12-000621PL Gerard Robinson, As Commissioner Of Education vs. William Randall Aydelott Status: Closed Recommended Order on Wednesday, August 29, 2012.

Summary: Petitioner proved all of the allegations against Respondent, and it is recommended that Respondent's Education Certificate be revoked for a period of five years.

Case No. 12-0621PL

RECOMMENDED ORDER

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERARD ROBINSON, AS

COMMISSIONER OF EDUCATION, Petitioner, vs. WILLIAM RANDALL AYDELOTT, Respondent. ) ) ) ) ) ) ) ) ) ) )

An administrative hearing was held in this case on April 24

and 25, 2012, in Pensacola, Florida, before James H. Peterson,

III, Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. David Holder, Esquire

387 Lakeside Drive

DeFuniak Springs, Florida 32435

For Respondent: Peter J. Caldwell, Esquire

213 South Adams Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

subsections 1012.795(1)(d), (g), and (j), Florida Statutes, 1 /

and

if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On December 20, 2011, Petitioner, Gerard Robinson as

Commissioner of Education (Petitioner), issued a six-count

Administrative Complaint (Administrative Complaint) against

Respondent, William Randall Aydelott (Respondent), alleging that

Respondent exchanged text messages with a female student and

attempted to obtain her cellular telephone in a manner which

violated subsections 1012.795(1)(d), (g), and (j), and rule 6B-

1.006(3)(a), (e), and (h). Respondent timely requested an

administrative hearing and, on February 15, 2012, the case was

forwarded to the Division of Administrative Hearings for the

assignment of an Administrative Law Judge to conduct a final

hearing.

At the final hearing, Petitioner presented the testimony of

Sharon Aydelott, E.M., John Dobbs, Alan Scott, and Tarlanda

Gooden, and offered 12 exhibits which were received into evidence

as Exhibits P-1 through P-12. Respondent testified in his own

behalf and presented the testimony of Pam Hill and Michael

McMillian.

By stipulation of the parties, parts of the record from

Respondent’s March 15, 2012, termination hearing in the matter of

Escambia Education Association v. School District of Escambia

County , Case number 33-390-00376-11 (Termination Hearing), before

Arbitrator Jeanne Charles Wood, Esquire, of the American

Arbitration Association, were taken into evidence as Joint

Exhibit 1, consisting of the transcript and Exhibits C4, C5, C6,

C7, R2, R3, R4, R5, R6, R7, J1, and J2 from that proceeding.

At the end of the hearing the record was held open at

Petitioner’s request for the purpose of allowing Petitioner to

attempt to take the post-hearing depositions of witnesses Y.F.

and S.B., who had been subpoenaed for the final hearing but had

failed to appear. Petitioner, however, did not depose those

witnesses within the allotted time and the record was closed.

The proceedings were recorded and a Transcript was ordered.

The parties were initially given 30 days from the filing of the

Transcript within which to file their Proposed Recommended

Orders. The three-volume Transcript was filed on May 30, 2012.

Upon the granting of Respondent’s Partially Unopposed Motion for

Enlargement of Time to File Proposed Recommended Orders, the time

for filing was extended until July 30, 2012. Thereafter, the

parties timely filed their respective Proposed Recommended Orders

on July 30, 2012, which 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. Respondent holds Florida Educator’s Certificate 697708,

covering the areas of Health, General Science, and Physical

Education. Respondent’s Educator’s Certificate is valid until

June 30, 2013.

3. At all times pertinent to this action, Respondent was

employed as a science teacher at Pensacola High School in the

Escambia County School District. He also coached football and

the girl’s weightlifting team at Pensacola High School.

4. During the 2010-2011 school years, which began in August

2010, Respondent’s science classes had a total enrollment of

approximately 120 students. One of his students was Y.F., a 14-

year-old female ninth-grade student, who attended Respondent’s

second-period science class which met every school day.

5. Respondent has two children, a daughter and a son. In

the fall of 2010, Respondent’s daughter was six years old and his

son was 14 and in the ninth grade.

6. During the time period from October 1 through October 8,

2010, approximately 340 text messages were exchanged between

Respondent and Y.F. The frequency of the text messages was

inappropriate. In addition, the timing and content of a number

of those text messages from Respondent to Y.F. were

inappropriate.

7. Y.F. and her mother gave Respondent Y.F.’s cellular

telephone number so that Respondent could provide Y.F. with

information regarding the girls’ weightlifting tryouts and

tutoring.

