11-001774PL Dr. Eric J. Smith, As Commissioner Of Education vs. Kenneth Griffin Status: Closed Recommended Order on Thursday, September 8, 2011.

Summary: Inappropriate online conversation between teacher and student warrants revocation of license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS ) )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

vs. ) Case No. 11-1774PL

)

KENNETH GRIFFIN, )

)

Respondent. )

)

RECOMMENDED ORDER

On June 13, 2011, a formal administrative hearing was

conducted by video teleconference in Tallahassee and Tampa,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

204 37th Avenue, Suite 190

St. Petersburg, Florida 33704

For Respondent: Emily Moore, Esquire

Florida Education Association

300 East Park Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues in this case are whether the allegations set

forth in the Administrative Complaint filed by the Petitioner,

Dr. Eric J. Smith, as Commissioner of Education, against the

Respondent, Kenneth Griffin, are correct, and, if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

By an Administrative Complaint dated July 12, 2010, the

Petitioner alleged that during January 2010, the Respondent

conducted an inappropriate online conversation with a student.

The Respondent denied the allegation and requested a formal

administrative hearing. The Petitioner forwarded the dispute to

the Division of Administrative Hearings, which scheduled and

conducted the proceeding.

At the hearing, the Petitioner presented the testimony of

seven witnesses and had Exhibits 1, 2, and 4 through 7 admitted

into evidence. The Respondent testified on his own behalf,

presented the testimony of four witnesses, and had Exhibits

identified as A, B, F, and G admitted into evidence. A Pre-

hearing Stipulation filed by the parties was admitted as

Administrative Law Judge's Exhibit 1.

A Transcript of the hearing was filed on July 21, 2011.

Both parties filed Proposed Recommended Orders that have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, the Respondent held

Florida Educator's Certificate No. 963010, covering the areas of

educational leadership, middle grades integrated curriculum,

reading, and exceptional student education, valid through

June 30, 2012.

2. At all times material to this case, the Respondent was

employed as a reading teacher at Plant City High School (PCHS),

a unit of the Hillsborough County School District.

3. On January 28, 2010, the Respondent engaged in an

online conversation ("chat") on the "MySpace" social networking

Internet site, with a 15-year-old high school student. At the

time of the chat, the student was enrolled at another unit of

the Hillsborough County School District.

4. The Respondent and student were acquainted because the

student had previously been enrolled at PCHS and had

participated in the PCHS cross-country track team, and the

Respondent had been the team's coach.

5. During the chat with the student, the Respondent made

reference to the student's physical appearance, to masturbation

and the size of the student's penis, and to the student's

girlfriend.

6. According to the log of the chat, the Respondent

directed the student to clear the chat screen when the chat was

completed.

7. The student's mother was able to monitor her son's

online activities from her computer. After the chat was

completed, the student's mother reviewed the interaction between

her son and the Respondent and printed the chat log screens.

She immediately sent a MySpace message to the Respondent and

voiced her displeasure with the nature of the interaction, but

said she was not contacting school officials because she was

concerned about her son being "humiliated" by the interaction.

She told the Respondent to "leave my son alone!"

8. Upon his return from a social event later that evening,

the Respondent received the mother's message. Shortly before

1:00 a.m., on January 29, 2010, the Respondent sent an email to

the PCHS principal advising that he had received a message from

an upset parent related to his chat with the student. He wrote

"this has happened in the past, and I have changed my password a

few times but hackers continue to hack my account." The

Respondent denied that there had been anything "out of line"

about the chat with the student.

9. A few hours later, the Respondent came to the PCHS

principal's office upon his own volition and again advised the

principal that a parent was upset about the chat, but, at that

time, the Respondent claimed that the chat had actually been

conducted between the student and an acquaintance of the

Respondent.

10. The principal contacted a Hillsborough County School

Board (School Board) official and advised of the situation. The

School Board initiated a review of the matter and obtained the

printed chat logs from the student's mother.

11. On February 1, 2010, after meeting with School Board

investigators, the Respondent resigned from his employment with

the Hillsborough County School District. The Respondent

asserted that he resigned because he was advised that the matter

would become public if the School Board initiated disciplinary

action and that he was further advised that he could resume his

teaching career elsewhere.

12. The Respondent has acknowledged conducting a chat with

the student, but has denied participating in any impropriety

during the chat. The Respondent has asserted that an individual

known only as "R.J." was in the Respondent's apartment and using

the Respondent's computer during the time of the chat.

According to the Respondent, the Respondent ran into R.J. who

was hanging around the common area at the Respondent's apartment

complex. The Respondent asserted that R.J. asked to use the

Respondent's computer, that the Respondent allowed R.J. into the

Respondent's apartment, and that the Respondent left R.J. at the

computer while the Respondent went into his bedroom to dress for

a social event. The Respondent testified that the student

thereafter initiated the chat, that R.J. relayed the student's

messages to the Respondent, and that the Respondent dictated

responses to R.J. According to the Respondent, R.J. embellished

the Respondent's dictated responses with the inappropriate

remarks, unbeknownst to the Respondent.

