a

mi c ro - cassette in which a male voice stated,

"I love you," along with a sentiment that

will not be repeated in this document but

which is identified in the investigative

report.

7. M. Gibbs denies the voice is his on the

recording.

8. The complainant also provided a love

poem by Mr. Gibbs, which he admits to

writing, but denies knowle dge as to how the

girl obtained i t.

9. Mr. Gibbs admits to owning a vehicle

that the girl described, but denies the

affair. He a dmits to hugging her, but not

in a sexual way. He acknowledges having the

music library, and to having a video camera

he used to film games. He claims that

students stole the tapes and he denies

having any of the tapes. He claims she knew

about his tatt oos from watching him play

basketball. He admits to the characteristic

of his private part that was identified by

the girl, but could not explain how she

knew.

10. Mr. Gibbs admitted that he resided with

t w o different minor students while they were

stud ents, without permission or notification

to the School Board. He has further

admitted to engaging in corporal punishment

of students, contrary to School Board

policy.

At the final hearing (which, as noted above, was held on

June 19, 2006) two witnesses t estified, T. H. (the now former

student of Respondent's with whom he allegedly had a sexual

relationship when she was his student ) and Respondent. In

addition, six exhibits (Petitioner's Exhibits 1 through 6 ) were

offered and received into evidence. At t he close of the

evidentiary portion of the hearing on June 19 , 2006, the

undersigned established a deadline (21 days from the date of the

filing of the hearing transcript with DOAH) for the filing of

proposed recommended orders .

The Transcript of the final hearing (which consists of one

volume) was filed with DOAH on July 5 , 2006.

The School Board and Respondent both timely filed their

Proposed Recommended Orders on July 24, 2006.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record a s

a whole, the following findings of fact are made:

Background Information

1. The School Board is responsible for the operation,

control and supervision of all public schools (grades K through

12) in Broward County, Florida (including, among others, Dilla rd

High School, Thurgood Marshall Elementary School, and Deerfield

Park Elementary School ) and for otherwise providing public

instruction to school - aged children in the county.

2. Respondent is employed by the School Board as a

professional service contra ct teacher.

3. He has worked as a teacher for the School Board since

1982 (except for a year's leave of absence following the 1994 -

1995 school year). He has an unblemished disciplinary record as

a School Board employee.

4. Respondent taught music at D illard High School

(Dillard) from 1982 until the end of the 1994 - 1995 school year ,

at Thurgood Marshall Elementary School for the 1995 - 1996 school

year , and at Parkview Elementary School from the beginning of

the 1 996 - 1997 school year until early 2005, whe n he was placed

on administrative reassignment pending the outcome of an

investigation of an allegation of sexual misconduct made against

him by a former student, T. H.

5. At Dillard, Respondent was the director of the school

band and a popular teacher .

A llegations of Sexual Misconduct

6. T. H. graduated from Dillard in 1989.

7. In her ninth, tenth, eleventh and twelfth grade years

at Dillard, she was in the school band and a student of

Respondent's.

8 . T. H., who lived in a fatherless household, look ed up

to Respondent and considered him to be a "father figure" and

"role model."

9. A personal relationship developed between the two.

10. They began conversing with one another on a daily

basis, talking "about people and about the world and different

things like that. " Res pondent did most of the talking, with

T. H. "listen[ing] to [the] the things he had to say."

11. During "summer band , " before the beginning of T. H.'s

tenth grade year, the conversations between T. H. and Respondent

became more i ntimate in nature and the ir relationship evolved

i nto a physical one .

12. The first physical contact they had that summer was in

the music library adjacent to Respondent's office , when

Respondent walked up to T. H., "embraced" her , and gave her an

"[i]n timate, on - the - mouth kiss."

13. Later that summer, Respondent started driving T. H.

home (but not always straight home) in his Toyota Camry after

band practice. In the car, there was intimate touching between

the two, including Respondent's penetrating T' H.'s vagina with

his hand.

14. Thus began the sexual relationship between T. H. and

Respondent, which lasted until after she had graduated from

Dillard.

15. "[N]umerous times, " after school and on weekends,

Respondent drove T. H. in his car to variou s hotels, where they

had sexual relations.

16. They also had "dozens" of sexual encounters on school

grounds, usually after school hours, in a "little back room , "

near the school auditorium , that was used as a dressing area .

17. As a result of her having been intimate with

Respondent, T. H. was able to observe that Respondent's penis

was uncircumcised and that he had a "branded tattoo on his

chest."

