12-000769TTS Lee County School Board vs. Willie Sparrow Status: Closed Recommended Order on Wednesday, July 18, 2012.

Summary: Respondent committed multiple acts of misconduct in office by inappropriate physical contact with several female high school students. Just cause was established for termination of Respondent's employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 12 - 0769TTS

)

WILLIE SPARROW , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a f inal hearing was conducted in this

case on April 24, 2012, in Fort Myers, Florida, before

Administrative Law Judge Elizabeth W. McArthur of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School Distric t of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

For Respondent: Robert J. Coleman, Esquire

Coleman and Coleman

Post Office Box 2089

2080 McGregor Boulevard, Suite 202

Fort Myers, Florida 33902

STATE MENT OF THE ISSUE

The issue in this case is whether Petitioner has just cause

to terminate Respondent ' s employment.

PRELIMINARY STATEMENT

On January 5, 2012, the Lee County School Board (Petitioner)

served a Petition for Termination of Employment (Petitio n) on

Willie Sparrow (Respondent), a music teacher at Lehigh Senior

High School (Lehigh). The Petition set forth allegations of

improper conduct by Respondent, including inappropriate physical

contacts with several female students. The Petition charged t hat

this alleged misconduct constituted just cause to terminate

Respondent ' s employment. Respondent timely requested an

administrative hearing to contest the allegations in the

Petition.

On February 27, 2012, the case was forwarded to the Division

of Ad ministrative Hearings for assignment of an Administrative

Law Judge to conduct the hearing requested by Respondent.

The final hearing was scheduled for April 24, 2012. Before

the hearing, the parties filed a Joint Prehearing Stipulation in

which they s tipulated to several facts and conclusions of law.

The parties ' stipulations have been incorporated herein to the

extent relevant.

At the final hearing, Petitioner presented the testimony of

Ranice Monroe and Craig Baker. Petitioner offered Exhibits 1

through 12, which were admitted in evidence. Included among

these exhibits are the transcripts of depositions of four student

witnesses who are referred to in this Recommended Order by their

initials: P.P., M.M., B.G., and C.R.

Respondent testified o n his own behalf and also presented

the testimony of J.V., Maria Velez, S.M., and Alinda Fay Masters.

In addition, Respondent was allowed to proffer the testimony of

James C. Givens; Respondent , subsequently , withdrew the proffer

of Mr. Givens ' testimony and , therefore, that testimony has not

been considered. 1/ Respondent offered Exhibits 1 through 10,

which were admitted in evidence. Included among these exhibits

are transcripts of depositions of two students: B.W. and C.C.

With regard to the depositi ons of the six teen - aged

students, the parties were in agreement that the circumstances

justified allowing all six students to testify by deposition in

lieu of live testimony. Petitioner and Respondent jointly

requested that the undersigned receive all si x student

depositions in evidence for all purposes pursuant to Florida Rule

of Civil Procedure 1.330(3)(E), incorporated by reference in

Florida Administrative Code Rule 28 - 106.206. Rule 1.330(3)(E)

allows a deposition to be used by any party for any purp ose, when

there is a finding, " upon application and notice, that such

exceptional circumstances exist as to make it desirable, in the

interest of justice and with due regard to the importance of

presenting the testimony of witnesses orally in open court, t o

allow the deposition to be used[.] " Due to the sensitivity and

embarrassing subject matter of these students ' testimony, the

undersigned accepts the parties ' agreement and finds that such

circumstances exist here, and the interests of justice are served

by considering the deposition testimony for all purposes in this

proceeding.

The two - volume Transcript of the final hearing was filed on

May 23, 2012. The parties filed a joint motion to extend the

deadline for filing proposed recommended orders until J une 13,

2012, which was granted. The parties timely filed their Proposed

Recommended Orders , which have been considered in the preparation

of this Recommended Order.

FINDING S OF FACT

1. At all times material to this proceeding, Respondent was

a music tea cher at Lehigh. His primary areas of interest and

teaching responsibility were vocals and keyboard, and he taught

varying levels and types of chorus and piano/keyboard classes.

Respondent also was very proactive in initiating and coordinating

extra - curri cular music programs and competitions for the benefit

of his music students.