8. While some of the texts exchanged between Respondent and

Y.F. between October 1 and 8, 2010, involved the subject of

tutoring, the girls’ weightlifting team, and an in-class review

activity, many involved non-school-related matters.

9. Respondent admits that texting Y.F. hundreds of times

was inappropriate. The frequency of texts exchanged between

Respondent and Y.F. included:

a) 24 texts on Friday October 1, 2010,

between 5:13 p.m. and 11:00 p.m., 12 of which

were from Respondent; b) 58 texts on Saturday, October 2, 2010,

between 9:04 a.m. and 11:02 p.m., 35 of which

were from Respondent; c) 88 texts on Sunday, October 3, 2010,

between 12:02 p.m. and 11:57 p.m., 51 of

which were from Respondent; d) 26 texts on Monday, October 4, 2010,

between 7:18 a.m. and 11:18 p.m., 15 of which

were from Respondent; e) 52 texts on Tuesday, October 5, 2010,

between 10:42 a.m. and 11:10 p.m., 32 of

which were from Respondent; f) 40 texts on Wednesday, October 6, 2010,

between 9:15 a.m. and 11:52 p.m., 28 of which

were from Respondent; g) 40 texts on Thursday, October 7, 2010,

between 5:24 p.m. and 11:31 p.m., 27 of which

were from Respondent.

10. Y.F. provided sworn testimony during Respondent’s

Termination Hearing held March 15, 2012, regarding some of the

text messages that she received from Respondent.

2/ When Y.F. was

asked whether she felt that the 88 messages on Sunday were

bothersome, she testified, “A little, yes.” When asked whether

some of the words Respondent chose in his text messages were

inappropriate, Y.F. testified, “Yes, some.” Those responses by

Y.F. are credited.

11. In one of the text exchanges between October 1 and

October 8, 2010, Respondent responded to a chain text message

that Y.F. sent to her cell phone contacts list, including

Respondent. It contained the survey question, “explain

[describe] me in one word,” and provided a list of answers to

choose from, one of which was the word “sexy.” In response,

Respondent selected the option “sexy” and sent this answer to

Y.F.

12. In her testimony at Respondent’s Termination Hearing,

Y.F. credibly testified that she found Respondent’s use of the

bother.” When asked whether she felt as though Respondent was

another way I was like I just brushed it off.” Y.F. further

testified that she was Respondent’s student at the time of the

messages and did not feel awkward in class with Respondent.

Nevertheless, Respondent’s message was inappropriate and Y.F.

perceived that it was not right.

13. In that same time frame, between October 1 and 8, 2010,

Respondent responded to another text message from Y.F. received

through her group distribution. This time, the message contained

to which Respondent responded, “bang.” While Y.F. does not

remember receiving Respondent’s message, she acknowledged that

the group distribution message could have gone out. Respondent

admitted that he sent the “bang” message to Y.F., that the

message had a sexual connotation, and that sending the message to

a 14-year-old female student was wrong.

14. A review of the timing and content of some of the

actual text messages retrieved from the cell phones belonging to

Respondent and Y.F. further reveal the inappropriate nature of

Respondent’s text communications with Y.F.

15. Of the text messages exchanged on Wednesday, October 6,

2010, which was a school night, Respondent texted Y.F. at 11:03

p.m., “Sweet dreams.”

16. On Thursday, October 7, 2010, at 5:41 p.m., also a

school night, Respondent texted Y.F. the message, “going to

game.” She responded at 5:42 p.m., “No, no money.” At 5:43

Respondent persisted by texting, “just ask next time.” At 6:13

texted, “can u call me?” At 6:15 p.m., Y.F. texted back, “I

don’t call till after 9.” Respondent responded at 6:27 p.m.,

“okay @ you call me later,” to which Y.F. responded by texting,

“Kk.”

17. Later that same evening, Thursday, October 7, 2010, at

10:42 p.m., Y.F. texted Respondent, “Hey.” Respondent texted

back at 10:44 p.m., “what u up 2.” At 10:45 p.m., Y.F. replied,

“just layin down.” Respondent immediately texted back at 10:45

p.m., “sexy.”

18. Seven minutes later, at 10:52 p.m., Respondent texted

texted back at 10:53 p.m., “Ok.” Respondent texted to Y.F. at

10:55 p.m., “I need 2 talk 2 u bout ur make up work?” Y.F.

10:58 p.m., “well I was jus gonna tell u not 2 worry bout it.”

Y.F. texted right back, “Really?” At 10:59 p.m., Respondent

at 11:00 p.m., “u r welcome.”