18. Respondent sometimes set up a vide o camera to tape his

sexual liaisons with T. H.

19. He would also "send [T. H.] home with the camera" on

weekends, requesting that she tape herself fondling herself and

"and then bring t he camera back to him on Monday " (which T. H.

did).

20. One day while T. H. was in Respondent's office,

Respondent handed her a piece o f "notebook paper " on which he

had written the following poem :

How then, can I tell you of my love?

Strong as the eagle, soft as the dove,

Patient as the pine tree that stands in the

sun and whispers to the wind you are the

one !!!! [ 2 ]

21. On another occ asion when T. H. was in Respondent's

office, s he had a tape recorder with her and ask ed Respondent to

"say something " that she could record. What Respondent said in

response to this request was: "I love you baby , suck my dick,"

and "I love you baby, sit on my face." 3

22. T. H. ended her relationship with Respondent during

her first year as a student at the International Fine Arts

College in Miami.

23. It was not until 2003, approximately 14 years after

she had graduated from Dillard , that T. H. decide d to come

forward and tell authorities about the sexual relationship she

had had with Respondent when she was a student at the school.

She had not come forward sooner because she did not have the

courage to do so. O nly after receiving "church counseling" was

she able overcome her fear and become sufficiently emboldened to

report what had occurred years earlier between her and

Respondent.

24. T. H. first went to the Fort Lauderdale Police

Department, but was told that Respondent could not be criminally

pr osecuted because the limitations period had expired.

25. In January 2005, the School Board's police uni t was

advised of the allegation that T. H. had made against Respondent

and commenced an investigation into the matter , which included

interviews with bo th T. H. and Respondent . On January 28, 2005,

Respondent was placed on administrative reassignment with pay

pending the outcome of the investigation.

26. T. H. has "hired an attorney to pursue a civil claim

against the School Board" for damages she alleg edly suffered as

a result of her relationship with Respondent when she was a

student at Dillard.

Allegations of Residing with Students

27. From 1985 to 1987, Respondent resided in Dade County ,

Florida, with his wife 4 and two minor daughters.

28. For at least a portion of that time, two Dillard

students stayed with Respondent and his family.

29. One of these students was P. R., who was in the school

band. When Respondent learned that P. R. was living in a

residence with "no running water [and] no mom or dad," he

invited P. R. to move in with him, an invitation that P. R.

accepted. "Eventually , " Respondent was able to make contact

with P. R.'s mother and obtain her approval to "keep" P. R.

P. R. lived with Respondent and his family for a year and a

h alf. He moved out after he graduated and joined the military.

30. The other student that stayed with Respondent and his

family was C. M. Respondent's oldest daughter and C. M. both

played flute in the school band and were close friends. C. M.

stayed at Respondent's house on weekends and when school was not

in session. C. M.'s mother never had any problem with these

living arrangements.

31. Respondent did not notify the School Board that P. R.

and C. M . were staying with him inasmuch as he did not know that

he was required to do so.

Allegations of Corporal Punishment

32. From 1982 to 1985, Respondent administered corporal

punishment to students contrary to School Board policy (hitting

female students on the hand with a ruler and male students on

the bu ttocks with a paddle) . He did not "seek permission fro m

anyone in the [school] administration before administering

[this] c orporal punishment," nor did he administer this corporal

punishment in the presence of another School Board employee, as

required by School Board policy.

CONCLUSIONS OF LAW

33. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to Chapter 120,

Florida Statutes.

34. "In accordance with the provisions of s. 4(b) of Art.

IX of the Sta te Constitution, district school boards [have the

authority to] operate, control, and supervise all free public

schools in their respective districts and may exercise any power

except as expressly prohibited by the State Constitution or

general law." § 10 01.32(2), Fla. Stat.

35. Such authority extends to personnel matters and

includes the power to suspend and dismiss employees. See §§

1001.42(5), 1012.22(1)(f), and 1012.23(1), Fla. Stat.

36. A district school board is deemed to be the "public

employer," as that term is used in Chapter 447, Part II, Florida

Statutes, "with respect to all employees of the school

district." § 447.203(2), Fla. Stat.

37. As such, it has the right "to direct its employees,

take disciplinary action for proper cause, and reli eve its

employees from duty because of lack of work or for other

legitimate reasons," provided it exercises these powers in a

manner that is consistent with the requirements of law.