2. Respondent received a bachelor ' s degree in music

education , with a choral emphasis , from Florida A & M University

(FAMU) in 2002. He completed a summer master ' s program at the

University of Florida and received his master ' s degree in music

education in 2010. Respondent is a certified educator in music,

K through 12, meaning that he is qualified to teach music at

all levels from kindergarten through 12th grade.

3. Responden t has been employed by Petitioner since

August 5, 2002, but has only been at Lehigh since the 2008 - 2009

school year. Respondent was the choral director at Dunbar High

School for three years; music teacher at Orange River Elementary

for one year; and music teacher at Orangewood Elementary for two

years. Respondent testified that these frequent transfers were

his idea, and there was no evidence to the contrary. Respondent

testified that he left Dunbar High School because that school ' s

music program downsiz ed, and the school wanted to hire a music

teacher whose emphasis was on band , instead of chorus, so he

requested a transfer elsewhere and Orange River Elementary was

what was available. Respondent testified that things did not

work out there between the a dministration and him, so he

transferred to Orangewood Elementary. However, Respondent did

not feel challenged teaching music to elementary school students,

and so he requested a transfer to Lehigh when the music teaching

position opened up. Respondent t estified that he believes his

talents are best used in a high school setting, where he can work

with talented singers and pianists to prepare them for college

and professional careers.

4. By all accounts, Respondent is a very talented musician.

His perfo rmance evaluations show that he was generally considered

a satisfactory teacher throughout his years in Petitioner ' s

employ; some areas needing improvement tended to balance out with

other areas in which his performance was above average.

Petitioner ' s per formance as a teacher is not in question in this

proceeding.

5. Instead, what is in question in this proceeding is

Respondent ' s conduct with several female students. This matter

first came to Petitioner ' s attention when Douglas McKeever,

assistant prin cipal at Lehigh, contacted Petitioner ' s Department

of Professional Standards and Equity (DPS), which is responsible

for investigating allegations of misconduct by school district

employees and making recommendations to the s uperintendent as to

discipline. Mr. McKeever informed the DPS that he had received

information regarding possible inappropriate physical contact by

Respondent with several female students.

6. At DPS ' direction, on November 3, 2011, Mr. McKeever

conducted interviews of two students, P.P. and B.G., who alleged

they were subjected to Respondent ' s inappropriate physical

contacts, and one student, M.M., who was a witness to one

student ' s encounter with Respondent. Mr. McKeever had these

three students summarize what they told him in wri tten

statements. He provided this information to DPS.

7. The students ' statements were reviewed by DPS, and based

on the seriousness of the allegations, Respondent was suspended

with pay and benefits on November 7, 2011.

8. Thereafter, the allegations w ere investigated by DPS '

chief investigator, Craig Baker. Mr. Baker took the written

statement of an additional student, C.R., who had been identified

as someone who had allegedly been subjected to Respondent ' s

inappropriate contacts, but who had not been present when

Mr. McKeever conducted the initial student interviews. As part

of his investigation, Mr. Baker made inquiries to identify any

other alleged victims or witnesses.

9. After the investigation was completed, a pre -

determination conference was h eld on December 7, 2011, at which

Respondent was given an opportunity to present his side of the

matters described in the student statements, which were provided

to him. Respondent was represented by counsel at that

conference.

10. The results of the i nvestigation and pre - determination

conference were then reviewed and discussed by the school

district ' s chief human resources officer, the head of the DPS,

other human resources staff, and counsel for the school district ,

to formulate a recommendation. Th e recommendation was to

terminate Respondent. Respondent was informed of the

recommendation and was advised that he was suspended without pay

or benefits, effective December 19, 2011, pending a final

determination as to whether Respondent would be termina ted.

11. The Petition for Termination of Employment sets forth

the alleged conduct by Respondent on which Petitioner relies to

establish the charges of misconduct in office and policy

violations. The alleged misconduct involves three different

students ; the findings with respect to the allegations for each

student are addressed in turn below.

P.P.

12. P.P. is a 15 - year - old female. In the 2011 - 2012 school

year, P.P. was in the tenth grade at Lehigh. Respondent

testified that P.P. was " one of the bes t singers. " As a ninth -

grade freshman during the 2010 - 2011 school year, P.P. took

Respondent ' s beginning chorus class. There were approximately

20 , mostly - freshmen , students in this class, about three - quarters

of whom were female.