19. After that, beginning at 11:02 that same evening,

October 7, until after midnight, October 8, 2010, Respondent

engaged in a monologue by texting Y.F. a series of unanswered

text messages, as follows:

11:02 p.m., Respondent to Y.F.: “wish I could talk 2 u

for a sec.”

11:02 p.m., Respondent to Y.F.: “can I call U?”

11:04 p.m., Respondent to Y.F.: “?”

11:08 p.m., Respondent to Y.F.: “hello”

11:11 p.m., Respondent to Y.F.: “Ok we will just text”

11:14 p.m., Respondent to Y.F.: “do you want me to stop

texting u?”

11:18 p.m., Respondent to Y.F.: “I’m sorry! nite”

11:25 p.m., Respondent to Y.F.: “if you do chahge [sic]

your mind & decide 2

txt me its ok Im at

Walmart getting candy

for our game that were

playing 2 morrow”

11:27 p.m., Respondent to Y.F.: “What kind of chocolate

candy is ur favorite”

11:31 p.m., Respondent to Y.F.: “I will be out 4@ least

another hour if u want

2 txt or email”

October 8, 2010 (after midnight)

12:08 a.m., Respondent to Y.F.: “what kind of

chocolate u want”

12:25 a.m., Respondent to Y.F.: “Hey I guess u gone to

sleep I got u some

choc c u 2 morrow”

20. In his testimonies, including his Termination Hearing,

his deposition taken in this case, as well at the final hearing,

Respondent tried to justify his texts to Y.F. by explaining that

the text messages with Y.F. between 10:55 p.m., October 7, and

12:35 a.m., October 8, 2010, concerned Y.F.’s make-up assignment

and chocolate candy he was purchasing for an in-class review game

in preparation for a test. He admitted, however, that it was

inappropriate for him to be texting with Y.F. late in the

evening. He also admitted that he did not text any other student

to ask about what candy they liked.

21. When asked in his deposition why he was texting a 14-

year-old ninth grade student after midnight asking her what kind

of chocolate she wants, Respondent testified:

I wish I knew the answer to give you for

that. I don’t know. I don’t know why I did

a lot of the things that I did during that

time period. Out of 22 years of teaching,

I’ve never done anything remotely close to

that. Why I did it then, I don’t know. I

deeply regret it. If I could take it back, I

would.

22. Although there is no evidence that he ever told her,

Respondent thought Y.F. was pretty, or even beautiful. He told

her that she was his favorite student —- that every year he had a

favorite, and this year it was her.

23. Even prior to the period of high-frequency texting,

Respondent initiated a non-school related contact with Y.F., this

time offering Y.F. cake. On Sunday, September 27, 2010,

Respondent’s wife and two children took Respondent to lunch at a

local restaurant to celebrate his birthday that had occurred the

day before. His wife bought him a birthday cake and brought it

to the restaurant. It was a yellow pound cake with white icing.

24. After lunch, Respondent went to a coaches’ meeting and

took the cake with him. At some point, Respondent had a

telephone conversation with Y.F. during which Respondent asked

Y.F. if she would like to have some of his birthday cake. Y.F.

told Respondent that she would. Respondent already knew where

Y.F. lived. He told Y.F. that he would drop off the cake on his

way home.

25. When Respondent left the coaches’ meeting, he drove to

Y.F.’s home in his truck. He did not get out of his truck.

Rather, Y.F. met him at his truck. Respondent rolled down his

driver’s-side window. According to Respondent, he said, “Hey,

how are you doing? Here’s the cake.” He testified that he then

handed Y.F. the cake, she said “Thank you,” and he then

immediately drove away.

26. Respondent could have taken the cake home to his family

or to school the next day to share it with his other students.

Instead, Respondent decided to use the cake as an excuse to meet

with Y.F. When asked in his deposition why he took the cake to

Y.F. instead of bringing it home to his family, he had no excuse.

Respondent answered:

I don’t know why. You know, thinking back on

it, that’s what I should have done. Why I

didn’t, I don’t know.

27. At the final hearing, regarding the fact that he had

given his left-over birthday cake to Y.F., Respondent admitted:

Looking back on it, it was inappropriate. I

shouldn’t, again, it was something that I

shouldn’t have done.

28. It is found that, under the circumstances, rather than

for the benefit of Y.F., Respondent used the cake as an excuse to

see Y.F. for his own personal benefit.