§ 447.209, Fla. Stat.

38. At all times ma terial to the instant case, di stric t

school boards have had the right, under Section 1012.33, Florida

Statutes, and its predecessor , former Section 231.36, Florida

Statu t es, to dismiss p rofessional service contract teachers for

" just cause . "

39. At all times material to the instant c ase, "just

cause," as used Section 1012.33, Florida Statutes, and former

Section 231.36, Florida Statu t es, has been legislatively defined

as includ ing , " but . . . not limited " to, " misconduct in office,

incompetency, gross insubordination, willful neglect of duty, or

conviction of a crime involving moral turpitude. " The

"but . . . not limited to " l anguage makes abundantly clear that

the list of things constituting "just cause" was intended by the

Legislature to be non - exclusive and that other wrongdoing m ay

also constitute "just cause" for dis m issal . See Dietz v. Lee

County School Board , 647 So. 2d 217, 218 - 19 (Fla. 2d DCA

1994)(Blue, J., specially concurring)("We assume that

drunkenness and immorality, which are not included in the non -

exclusive list of sins [set forth in Section 231.36 (1)(a) ,

Florida Statutes (2001)] constituting just cause, would also be

grounds for dismissal. . . . In amending section 231.36 and

creating a new contract status for teachers (professional

service) and by failing to furth er define just cause, the

legislature gave school boards broad discretion to determine

when a teacher may be dismissed during the contract

term. . . . I agree with the majority -- that the legislature

left that determination to the respective wisdom of eac h school

board by providing no definite paramete rs to the term 'just

cause.'" 5 ).

40. At all times material to the instant case, "misconduct

in office " has been defined by rule of the State Board of

Education (specifically Florida Administrative Code Rule 6B -

4.009, "Criteria for Suspension and Dismissal") as follows:

Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B -

1.001, FAC., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, FAC., which is so serious as to

impair the individual's effectiveness in the

school system.

41. T he Principles of Professional Conduct for the

Education Profession in Florida (set forth in Florida

Admin istrative Code Rule 6B - 1.006 ) , at all times material to the

instant case, have required a teacher to , among other things,

make a reasonable effort to protect a student from harmful

conditions and to not " exploit a relationship with a student for

personal g ain or advantage ."

42. " Misconduct in office" may be established, even in the

absence of "specific" or "independent" evidence of impairment ,

where the conduct engaged in by the teacher is of such a nature

that it "speaks for itself" in terms of its serio usness and its

adverse impact on the teacher 's effectiveness. In such cases,

proof that the teacher engaged in the conduct is also proof of

impaired effectiveness. See Purvis v. Marion County School

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

Highlands County School Board , 752 So. 2d 127 , 128 - 29 (Fla. 2d

DCA 2000); Summers v. School Board of Marion County , 666 So. 2d

175 , 175 - 76 (Fla. 5th DCA 1995); Brevard County School Board v.

Jones , No. 06 - 1033, 2006 Fla. Div. Adm. Hear. LEXIS 287 *17

(F la. DOAH June 30, 2006) (Recommended Order) ("[T]he need to

demonstrate 'impaired effectiveness' is not necessary in

instances where the misconduct by a teacher speaks for itself,

or it can be inferred from the conduct in question.") ; and

Miami - Dade County S chool Board v. Lefkowitz , No. 03 - 0186, 2003

Fla. Div. Adm. Hear. LEXIS 675 *23 - 24 (Fla. DOAH July 31,

2003) (Recommended Order) ("The School Board failed to prove by a

preponderance of the direct evidence that Mr. Lefkowitz's

actions were so serious that the y impaired his effectiveness as

a teacher. Nonetheless, based on the findings of fact herein,

it may be inferred that Mr. Lefkowitz's conduct impaired his

effectiveness as a teacher in the Miami - Dade County public

school system.")(citation omitted) . A te acher's having a sexual

relationship with a student under his charge to whom he is not

married 6 is an example of such conduct that "speaks for itself . "

See Lee County School Board v. Lewis , No. 05 - 1450, 2005 Fla.

Div. Adm. Hear. LEXIS 1327 *25 (Fla. DOAH October 20,

2005)(Recommended Order)("In this case, the seriousness of

Respondent's misconduct in inappropriately touching S.W.,

'speaks for itself' because it undermines the foundation of the

relationship between a teacher and his students. "); Brevard

Cou nty School Board v. Gary , No. 03 - 4052, 2004 Fla. Div. Adm.

