09-002762TTS Broward County School Board vs. Russell Pittman Status: Closed Recommended Order on Wednesday, December 22, 2010.

Summary: School Board established that it had just cause to terminate teacher who engaged in inappropriate physical conduct with two 14-year-old students.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD , )

)

Petitioner, )

)

vs. ) Case No. 09 - 2762

)

RUSSEL PITTMAN , )

)

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

October 4, 2010, by video teleconference (over the I nternet) at

s ites in Fort Lauderdale and Tallahassee, Florida.

APPEARANCES

For Petitioner: Carmen Rodriguez, Esquire

Paul D. Gibbs, Esquire

Law Offices of Carmen Rodriguez P . A .

15715 S outh Dixie H igh w a y , Sui te 411

Palmetto Bay, Florida 33157 - 1884

For Respondent: Steve Rossi, Esquire

Travis Stock, Esquire

Law Office s of Steve Rossi, P.A.

Sole Building, Ground Floor, Suite 2

533 Northeast Third Avenue

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Administrative Complaint, and, if so, what disciplinary action

should be taken against h im .

PRELIMINARY STATEMENT

On April 17 , 2009, James Notter, the Broward County

Superintendent of Schools, issued an Administrative Complaint

recommending that Respondent be dismissed from h is teaching

position for allegedly having engaged in inappropriate condu ct

of a physical nature with two minor students , E. G. and M. S,

which constituted "moral turpitude, " "immorality," and

"misconduct in office," as those terms are used in Section

1012.33, Florida Statutes, and Florida Administrative Code Rule

6B - 4.009 .

Res pondent requested an administrative hearing on the

Superintendent's recommendation. Respondent ' s hearing request

was referred to DOAH on May 19, 2009 .

T he final hearing in the instant case was originally

scheduled for August 17 and 18, 2009, but was ultim ately held ,

as noted above, on October 4, 2010. 2 Five witnesses testified at

the hearing: E. G.; M. S.; Elizabeth Larson; Marvin Whitest;

and Respondent. In addition to the testimony of these f ive

witnesses, one exhibit (Petitioner's Exhibit 1), was off ered and

received into evidence (over Respondent's objection).

At the conclusion of the hearing, the undersigned

announced , on the record , that the parties would have 30 days

from the date of the filing of the hearing transcript with DOAH

to file their pr oposed recommended orders.

The hearing Transcript (consisting of one volume ) was filed

with DOAH on October 21 , 2010.

On November 9, 2010, Respondent filed an unopposed motion

requesting that the proposed recommended order deadline be

extended to December 6, 2010. By Order issued that same day,

the motion was granted.

Respondent and Petitioner timely filed their Proposed

Recommended Orders on December 6, 2010 .

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the followi ng findings of fact are made:

1. The Broward County School Board (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, Pines Middle School (Pines) ) , and for

otherwise providing public instruction to school - aged children

in the county.

2. Respondent has been employed by the School Board as a

teacher since August 23, 1988. The firs t seven years of his

employment he worked as an elementary sch ool "general music

teacher." For the following 13 years (and at all times material

to the instant case), he was Pines ' "instrumental music teacher

or band director. "

3. Respondent has an unblemished disciplinary record as a

School Board employee .

4. A mong the many band students Respondent taught at Pines

were E. G. and M. S.

5. E. G. graduated from Pines in 2008. She has known

Respondent for approximately five years.

6. Up until the incident in question in the instant case,

E. G. had considered Respondent to be a trusted "mentor," who

was a "father figure " to her. She had confided in Respondent,

discussing with him details about her personal life . Her

interactions with Respondent had not been confined to the school

setting. She had spoke n with him on her cell phone, and he had

visited her at her home ( albeit not on a regular basis ) . 3 At no

time had Respondent said or done anything that E. G. had deemed

inappropriate or had ma de her feel uncomfortable in his

presence.

7. E. G.'s relations hip with Respondent, however, changed

dramatically (for the worse) on July 2, 2008 (which was shortly

after she had graduated from Pines ) . On that date, Respondent,

together with his brother, Marvin Whitest, paid E. G. (who was

14 years of age at the time ) a visit at her home. 4 E. G. was

"getting ready" to go to the mall with her mother (Ms. G.) and

her mother's friend, Odelia . Ms. G. and Od elia were in the

apartment with E. G. at the time of Respondent's and Mr.

Whitest's visit.

8. There came a time during the visit that Respondent and

E. G. were alone in the living room while Ms. G., Odelia , and

Mr. Whitest were on the balcony (which overlooked a lake)

conversing and taking in the scenery . 5 Respondent and E. G. were

standing approx imately three to six feet from the balcony door,

when Respondent suddenly pulled the top of the front of

E. G.'s shirt "forward and [started] looking down." E. G.

reacted by "put[ting] h er hand over [her shirt]" to deny

Respondent the access he was seeki ng. Undeterred, Respondent

then "tried to give [E. G.] a side hug," by "stick[ing] his

[right] hand under [E. G.'s] [right] arm. " E. G. resisted by

trying to keep her right arm as close to her side as she could.