29. During the October 1 through 8, 2010, frequent-texting

time period, Respondent again made arrangements to meet with Y.F.

outside the school setting. Respondent knew that Y.F. liked

certain types of sweets. He asked Y.F. if she had ever eaten

cupcakes from a certain cupcake store located on Cervantes. He

suggested to Y.F. that she should meet him there on a Saturday so

that he could tutor her. Respondent and Y.F. never met at the

cupcake shop for the contemplated tutoring session.

30. The texting between Respondent and Y.F. came to an

abrupt end on Friday, October 8, 2010, when Y.F. lost her

cellular telephone early in the morning at school. Student E.M.

found the telephone in a classroom during first period.

31. After finding Y.F.’s cell phone, E.M. and another

student, S.B., reviewed the text messages on the phone. They

were offended by the texts they found from Respondent. The

students called Respondent that Friday night, October 8, 2010,

and placed him on speakerphone. During the call, student S.B.

confronted Respondent regarding his text messages and called him

a “filthy bastard.”

32. The callers did not identify themselves and Respondent

did not know whether he was speaking to adults or students.

During the call, Respondent told the caller that he would pay if

she would not tell or turn in the phone. S.B. said she wanted

one hundred dollars. Respondent said that he only had fifty.

33. At the final hearing, Respondent denied that he ever

offered money in exchange for the phone. He admitted, however,

that he arranged to meet the callers at a local convenience

store, and then later at another location for purposes of

obtaining the cell phone from the callers. At the final hearing,

when asked whether he wanted to get the phone back so that nobody

else would learn about the texts, Respondent testified, “Yes sir.

Damage control so nobody else would call.” When further asked

whether he wanted the phone back so that nobody else would know

about it, Respondent testified, “Yes, sir.”

34. Respondent also offered the inconsistent explanation

during his testimony that he wanted to get the phone back so that

he could turn it in to the principal at Pensacola High School.

That testimony was not credible and is not credited. Rather, it

is found that Respondent wanted to get Y.F.’s cell phone back so

that his texts to Y.F. would not be further discovered.

35. Respondent and the students with Y.F.’s phone arranged

to meet at a convenience stored named “Trisha’s One Stop” to

exchange the phone for money on Saturday. Respondent drove

around that Saturday, October 9, 2010, but could not find the

convenience store. He called the callers and suggested that they

meet at the Brownsville Assembly of God Church in Pensacola. The

girls agreed, but never went to the church. Respondent, however,

went to the church and waited for some time.

36. During the weekend of October 9 and 10, 2010,

Respondent became despondent. He punched holes in walls at his

home, banged his head against the wall, rolled around on the

floor, and at one point grabbed a gun and threatened to harm

himself. While some of this behavior might be attributed to

marital distress he was experiencing at the time, apart from the

allegations in this case, it is found that the primary reason for

guilt and concern he felt over the fact that the discovery of

Y.F.’s cell phone would reveal his inappropriate communications

with Y.F.

37. According to Respondent, after waiting for some time at

the church to meet with the callers and obtain Y.F.’s phone, he

decided instead to turn himself into the principal of Pensacola

High. He testified that, after meeting with another high school

coach, he arranged to meet the principal during the weekend to

report what had happened and turn in his own cell phone.

38. Student S.B. turned in Y.F.’s cell phone to the

Pensacola High School administration on Monday, October 11, 2010.

39. Upon discovery of the text messages between Respondent

and Y.F., the Escambia County School Board suspended Respondent

from his teaching position, and on January 19, 2011, terminated

Respondent’s employment with the Escambia County School District.

Respondent challenged his termination by requesting arbitration

on the issue of his dismissal. The outcome of that arbitration

proceeding was pending as of the hearing in the instant case.

40. Prior to the incidents that are the subject matter of

this case, Respondent has had no discipline in his twenty-two

years as a teacher, and neither of Respondent’s Florida nor

Alabama teaching certificates has ever been disciplined. In

addition, all of Respondent’s performance evaluations throughout

his 22-year teaching career have been satisfactory or higher.

41. Respondent’s former supervisor, Michael McMillian,

wrote a recommendation and testified about Respondent’s excellent

teaching performance, how students’ benefited from his teaching,

and his good moral character. Mr. McMillian, however, was

unaware of the allegations or facts of this case.

42. There is no evidence that Respondent ever touched Y.F.

43. Escambia County School Board asked Pensacola Police to

investigate whether Respondent had violated any criminal laws.

No criminal violations were found. However, according to

Pensacola Police Detective Tarlanda Gooden, who conducted the

investigation, based upon her experience as a sex crime

investigator who has investigated numerous sex crimes,

Respondent’s actions with minor female student Y.F. constituted

“grooming” behavior for eventual sexual contact with Y.F. The

undersigned agrees and further finds that Respondent’s grooming

behavior towards Y.F. was for Respondent’s personal benefit.

