10-010687PL Dr. Eric J. Smith, As Commissioner Of Education vs. Randall Worley Status: Closed Recommended Order on Tuesday, July 26, 2011.

Summary: Petitioner failed to prove by clear and convincing evidence that teacher engaged in an inappropriate relationship with student.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 10 - 10687PL

)

RANDALL WORLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on April 6, 2011, in Inverness, Florida, before W. David

Watkins, a duly - designated Administrative Law Judge of the

F lorida Division of Administrative Hearings.

APPEARANCE

For Pe titioner: Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154

For Respondent: Anthony D. Demma, Esquire

Meyer and Brooks, P.A.

Post Office Box 1547

Tallahassee, Florida 32302

STATEMENT OF THE ISS UES

The issues in this case are whether Respondent violated

s ubsections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j),

Florida Statutes 1 / , and Florida Administrative Code Rules 6B -

1.006(3)(a) ,(e),(h) and (5)(a), and if so, what discipline

should be imposed.

PRELIMINARY STATEMENT

On October 18, 2010, Petitioner, Dr. Eric J. Smith, issued

an Administrative Complaint against Respondent, Randall Worley

(ÐRespondentÑ ) , seeking to impose certain s anctions. Respondent

timely filed an Election of Rights form requesting a formal

administrative hearing.

The Administrative Complaint and Election of Rights form

were forwarded to the Division of Administrative Hearings

(ÐDOAHÑ) on December 16, 2010. On February 11, 2011, Petitioner

filed a motion to amend the Administrative Complaint. The

motion was granted.

At the final hearing, Petitioner called six witnesses:

Tammy Everhart, Thomas Tobin, David Roland, Teresa Royal, Sandra

Himmel, and Christina Me sser. Petitioner's Exhibits 1 through

10 were admitted into evidence.

Respondent called one witnesses: Shannon Justice.

RespondentÓs Exhibit 1 was admitted into evidence.

The parties advised the undersigned that a transcript would

be ordered of the f inal hearing. Upon request, the parties were

given 20 days from the date the transcript was filed at DOAH to

submit proposed recommended orders. The transcript was filed at

DOAH on April 21, 2011. On April 27, 2011, Respondent filed an

unopposed motion to extend until May 24, 2011, the time for the

parties to file their proposed recommended orders. That motion

was granted. On May 24, 2011, both parties timely submitted

Proposed Recommended Orders, which have been given due

consideration in the preparat ion of this Recommended Order.

FINDINGS OF FACT

Background

1 . Respondent holds Florida EducatorÓs Certificate 940141,

covering the area of Middle Grades Integrated Curriculum, which

was valid through June 30, 2013.

2 . At all times pertinent to the allegations in the

Amended Administrative Complaint in this case, Respondent was

employed as a Mathematics Teacher at Citrus High School (ÐCHSÑ)

in the Citrus County School District ("District") .

3 . Respondent worked as a teacher at CHS from

approximatel y 2005 until his resignation in 2009 . The

allegations in the Amended Administrative Complaint revolve

around Respondent's relationship with Jillian Messer

( " Ms. MesserÑ) , who graduated from CHS in June 2009. Respondent

was Ms. MesserÓs math teacher in he r freshman year, but did not

teach her in any subsequent years. Ms. Messer turned 18 years

old on April 17, 2009 , approximately six weeks prior to her

graduation .

4 . Beginn ing in March 2009, Respondent , who has custody of

his two young sons, needed a n occasional babysitter to

accommodate his out - of - town football coaching duties. He sought

a recommendation from a co - worker, Shannon Justice

("Ms. Justice") , a guidance clerk at CHS at the time, about a

babysitter he might use. Ms. Justice, who used Ms. M esser as a

babysitter for her daughter, checked with Ms. Messer to see if

she would be amenable to sitting for Respondent Ós children from

time to time. Ms. Messer informed Ms. Justice that Respondent

could contact her to set up sitting arrangements.

5 . Between March, 2009 and May, 2009, Ms. Messer babysat

Respondent Ós two boys on approximately five occasions.