13. During that first year in Respondent ' s chorus class,

P.P. sometimes would feel like she was being watched and would

notice Respondent staring at her. She also observed him

" checking out " other girls. The manner in which P.P. saw

Respondent looking at other girls gave her discomfort, because

she thought Respondent should not be conducting himself that way.

14. As the 2010 - 2011 year progressed, when P.P. would get

that feeling that she was being stared at, she would look up and

catch Respondent looking down the v - neck of her shirt; P.P.

always wore v - neck style shirts and blouses. When P.P. looked up

at Respondent, he would look away. This bothered her.

Respondent denied ever trying to look down P.P. ' s shirt or

blouse; however, he specifically recalled that she would we ar

v - neck type shirts and blouses.

15. P.P. is a friendly, outgoing young lady, and as she

acknowledged, it is not unheard of for her to hug a teacher.

Respondent testified that while he may have hugged P.P. during

her first year, there were not hugs every day, like the frequency

of hugs between them in P.P. ' s sophomore year. Consistent with

that testimony, P.P. testified that when she began her sophomore

year at Lehigh, she noticed a difference with Respondent. As she

described it, she would get hug s from Respondent, but those hugs

were not like other hugs. When Respondent hugged her when they

were both standing, he would grab at a lower altitude than

normal, considering he is taller than her, with his hands

dropping down from her lower waist to the edge of her pants.

These low - altitude hugs made P.P. feel uncomfortable.

16. The hugging between P.P. and Respondent took place in

his office, in the big classroom at the piano or the projector,

or at the classroom doorway. There were other students a round

most of these times, but not for those hugs taking place in

Respondent ' s office.

17. P.P. described the hugs Respondent would give her in

his office when he was seated and she was standing. According to

P.P., Respondent would put his arm around he r at a relaxed

stance, " over my butt, " instead of reaching his arm upward to

account for their differing heights with him seated and her

standing next to him. Then, when he would release back out of

the hug, she would feel his hands brushing over her butt ocks.

Though the impropriety of these " hugs " is obvious from P.P. ' s

description of them, P.P. said that she was not sure if

Respondent was " intentionally improperly touching " her.

18. Respondent freely admitted hugging P.P. and others. As

Respondent pu t it, he is " a hugger. " Though there was some

disagreement as to whether Respondent always initiated the hugs

with P.P. (as P.P. testified) or whether Respondent only

sometimes initiated the hugs with P.P. (as Respondent admitted),

it was clear that there was frequent hugging going on between

P.P. and Respondent during the few months of P.P. ' s sophomore

year prior to Respondent ' s suspension in November. Additionally,

though there was some disagreement as to where Respondent placed

his arms and hands durin g all of these hugs, Respondent

acknowledged that he could have made " coincidental contact " with

lower waists, buttocks, or other parts while releasing from hugs.

19. P.P. described an incident that took place in

October 2011 , at school , in the evening a fter she attended a

performance of The Fantasticks. Respondent was also at school

after hours, as were many others, because Respondent was

coordinating an all - county music competition that took place on

the same evening as The Fantasticks.

20. Accordi ng to P.P., she had seen Respondent earlier that

evening when she and others were milling about at intermission.

There were concession stands set up by parents and other

volunteers, but P.P. did not have any money. Respondent was

walking by with some chi ps in his hands and asked P.P. if she was

hungry. She said no, she was going home for dinner later.

After the show, she left the " Black Box Theater , " where The

Fantasticks show was performed, and parted ways with her friend

so she could go down the outs ide corridor to the parking lot

where her grandmother was picking her up. P.P. ran into

Respondent , and he again asked her if she was hungry and if she

needed a ride home. She said that she had a ride and was going

home to dinner. At that point, he hugg ed her in a way that she

felt was even more out of the ordinary than his other hugs. He

had his arms around her waist and then he moved his hands to her

belt area and gripped her tightly. This hug lasted for five - to -

ten seconds, until someone came out o f another door and then he

released her.