Still not discouraged, Respondent put his hands on E. G.'s

shoulders , positioned her so that she was "facing away from

[him]," and then , from behind, " guided " her a few feet to the

doorway of her bedroom , where she "[could not] be seen from the

balcony." There, standing behind E. G. ( and facing her back),

Respondent "went over [her] right shoulder with his right hand,"

" grabbed [her] right breast" over her shirt, and "squeeze[d]

[it ] three times." Respondent then tried to go under E. G. 's

shirt and touch her bare breast. As soon as E. G. felt "skin on

skin contact," she "shrugged [Respondent] off," walked away, and

went into the bathroom (which was off the living room) . As

E. G. left, Respondent told her, "Good, you know when to stop."

He also told her that she was his " temptation." T here was

nothing accidental about what Respondent had done to E. G.

While his actions may not have been carefully planned or thought

out, they were intentional. 6

9. E. G. remained in the bathroom until she heard her

mother, Odelia, and Mr. Whitest 7 start coming back into the

living room from the balcony .

10. Shortly thereafter, Respondent and Mr. Whitest

concluded their visit and exited the apartment . Ms. G. and

Odelia went downstairs with them when they left. E. G. came

down a brief time later, whil e Respondent and Mr. Whitest were

still "at the bottom of the stairs" with Ms. G. an d Odelia.

E. G. was "still in shock" and disbelief. She had not yet

completely processed what Respondent -- a teacher she had revered

and ha d let in to her personal life -- had just done to her.

Acting like nothing out of the ordinary had happened, s he

"hugged [Respondent] goodbye " 8 (in the presence of Ms. G.,

Odelia, and Mr. Whitest). Respondent then entered his vehicle

and drove off wi th Mr. Whitest .

11. Later that same day, at around 6:20 p.m., Respondent

called E. G. on her cell phone and asked her "if [she] was okay"

(without indicating why he was inquiring).

12. E. G. "originally had no intention [of] telling [her]

mother" about Respondent's indiscretions. She just "wanted to

s hrug it off and forget about it " and not "get [Respondent] in

trouble . . . mainly because he ha[d] a son."

13. The morning of July 4, 2008, Jan Jared, the mother of

one E. G.'s friends , called E. G. on her cell phone. E. G., who

had "had a n ightmare" featuring Respondent during the night 9 and

"was really upset," told Ms. Jared "what had happened" during

Responde nt's visit two days before 10 and asked " if [ she, E. G.]

should tell [Ms. G.]." Ms. Jared, who was a teacher, told E. G.

that "if [E. G.] didn't say anything [she, Ms. Jared] would have

to by law." Later that day, E. G. told her mother about the

incident and that she had spoken to Ms. Jared abo ut it earlier

in the day. She asked her mother to "not call the police."

14. Against E. G. 's wishes, Ms. G. ( from her apartment ,

together with Ms. Jared, who had "come over") telephon ically

advised the Pembroke Pines police what E. G. had told them about

E. G.'s encounter with Respondent two days earlier at the

apartment . The police came to the apartment that same day

(July 4, 2008) and "took a statement."

15. Approximately ten days later, for the first time since

the evening of July 2, 2008, Respondent tried calling E. G. on

her cell phone . E. G., who was in Ms. G.'s car at the time, did

not a nswer , and Respondent left a message. When told by E. G.

that Respondent had called, Ms. G. drove with E. G. directly to

th e Pembroke Pines police station .

16. After arriving at the station, E. G. was taken to see

Detective Victoria Hines . Detective Hines listened to the

message Respondent had left on E. G.'s cell phone. She then

asked E. G. to call Respondent back, which E. G. did (at the

police station, in the presence of Detective Hines).

17. E. G. and Respondent spoke for about 15 m inutes,

before Respondent said he had to go . He told E. G. he would

call her back shortly, which he did. They then spoke for

approximately another 48 minutes. Their entire telephone

conversation (which lasted for over an hour) was monitored by

the polic e and recorded. 11

18. Most of their conversation was devoted to a discussion

of what Respondent had done to E. G. when the two of them were

alone in the living room of E. G.'s apartment on July 2, 2008.

The following are highlights of the conversation.

19 . Towards the beginning of the conversation, E. G. told

Respondent, " I looked up to you a lot and didn't expect that"

(referring to what Respondent had done to her). 12 Respondent

responded that he had not expect ed it "either." He went on to

admit that it was a "big mistake ," the product of "bad

judgment," and there was "no excuse for it." " I'm a human being

and I make mistakes," and "I'm not perfect," he told her. He

expressed the "hope" that E. G. " d[id]n't take him as a bad

person" because of this one "mistake," and suggested that that a

person should not be judged based on a single, isolated

incident. He wanted her, he said, to "look at [him] as [she

had] always d[one]" prior to the incident.

