09-006781PL Dr. Eric J. Smith, As Commissioner Of Education vs. Terrence Thomas Status: Closed Recommended Order on Wednesday, April 28, 2010.

Summary: Respondent's note writing to a student was inappropriate and resulted in embarrassment to the student, which violated professional standards, but did not rise to level of moral turpitude or gross immorality.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 09-6781PL

)

TERRENCE THOMAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on February 24, 2010, in Daytona Beach, Florida, before

J. D. Parrish, an Administrative Law Judge, of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154

For Respondent: Joan Stewart, Esquire

Florida Education Association

300 East Park Avenue

Tallahassee, Florida 32301-1514

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated

Florida Statutes (2006), and Florida Administrative Code Rules

what discipline should be imposed.

PRELIMINARY STATEMENT

On August 26, 2009, Dr. Eric J. Smith, as Commissioner of

Education (Petitioner), filed a six-count Administrative

Complaint against Terrence Thomas (Respondent), alleging that he

violated the provisions of Florida law noted above. The

Respondent timely disputed the factual allegations of the

complaint and executed an Election of Rights that chose the

"Settlement Option" with "Formal Hearing" if settlement could

not be reached. The parties were unable to reach a settlement.

On December 16, 2009, the matter was forwarded to the

Division of Administrative Hearings (DOAH) for formal

proceedings. A Notice of Hearing with an Order of Pre-Hearing

Instructions was entered on January 7, 2010, and the case was

scheduled for hearing for February 24, 2010.

At the outset of the hearing Petitioner entered an ore

tenus Motion in Limine to exclude evidence related to the school

district's disciplinary decision against Respondent. Petitioner

maintained that the school district's decision is irrelevant to

the instant matter. It is concluded that while the disciplinary

decision of the school district does not control the outcome of

this case, such action may be considered in reaching the

ultimate findings and conclusions of this cause. Accordingly,

the Motion in Limine is denied.

At the final hearing the Petitioner presented testimony

from six witnesses. Petitioner's Exhibits 1-5 were admitted

into evidence. Respondent testified on his own behalf and

adopted the cross-examination of Petitioner's witnesses.

Respondent offered Exhibits 1-3 that were also received in

evidence.

The Transcript of the hearing was filed with DOAH on

March 11, 2010. The parties were granted ten days’ leave within

which to file their proposed recommended orders. On March 19,

2010, Petitioner filed a Joint Motion for Extension of Time to

File Proposed Recommended Orders that was granted. The parties

were then given until March 26, 2010, to file their proposed

orders. Both timely filed proposals that have been considered

in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, on behalf of the Education Practices

Commission, is charged with the responsibility of certifying and

regulating public school teachers in Florida.

2. In accordance with the Order of Pre-hearing Instruction

entered in this cause the parties submitted a Joint Pre-hearing

Stipulation. Included in that document were the following

stipulations of fact:

1. Respondent holds Florida Educator’s

Certificate 798852, covering the area of

Athletic Coaching, which is valid through

June 30, 2012.

2. At all times pertinent to the

allegations in the Administrative Complaint

in this case, Respondent was employed as an

Exceptional Student Education Teacher at

Atlantic High School in the Volusia County

School District.

3. C. W. was a sixteen-year-old female

student at Atlantic High School. On or

about December 2, 2008, while C. W. was in

another teacher’s geometry class, Respondent

sat next to C. W. at a table toward the rear

of the class. Respondent initiated an

exchange of notes (sic) between himself and

C. W. The note stated:

Respondent: What’s your boyfriends

name?

Student: Don’t have one why?

Respondent: I don’t believe that!!

Student: Why not????

Respondent: Because you look like you

should have one!

Student: Why do I need one LOL no guys

are attractive here . . . why do I look

like I should have one?

Respondent: I never said you needed

one!! You just have that look and I

can’t say why.

Student: ooo so there’s a look that

people have when they have a b/f or

g/f. Why can’t you say why?

Respondent: You are too sexy not to

have a ton of guys chasing after you

and one of the (sic) should have caught

you. If I was in high school I would

most definitely be one of them.

Student: haha well its not like that at

all. They are all UGLY

Respondent: So what are you looking

for? A super model?

4. The above-referenced note between

Respondent and C. W. was inappropriate.

C. W. put the note away and did not respond

to Respondent’s last inquiry. Respondent

attempted to retrieve the note from C. W.

C. W. kept the note and turned it in to

school administration and reported the

Respondent’s conduct.

3. As a result of the foregoing exchange, the student,

C. W., was very uncomfortable. She began to think that

Respondent had been "coming on" to her. Although Respondent

denied that assumption, he acknowledges that the exchange was

inappropriate and in poor judgment. Further he acknowledged

that the exchange had left C. W. uncomfortable.

4. At no time has Respondent ever denied that the exchange

took place and he has not attempted to avoid punishment for the

incident. After the exchange and becoming aware of C. W.'s

unease, Respondent made every effort to avoid C. W. so that

neither would be uncomfortable.