Ms. Messer continued to provide babysitting services to

Ms. Justice during the spring of 2009 as well.

6 . Ms. MesserÓs last day of testing a s a CHS senior was on

Friday, May 29, 2009, and her last day of classes was June 1,

2009. However, notwithstanding the completion of exams and

classes, Ms. Messer remained a CHS student until she received

her dipl oma from the District superintendent of s c hools and was

declared a graduate on the evening of June 2, 2009.

Genesis of the Complaint

7 . Tammy Everhart ("Ms. Everhart") was a g uidance o ffice

colleague of Ms. JusticeÓs during the 2008 - 2009 school year.

The two women were cordial in the workplace, but were not close

friends. Ms. Justice became wary of Ms. Everhart during the

2008 - 2009 school year because she often found her too interested

in the personal lives of her colleagues.

8 . In May, 2009, a week before the CHS graduation

ceremony, Ms. Jus tice allegedly told Ms. Everhart that

Respondent and Ms. Messer were Ðseeing each otherÑ and Ðdating

outside the county.Ñ According to Ms. Everhart, Ms. Justice

also told her that the relationship between Respondent and

Ms. Messer was "O.K." because Ms. M esser was 18 years old and

Ðshe (Ms. Messer) planned on remaining a virgin.Ñ Ms. Everhart

asked Ms. Justice to report this information to the school

administration. There is no indication that Ms. Justice did so.

9 . About two weeks later, Ms. Everhart told her husband

about her conversation with Ms. Justice regarding Respondent and

Ms. Messer . Ms. EverhartÓs husband is a District school

administrator and was aware th at an y inappropriate relationship

between a teacher and a student must be reported to a school

district administrator. On the following school day,

Ms. Everhart reported her concerns to Assistant Principal Linda

Connors, who then reported it to the school p rincipal, Leigh A nn

Bradshaw. Principal Bradshaw contacted the D istrict office and

a n investigation was then initiated by the Superintendent.

1 0 . At hearing, Ms. Justice denied having spoken to

Ms. Everhart about Respondent Ós dating or planning to date

Ms. Messer. Ms. Justice and Respondent had spoken at times

during the spring of 2009 about his dating relationship with a

woman from the Clearwater area, and it is possible Ms. Everhart

overheard some parts of those conversations and mistakenly

assumed it was Ms. Messer whom Respondent was dating away from

Inverness.

The District's Invest igation

1 1 . At a preliminary interview conducted in the early

afternoon of June 17, 2009, Respondent was questioned by the

DistrictÓs Director of Human Resources, David Roland, and Policy

Compliance Officer, Teresa Royal. The interview concerned

whether or not Respondent was involved in a romantic

relationship with Ms. Messer, and whether he had communicated

with others about such a relationship. There was no record of

the precise questions asked during the interview, or of

Respondent Ós precise answers. During this intervi ew, Respon dent

told the investigators that he had spoken with Ms. Messer five

or six times, and that those conversations related to Ms. Messer

babysitting his children. During the course of this interview

Respondent acknowledged that Ms. Justice had sent him some

pictures of her daughter's birthday party, and that Ms. Messer

may have been in one of the pictures. He added that the

pictures were of kids in the pool and other group pictures.

1 2 . Toward the end of the June 17th intervi ew, Respondent

confirmed the existence of e - mails between him and Ms. Justice

that included references to the possibility of Respondent

developing a dating relationship with Ms. Messer after she

graduated. Respondent was not presented or confronted with

t hose e - mails during the June 17th meeting. Although there is

some evidence that Respondent did not initially acknowledge the

existence of the e - mails when asked about them, it does not

appear that he attempted to hide the existence of the e - mails

between him and Ms. Justice.