Hear. LEXIS 1731 *14 - 15 (Fla. DOAH June 24, 2004)(Recommended

Order)("The misconduct in this case involves Gary's

inappropriate comments to students, inappropriate touching of

students, and betting a student money to eat an insect and to

eat food chewed by Gary. The misconduct goes to the very heart

of a teacher's relationship to his students. As such, it can be

inferred that such conduct impairs Gary's effectiveness in the

Brevard County School s ystem.") ; and Miami - Dade County School

Board v. Durrant , No. 98 - 3949, 1999 Fla. Div. Adm. Hear. LEXIS

5227 *16 n.8 (Fla. D OAH July 6, 1999) )(Recommended Order)

( "Here, there was direct proof that Respondent's conduct

[involving sexual activity with a stud ent] adversely affected

his effectiveness in the school system. Moreover, such a

conclusion may also be reas onably drawn in the absence of

'specific evidence' of impairment of the teacher's

'effectiveness as an employee,' where, as here, the 'personal

con duct' in which the teacher eng aged is of such nature that it

' must have impaired [the teacher's] effectiveness. ' " ) ; see also

Tomerlin v. Dade County School Board , 318 So. 2d 159, 160 (Fla.

1st DCA 1975)("Although Tomerlin's immoral act [of performing

cunni lingus on his stepdaughter] was done at his home and after

school hours, it was indirectly related to his job. His conduct

is an incident of a perverse personality which makes him a

danger to school children and unfit to teach them. Mothers and

fathers w ould question the safety of their children; children

would discuss Tomerlin's conduct and morals. All of these

relate to Tomerlin's job performance. . . . A school teacher

holds a position of great trust. We entrust the custody of our

children to the te acher. We look to the teach er to educate and

to prepare ou[r] children for their adult lives. To fulfill

this trust, the teacher must be of good moral character; to

require less would jeopardize the future lives of our

children.") ; and Broward County Sch ool Board v. Sapp , No. 01 -

3803, 2002 Fla. Div. Adm. Hear. LEXIS 1574 *16 (Fla. DOAH

September 24, 2002) (Recommended Order) ("[A]s a teacher and

coach, Sapp was required to be a role model for his students.

To be effective in this position of trust and conf idence, he

needed to maintain a high degree of trustworthiness, honesty,

judgment, and discretion. ").

43. "Under Florida law, a [district] school board's

decision to terminate an employee is one affecting the

employee's substantial interests; therefore, t he employee is

entitled to a formal hearing under section 120.57(1) if material

issues of fact are in dispute." 7 Sublett , 617 So. 2d at 377.

44. Where the employee is a professional service contract

teacher, the hearing may be conducted , pursuant to Se ction

1012.33, Florida Statutes, either by the district school board

itself or by a D OAH administrative law j udge (who, following the

hearing, makes a recommendation to the district school board).

45. The teacher must be given written notice of the

spec ific charges prior to the hearing. Although the notice

"need not be set forth with the technical nicety or formal

exactness required of pleadings in court," it should "specify

the [statute,] rule, [regulation, or policy] the [district

school board] allege s has been violated and the conduct which

occasioned [said] violation." Jacker v. School Board of Dade

County , 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J.,

concurring).

46. At the hearing, the burden is on the district school

board to prove the allegations contained in the notice. Unless

the re is collective bargaining agreement covering the bargaining

unit of which the teacher is a member that provides otherwise 8

( and there is no evidence that there is such a collective

bargaining agreement controlling the instant case ), the district

school board's proof need only meet the preponderance of the

evidence standard. See McNeill v. Pinellas County School Board ,

678 So. 2d 476, 477 (Fla. 2d DCA 1996)("The School Board bears

the burden of proving, by a preponderance of the evidence, each

element of the charged offense which may warrant dismissal.");

Sublett v. Sumter County School Board , 664 So. 2d 1178, 1179

(Fla. 5th DCA 1995)("We agree with the hearing officer that for

the School Board to demonst rate just cause for termination, it

must prove by a preponderance of the evidence, as required by

law, that the allegations of sexual misconduct were

true . . . ."); Allen v. School Board of Dade County , 571 So. 2d

568, 569 (Fla. 3d DCA 1990)("We . . . fi nd that the hearing

officer and the School Board correctly determined that the

appropriate standard of proof in dismissal proceedings was a

preponderance of the evidence. . . . The instant case does not

involve the loss of a license and, therefore, Allen' s losses are

adequately protected by the preponderance of the evidence

standard."); and Dileo v. School Board of Dade County , 569 So.