5. To that end the school administration moved Respondent

from the classroom where C. W. was assigned, to another

classroom.

6. Respondent was disciplined by the school district and

remained at Atlantic High School for the remainder of the school

year.

7. C. W.'s mother believes Respondent should have been

removed from the school. When he was not, ultimately C. W.

transferred to another school to complete her senior year.

C. W. believes that she was treated unfavorably by students who

endorsed Respondent and did not support her decision to report

the note-writing incident.

8. Respondent was previously disciplined by another school

district for whom he worked. The prior disciplinary event also

led to action by the Education Practices Commission. The prior

act was dissimilar in facts to the instant case.

9. Respondent is a well-educated and experienced teacher.

He holds bachelor and master degrees. Respondent became a

teacher in 1998 and has been continuously employed by various

school districts since that time. Additionally, he taught at a

detention center for youthful offenders for approximately one

year. In short, Respondent should have known better than to

engage in note writing with C. W., and should not have initiated

the note.

10. In addition to distracting C. W. during a class when

she should have been allowed to engage in learning, Respondent's

conduct in continuing the note writing was immature and contrary

to meaningful teaching practices.

11. Respondent has always achieved acceptable performance

evaluations. Despite the unrelated lapses in judgment resulting

in disciplinary actions, Respondent has continued in employment

with the school district.

12. At no time has Respondent ever attempted to touch

C. W. inappropriately. At no time did Respondent actually

verbally speak to C. W. The entire inappropriate exchange

consisted of note writing.

CONCLUSIONS OF LAW

13. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. §§ 120.569 and 120.57, Fla.

Stat. (2009).

14. Subsection 1012.795, Florida Statutes (2008) (the

version of the statute in effect at the times relevant to this

case), gives the Education Practices Commission the authority to

suspend or revoke the teaching certificate of any person, or to

impose any penalty provided by law, if the person is guilty of

certain specified acts. Pertinent to this proceeding are the

following provisions of that law:

(1) The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01(2) or (3)

for up to 5 years, thereby denying that

person the right to teach or otherwise be

employed by a district school board or

public school in any capacity requiring

direct contact with students for that period

of time, after which the holder may return

to teaching as provided in subsection (4);

may revoke the educator certificate of any

person, thereby denying that person the

right to teach or otherwise be employed by a

district school board or public school in

any capacity requiring direct contact with

students for up to 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon an

order of the court or notice by the

Department of Revenue relating to the

payment of child support; or may impose any

other penalty provided by law, if the

person:

* * *

(d) Has been guilty of gross immorality or

an act involving moral turpitude as defined

by rule of the State Board of Education.

* * *

(g) Upon investigation, has been found

guilty of personal conduct that seriously

reduces that person's effectiveness as an

employee of the district school board.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

15. Petitioner alleged that Respondent violated the

foregoing provisions. Additionally, Petitioner maintains that

Respondent's conduct also constitutes a violation of

administrative rules governing the actions of educators in

Florida. More specifically, Petitioner has alleged that

Respondent violated Florida Administrative Code Rules

Administrative Code Rule 6B-1.006 provides, in pertinent part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator’s

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student’s mental and/

or physical health and/or safety.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

* * *

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

16. Florida Administrative Code Rule 6B-4.009(2) defines

"immorality" as:

conduct that is inconsistent with the

standards of public conscience and good

morals. It is conduct sufficiently

notorious to bring the individual concerned

or the education profession into public

disgrace or disrespect and impair the

individual’s service in the community.

17. "Moral turpitude" although not specifically defined

involves the idea of inherent baseness or depravity in the

private social relations or duties owed by man to man or by man

to society. It has also been defined as anything done contrary

to justice, honesty, principle, or good morals. Further, moral

turpitude often involves the question of intent as when an act

is unintentionally committed through error of judgment when

moral wrong was not contemplated. See State ex rel Tullidge v.

Hollingsworth , 146 So. 660 (Fla. 1933).

18. Courts have not determined that writing a note to a

student would or should constitute moral turpitude or gross

immorality. To evaluate an act to determine whether it

constitutes an act of moral turpitude, courts consider whether

the act reflects on the honesty, integrity, and good morals of

the offender. See Cambas v. Department of Business and

Professional Regulation , 6 So. 3d 668 (Fla. 5th DCA 2009).

19. In this regard, Petitioner has the burden to establish

the allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

20. Petitioner demonstrated that Respondent wrote an

inappropriate note to a student. The content of the note made

the student uncomfortable and resulted in unnecessary

embarrassment. It is concluded that Respondent did not intend

to cause such a result. It is further concluded that Respondent

did not do anything after writing the note to foster or

encourage the discomfort the student felt subsequent to the

incident.