1 3 . During the initial interview of June 17, 2009, and

again in written form during a second interview held later that

same afternoon, Mr. Roland and/or Ms. Royal cautioned Respondent

against communicating with others about the subje ct matter of

the investigation ; however, he was not prohibited from speaking

with Ms. M esser or Ms. Justice about unrelated matters. The

" Notice of Investigation " memorandum Respondent signed during

the second interview that afternoon specifically prohibi ts only

discussions Ðregarding the matter under investigation.Ñ

1 4 . Ms. Royal also interviewed Ms. Messer on June 17,

2009. During that interview Ms. Messer denied that there was an

inappropriate relationship with Respondent.

The Pool Party and Phot ograph of Messer

1 5 . On Sunday, May 31, 2009, Ms. Justice invited 45 - 50

people to her home for a pool party to celebrate her daughterÓs

birthday. Respondent , his children, several other children,

Ms. Messer, and many adult friends and CHS work colleague s

attended this afternoon party. Ms. Messer was invited both

because Ms. JusticeÓs daughter adored her babysitter, and to

assist Ms. Justice before and after the party. Ms. Messer

arrived at , and left , the party alone.

1 6 . Most of the guests wo re swims uits during the pool

party and Ms. Justice took pictures o f children, including

Respondent Ós sons, and some of the adult guests, including

Ms. Messer, who was wearing a bikini. On June 2, 2009,

Ms. Justice forwarded several party pictures, mostly of his

s ons, to Respondent Ós school e - mail address as attachments to an

e - mail with the subject line ÐPictures from Party.Ñ One of

these photographs was of Ms. Messer in the bikini she wore

during the pool party. Although Ms. Messer is clad in a bikini,

the phot ograph itself is unremarkable, and portrays a young

fem ale appropriately attired for a pool party . Other children

are visible in the background of the photo.

The E - Mails between Respondent and Justice

17 . Between June 1, 2009 , and June 5, 2009, Responde nt and

Ms. Justice exchanged a s eries of e - mails that included subject

matter related to the possibility that he and Ms. Messer might

consider starting a dating relationship in the future. In an e -

mail dated June 2, 2009, Ms. Justice specifically noted th at

Respondent and Ms. Messer had not yet had enough time to spend

together to have discussed the possibility of future dating:

Sent= Tues. 6/2/09 @ 1:00pm

To: Randall Worley

From : Shann o n Justice

Ok. I am back you sound so negative

about yourself . I know that we are always

so hard on ourselves but you are not

destined for singlehood you will find

someone someday and don't think JM is out of

the question you haven't ever had enough

time to be with her or even discuss dating.

1 8 . Two days later, o n June 4, 2009, a series of e - mails

between Respondent and Ms. Justice indicate that Respondent and

Ms. Messer had recently discussed the possibility of a future

dating relationship. T his is the first time Respondent

mentioned to Ms. Justice having spok en to Ms. Messer at all

about datin g, and the first time Respondent and Ms. Messer

discussed the possibility of dating in the future. The full

text of those June 4, 2009, e - mails follows:

Sent = Thurs. 6/4/09 @ 8:44 am

To = Shannon Justice

From = Randall Worley

So yeah I have been talking to JM lately.

She is not sure what parents would say.

* * *

Sent = Thurs. 6/4/09 @ 8:48 am

To = Randall Worley

From = Shannon Justice

Have you been texting or talking. So she is

definitely interested??? I donÓt thi nk her

parents would actually mind I think maybe

you all should date a while then find out

where that leads before talking about

parents. That is just from experience. We

dated almost 4 months before my parents ever

knew. Then they never met KevinÓs par ents

till our rehearsal dinner.

* * *

Sent = Thurs. 6/4/09 @ 8:55 am

To = Shannon Justice

From = Randall Worley

As far as she goes, yes she is interested.

But I donÓt think she wants to not tell

them. It would be hard for us to date

without them knowi ng wouldnÓt it? And funny

story, I apparently had her mom in my car

graduation night and didnÓt know it. Well

yesterday her mom was talking to the family

about how this nice sweet guy was her driver

and that I was pretty cute. So she was like

thatÓs coa ch Worley. ThatÓs funny. And we

have been doing both texting and talking.