44. Based upon his review of materials from Respondent’s

level-one grievance hearing, as well as his Termination Hearing,

Dr. Alan Scott, Assistant Superintendent for Human Resource

Services, was of the professional opinion that Respondent’s

misconduct violated the statutory and rule provisions cited in

the Administrative Complaint filed against Respondent in this

proceeding. Dr. Scott’s opinion is based on thirty-two years of

experience in the field of education in the State of Florida,

where he has served as a teacher, coach, assistant principal,

principal, county administrator for curriculum, instruction and

discipline, and as assistant superintendent. While Dr. Scott’s

opinion has not been used to supplant legal conclusions

recommended herein, his opinion is credible and has been

considered.

45. In sum, as alleged in the Administrative Complaint,

“Respondent engaged in inappropriate conduct towards fourteen

year-old female student Y.F., in that from October 1, 2010,

through October 8, 2010, Respondent exchanged approximately 340

text messages with Y.F. Several of Respondent’s messages were of

a flirtatious and suggestive nature and included offering to pay

Y.F.’s way to attend sporting events, offering to purchase

[candy] for Y.F., and telling Y.F. that Respondent could be

described as ‘sexy.’”

46. Based upon the clear and convincing evidence reflected

in the factual findings above, it is further found that

Respondent’s behavior toward Y.F. was unacceptable and should not

be tolerated from a licensed school teacher in Florida.

CONCLUSIONS OF LAW

47. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to section 120.569 and subsection 120.57(1),

Florida Statutes(2012).

48. Subsection 1012.796(6), Florida Statutes, authorizes

the Commissioner of Education to file a formal complaint and

prosecute the complaint against a teacher's certificate pursuant

to the provisions of chapter 120, Florida Statutes.

49. Petitioner, as the party asserting the affirmative in

this proceeding, has the burden of proof. See , e.g. , Balino v.

Dep’t of HRS , 348 So. 2d 349 (Fla. 1st DCA 1977).

50. Because Respondent's teaching certificate is at risk,

Petitioner has the burden to prove the allegations in the

Administrative Complaint by clear and convincing evidence.

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

51. Clear and convincing evidence:

[r]equires that evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking confusion as to

the facts in issue. 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.

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

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

52. Disciplinary statutes are penal in nature, and must be

construed against the authorization of discipline and in favor of

the individual sought to be penalized. Munch v. Dep’t of Bus. &

Prof’l Reg. , 592 So. 2d 1136 (Fla. 1st DCA 1992). A statute

imposing a penalty is never to be construed in a manner that

expands the statute. Hotel & Restaurant Comm’n v. Sunny Seas No.

One , 104 So. 2d 570, 571 (1958).

53. The Administrative Complaint alleges that Respondent

violated subsections 1012.795(1)(d), (g), and (j), Florida

Statutes, and Florida Administrative Code Rule subsections 6B-

1.006(3)(a), (e), and (h).

54. Section 1012.795 provides in pertinent part:

Education Practices Commission; authority to

discipline.--

(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 3 years,

thereby denying that person the right to

teach 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 for a period

of time not to exceed 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person; 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.

* * *

(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.

55. Rule 6B-1.006 contains the Principles of Professional

Conduct and provides, in pertinent part:

(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.

56. The six-count Administrative Complaint tracks the

language of the above-recited statutes and rules. It first sets

forth the following material allegations in paragraphs 3 through

6 of the Administrative Complaint:

3. During the beginning of the 2010-2011

school year, the Respondent engaged in

inappropriate conduct towards fourteen-year-

old female student Y.F., in that from

October 1, 2010, through October 10, 2010,

the Respondent exchanged approximately 340

text messages with Y.F., including offering

to pay Y.F.’s way to attend sporting events,

offering to purchase gifts for Y.F., and

telling Y.F. that the Respondent could be

described as “sexy.”

4. Two female students, E.M. and S.B.,

discovered Y.F.’s cell phone and observed he

text messages between Y.F. and the

Respondent. E.M. and S.B. contacted the

Respondent to tell him that they had observed

the text messages and offered to give him the

phone for $100.00. The Respondent initially

offered to pay E.M. and S.B. $50.00 for the

phone and later cancelled the offer. 5. Upon discovery of the text messages

between Y.F. and the Respondent, the Escambia

County School District suspended the

Respondent from his position.