21. Respondent admitted the core facts of this encounter,

but disputed some of the details. According to Respondent, he

was under the misimpression that P.P. had been helping him with

the all - county music compet ition, which is why, he said, that he

went up to her to hug her when he saw her leaving. Thus, he

admitted to having initiated this hug, but claims it was a simple

" thank - you " hug. Respondent denied any belt - gripping or tight

grabbing. He thought that t he hug lasted for more like two - to -

three seconds, not five - to - ten seconds. Whether the hug lasted

two, three, four, or five seconds, that is a long hug that could

fairly be described as more of an embrace than the sort of

split - second pat - hug that might b e v iewed as a handshake

equivalent and that one could arguably accept as not beyond the

bounds for a teacher.

22. Between the time of his pre - determination conference

and the final hearing, Respondent added a few details that would

have been material , bu t inexplicably were missing from his early

version of events. One new detail added by Respondent at the

final hearing, which he did not offer at the pre - determination

conference was that there were a lot of other people around when

he hugged P.P. on the e vening of The Fantasticks. He admitted

that this fact was important and had no explanation for why he

would not have offered this information at the pre - determination

conference. Moreover, despite offering the testimony of several

supportive witnesses, i ncluding two who confirmed they were

concession volunteers that evening, there was no witness to

testify that he or she was one of the " many people " around to see

Respondent hugging P.P.

23. The other embellishment of this incident at the final

hearing w as Respondent ' s new claim that his hug with P.P. on the

night of The Fantasticks was the last time they hugged, because

he " told her that it wouldn ' t look appropriate. " 2/ Respondent

testified that " it concerned me that P.P. would think it was more

than -- m ore to our interaction than was there. " Respondent ' s only

explanation for failing to mention this detail at his

pre - determination conference was: " I thought about it, but I

didn ' t think, you know, I needed to go into more detail. I would

go into more de tail here, if we had come to it. "

24. Respondent ' s testimony, offering new details about this

incident that he did not provide in December 2011, was not

credible. It is not credible that Respondent would have held

back material details at the pre - dete rmination conference, which

was his opportunity to tell his side of the story before the

decision was made whether to initiate disciplinary action.

Respondent ' s failure to provide what would have been material

details at a point when those details may hav e affected the

decision regarding disciplinary action, suggests that those new

details are not true and were made up to bolster Respondent ' s

story.

25. Respondent urges that P.P. ' s allegations should not be

believed, because she never told Respondent tha t she was

uncomfortable with their hugs. Respondent suggests that if P.P.

were truly uncomfortable after her freshman year, she never would

have enrolled for advanced chorus for the 2011 - 2012 school year

because his class is an elective. 3/

26. P.P. n ever told Respondent that she did not want him to

hug her and never expressed her discomfort to him. P.P.

explained that she felt like she was supposed to trust her

teacher , and she would feel uncomfortable saying something to him

because she would feel e ven more uncomfortable every time she saw

him after that. Acknowledging, as Respondent does, that P.P. was

one of the best singers at Lehigh, it is understandable that

after her freshman year, P.P. would have enrolled in Respondent ' s

advanced chorus class , despite her discomfort. While chorus may

have been technically an elective, there were no other options

besides taking Respondent ' s classes for talented singers wanting

to pursue their area of interest and talent.

27. M.M., a 15 - year - old female sophom ore who was a friend

of P.P. ' s, was an eyewitness to one of Respondent ' s improper hugs

with P.P. M.M. is a quiet, soft - spoken student who took

Respondent ' s chorus classes as a freshman and as a sophomore.

M.M. testified that she saw Respondent hug P.P. w ith his hand on

her buttocks. She did not think much about that until, in

conversation with P.P. and B.G, P.P. was describing an incident

outside the classroom when Respondent had pulled her close and

grabbed her buttocks, when B.G. piped up that that had happened

to her, too. That is when M.M. told P.P. and B.G. that she had

seen Respondent hugging P.P. and grabbing her buttocks. M.M.

also said that C.R., a senior, told M.M. that she also had

something happen with Respondent.

28. After this discussi on, M.M. went home and told her

stepmother what P.P. and B.G. had said about Respondent, what

M.M. had observed, and what C.R. had told her about Respondent.

M.M. ' s stepmother contacted Lehigh to report the matter.

Immediately thereafter, on November 3, 2011, M.M., P.P., B.G.,

and C.R. were called down to the assistant principal ' s office.