* * *

Sent = Thurs. 6/4/09 @ 9:26 am

To = Randall Worley

From = Shannon Justice

As far as JM my opinion is go for it. You

guys have similar thing in common and plenty

to talk ab out with regards to her parents

you can play it off. It isnÓt that hard you

guys can really do it if you want. That is

funny about her mom thinking you were cute

buy (but?) cuteness only goes so far

right???

* * *

Sent = Thurs. 6/4/09 @ 9:32 am

To = Sha nnon Justice

From = Randall Worley

AinÓt that the truth. And yes we never have

enough to talk about. We are always talking

and laughing and all that. We have fun

together. I talked to my mom and uncle

about it last night. They were totally cool

with it too. I think JM just need some

reassurance about it. That where maybe you

come into play right.

* * *

Sent = Thurs. 6/4/09 @ 9:43 am

To = Randall Worley

From = Shannon Justice

Of course I have always talked good about

you to her. I will keep it up . I think she

may babysit sometime next week she is

suppose to call me tonight about watching

sissy next week. I will help the most I can

so do you still have her on your mind all

the time?

* * *

Sent = Thurs. 6/4/09 @ 9:46 am

To = Shannon Justice

From = Randall Worley

As a matter of fact I do. It is crazy. It

has been 2 years since I have been with

anyone and even the few girls that I have

dated I didnÓt think about like this. I

donÓt know if this is good or not??

* * *

Sent = Thurs. 6/4/09 @ 10: 44 am

To = Randall Worley

From = Shannon Justice

Well maybe she is special to you and you may

have feelings for her that you didnÓt know

you did. It may be a really great thing for

the both of you.

* * *

Sent = Thurs. 6/4/09 @ 10:51 am

To = Shannon Ju stice

From = Randall Worley

Seriously. I canÓt get her out of my head.

I donÓt think that I have really felt like

this in a very very very very long time. It

is scary because of the feeling itself but

also because of the circumstance. I donÓt

really k now if I should feel this way?

* * *

Sent = Thurs. 6/4/09 @ 11:49 am

To = Randall Worley

From = Shannon Justice

You are crazy for her. That is good.

* * *

Sent = Thurs. 6/4/09 @ 2:26 pm

To = Shannon Justice

From = Randall Worley

No kidding. This is soooooooo not good. I

donÓt like this feeling at all.

* * *

Sent = Thurs. 6/4/09 @ 2:29 pm

To = Randall Worley

From = Shannon Justice

Have you talked to her today?

* * *

Sent = Thurs. 6/4/09 @ 2:43 pm

To = Shannon Justice

From = Randall Worley

Yes I have. We should probably talk when

you get a chance. So call me sometime.

When you leaving work?

Telephone Records of Calls between Respondent and Messer

19 . Telephone records received in evidence (over the

hearsay objection of Respondent) 2 / indicate that there were 89

telephonic communications between Respondent and Ms. Messer

between March 3, 2009 and June 18 , 2009. The records also

reflect that phone conversations did take place between

Respondent and Ms. Messer on June 17, 2009. However, there i s

no evidence as to the subject matter of those communications,

nor credible evidence that they spoke about anything related to

the investigation.

20 . Another interview with Respondent was conducted by

Ms. Royal on July 8, 2009. At that time Respondent a gain

acknowledged having received the e - mailed photograph of

Ms. Messer in a bikini.

Publicity Regarding the Investigation

21 . The only area newspaper article written about the

allegations against Respondent appeared on August 19, 2009, in

the Citrus Cou nty Chronicle. The impetus for the article

appears to be the filing of the formal complaint against

Respondent, and his subsequent resignation. The article did not

name Ms. Messer as an involved party, but included her anonymous

statement to the effect t hat nothing unprofessional happened

between her and Respondent , and quoted District officials to the

effect that there was no evidence of sexual harassment or of

Respondent expressing his feelings to the student. At hearing,

Superintendent Himmel testifie d about the generic impact of

negative teacher articles upon some in the community. On cross -

examination , Ms. Himmel did not rule out re - hiring Respondent as

a teacher if he is cleared of wrongdoing in this matter.