6. On or about January 19, 2011, the

Escambia County School District terminated

the Respondent from his position as a result

of his conduct towards Y.F.

57. As demonstrated by the factual findings under the

Findings of Fact, above, Petitioner proved all of the material

allegations recited in the Administrative Complaint. All of the

findings were based upon clear and convincing evidence.

Count 1

58. Count 1 of the Administrative Complaint alleges:

The Respondent is in violation 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.

59. The terms "gross immorality" and "moral turpitude" are

not defined in any statute or rule applicable to the Education

Practices Commission in license disciplinary cases under chapter

1012. However, the definitions in Florida Administrative Code

Rule 6A-5.056, 2 / which relate to the suspension and dismissal of

teachers by school districts, are instructive in defining terms

as used by the Education Practices Commission in revocation

actions.

60. Rule 6A-5.056 provides the following definitions:

(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 public 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 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.

61. "'Gross immorality' has been described as misconduct

that is serious, rather than minor in nature; it is a flagrant

disregard of proper moral standards." Smith, Comm’r of Ed. v.

Malvar , Case No. 10-2784PL (DOAH Sept. 13, 2010); EPC Jan. 13,

2011) (citing Education Practices Comm'n v. Knox , 3 FALR 1373-A

(Fla. Dep't of Education 1981)).

62. Moral turpitude has also been defined by the Supreme

Court of Florida as "anything done contrary to justice, honesty,

principle, or good morals, although 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, 661

(1933).

63. Respondent argues in his Proposed Recommended Order

immorality’ has never been defined in statute or in rule.”

Indeed, Florida Administrative Code Rule 6A-5.056, quoted above,

this reason, there have been cases brought before the Division of

Administrative Hearing resulting in recommendations that have not

applied charges alleging ‘gross immorality’ in a proceeding

against a Florida Educator Certificate. See , e.g. , Hodges v.

Commissioner of Education , Case No. 09-3048; 2009 WL 4543095

immorality as defined by rule since there is no rule providing a

definition, as is required by the statute”).

64. Unlike the term “gross immorality,” which is not

defined by rule, “moral turpitude” is defined, as set forth in

rule 6A-5.056(6), quoted above. As to that provision, Respondent

cannot be found guilty of an act involving moral turpitude

because he has committed no “crime.”

65. While Respondent’s argument regarding the lack of rule

definition of the term “gross immorality” has some support, his

argument that he must have committed a crime in order to be found

guilty of an act involving moral turpitude is rejected. Teachers

are traditionally held to a high moral standard in the community.

Adams v. Professional Practices Council , 406 So. 2d 1170, 1172

(Fla. 1st DCA 1981). As a teacher, it is not necessary that

Respondent be charged or convicted of a crime in order to be

disciplined for conduct involving moral turpitude. Walton v.

Turlington , 444 So. 2d 1082,1084 (Fla. 1st DCA 1984).

66. Considering the material allegations which have been

proven against Respondent in light of the definition of moral

turpitude, it is found that Respondent is guilty of acts

involving moral turpitude. Respondent’s conduct constituted

obsessive grooming behavior towards one of his 14-year-old

students which violated accepted standards of society, as well as

the higher moral standards expected of teachers. His actions

were wrong and Respondent knew it, as demonstrated by his

attempts to retrieve Y.F.’s phone to cover his base actions.

67. Respondent’s actions, which were proven by clear and

convincing evidence, violated section 1012.795(1)(d), as charged

in the Administrative Complaint.

Count 2

68. In Count 2 of the Administrative Complaint alleges:

The Respondent is in violation of Section

1012.795(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.

69. Whether Respondent’s misconduct seriously reduces his

effectiveness as an employee of the school board may be inferred

from the nature and seriousness of the misconduct. Walker v.

Highlands Cnty. Sch. Bd. , 752 So. 2d 127, 128 (Fla. 2d DCA 2000).

Expert opinion may also provide evidence on whether the

misconduct seriously reduced Respondent’s effectiveness as a

school board employee. Woodward v. Prof’l Practices Council , 388

So. 2d 343, 344 (Fla. 1st DCA 1980).

70. Considering the nature and seriousness of Respondent’s

misconduct proved in this action, the opinions offered by

Assistant Superintendent Scott, as well as the actions of the

Escambia County School Board, it is concluded that Respondent

violated section 1012.795(1)(g), as alleged in the Administrative

Complaint. Respondent’s misconduct involved a 14-year-old ninth-

grader in the same grade as Respondent’s son, who also attended

Pensacola High School at the time of the actions giving rise to

this case. As a result, Respondent’s son was transferred to

another high school.