2d 883, 884 (Fla. 3d DCA 1990)("We disagree that the required

quantum of proof in a teacher dismissal case is clear and

co nvincing evidence, and hold that the record contains competent

and substantial evidence to support both charges by a

preponderance of the evidence standard.").

47. In determining whether the district school board has

met its burden of proof, it is necess ary to evaluate the

district school board's evidentiary presentation in light of the

specific allegation(s) made in the written notice of charges.

Due process prohibits a district school board from terminating a

professional service contract teacher based on matters not

specifically al leged in the notice of charges , unless those

matters have been tried by consent. See Shore Village Property

Owners' Association, Inc. v. Department of Environmental

Protection , 824 So. 2d 208, 210 (Fla. 4th DCA 2002); and Lu sskin

v. Agency for Health Care Administration , 731 So. 2d 67, 69

(Fla. 4th DCA 1999).

48. The most serious of the allegations made in the notice

of charges served on Respondent in the instant case is th at he

had a sexual relationship with T. H. when she was a student of

his at Dillard. At hearing, in support of this allegation, the

School Board, through the Superintendent of Schools, presented

the testimony of T. H., who recounted her sexual encounters with

Respondent. Respondent countered with his own testimony denying

that these encounters had occurred . T. H. and Respondent were

the only witnesses to testify , and j ust one of them could have

been telling the truth . While they each had a possible motive

to testify falsely ( in T. H. 's case , to further h er plan of

filing a civil lawsuit for monetary damages against the School

Board ; 9 and in Respondent's case, to protect his job with the

School Board and his reputation ), the undersigned , having

considered their demeanor while testifying and the content of

their testimony , as well as the exhibits received into evidence ,

has co ncluded that it was T. H., not Respondent, who testified

truthfully about the nature of their relationship .

49. T. H. testified with apparent candor and sincerity.

Her testimony was neither i mplausible, incredible, nor

inherently inconsistent. It is true, as Respondent points out

in his Proposed Recommended Order, that T. H. was unable to

describe certain details regarding the "little back room" near

the school auditorium where , acc ording to her testimony, her "on

campus" sexual encounters with Respondent took place . These

details, however, were relative ly in significant , and T. H.'s

inability to describe them after the years that have passed

since she graduated from Dillard does not cause the undersigned

to dis believe her testimony . It appears, given the totality of

the evidence, that her failure to be able to provide these

details was due to a lack of recall or observation, not

dishonesty or delusion. Compare with United States v. Price ,

No. 04 - 40035 - SAC, 2004 U.S. Dist. LEXIS 17916 *6 (D. Kan.

August 4, 2004)("The court finds that the testimony of the

officers was generally consistent and persuasive. Although

defendant's counsel pointed out many details which the officers

did not recall, the omissions in the officers' testimony or

their reports noted by the defendant involved insignificant

details or innocent errors.") ; State v. Highman , Nos. 01 - 0733 - CR

and 01 - 0734 - CR, 2001 WI App. 224, 2001 Wisc. App. LEXIS 860 *17

(Wis. App. Aug ust 23, 2001)("The details that the officer was

not able to remember are not significant, and his inability to

remember a few insignificant details does not undermine the

reliability of the substance of his report and recollections.") ;

and Carrington v. St ate , No . 09 - 96 - 247 CR, 1997 Tex. App. LEXIS

3381 *3 (Tex. App. June 25, 1997)( " Appellant's brief challenges

the officers' lack of recall of insignificant details of the

events surrounding the offense, notes minor discrepancies in the

testimony, and critici zes the State's failure to conduct more

extensive forensic testing. We find the evidence sufficient for

any rational trier of fact to have found, beyond a reasonable

doubt, that appellant committed the offense of delivery of a

controlled substance as alle ged in the application paragraph of

the jury charge. ") . Of t he factors that , collectively , t ip the

balance in favor of a finding that, despite her inability to

recount these details, her testimony was not fabricated, the

most compelling are her knowing th at Respondent's penis was

uncircumcised; 10 her having in her possession a poem , written on

"notebook paper" in Respondent's handwriting, expressing

feelings of love and affection (which poem is set forth in

Finding of Fact 20 of this Recommended Order 11 ); an d her

producing a tape recording of Respondent making lewd comments to

her (which comments are described in Finding of Fact 21 of this

Recommended Order 12 ) .