The assistant principal, Mr. McKeever, separately interviewed

M.M., P.P., and B.G.; C.R. was not in the class when she was

called. Mr. McKeever had the three girls wri te down what they

told him in the interviews. The students were separated

throughout this interview - statement process. M.M. ' s written

statement is consistent with her testimony, that she witnessed

Respondent hugging P.P. in Respondent ' s office about two weeks

earlier (i.e., approximately October 20, 2011), and that she saw

" Mr. Sparrow growp [sic] P[.] ' s butt while hugging her. " 4/

29. M.M. testified that Respondent never hugged her or made

any other overtures toward her. M.M. said that she and

Respon dent were not close at all.

30. In his pre - determination conference, Respondent

characterized M.M. as " noble. " By this, he meant that M.M. may

have offered to support the allegations of P.P. and B.G. to help

them out and be their friend after seeing the other students

treating P.P. and B.G. badly after their allegations against

Respondent came to light . However, M.M. ' s statement came before

any allegations against Respondent came to light; indeed, M.M.

was the catalyst for the information coming to ligh t by telling

her stepmother, who reported the matter to the school.

ying another tack to cast doubt on M.M. ' s testimony,

Respondent suggested that perhaps M.M. was just looking to share

in the spotlight by testifying against him. He added that M.M .

had academic troubles in his keyboard class and was not a very

good student. However, M.M. transferred to a different school

shortly after Respondent was suspended and was not at Lehigh any

longer when she testified in this case. Respondent ' s attempts to

discredit M.M. were ineffective.

B.G.

32. B.G. is a 15 - year - old female, who was P.P. ' s best

friend and a fellow sophomore at Lehigh in the 2011 - 2012 school

year .

33. From the first time B.G. met Respondent in her freshman

year taking his beginning chorus class, B.G. observed that

Respondent looked at girls in ways she thought were inappropriate

for a teacher, such as " checking them out " when they turned away

or staring at girls ' chests when standing together talking.

34. B.G. did not discuss he r observations with P.P. that

year. However, she did tell her mother.

35. Besides B.G. ' s observations of Respondent looking at

female students inappropriately, there was nothing else about

Respondent ' s conduct that caused B.G. concern that first year.

36. B.G. described an incident with Respondent occurring on

October 31, 2011, that made her extremely uncomfortable. Since

this incident was so recent at the time B.G. and the others were

interviewed and wrote statements on November 3, 2011, B.G. was

abl e to provide a very detailed description and repeated the same

details in her testimony in this case. Respondent acknowledged

the incident and admitted many of the details.

37. B.G. had to see Respondent after class to obtain a

signed pass authorizing h er absence from class a day or two

earlier. The bell had rung, and B.G. was waiting at his office

while he finished up with other students. After everyone else

had left the classroom, Respondent went into his office and sat

at his desk. B.G. stood in th e doorway while he signed the pass.

3 8 . Respondent then told B.G. to " come here, " directing her

to stand next to him while he remained seated. B.G. had a large

book bag hanging from her right shoulder, and she stood next to

Respondent ' s left side. Resp ondent then reached his arm under

her book bag and touched her buttocks on the way to stretching

his arm under her book bag to encircle her around her lower waist

area. That made her very uncomfortable. She thought maybe

Respondent touched her buttocks b y accident; however, that was

somewhat difficult to accept because as she made clear, " it was

not a brush past. It was like reaching around and like touching

as you ' re going. "

39 . Respondent, with his arm around B.G., started talking

to her about a pi ano performance she had that morning at which

she had gotten nervous. With Respondent ' s arm around B.G., he

told her that she needed to get over that if she wanted to be a

performer some day. Then Respondent retracted his arm, pulling

it back under her b ook bag. This time, he " kind of grabbed as he

went " -- " it was pretty much a firm grasp all the way back around. "

This made her extremely uncomfortable and she did not know what

to do, so she gave a nervous laugh. As she noted at that point,

if it had bee n an accident, she would have expected him to

quickly apologize and back away, but that did not happen. As she

stated, " But if you think about it, most people, most teachers

wouldn ' t hug a student anyways. " Nonetheless, like P.P., B.G.

testified that she honestly could not say that Respondent ' s

intention was to do something inappropriate.