20. After having been told by E. G. that she had "trie d to

block it out and not think about it " (again referring to what

Respondent had done to her), Respondent said, " Thank god you

didn't spank me. "

21. Asked by E. G. what would happen if his son or wife

found out about what had happened , Respondent answer ed that he

had not " thought about that at the time " of the incident and, if

he had "thought about that," he would not have done what he did.

22. Respondent told E. G. that he "la[id] awake at night

just troubled" and "uncertain of hurt ing [E. G.] and the other

people who looked at [him] in the [positive] way that they

d[id]."

23. "Absolutely not" was the response Respondent gave when

E. G. posed the question, "Did I lead you on? He later stated

that E. G. had not "done anything wrong . "

24. Throughout t he conversation, Respondent repeatedly

apologized for what he had had do ne (which, he indicated, was

"uncharacteristic of [him] ," "very out of character , " something

that had "never happened before , " a "one time thing" ) , and he

promised "it wo[uld]n't happen again." Pledging to "make it up"

to her, he begged E. G. for her "forgiveness" and to "[l]e t

[him] earn [her] respect back " by letting him " s how [her] ," by

his actions when "with [her] , " that he was worthy of her

respect. He told her he was "at [ her] mercy. "

25. When E. G. asked Respondent how he knew "it wo[uld]n't

happen again," he replied that , "now that [E. G.] ha[d] brought

it to [his] attention that [he] actually could do something like

that," he would take precautions to avoid repeating th e same

"mistake" in the future.

26. In response to E. G.'s query of, "What if I hadn't

stopped you ," Respondent said, "I would have stopped . . . .

C ommon sense has to kick in sometimes, you know." When, l ater

in the conversation, E. G. expressed a contrary view (opining,

"That day if I hadn't stopped you probably would have kept

going"), Respondent, maintaining his previously stated p osition

on the matter, responded , "I don't think so." Respondent never

challenged E. G.'s assertion that she had " stopped" Respondent.

27. After being told by Respondent that he "looked at

[her] as more than a student" and felt as if he had a

father/daughter - like relationship with her, E. G. said, "I saw

you as a dad too. . . . [b] ut dads just don't touch their

daughters like that," to which Respondent replied, "You're

right."

28. Responding to E. G. 's inquiry as to why he had

"to uc h [ed] [her] like that, " Respondent offered, "Maybe it w as

the first time I was really looking at you gr owing up, or I did

at that time. . . . I looked at you growing up in a way I

hadn't before. " Both E. G. and Respondent agreed that this was

"kinda weird," after which Respondent told E. G., "This may

sound strange. I don't want you to take it the wrong way. . . .

But I always loved you. Love can conquer anything."

29. Later, Respondent added, "You're attractive. Is that

a reason? You've always been, but I never looked at you like

that before." Respondent followed up these comments by stating,

"The re is a natural tendency for a male to be attracted in

different ways to a female, and it has to be contained to the

proper time, and person, and age, and relationship." He

compared this "natural tendency" to E. G's desire to text on her

cell phone , and h e reminded her of "how hard" it was for her not

to text "when [her] phone [was] just sitting there." "Texting

[was] okay," he told her, provided it was at the "proper time,

place, " and with the "proper person. " The message he was

obvious ly trying to conv ey was that , just like E. G. had to

"contain , " within the bounds of propriety, her urges to text, he

had to "contain , " within the bounds of propriety, his urges to

be with a female, "how[ever] hard" that m ight be.

30. It was E. G. who ended the conversat ion. After

Respondent had asked her whether she "cared" for him more than

"any other average person" or "any other teacher," s he told

Respondent that she "ha[d] to go . "

31. The comments that were made during E. G.'s and

Respondent's police - monitored telephone conversation lent

credence to the account E. G. had given the police of the

inappropriate physical contact Respondent had had with her in

her apartment on July 2, 2008. Respondent was thereafter

arrested and criminally charged with having engage d in such

conduct. He had a jury trial, at which E. G. testified and the

recording of this conversation was played for the jury. At the

conclusion of the trial, Respondent was found not guilty by the

jury.

32. Contrary to what he had told E. G. during t heir

police - monitored telephone conversation, E. G. was not the first

person Respondent had intentionally touched in an inappropriate

manner.

33. In 2004, he had victimized M. S., a nother former

student of his. At the time of the incident, M. S. was a 14 -

year - old ninth grade high school student.

34. M. S. had first met Respondent, through her sister, 13

when M. S. was in fifth grade. Respondent had been M. S.'s band

teacher throughout middle school (from her sixth to eight grade

years ). He had been o ne of her two favorite middle school

teachers (the other having been Barry Johnson, her geography

teacher ). M. S. had considered Respondent to be a "mentor, a

father figure, a great teacher." Like E. G., she had confided

in Respondent and sought his advice on personal matters.