50. Having established by a preponderance of the evidence

that , as alleged in the Amended Administ rative Complaint,

Respondent had a sexual relationship with T. H. when she was a

student of his at Dillard ( a violation of the Principles of

Professional Conduct for the Education Profession in Florida

involving a betrayal of trust so serious as to impair his

effectiveness as a teacher in the school system inasmuch as it

casts grave doubt on his trustworthiness, which is an essential

requirement of any teaching position ) , the School Board has met

its burden of proving that Respondent is guilty of "misconduc t

in office " 13 and that , therefore, there is "just cause" for the

School Board to terminate his employment. 14

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the School Board issue a final order

sustaining Respondent's suspension and terminating his

employment as a professional service contract teacher with the

School Board for having had a sexual relationship with T. H.

when she was a student of his at Dillard .

DONE AND ENTERED this 23r d day o f August, 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23r d day of August, 2006.

ENDNOTES

1 Unless otherwise noted, all references in this Recommended

Orde r to Florida Statutes are to Florida Statutes (2006).

2 A copy of this writing was offered and received into evidence

as part of Petitioner's Exhibit 1.

3 A copy of this recording was offered and received into

evidence as Petitioner's Exhibit 2. List ening to the recording

reveals that the voice uttering these words sounds like

Respondent's. (The undersigned heard Respondent's voice when he

testified.) Compare with McCone v. State , 866 P.2d 740, 756

(Wyo. 1993)("There was sufficient evidence to ident ify McCone as

the caller in call #5 based on the tape recording made of the

call and Officer Donnelly's identification of McCone as the

voice on the tape. In addition, the recording of call #5 was

played to the jury and the jury heard McCone's voice durin g his

testimony.").

4 Respondent has been married to his wife for the past 37 years.

5 Judge Blue noted in his opinion that the Legislature provided

a "separate standard for dismissal" of continuing contract

teachers which authorized the taking of such action only "for

conduct constituting one of the so - called 'seven deadly sins':

immorality, misconduct in office, incompetency, gross

insubordination, willful neglect of duty, drunkenness, or

conviction of a crime involving moral turpitude." Id. at 218.

6 Cf . Tenbroeck v. Castor , 640 So. 2d 164, 168 (Fla. 1st DCA

1994)("Angela and appellant's marriage cannot form the basis of

action against appellant's license because no policy or rule

forbids a marriage between a teacher and a student. . . . Lest

it be misunderstood, this opinion should not be read as

restraining the EPC from taking disciplinary action against a

teacher guilty of maintaining an inappropriate relationship with

a student. This opinion is confined to the facts presented in

this case. Nothing herein is intended to intimate that

inappropriate teacher/student relationships may not form the

basis for charges against a teacher.").

7 "A county school board is a state agency falling within

Chapter 120 for purposes of quasi - judicial adminis trative

orders." Sublett v. District School Board of Sumter County , 617

So. 2d 374, 377 (Fla. 5th DCA 1993).

8 Where the district school board, through the collective

bargaining process, has agreed to bear a more demanding

standard, it must honor, and a ct in accordance with, its

agreement. See Chiles v. United Faculty of Florida , 615 So. 2d

671, 672 - 73 (Fla. 1993)("Once the executive has negotiated and

the legislature has accepted and funded an agreement [with its

employees' collective bargaining repres entative], the state and

all its organs are bound by that [collective bargaining

agreement] under the principles of contract law."); Hillsborough

County Governmental Employees Association v. Hillsborough County

Aviation Authority , 522 So. 2d 358, 363 (Fla. 1988)("[W]e hold

that a public employer must implement a ratified collective

bargaining agreement with respect to wages, hours, or terms or

conditions of employment . . . ."); and Palm Beach County School

Board v. Auerbach , No. 96 - 3683, 1997 Fla. Div. Adm . Hear. LEXIS

5185 *13 - 14 (Fla. DOAH February 20, 1997)(Recommended

Order)(" Long - standing case law establishes that in a teacher

employment discipline case, the school district has the burden

of proving its charges by a preponderance of the evidence. . . .

However, in this case, the district must comply with the terms

of the collective bargaining agreement, which, as found in

paragraph 27, above, requires the more stringent standard of

proof: clear and convincing evidence.").