4 0 . B.G. left to go to her next class, but was preoccupied

thinking about what had happened, worrying about what she was

supposed to do, and talking to a boy sitting n ext to her about

what had happened and what he thought she should do. She was

concerned about whether she should report the incident to an

administrator, because, as she put it, she did not want to ruin

Respondent ' s life. B.G. told her mother about this incident that

night or the next night. They discussed whether B.G. should

report the incident and that it was a big deal that could ruin

his life. B.G. also told M.M. about the incident and M.M. told

her stepmother, who reported the matter to assistant p rincipal

McKeever, triggering the investigation that led to this

proceeding.

4 1 . Respondent acknowledged the October 31, 2011, encounter

in his office, alone, with B.G. He admitted that he was the one

who asked her to come stand next to him while he was seated and

that he put his arm around her despite the fact that his arm

would have been aligned with her hips and rear end. His

rationale was that he thought she needed comforting while he

talked with her about getting nervous at her piano performance.

However, it was not as if she came to see him about the

performance or said anything to indicate she was upset about it

when she came to his office -- she just needed him to sign her

absentee pass. Respondent initiated the proximity, then brought

up the sub ject of the piano performance after he had already

engaged B.G. in the " comfort " grip that did anything but comfort

her.

4 2 . At Respondent ' s pre - determination conference, he

admitted that B.G. ' s statement describing the setting was

accurate, including th e fact that he was seated at his desk and

beckoned her to come stand next to him, the fact that she had a

book bag on her shoulder, and the fact that he reached under her

book bag to put his arm around her waist. While Respondent did

not admit to having p urposely grabbed or touched her buttocks, he

admitted that he had to get his hand back, and in pulling his

hand down from B.G. ' s waist and out from under her book bag, he

could have brushed or touched her buttocks. Indeed, it may have

been physically impo ssible for Respondent to retrieve his arm

from across B.G. ' s body and under a large book bag without his

hand sliding across her buttocks.

4 3 . At the final hearing, four months after the pre -

determination conference, Respondent modified his story regard ing

the October 31, 2011, incident with B.G. Respondent testified at

hearing that he did not put his arm around B.G. ' s waist; instead,

he said that his hand was perhaps at the small of her back. Of

course, from B.G. ' s description, with which Respondent a greed at

the pre - determination conference, the small of B.G. ' s back was

probably covered by her book bag. Therefore, Respondent also

changed the part of his story where he had agreed with B.G. ' s

description that Respondent snaked his arm under her book ba g.

At the final hearing, he claimed that he did not reach under the

book bag, because he remembered that her book bag was on her left

side. Respondent reiterated that " [i]f there was any incidental

contact [with her buttocks], that ' s what it was, in pass ing. "

4 4 . Respondent ' s changed story was not credible. As

described three days after the incident by B.G., confirmed in her

testimony and confirmed in all salient respects by Respondent ' s

admissions in the pre - determination conference, Respondent ' s

phys ical contact with B.G. on October 31, 2011, was intentional

and clearly inappropriate. Respondent ' s attempt to change the

story supports the finding that he acted intentionally.

Respondent attempted to eliminate the facts showing that he put

himself in a position that virtually assured that his hand would

have to slide across B.G. ' s buttocks at least twice, once on the

way out to the left side of her waist and once on the way back.

Respondent ' s improper touching was distressing to B.G. and

understandabl y so.

4 5 . B.G. described one other time earlier in the 2011 - 2012

school year when Respondent touched her in a way that made her

uncomfortable. This incident occurred while B.G. was sitting at

a piano practicing, alone, in one of the small piano practi ce

rooms. Respondent came in and reached over her shoulders to put

his hands on the keys, which he had done several times before, to

demonstrate how to correctly play the piece she was practicing.

In this position, his upper arms were touching her should ers.

After about ten seconds of demonstrating on the piano keys, he

brought both arms back, and while doing so, his left hand touched

the area of her chest right above her left breast and then

continued up onto her shoulder. B.G. said that Respondent did

not actually touch her breast, but it was close enough to make

her feel uncomfortable, especially in such a small room with him

standing right behind her and no one else there.