13. There is no credible evidence that anyone other than

the Respondent participated in the chat with the student.

14. The nature of the chat was a matter of embarrassment

for the student. At the hearing, the student testified that he

previously regarded the Respondent as a mentor and that he felt

"betrayed" by the chat. The student's father testified that he

no longer trusted, and was uncomfortable with, the Respondent

after the chat occurred.

15. Officials from PCHS and the Respondent testified that

the incident caused a loss of trust in the Respondent. The PCHS

principal testified that the inappropriate interaction with the

student caused her to doubt the Respondent's judgment, and she

observed that such incidents damage the reputation of the school

and cause a general loss of respect for the school and for other

teachers.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 & 120.57(1), Fla. Stat. (2010). 1/

17. In this case, the Petitioner is seeking to revoke the

Respondent's teaching certification. License revocations are

penal in nature. The Petitioner must demonstrate the

truthfulness of the allegations in the Administrative Complaint

by clear and convincing evidence. Dep't of Banking & Fin. v.

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

Turlington , 510 So. 2d 292 (Fla. 1987). In order to be "clear

and convincing," the evidence must be "of such 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

allegations sought to be established." See Slomowitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983). In this case, the

burden has been met. The evidence clearly and convincingly

established that the Respondent participated in the chat

referenced herein. The Respondent's testimony that another

person was responsible for the inappropriate portions of the

chat was not supported by credible evidence and has been

rejected.

18. Section 1012.795(1), Florida Statutes, provides in

relevant part as follows:

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.

19. The terms "gross immorality" and "an act involving

moral turpitude" are not defined in chapter 1012. Florida

Administrative Code Rule 6B-4.009, which applies to dismissal

actions initiated by school boards against instructional

personnel, provides guidance as to the meaning of the terms as

they are used in section 1012.795. Castor v. Lawless , Case

No. 91-5289, 1992 Fla. Div. Admin. Hear. LEXIS 6107 (Fla. DOAH

Feb. 13, 1992).

20. "Immorality" is defined by rule 6B-4.009(2) 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

disrespect and impair the individual's

service in the community.

21. "Gross immorality" has been described as misconduct

that is more egregious than mere "immorality." As stated in

Brogan v. Mansfield , Case No. 96-0286, 1996 Fla. Div. Admin.

Hear. LEXIS 3500 (Fla. DOAH Aug. 1, 1996):

The term "gross" in conjunction with

"immorality" has heretofore been found to

mean "immorality which involves an act of

misconduct that is serious, rather than

minor in nature, and which constitutes a

flagrant disregard of proper moral

standards." Education Practices Commission

v. Knox , 3 FALR 1373-A (Department of

Education 1981).

22. "Moral turpitude" is defined by rule 6B-4.009(6) as

follows:

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 standards 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.

23. Moral turpitude has also been defined as anything done

contrary to justice, honesty, principle or good morals, though

it often involves the question of intent as when unintentionally

committed through error of judgment when wrong was not

contemplated. State ex rel. Tullidge v. Hollingsworth , 108 Fla.

607, 146 So. 660 (1933).

24. In determining whether any teacher is guilty of gross

immorality or an act involving moral turpitude, it must be

remembered that "[b]y virtue of their leadership capacity,

teachers are traditionally held to a high moral standard in a

community." Adams v. Prof'l Practices Council , 406 So. 2d 1170,

1171 (Fla. 1st DCA 1981).

25. The Respondent's online conversation with a student on

January 28, 2010, was an act of serious misconduct and a

flagrant breach of proper moral standards and, therefore,

constituted an act of gross immorality. The conversation also

was contrary to good morals and, therefore, constituted an act

of moral turpitude. Accordingly, the Respondent has violated

section 1012.795(1)(d).

26. The evidence establishes that the Respondent's chat

with the student seriously reduced his effectiveness as an

employee of the Hillsborough County School District. School

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officials lost confidence and trust in the Respondent because of

the chat. Accordingly, the Respondent has violated section

1012.795(1)(g).

27. The Petitioner has charged that the Respondent

violated the Principles of Professional Conduct for the

Education Profession as prescribed by State Board of Education

rules. Such principles are set forth at Florida Administrative

Code Rule 6B-1.006, which provides in relevant part as follows:

(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.

28. The evidence establishes that the student previously

thought of the Respondent as a mentor and that the chat

embarrassed the student and caused the student to lose trust in

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the Respondent. The Respondent has violated rule 6B-1.006(3)(a)

and (e) and, accordingly, has violated section 1012.795(1)(j).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a final order revoking the Florida Educator's Certificate

held by the Respondent.

DONE AND ENTERED this 8th day of September, 2011, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 8th day of September, 2011.

ENDNOTE

1/ References to Florida Statutes are to Florida Statutes

(2010), unless otherwise stated.

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COPIES FURNISHED :

Emily Moore, Esquire

Florida Education Association

300 East Park Avenue

Tallahassee, Florida 32301

Bruce P. Taylor, Esquire

204 37th Avenue, Suite 190

St. Petersburg, Florida 33704

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

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

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.

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