35. On the day in question, after her school day ended, 14

M. S. went to Pines with the intention of seeing Respondent and

Mr. Johnson. She wanted to show them how much she had matured

sin ce she had graduated from middle school earlier that calendar

year . Her boyfriend, D. G., drove her to Pines. He remained

(alone) in the car during the visit.

36. M. S. first went to the band room to see Respondent .

She knocked on the door , and a stude nt unlocked the door and let

her in. When the students in room departed and no one else was

present , Respondent approached M. S. and hugged her , as they

exchanged verbal greetings. While still embracing M. S., he

repeatedly asked her if "he c[ould] touch them," referring to

M. S.'s breasts . M. S.'s only response was to "laugh[]

nervously . " Although M. S. had never answered his question ,

Respondent " slowly " moved his hands (over M. S.'s clothing ) from

her back to the side of her breasts , as M. S. "lean[ ed] back" in

an unsuccessful attempt to ward off Respondent's advances.

Respondent's hands were on M. S.'s breasts for approximately

five or six seconds. Never before had Respondent done anything

like this to her. Th is intentional touching of M. S.'s br easts

came to an abrupt end when Respondent , hearing someone at the

door, "ended [his] embrace" and "backed up . " At the same, he

asked M. S., "How is everything," in an apparent attempt to make

it seem (to the "someone" at the door) as if he and M. S. were

greeting e ach other for the first time that day . Th e " someone "

at the door turned out to be Elizabeth Larson, the assistant

band director. 15 When Ms. Larson entered the room , 16 M. S. "spoke

with her briefly ." 17 M. S. and Respondent then "walked into [a]

connecting room" where the instruments were stored. There,

Respondent inquired if M. S. "still ha[d] the same phone

number." When M. S. responded in the negative, Respondent asked

her for her new number , and she gave it to him . 18 Respondent

thereupon reciprocated and gave M. S. his telephone number ,

after which M. S. excused herself and left, saying she was

"going to go see some other teachers." 19

37. Instead of visiting Mr. Johnson (as she had originally

intended to do) or any other teacher , M. S. ("walk[ing] fast")

went directly to D. G.'s car and got in. She was crying. D. G.

asked her what was wrong, and she replied that the teacher she

had just visited had "touched [her] incorrectly." D. G. wanted

to go in to the school an d confront the teache r, but M. S ., not

wanting any "more stress," asked him to just "take [her] home,"

which he did.

38. M. S. did not "want to believe" what had happened in

the band room during her visit . She decided, at least

initially, that she would not say anything abou t it to anyone

and try to go on "liv[ing] [her] life" as if the incident had

not occurred. 20

39. It was not until a ppro ximately four years later, after

having learned that Respondent had been arrested for molesting

another student (E. G.), that M. S. chan ged her mind and told

someone ( other than D. G. ) what Respo ndent had done to her .

40. Ironically, th e "someone" she told was Ms. Larson.

Ms. Larson happened to come into the hair salon at which M. S.

was working at the time , and M. S. took this opportun ity to tell

her, albeit in "vague[]" terms, "what had happened" during her

post - graduation visit with Respondent in the band room four

years earlier. Ms. Larson advised that she was under an

obligation to formally report to the school police what M. S.

had told her. M. S. responded, "Okay, just have them contact

me."

41. M. S. was subsequently contacted by a School Board

police detective.

42. The police investigation resulted in criminal charges

being filed against Respondent for having ina ppropriately

touched M. S . Those charges are still pending.

CONCLUSIONS OF LAW

43. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to Chapter 120,

Florida Statutes.

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

IX of the State 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 th e State Constitution or

general law. " § 1001.32(2), Fla. Stat.

45. 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.

46. 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. As such, it has the right

" to direct its employees, take discipl inary action for proper

cause, and relieve 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.

47. At a ll times material to the instant case, district

school boards have had the right, under Section 1012.33 (6)(a) ,

Florida Statutes, to dismiss , for "just cause, " teachers having

professional service contract s.

48. At all times material to the instant case, "just

cause," as used in Section 1012.33, Florida Statutes, has been

legislatively defined (in Subsection (1)(a) of the statute) to

include, "but . . . not [be] limited to, the following

instances, as defined by r ule of the State Board of Education:

immorality, misconduct in office, incompetency, gross

insubordination, willful neglect of duty, or being convicted or

found guilty of, or entering a plea of guilty to, regardless of

adjudication of guilt, any crime inv olving moral turpitude."

The "but . . . not limited to" language in the statute makes

abundantly clear that the list of things constituting "just

cause" was intended by the Legislature to be non - exclusive and

that other wrongdoing may also constitute "jus t cause" for

dismissal. 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

Sect ion 231.36(1)(a), Florida Statutes (2001), the predecessor

of Section 1012.33 (1)(a) , Florida Statutes] constituting just

cause, [ 21 ] would also be grounds for dismissal. . . . In

amending section 231.36 and creating a new contract status for

teachers (profe ssional service) and by failing to further 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 determ ination to the respective wisdom of each school

board by providing no definite parameters to the term 'just

cause.'").