9 No proof was submitted that T. H. had any other possible

motive, beside a monetary one, to falsely accuse Respondent of

wrongdoing. Moreover, it is not readily apparent why T. H., if

she were to have fabricated a story for monetary gain, would

have cast Respondent, rather than someone else, as the

wrongdoer. (While it seems, from T. H.'s testimony, that she

harbors personal animus against Respondent, it appears that this

animus exists only because Respondent had a sexual relationship

with her and thereby, in her view, "victim[i zed]" her and

"screwed [her] up mentally.")

10 Respondent admitted, during his testimony, that he was not

circumcised.

11 In his testimony, Respondent conceded that the handwriting on

the paper was his. He denied giving T. H. this handwritten

poem, bu t failed to offer any possible alternative explanation

for her having it.

12 In his Proposed Recommended Order, Respondent argues that,

"[e]ven if the ALJ were to find that the voice on the tape

recording belonged to Respondent [contrary to Respondent's

t estimony at hearing], the com ments made on the tape, however

crude, do not, of themselves, prove the existence of a sexual

relationship between the Respondent and T. H." While it may be

true, as Respondent contends, that proof of his making these

"crude" remarks would be insufficient, standing alone , to

establish that he and T. H. had sexual relations, this proof

does not stand alone; rather, it corroborates T. H.'s testimony

regarding the sexual component of the relationship she had with

Respondent.

13 R espondent's reliance on the Tenbroeck case in support of his

argument to the contrary is misplaced. The facts of that case

are distinguishable from those present in the instant case.

Tenbroeck involved an assistant principal's appeal of a final

order in w hich the Education Practices Commission (EPC) had

taken disciplinary action against his certificate based on a

finding that he had had a "personal relationship" with a female

student (whom he had ultimately married when she was still a

student). At the pr oceedings below, this female student

testified " that she and appellant first beca me romantically

involved the night they were married ," and she denied that they

had been involved in a " personal relationship " before then. The

hearing officer rejected the s tudent's testimony as not

credible, finding "that the evidence, 'at least inferentially,'

showed that appellant was engaged in a "personal relationship"

with [the student] beginning in the Spring of 1990 and

continuing until their marriage in December 1990 , " a finding the

EPC, in its final order, adopted, along with the hearing

officer's conclusion that, based on this "personal

relationship," disciplinary action against the assistant

principal's certificate was warranted. On appeal, the appellate

court rev ersed the EPC's final order, explaining:

In finding a personal relationship based

upon the evidence presented, the hearing

officer erred. The evidence was not clear

and convincing that appellant and [the

student] maintained an inappropriate

personal rela tionship rather than a

teacher/student relationship prior to their

marriage. While the facts may raise a

suspicion of wrongdoing, they do no t rise

above mere suspicion. Speculation, surmise

and suspicion cannot form the basis of

disciplinary action again st a teacher's

professional license. Having found no

competent evidence beyond speculation,

surmise and suspicion that an inappropriate

relationship existed between appellant and

[the student] , the charges against appellant

cannot be sustained.

Tenbroeck , 640 So. 2d at 167 (citation omitted) . Unlike in

Tenbroeck , in the instant case the preponderance of the evidence

standard , not the clear and convincing standard , applies, and,

more importantly, there is " competent evidence beyond

speculation, surmise an d suspicion " that an inappropriate

relationship outside of marriage existed between Respondent and

one of his students. That evidence consists primarily of the

student's testimony, which the undersigned has credited.

14 Given this conclusion, it is unne cessary to, and therefore

the undersigned will not, decide whether Respondent's

termination is justified on any of the other grounds set forth

in the Amended Administrative Complaint. (Respondent has

acknowledged that, as alleged in the Amended Administra tive

Complaint, he "resided with two different minor students while

they were still students, without permission [of] or

notification to the School Board" and "engage[ed] in corporal

punishment of students, contrary to School Board policy," but he

denies t hat his having done so gives the School Board "just

cause" to terminate his employment.)

COPIES FURNISHED:

Donna M. Ballman, Esquire

Donna M. Ballman, P.A .

4801 S. University Drive, Suite 3010

Fort Lauderdale, Florida 3328

Robert F. McKee, Esquire

Kelly & McKee, P.A.

P.O Box 75638

Tampa, Florida 33675 - 0638

Dr. Frank lin L. Till, Jr.

S uperintendent of Schools

Broward County Sc hool Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 32301 - 3125

Honorable John L. Winn, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Daniel J. Wo odri ng, General Counsel

Department of Education

Turlington Building, Suite 1244

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.