Lack of Di rect Evidence of a Relationshi p

22 . During the DistrictÓs interviews with him, to the

extent Respondent Ós recollection of the number, duration, and

subject matter of every phone conversation he had with

Ms. Messer between March and June 2009 , was limited or

inaccurate, such limitatio ns reasonably appear to be the result

of the passage of time, and not purposeful deception. There is

no evidence that Respondent and Ms. Messer ever discussed

dating, or any inappropriate subject, during any telephone,

text, or in - person communications be tween them while she was a

student.

23 . Although Respondent and Ms. Messer spoke on the phone

from time to time about babysitting concerns and logistics, and

apparently on other occasions about Ms. MesserÓs college

aspirations, scholarship opportuni ties, college selection, and

related matters, there is no direct evidence of what they

specifically spoke about. At hearing, no witness testified to

having personal knowledge of such conversations, and both

Respondent and Ms. Messer denied to District off icials that they

ever engaged in any discussions about dating or about any

inappropriate matters prior to her June 2, 2009, graduation

date.

24 . Although Ms. Messer and Respondent occasionally saw

each other outside the school setting through babysittin g -

related inte ractions, the record lacks any credible evidence

that they ever dated or engaged in any inappropriate physical

contact. Further, Respondent , Ms. Messer, and Shannon Justice,

all have specifically and consistently denied that there was any

ph ysical, romantic, dating, or sexual relationship between

Respondent and Ms. Messer at any time.

25 . Although the telephone records introduced by

Petitioner establish that Respondent and Ms. Messer spoke

frequently, there is insufficient competent substan tial evidence

to establish that the subject matter of the conversations was

inappropriate, or that the two were involved in a prohibited

teacher/student relationship prior to Ms. Messer's graduation on

June 2, 2009. 3 /

2 6 . By letter dated July 28, 2009, R espondent was informed

of his suspension from employment with the District, and that

his termination would be recommended to the school board.

Respondent resigned his teaching position with the District

effective August 11, 2009.

CONCLUSIONS OF LAW

2 7 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2010).

2 8 . This disciplinary action is a penal proceeding in

which Petitioner seeks to permanently revoke RespondentÓs

teaching certificate. Petitioner bears the burden of proof to

demonstrate the allegations in the Amended Administrative

Complaint by clear and convincing evidence. Dep Ó t of Banking &

Fin . v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris

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

2 9 . As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly re membered; the testimony

must be precise and lacking in confusion as

to the facts in issue. The evidence must be

of such a weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the alleg ations sought to be

established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 429 So. 797, 800 (Fla. 4th DCA 1983).

30 . Subsection 1012.795(1), Florida Statutes, provides:

(1) The Education Practices Commission may

suspend the educator certificate of any

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

a period of time not to exceed 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 a

period of time not to exceed 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator cer tificate 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 order

of the court , of any person found to have a

delinquent child support obligation; or may

impose any other penalty provided by law,

provided it can be shown that the person:

* * *

(d) Has been guilty of gross immorality or

an act involving moral turpitude as defined

b y rule of the State Board of Education .

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

* * *

31 . Section 1012.795, Flori da Statutes, does not define

Ðgross immor alityÑ and Ðmoral turpitude.Ñ Instructive in

defining the terms "immorality" and "moral turpitude" in

s ubsection 1012.795(1)(c) are the rules relating to disciplinary

actions which may be taken by school districts. Florida

Administrative Code Rules 6B - 4. 009(2) and 6B - 4.009(6) provide:

(2) 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 pu blic disgrace or

disrespect and impair the individual's

service in the community.

* * *

(6) Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and social duties,

which, according to the accepted stan dards

of the time a man owes to his or her fellow

man or to society in general, and the doing

of the act itself and not its prohibition by

statute fixes the moral turpitude.

32 . Florida Administrative Code Rule 6B - 1.006 provides:

(1) The following di sciplinary 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 educatorÓs

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 studentÓs mental

and/or physical health an d/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.

5) Obligation to the profession of education

requires that th e individual:

a) Shall maintain honesty in all

professional dealings.