49. " Immorality " has been defined "by rule of the State

Board of Education" (specifically Florida Administrative Code

Rule 6B - 4.009 (2 ) 22 ) as follows:

Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or

disresp ect and impair the individ ual's

service in the community.

50. "M isconduct in office " has been defined "by rule of

the State Board of Education" (specifically Florida

Administrative Code Rule 6B - 4.009 (3)) 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, 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 in dividual ' s effe ctiveness in the

school system.

51. The Code of Ethics of the Education Profession ( as set

forth in Florida Administrative Code Rule 6B - 1.001 ) provide s as

follows:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) The educator ' s primary professional

concern will always be for the student and

for the development of the student ' s

potential. The educator will therefore

strive for professional growth and w ill seek

to exercise the best profes sional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one ' s

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

52. The Principles of Professional Conduct for the

Education Profession in Florida (set forth in Florida

Administrative Code Rule 6B - 1.006) require a teacher , as part of

his or her "[o]bligation to the s tudent ," to " make reasonable

effort to protect the student from conditions harmful to

learning and/ or to the student's mental and/ o r physical health

and/or safety"; to " not intentionally violate o r deny a

student's legal rights "; and to " not exploit a rela tionship with

a student for personal gain or advantage. "

53. "Immorality" and "misconduct in o ffice " 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 seriousness and its adverse impact on the teacher ' s

service and effectiveness. In such cases, proof that the

teacher engaged in the conduct is also proof of impaired

effectiveness. See Purv is 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 Cou nty School Board v. Jones , No. 06 -

1033, 2006 Fla. Div. Adm. Hear. LEXIS 287 *17 (Fla. 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 itse lf, or it can be inferred

from the conduct in question. " ); and Miami - Dade County School

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 prepond erance of the direct

evidence that Mr. Lefkowitz ' s actions were so serious that they

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).

54. A teacher 's engaging in inappr opriate physica l con duct

of a sexual nature with a minor student (as Respondent has been

accused of doing in the instant case) is an example of such

conduct that "speaks for itself" and constitutes "immorality"

and "m isconduct in office ," as those terms are used in Section

1012.33, Florida Statutes . See Lee County School Board v.

Lewis , No. 05 - 1450, 2005 Fla. Div. Adm. Hear. LEXI S 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

s tudents."); Brevard County 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 o f 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 system."); and Miami -

Dade County School Board v. Durrant , No. 98 - 3949, 1999 Fla. Div.

Adm. Hear. LEXIS 5227 *1 6 n.8 (Fla. DOAH July 6,

1999)(Recommended Order) ("Here, there was direct proof that

Respondent's conduct [involving sexual activity with a student]

adversely affected his effectiveness in the school system.

Moreover, such a conclusion may also be reasonably drawn in the

absence of 'specific evidence' of impairment of the teacher's

'effectiveness as an employee,' where, as her e, the 'personal

conduct' in which the teacher engaged 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

cunnilingus 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. M others and

fathers would 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 ou r

children to the teacher. We look to the teacher 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."); an d Broward County School 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 positi on of trust and confidence, he

needed to maintain a high degree of trustworthiness, honesty,

judgment, and discretion.").

55. "[U]nder Florida law, a [district] school board's

decision to terminate an employee is one affecting the

employee's substantial i nterests; therefore, the employee is

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

issues of fact are in dispute. " 23 McIntyre v. Seminole County

School Board , 779 So. 2d 639, 641 (Fla. 5th DCA 2001).

56. Pursuant to Section 1012.33(6)(a), Florida Statutes ,

the hearing may be conducted , "at the district school board's

election," either by the district school board itself or by a

DOAH administrative law judge (who, following the hearing, makes

a recommendation to the district s chool board).

57. The teacher must be given written notice of the

specific 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 [sta tute,] rule, [regulation, or policy] the [district

school board] alleges 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). The teacher may be suspended without pay pending

the outcome of the termination proceeding; "but, if the charges

are not sustained, the employee shall be immediately reinstated,

and his or her back salary shall be paid." § 1012.33(6)(a),

Fla. Stat.

58. At t he termination hearing, the burden is on the

district school board to prove the allegations contained in the

notice. Unless there is a collective bargaining agreement

covering the bargaining unit of which the teacher is a member

that provides otherwise 24 ( and there is no record evidence that

there exists such a controlling collective bargaining agreement

provision in the instant case), the district school board's

proof need only meet the preponderance of the evidence standard.