71. Respondent admitted that, as a result of his

misconduct, he would not be effective at Pensacola High School.

Instead, he would opt for another assignment. The Escambia

County School Board, however, upon the discovery of the

misconduct, immediately suspended Respondent and took legal

action to terminate his employment with the School Board.

72. Assistant Superintendent Scott, who was involved in the

investigation of the case for the Escambia County School Board,

offered the following opinion testimony which was persuasive on

the issue of whether Respondent’s misconduct seriously reduces

his effectiveness as an employee of the School Board:

As we go through the facts of the case, also,

the situation, what would you do, the whole

bang me comment, trying to go to the cupcake

store, taking the cake by the house, offering

to buy chocolate, I’ll pay your way into a

football game, don’t worry about your make up

work with a struggling student. You take all

of that and then you factor in that you have

an individual that another group of students

knows about this because a cell phone has

been lost, there’s an extortion thing where

Coach Aydelott actively involves in trying to

negotiate and get this cell phone back, based

on the opinion of this group [referring to

the Escambia County Schools Superintendent’s

discipline committee] that made this decision

that we needed to move forward with the

termination, based on the report we have from

Detective Gooden that this individual was

grooming this young lady, . . . you take that

all into consideration and say, did Coach

Adyelott impugn his ability to be effective

in that school, yes. Me, as a former

principal, having dealt with situations like

this in the past, when you have an individual

that participates in that kind of conduct is

known by the school community makes a very

untenable situation at that school. You have

parents calling. They don’t want their

students in that class. And I have a

daughter and I don’t know who else in this

room has a daughter. I can clearly

understand the reaction of some parents, they

do not want their daughters in this

gentleman’s class. I’ve had to deal with

that the principal - - as a principal, I’ve

had to deal with it as a director, on those

phone calls and the outrage that comes in

from a community. So, based on the facts

that were presented to us, it was the opinion

of that committee to the Superintendent who

has the final say, who makes a recommendation

to the Escambia County School Board, that he

had impugned his ability to be effective in

Escambia County School District. And the

appropriate penalty here was termination.

Count 3

73. Count 3 of the Administrative Complaint alleges:

The Respondent is in violation of Section

1012.795(1)(j), Florida Statutes, in that

Respondent has violated the Principals of

Professional Conduct for the Education

Profession prescribed by State Board of

Education Rules.

74. As discussed under Count 4 through Count 6, below,

Respondent violated Principals of Professional Conduct for the

Education Profession set forth in Florida Administrative Rules

6B-1006(3)(a), (e), and (h). Therefore, Respondent violated

section 1012.795(1)(j), Florida Statutes, as alleged in Count 3

75. Count 4 of the Administrative Complaint alleges:

of the Administrative Complaint.

The allegations of misconduct set forth

herein are in violation of Rule 6B- Count 4

1.006(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 student’s

mental health and/or physical health and/or

safety.

76. Contrary to the argument advanced in Respondent’s

Proposed Recommended Order, violation of rule 6B-1.006(3)(a) does

not require evidence that Respondent actually harmed Y.F.’s

health or safety. Rather, it requires a showing that Respondent

failed to make reasonable efforts to protect the student from

such harm.

77. The clear and convincing evidence demonstrated that

Respondent not only failed to make reasonable efforts to protect

Y.F., but that he actively pursued a course of action which

Count 5

78. Count 5 of the Administrative Complaint alleges:

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.

79. In addition to her realization that, on at least one

occasion, Respondent was “coming on” to her, as a result of

Respondent’s multiple intentional inappropriate contacts, Y.F.

was injected into investigations requiring that she provide a

written statement to school officials and to a Department of

Education investigator, undergo interviews with a school

investigator and Detective Gooden, testify at Respondent’s

Termination Hearing, and be subjected to a subpoena in this

proceeding.

80. Despite Respondent’s argument to the contrary, rule 6B-

1.006(3)(e) does not require that Respondent intended to

embarrass student Y.F. As noted by the Hearing Officer in School

Board of Pinellas County v. Ray , DOAH Case No. 94-1631 (June 13,

1994): Specific intent to embarrass is not required where “a

general intent to act in a way which one could expect to result

in embarrassment or disparagement.”

81. As evidenced by his acknowledgment that his actions

were inappropriate, as well as his attempt to get back Y.F.’s

phone, Respondent knew and expected that, if discovered, his

actions would expose both Y.F. and him to scrutiny and

embarrassment.