3 3 . The Amended Administrative Complaint alleges that the

RespondentÓs conduct violated s ubsection 1012.795(1)(d),(g) and

(j), Florida Statutes, and Florida Administrative Code Rule 6B -

1.006(3)(a),(e),(h) and (5)(a) cited above . The factual

allegations in the Amended Administrative Complaint include the

following:

Material Allegations

3. During March 2009 and continuing for the

remainder of the school year, Respondent

engaged in appr opriate conduct with J.M., an

eighteen - year - old female student, in that he

and J.M. began a romantic relationship prior

to her graduation from the school where

Respondent was employed.

4. On June 17, 2009, and July 9, 2009,

during preliminary and officia l interviews

by the Citrus County School District,

Respondent stated that he and J.M. spoke

with each other five or six times.

Telephone records show that between March 8,

2009, and June 18, 2009, Respondent and J.M.

had a total of 89 phone conversations

totaling over 15 hours.

5. During interviews with Respondent by the

Citrus County School District, respondent

stated on two separate occasions that he had

never dated or discussed dating J.M.. Email

records show that Respondent and a coworker

exchanged emails in which Respondent

expressed interest in dating J.M.

6. On June 17, 2009, Respondent was given a

written directive not to contact J.M..

Respondent contacted J.M. after the

directive was issued to him.

7. Respondent and J.M. exchanged over 80

t elephone calls/text messages between March

3, 2009, and June 18, 2009. Account

information indicates that the calls varied

in length from one to 96 minutes and

occurred during the day, night, and early

morning hours, totaling over 15 hours.

8. As a resu lt of a school district

investigation in to allegations of

inappropriate conduct which found probable

cause, Respondent was suspended without pay

and recommended for ter mination. Respondent

resigned h is position effective August 11,

2009.

9. The school districtÓs investigation and

RespondentÓs subsequent resignation were

reported in the local media.

3 4 . The Amended Administrative Complaint alleges the

following seven statutory and rule violations:

STATUTE VIOLATIONS

COUNT 1: The Respondent is in vi olation of

section 1012.795(1) (d), Florida Statutes,

in that Respondent has been guilty of gross

immorality or an act involving moral

turpitude as defined by rule of the State

Board of Education.

C OUNT 2: The Respondent is in violation of

section 101 2.795(1)(g), Florida Statutes, in

that Respondent has been found guilty of

personal conduct which seriously reduces his

effectiveness as an employee of the school

board.

C OUNT 3: The Respondent is in violation of

section 1012.795(1)(j), Florida Statute s, in

that Respondent has violated the Principles

of Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

RULE VIOLATIONS

C OUNT 4: The allegations of misconduct set

forth herein are in violation of Rule 6B -

1.00 6(3)(a), Florida Administrative Code, in

that Respondent has failed to make

reasonable effort to protect the student

from conditions harmful to learning and/or

to the studentÓs mental health and/or

physical health and/or safety.

COUNT 5: The allegations of misconduct set

forth herein are in violation of Rule 6B -

1.006(3)(e), Florida Administrative Code, in

that Respondent has intentionally exposed a

student to unnecessary embarrassment or

disparagement.

COUNT 6 : The allegations of misconduct set

forth he rein are in violation of Rule 6B -

1.006(3)(h), Florida Administrative Code, in

that Respondent has exploited a relationship

with a student for personal gain or

advantage.

COUNT 7: The allegations of misconduct set

forth herein are in violation of Rule 6B -

1.006(5)(a), Florida Administrative Code, in

that Respondent has failed to maintain

honesty in all professional dealings.

3 5 . Counts 1 through 6 hinge upon the existence of an

inappropriate teacher/student relationship prior to Ms. MesserÓs

graduation on June 2, 2009. Petitioner argues that an

inappropriate romantic relationship should be inferred based

upon the substance of the emails exchanged between Respondent

and Ms. Justice from June 1, 2009, through June 5, 2009, as well

as from the phone recor ds showing numerous telephone

conversations between Respondent and Ms. Messer between March

and June 2009.