See Cisneros v. School Board of Miami - Dade County , 990 So. 2d

1179, 1183 (Fla. 3d DCA 2008)("As the ALJ properly found, the

School Board had the burden of proving the allegations of moral

turpitude by a preponderance of the evidence."); 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 DC A 1995)("We

agree with the hearing officer that for the School Board to

demonstrate 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.

Sc hool Board of Dade County , 571 So. 2d 568, 569 (Fla. 3d DCA

1990)("We . . . find 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 convincing evidence, and

hold that the record contains competent and substantial evidence

to support both charges by a preponderance of the evidence

standard."). This burden "is s atisfied by proof creating an

equipoise, but it does not require proof beyond a reasonable

doubt.'" Florida Department of Health and Rehabilitative

Services v. Career Service Commission , 289 So. 2d 412, 415 (Fla.

4th DCA 1974).

59. In determining whether the district school board has

met its burden of proof, it is necessary 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 disciplining

a teacher based on matters not specifically alleged 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); Pilla v. School Board of Dade County , 655

So. 2d 1312, 1314 (Fla. 3d DCA 1995 ); and Texton v. Hancock , 359

So. 2d 895, 897 n.2 (Fla. 1st DCA 1978) .

60. The written notice of charges in the instant case (the

Administrative Complaint) alleges that there is "just cause" to

terminate Respondent 's employment as a professional service

contract teacher with the School Board based on his having

engaged in inappropriate physical conduct with minor female

students ( involving , among other things, his deliberate touching

of their breasts ) on two separate occasions: once in July 2008 ,

with E. G. ; and on an earlier occasion in December 2004 , with

M. S. According to the Administrative Complaint , this conduct

constitutes "moral turpitud e," "immorality," and "misconduct in

office," as those terms are used in Section 1012.33, Florida

Statutes, and Florida Administrative Code Rule 6B - 4.009.

61. The preponderance of the re cord evid ence establishes

that Respondent engaged in the inappropriat e physical conduct

alleged in the Administrative Complaint.

62. E. G. and M. S. both testified at the fin al hearing

that Respondent had subjected them to the inappropriate touching

described in the Administrative Complaint, accusations that

Respondent de nied when he took the stand. The outcome of the

instant case turns on whose testimony the undersigned believes.

Having carefully considered the matter, the undersigned has

accepted E. G.'s and M. S.'s accusatory testimony and rejected

(as unworthy of bel ief) Respondent's exculpatory testimony to

the contrary.

63. E. G. and M. S. were both very credible and convincing

witnesses who, unlike Respondent (whose teaching job hangs in

the balance) , 25 had no apparent motive or reason to testify

falsely in this matter . Their testimony was neither inherently

unreasonable, nor implausible , and it withstood the probing and

skillful cross - examination of Respondent's counsel . Moreover,

E. G.'s testimony is su pported by an extremely powerful piece of

corroborative evidence: the recording of the post - incident,

police - monitored telephone conversation E. G. had with

Respondent (Petitioner's Exhibit 1) . 26 ( Respondent's efforts, in

his testimony, to try to explain away the damaging statements

made by him during this telephone conversation were extremely

weak and entirely unpersuasive. )

64. Based on his assessment of the demeanor and

credibility of the witnesses who testified at the final hearing

(including E. G., M. S., and Respondent), and his evaluation of

the evidentiary record as a whole, t he undersigned has

determined that E. G. and M. S. were telling the trut h when they

testified how Respondent had inappropriately touched them,

whereas Respondent's testimony denying their accusations was a

fabrication concocted by him to try to save his job and

otherwise avoid being punished for his transgressions . 27

65. As a result of his having engaged in the inappropriate

physical conduct alleged in the Administrative Complaint (as

established by the preponderance of the record evidence) ,

Respondent is guilty of "immorality," as defined in Florida

Administrative Code Rule 6B - 4.009 (2), and "misconduct in

office," as defined in Florida Admin istrative Code Rule 6B -

4.009(3) . 28 The School Board, therefore, has "just cause," as

defined in Section 1012.33(1)(a), Florida Statutes, to dismiss

Respondent pursuant to Subsection (6)(a) of the statute.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, i t is hereby

RECOMMENDED that the Broward County School Board issue a

final order terminating Respondent's employment as a

professional service contract teacher with the School Board for

the reasons set forth above .

DONE AND ENTERED this 2 2nd day of Dec emb er, 2010 , 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 - 6 847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 2nd day of Dec ember, 2010.

ENDNOTES

1 Unless otherwise noted, all references in this Recommended

Order to Florida Statutes are to Florida Statutes (2010).

2 The delay in the case going to hearing was due, in large

measure, to the pendency of criminal charges against Respondent.

3 E. G.'s mother was always at home during these visits.

4 E. G. and her mother lived in a second floor apartment.

5 A sliding glass door separated the balcony from the living

room.