82. The clear and convincing evidence showed that

Respondent violated rule 6B-1.006(3)(e).

Count 6

83. Count 6 of the Administrative Complaint alleges:

The allegations of misconduct set forth

herein 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.

84. The evidence in this case, supporting the Findings of

Fact above, clearly and convincingly demonstrated that Respondent

engaged in inappropriate grooming behavior toward Y.F. His

obsessive texting, inappropriate sexual comments, and

arrangements to meet Y.F. outside the school setting were

exploitive towards Y.F. and designed for Respondent’s personal

benefit. As such, Respondent’s actions violated rule 6B-

1.006(3)(h).

Penalties

85. The Education Practices Commission has adopted

guidelines for the imposition of penalties for violations under

1012.795, Florida Statutes, and Florida Administrative Code Rule

6B-1.006. Rule 6B-11.007, entitled “Disciplinary Guidelines”

discipline ranging from probation to revocation for the statutory

and rule violations for which Respondent is charged in this

proceeding. Rule 6B-11.007(3), provides a number of aggravating

and mitigating factors that can be considered in determining the

appropriate penalties, as follows:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of offenses;

(d) The length of time since the violation;

(e) The number of times the educator has

been previously disciplined by the

Commission;

(f) The length of time the educator has

practiced and the contribution as an

educator;

(g) The actual damage, physical or

otherwise, caused by the violation;

(h) The deterrent effect of the penalty

imposed;

(i) The effect of the penalty upon the

educator’s livelihood;

(j) Any effort of rehabilitation by the

educator;

(k) The actual knowledge of the educator

pertaining to the violation;

(l) Employment status;

(m) Attempts by the educator to correct or

stop the violation or refusal by the educator

to correct or stop the violation;

(n) Related violations against the educator

in another state including findings of guilt

or innocence, penalties imposed and penalties

served;

(o) Actual negligence of the educator

pertaining to any violation;

(p) Penalties imposed for related offenses

under subsection (2) above;

(q) Pecuniary benefit or self-gain inuring

to the educator;

(r) Degree of physical and mental harm to a

student or a child;

(s) Present status of physical and/or mental

condition contributing to the violation

including recovery from addiction;

(t) Any other relevant mitigating or

aggravating factors under the circumstances.

86. While there were some mitigating factors offered by

Respondent, including his years of service without discipline and

successes as a teacher and coach, the aggravating factors

predominate under the facts and circumstances of this case. The

types and seriousness of Respondent's violations and Respondent's

repetitive misconduct in light of his awareness that his actions

were wrong implicate factors (a), (c), (k), and (p) as

aggravating factors from list in Rule 11.007, listed above.

Factor (h)(deterrent effect) and the final orders cited in

Petitioner's Proposed Recommended Order involving similar facts

have also been considered in crafting an appropriate recommended

penalty.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED that a Final Order be issued finding that

Respondent, William Randall Aydelott, violated the provisions of

subsections 1012.795(1)(d), (g) and (j), Florida Statutes, and

Florida Administrative Code Rule 6B-1.006(3)(a), (e) or (h),

revoking Respondent's Florida educator’s certificate for a period

of five years, and imposing as a condition of re-certification

that Respondent provide written verification from a Recovery

Network Program approved, licensed Florida provider, that

Respondent poses no threat to children and is capable of assuming

the responsibilities of an educator.

DONE AND ENTERED this 29th day of August, 2012, in

Tallahassee, Leon County, Florida.

JAMES H. PETERSON, III

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 29th day of August, 2012.

ENDNOTES

1/ Unless otherwise noted, all citations to the Florida Statutes

and the Florida Administrative Code are to the 2010 versions

which were in effect at the time of the alleged violations.

2/ Although subpoenaed, Y.F. did not appear at the final hearing

in this case. Y.F., however, provided written statements to

school officials and the Department of Education, was interviewed

by a school investigator and Pensacola Police Detective Gooden,

and testified at Respondent’s Termination Hearing.

3/ Effective April 5, 1983, Florida Administrative Code Rule 6B-

4.009 was transferred to Florida Administrative Code Rule 6A-

5.056. The quoted version of the rule, as all other rules cited

in this Recommended Order, is the version effective in 2010.

COPIES FURNISHED :

Peter James Caldwell, Esquire

Florida Education Association

213 South Adams Street

Tallahassee, Florida 32301

[e-mail] David Holder, Esquire

J. David Holder, P.A.

387 Lakeside Drive

Defuniak Springs, Florida 32435

[e-mail] Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224

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 224E

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.