3 6 . The facts of this case do not support the inference

urged by Petitioner. To the contrary, Petitioner has failed to

establish by a preponderanc e of the evidence, much less clear

and convincing evidence, that an inappropriate relationship

existed between Respondent and Ms. Messer while she was a

student at CHS.

3 7 . Petitioner presented no non - hearsay testimony or

persuasive documentary evidence of an improper relationship of

any kind between Respondent and Ms. Messer . And although

neither Respondent nor Ms. Messer testified at hearing,

throughout PetitionerÓs investigation both parties consistently

denied the existence of a physical relationship , a dating

relationship, or of any romantic communications or overtures

during Ms. Messer's tenure as a CHS student .

3 8 . The CHS employee that brought the alleged relationship

to the atte ntion of school officials, Ms. Everhart , ha d no

personal knowled ge of an actual romantic relationshi p between

Respondent and Ms. Messer. Rather, Ms. Everhart claim ed only

that Ms. Justice told he r in late May , 2009 that such a

relationship existed . At hearing, Ms. Justice denie d making

such a statement , and further d enie d that she was even aware of

any consideration of a dating relationship as of the time

Everhart says she (Justice) told her Respondent and Ms. Messer

had been dating outside of Inverness. Further, Ms. Justice

plausibly explained that Ms. Everhart may have overheard and

misunderstood her discussions with Respondent , undoubtedly the

result of Ms. Everhart hearing only Ms. JusticeÓs side of the

phone conversation .

3 9 . The telephone records presented as evidence of a

romantic relationship create nothing more than a basis for

speculation about inappropriate things Respondent and Ms. Messer

might have discussed . H owever, since the record is wholly

devoid of evidence of what Respondent and Ms. Messer actually

talked about during any call, such concerns are both

uncorroborated and inadequate to support a finding of an

improper relationship under the clear and convincing evidentiary

burden of proof. 4 /

40 . As to the e - mail communications between Respondent and

Ms. Justice ( that for the first time made menti on of the

possibility of a future dating relationship after Ms. MesserÓs

graduation) , Ms. Messer was not a party to those e - m ails. More

importantly, Ms. Messer was, by any account, a graduate prior to

any discussion about th e possibil ity of a dating relat ionship as

reflected in the e - mails. There is no competent substantial

evidence that Respondent and Ms. Messer had previously either

broached the subject of dating , or actually dated , prior to

June 2, 2009. Moreover , t his record does not include evidence

of any actual dating or sexual relationship after June 3, 2009,

the existence of which might support an inference that dating

was discussed before June 2 , 2009, and that a pre - graduation

decision had been made to date after Ms. Messer graduated.

41 . In sum, this record fails to contain clear and

convincing evidence that Respondent engaged in any prohibited

conduct involving Ms. Messer or any other student. Accordingly,

Petitioner has failed to carry its burden of proof with respect

to Counts 1 through 6 of the Amended Administrative Complaint. 5 /

42 . Count 7 charges that Respondent failed to honest l y

respond to the DistrictÓs questions during the investigative

interviews conducted on June 17, 2009. Specifically, at hearing

Policy Compliance Officer Ro yal testified that Respondent did

not accurately i dentify the number of phone conversation s he had

with Ms. Messer between March 2009 , and June 2009, and that he

did not adequately explain to her what he and Ms. Messer talked

about during some of their ext ended phone calls .

4 3 . While investigators may often be suspicious when they

feel they are not receiving the full cooperation of an

interviewee, it is not surprising that Respondent w ould have had

less than total recall of particular phone conversations with

Ms. Messer in March, April, and May 2009 . By the time the

interviews took place in June, several months had passed , and

the young teacher was undoubtedly nervous in the face of his

employerÓs inquisition . There is, additionally, a significant

diffe rence between being a bit tight - lip ped in the face of a

suspicious inquir y , and providing a ffirmatively false

information. The phone records introduced at hearing were not

provided to Respondent during his interviews of June 17, 2009.