6 This finding of fact is based on E. G.'s hearing testimony.

E. G.'s version of what occurred when she and Respondent were

alone in the living room (while the others were on the balcony)

is, in the undersigne d's view, considering the totality of the

record evidence, more credible and persuasive than the

exculpatory version to the contrary provided by Respondent,

which was as follows:

. . . . I was telling [E. G.] that we had

to go pick up my son.

As I was telling her that she was standing

directly next to me. We are shoulder to

shoulder, and we were looking at the people

standing on the balcony. And I reached over

to give her a goodbye hug across her

shoulder.

As I reached over simultaneously she sort of

leaned back and turned her back to me and

fell with her head on my chest. When she

did that my arm slid around, and my arm was

placed right across her cleavage directly

under her left breast. As I did that she

took her left arm, and she kind of pat[ted]

me on my arm that way, and it was very

awkward.

I never hugged her like that before. She

never turned her back to me and fell into my

arm that way. I kind of froze, and it was

very awkward. With my integrity I felt bad

about that because I never touch ed her in

that way. I make sure, working on the

middle school level with students and

hormones the way they are, that I stay away

from that type of contact.

After that time I pulled my arm out kind of

away. It was kind of like a quiet

awkwardness. At the same [time] my brother

and her [E. G.'s] mother and her friend

[were] walking back into the room. So she

was standing there. Like I said, it was

very awkward. I kind of tugged her ear or

something of that nature and sa[id] are you

okay, what is wron g?

She was like, she said something like my dad

does that or something like that. I think I

asked her do I remind you of your dad, in a

jesting way. It was like conversation such

as that.

7 Of these three (Ms. G., Odelia, and Mr. Whitest), only

Mr. Wh itest testified at the final hearing. It appears that,

from his vantage point on the balcony, he did not see what his

brother was doing to E. G. when they were alone in the living

room.

8 E. G. "always hugged [Respondent] goodbye" when they parted

compa ny. (It was not uncommon for Respondent to share a hug

with his students.)

9 For "three or four months" following the incident, E. G, saw a

therapist to "help [her with her] problem." She has these

"nightmares still, [but] not as often" as she used to .

10 Although Ms. Jared was the first adult that E. G. told about

the incident, E. G. had, before her conversation with Ms. Jared,

discussed the incident with friends.

11 The recording was received into evidence (as Petitioner's

Exhibit 1) over Respond ent's objection. While there are

portions of the recording that are hard, if not impossible, to

understand, they are not "so substantial as to deprive the

remainder of [the recording of] relevance." See , e.g. , McCoy v.

State , 853 So. 2d 396, 404 (Fla. 2003)("A court's evaluation of

partially inaudible recordings must be guided by the principle

that an audiotape should be admitted into evidence unless the

condition of the recording degrades its usefulness to such an

extent tha t it makes the evidence misleading or irrelevant.");

Jackson v. State , 979 So. 2d 1153, 1155 (Fla. 5th DCA

2008)("Partial inaudibility or unintelligibility of an

audiotape, however, is not grounds for excluding the recording

if the audible parts are releva nt, authenticated, and otherwise

properly admissible. "); and Commerford v. State , 728 So. 2d 796,

798 (Fla. 4th DCA 1999)("The general rule regarding

admissibility of partially inaudible tape recordings is that

such recordings are admissible unless the ina udible and

unintelligible portions are so substantial as to deprive the

remainder of relevance. Partial inaudibility or

unintelligibility is not a ground for excluding a recording if

the audible parts are relevant, authenticated, and otherwise

properly ad missible. . . . We hold that the trial court did not

abuse its discretion in admitting the tape. The tape clearly

reveals sufficient relevant portions that were audible to

justify its admission, including the portion where Commerford

asks if the victim w ould like to have sex 'again.'") (citations

omitted) . The recording of Respondent's conversation with E. G.

is not only relevant, it constitutes compelling evidence of

Respondent's guilt of the charge made in the Administrative

Complaint that he inappropri ately touched E. G.

12 E. G. conveyed the s ame thought later in the conversation

when she said, " I never expected you to touch me because not

only were you my teacher you were someone I looked up to."

Respondent's response to this comment was, "I know."

13 M.S.'s sister, F., was a year ahead of M. S. in school. When

M. S. was a fifth grader, F. was in Respondent's band class at

Pines.

14 Her school day ended at 2:35 p.m., approximately an hour

before the Pines' students "g[ot] out."

15 Ms. Larson is still the assistant band director at Pines.

She has been in that position since the 2003 - 2004 school year.

She "worked directly with [Respondent]" her first five years as

Pines' assistant band director.