21. In evaluating the content of the note and Respondent's

subsequent behavior to assess Respondent's honesty and

integrity, it should be noted that Respondent took full

responsibility for his inappropriate conduct. Respondent

acknowledged the poor judgment when confronted by school

officials and continues to exhibit remorse for his behavior. By

attempting to retrieve the note, he demonstrated that he knew it

was wrong to pass the note with the student, that the content of

the note was also inappropriate, and that he did all he could to

avoid the student to lessen the discomfort caused by the note.

Respondent's claim that he did not intend a sexual advance

toward the student has been deemed credible. Thus, it is

concluded Respondent did not commit an act of moral turpitude or

gross immorality.

22. Next, as to whether Respondent's personal conduct has

seriously reduced his effectiveness as an employee of the

district school, it is concluded that the acts complained of

have not resulted in reduced effectiveness. Respondent remained

at the school for the remainder of the school year without

further incident. Although the student and her mother were

troubled by Respondent’s remaining at the school, there is no

evidence that he or anyone on his behalf did anything to further

foster the student's discomfort. Respondent never

inappropriately touched or spoke to the student. Respondent

avoided any contact with the student and took measures to avoid

being in sight of the student. Since other students did not

express concerns regarding the single incident complained of in

this matter, it is concluded that Respondent's effectiveness as

a teacher was not reduced.

23. Nevertheless, Petitioner has established by clear and

convincing evidence that Respondent's action in the note-writing

exchange violated the Principles of Professional Conduct for the

Education Profession as prescribed by the State Board of

Education rules. More specifically, it is found that Respondent

failed to make a reasonable effort to protect the student from

conditions harmful to learning and/or to the student’s mental

and/or physical health and/or safety. Further, the student was

subjected to embarrassment as a result of the incident. Despite

Respondent’s admission of guilt and confession of error of

judgment, the student did not escape the incident without

adverse consequences. Although Respondent did not attempt to

exploit a relationship for any personal motive or gain, he did

subject the student to unnecessary consequences that could have

been avoided had he simply refrained from note writing.

24. Thus, having determined that Respondent violated the

rules of Principles of Professional Conduct for the Education

Profession in Florida, an appropriate penalty must be

determined. Petitioner has proposed that Respondent's educator

certificate be permanently revoked. Even taking into

consideration Respondent's prior disciplinary action, permanent

revocation of the certificate is deemed too harsh. Further,

suspension of Respondent's certificate under the circumstances

of this case is also deemed too harsh.

25. Section 1012.796, Florida Statutes, provides, in part:

(7) A panel of the commission shall enter a

final order either dismissing the complaint

or imposing one or more of the following

penalties:

(a) Denial of an application for a teaching

certificate or for an administrative or

supervisory endorsement on a teaching

certificate. The denial may provide that

the applicant may not reapply for

certification, and that the department may

refuse to consider that applicant's

application, for a specified period of time

or permanently.

(b) Revocation or suspension of a

certificate.

(c) Imposition of an administrative fine

not to exceed $2,000 for each count or

separate offense.

(d) Placement of the teacher,

administrator, or supervisor on probation

for a period of time and subject to such

conditions as the commission may specify,

including requiring the certified teacher,

administrator, or supervisor to complete

additional appropriate college courses or

work with another certified educator, with

the administrative costs of monitoring the

probation assessed to the educator placed on

probation. An educator who has been placed

on probation shall, at a minimum:

1. Immediately notify the

investigative office in the Department of

Education upon employment or termination of

employment in the state in any public or

private position requiring a Florida

educator's certificate.

2. Have his or her immediate

supervisor submit annual performance reports

to the investigative office in the

Department of Education.

3. Pay to the commission within the

first 6 months of each probation year the

administrative costs of monitoring probation

assessed to the educator.

4. Violate no law and shall fully

comply with all district school board

policies, school rules, and State Board of

Education rules.

5. Satisfactorily perform his or her

assigned duties in a competent, professional

manner.

6. Bear all costs of complying with

the terms of a final order entered by the

commission.

(e) Restriction of the authorized scope of

practice of the teacher, administrator, or

supervisor.

(f) Reprimand of the teacher,

administrator, or supervisor in writing,

with a copy to be placed in the

certification file of such person.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a panel of the Education Practices

Commission enter a final order finding Respondent guilty of

violating the standards of conduct applicable to educators in

Florida, found in Florida Administrative Code Rules 6B-

in the amount of $2,000.00, and requiring a period of probation

not less than one year under the terms and conditions deemed

most appropriate by the panel.

DONE AND ENTERED this 28th day of April, 2010 in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of April, 2010.

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Department of Education

Education Practices Commission

325 West Gaines Street, Room 224

Tallahassee, Florida 32399-0400

Joan Stewart, Esquire

FEA/United

300 East Park Avenue

Tallahassee, Florida 32301

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154-0012

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Marion Lambeth, Bureau Chief

Bureau of Professional Practice Service

Department of Education

Turlington Building, Suite 224-E

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.