As such, his imprec ise and inaccurate recollection about phone

communications with Ms. Messer over a period of 3 - 4 months (in

the absence of records to help jog his memory ) is inadequate to

clearly and convincingly support a finding of intentional

dishonesty.

4 4 . The other aspect of the charge of failure to maintain

honesty in all professional dealings centers on commu nications

Respondent and Ms. Messer had on June 17 , 2009, as reflected in

the telephone records. Petitioner asserts that Respondent

contacted Ms. Messer (pres umably to discuss the investigation)

after being given a directive not to contact her.

4 5 . The Notice of Investigation provided to Respondent on

June 17, 2009 , stated:

Ð You are directed not to engage the

complainant, or any student witness, or any

other witness, and/or peers in any

conversation regarding the matter under

investigation .Ñ

( e mphasis added) .

46 . Mr. Roland, who was present at both of the interviews

on June 17 , 2009, testified that although he did not

specifically recall the words spoken to Respondent in this

regard, his best recollection was that the statement prohibited

talking to any individuals about the investigation or its

substance, rather than totally prohibiting all contact with

Ms. Messer or Ms. Justice about unrelated subjects. T he re is no

evidence in this record as to what Respondent and Ms. Messer

talked about on June 17, 2009. While it may have been poor

judgment on RespondentÓs part to communicate at all with

Ms. Messer during the pendency of the investigation, there is no

factual basis to conclude that the directive not to discuss the

Ðmatter under investigationÑ was violated by Respondent.

47 . Petitioner has failed to prove the statutory and rule

violations alleged in the Amended Administrative Complaint by

clear and con vincing evidence. To the contrary, the allegations

brought against respondent were based upon uncorroborated

hearsay, speculation, surmise and suspicion, and therefore

cannot be sustained. 6 / Tenbroeck v. Castor , 640 So. 2d 164, 167

(Fla. 1st DCA 1994).

W HEREFORE, it is recommended that a Final Order be entered

dismissing the Amended Administrative Complaint.

DONE AND ENTERED this 26th day of July , 2011 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administra tive Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

th is 26th day of July , 2011 .

ENDNOTES

1 / All statutory references in this Recommended Order are to the

2008 version of the Florida Statutes in effect at the time of

the alleged violations, with the exceptio n of the jurisdictional

reference contained in the Conclusions of Law.

2 / Section 120.57(1), Florida Statu t es (2010), provides in

relevant part:

(c) Hearsay evidence may be used for the

purpose of supplementing or explaining other

evidence, but it shall not be sufficient in

itself to support a finding unless it would

be admissible over objection in civil

actions.

Although hearsay, the telephone reco rds at issue were

admitted in evidence for the potential purpose of supplementing

or explaining other evidence. Notwithstanding their limited

probative value, they were nevertheless considered in the

totality of Petitioner's evidence inviting an inference of an

inappropriate relationship.

3 / According to the testimony of Christina Messer, Jillian's

mother, the two enjoy a very close relationship. However,

throughout this ordeal Jillian has continued to assure her

mother that she and Mr. Worley did not h ave an inappropriate

relationship.

4 / A review of the telephone records reflects that the vast

majority of the calls were initiated by Ms. Messer, not by

Respondent.

5 / With respect to Count 2, Petitioner argues that RespondentÓs

effectiveness as a teac her was compromised by the August 2009,

newspaper article reporting on the DistrictÓs investigation of

the alleged relationship. While RespondentÓs effectiveness as a

teacher may well have been compromised by the article, it was

not RespondentÓs conduct w hich led to the article, but rather

the DistrictÓs investigation of allegations against Respondent

which ultimately were not proven.

6 / Fac et aliquid operis, ut s e mper te diabolus inveniat

occupatum.

~St. Jerome, Letters

COPIES FURNISHED :

Anthony D. De mma, Esquire

Meyer, Brooks, Demma and Blohm, P.A.

Post Office Box 1547

Tallahassee, Florida 32302

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallah assee, Florida 32399 - 0400

Lois Tepper, Interim Gen eral Co unsel

Department of Education

Turlington Building, Suite 224 - E

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.