16 Ms. Larson "walked in[to] [the band room] without knocking."

17 Ms. Larson testified at the final hearing that she had no

recollection of ever entering the band room and finding M. S.

visiting with Respondent (although she admitted in her testimony

to having some "confusion" and unc ertainty as to what M. S.

looked like as a 14 - year - old). That Ms. Larson would have

forgotten the incident by the time of the final hearing is not

surprising given the passage of time (of approximately six

years) since the incident and the relatively mund ane nature,

from Ms. Larson's perspective, of what she was a witness to: a

student visiting with Respondent in the band room. Cf . United

States v. Caraway , 516 F. Supp. 2d 1219, 1224 (D. Kan. 2007)("He

understandably did not have a clear memory of the ev ents of what

would have been, for him, a mundane day over three years before

his trial testimony."); and Borecki v. Eastern International

Management Corp. , 694 F. Supp. 47, 53 n.7 (D. N.J.

1988)("Indeed, if Tumulo's failure to recite the decisions

discusse d is due to an inability to remember them, it may

indicate they were not major ones, but rather were more mundane

in nature."). Contrastingly, what happened in the band room

that day, from M. S.'s perspective, was an extraordinary and

memorable event.

18 Despite having her new phone number, Respondent never called

M. S. after the incident.

19 This finding of fact is based on M. S.'s hearing testimony,

which, in the opinion of the undersigned, when viewed in light

of the entire evidentiary record, is more believable than

Respondent's hearing testimony that the incident described by

M. S. never occurred.

20 Notwithstanding her effort to put the incident out of her

mind, she has not been able to do so. Still, six years later,

she has nightmares about what happened.

21 "Immorality" was added to the " non - exclusive list of sins" in

Section 1012.3 3 (1)(a) , Florida Statutes , by Section 28 of

Chapter 2008 - 108, Laws of Florida, effective July 1, 2008.

22 Florida Administrative Code Rule 6B - 4.009 "define[s]" the

" basis for charges upon which dismissal action against

instructional personnel may be pursu ed ."

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

Chapter 120 for purposes of quasi - judicial administrative

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

So. 2d 374, 377 (Fla. 5th DCA 1993); see also Sch ool Board of

Palm B each County v. Survivors Charter Schools, Inc. , 3 So. 3d

1220, 1231 (Fla. 2009)( " No one disputes that a school board is

an ' agency ' as that term is defined in the APA. " ) ; Volusia

County School Board v. Volusia Homes Builders Association , 946

So. 2d 1084, 1089 (Fla. 5th DCA 2006)( " [T] he School Board is an

agency subject to the Administrative Procedure Act. " ); and

Witgenstein v. School Board of Leon County , 347 So. 2d 1069,

1071 (Fla. 1st DCA 1977) ( " It was obviously the legislative

intent to include local sc hool districts within the operation of

Chapter 120. " ).

24 Where the district school board, through the collective

bargaining process, has agreed to bear a more demanding

standard, it must honor, and act 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 representative], 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 impleme nt 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, 199 7)(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 wit h 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.").

25 "Persons having a pecuniary or proprietary interest in the

outcome of litigation are not disqualified from testifying under

the Florida Evidence Code," but their interest is a factor to be

considered in evaluating the credibility of their testimony.

Martuccio v. Department of Professional Regulation, Board of

Optometry , 622 So.2d 607, 609 (Fla. 1st DCA 1993).

26 Even if it had been uncorroborated, however, E. G.'s

testimony would have been sufficient to support a finding that

Respondent had inappropr iately touched her, as alleged in the

Administrative Complaint. Cf. § 120.81(4)(a)(" [I] n a proceeding

against a licensed professional . . . [t]he testimony of the

victim of the sexual miscondu ct need not be corroborated.").

27 In making this determinatio n, the undersigned has not

overlooked that E. G. and M. S. may not have clearly recalled

every detail of the incidents about which they testified.

Compare with United States v. Price , No. 04 - 40035 - SAC, 2004 U.S.

Dist. LEXIS 17916 *6 (D. Kan. August 4, 200 4)("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. August 23, 2001)("The

details that the officer was not able to remember are not

si gnificant, 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. State , 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 criticizes the

State's failure to conduct more extensive forensic testing. We

find th e 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 alleged in

the application paragraph of the jury charge.").

28 To the extent that the Administrative Complaint alleges that

Respondent is also guilty of having been "convicted or found

guilty of, or entering a plea of guilty to, regardless of

adjudication of guilt, any crime involving moral turpitude," the

record evidence is insuff icient to support such an allegation.

COPIES FURNISHED:

Paul D. Gibbs, Esquire

Carmen Rodriguez, Esquire

Law Offices of Carmen Rodriguez P . A .

15715 S outh Dixie H igh w a y , Sui te 411

Palmetto Bay, Florida 33157 - 1884

Steve Rossi, Esquire

Travis Stock, Esquire

Law Office of Steve Rossi, P.A.

Sole Building, Ground Floor, Suite 2

533 Northeast Third Avenue

Fort Lauderdale, Florida 33301

James F. Notter, Superintendent

Broward County School Board

600 Southeast Third Aven ue

F or t Lauderdale, Florida 33301

Honorable Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Deborah K. Kearney , 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 e xceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.