4 6 . The door to the piano practice room was open, and

Respondent ' s hand enco unter with the area above B.G. ' s left

breast was witnessed by C.R., who had walked by and looked in the

room because she was looking for Respondent.

4 7 . B.G. told her mother about this incident in the piano

practice room, but did not tell anyone else. B.G. did not

mention this incident in her written statement, because her focus

was on what she considered the more significant incident, when

Respondent did not just come close to touching a private body

part; he actually grabbed her buttocks, not once, b ut twice.

4 8 . When asked if she had witnessed any conduct of

Respondent ' s with another student that she considered

inappropriate, B.G. referred to the way he would always hug P.P.

B.G. testified that she never saw Respondent hug other students.

B.G. di d not ever witness any inappropriate interaction between

C.R. and Respondent, but C.R. told her about things.

49 . Lehigh has been an uncomfortable place for B.G. since

Respondent was suspended in November 2011. A group of students

have banded together t o support Respondent, even going so far as

to discuss making up " Free Sparrow " tee - shirts to wear in protest

of his suspension, but they abandoned that idea when Respondent

told them that they could get in trouble if they did that. There

has been a lot of animosity directed to the three girls -- P.P.,

B.G., and C.R. -- who gave the interviews and statements reporting

incidents of Respondent ' s inappropriate conduct with each of

them. B.G. testified that she and the others have been accused

of lying, and she ca nnot understand why. Even though apparently

everyone knows the details of what Respondent was accused of,

B.G. has not discussed the details with others, and if asked by

others about the details, she has denied them because she was

told she should not dis cuss the subject with anyone.

C.R.

5 0 . C.R. was a 17 - year - old female senior at Lehigh for the

2011 - 2012 school year; by now, she has graduated. She was a

vocal major and took many classes over the years in chorus and

piano, which were her musical area s of interest.

5 1 . C.R. did not attend Lehigh as a freshman, but has been

there for three years and took Respondent ' s chorus and keyboard

classes in each of her three years.

5 2 . C.R. did not know P.P., B.G., or M.M. before her senior

year, when they w ere in Respondent ' s advanced chorus class

together. The three sophomore girls described C.R. as more of an

acquaintance than a friend.

5 3 . C.R. got along fine with Respondent and had no problems

with him or his conduct in either her sophomore or junior years.

By the end of those two years, C.R. had grown comfortable with

Respondent, as he had been her music teacher for a while.

5 4 . In C.R. ' s senior year, she had four classes with

Respondent: two different keyboard classes, AP music theory, and

adva nced chorus. According to Respondent, because C.R. had two

keyboard classes, he often used her as his aide during the second

keyboard class, because she had already learned what she needed

to in the first class. Respondent would have C.R. do copying,

run to the library, and clean his office.

5 5 . Unlike in her first two years at Lehigh, in the first

few months of her senior year, C.R. experienced numerous problems

with Respondent, including improper physical contacts and

inappropriate comments by Respo ndent.

5 6 . C.R. described multiple encounters with Respondent

while she was playing the piano or keyboard, either in the

private piano room or another practice room. At first, C.R.

would be seated in a chair at the piano or keyboard playing, and

Respon dent, while standing, would reach one hand to the keys to

show her the proper position and would rest his other hand on her

chest area, below her shoulder and above her breast. When this

first began in the early part of C.R. ' s senior year, Respondent ' s

" r esting " hand would be towards the upper part of her chest,

closer to the shoulder, but with each successive time, his hand

went further and further down until it was resting on her breast.

C.R. estimated that she was touched inappropriately this way by

Re spondent more than ten times in the first few months of the

2011 - 2012 school year until Respondent was suspended in November.

5 7 . C.R. testified that about halfway through the

progression of these keyboard incidents, she was walking by the

door to the pi ano practice room and saw through the door that

Respondent was engaged in a similar hand - to - chest area encounter

with B.G. Afterwards, C.R. approached B.G. and told her that

Respondent does the same thing to her. C.R. said she wanted B.G.

to know that sh e needed to tell someone because she was only a

sophomore.

5 8 . When asked why C.R. did not tell Respondent to stop,

she said, " I wouldn ' t know how to approach someone like that. I

wouldn ' t, I wouldn ' t be able to tell you please don ' t touch my

breast. It would make me very uncomfortable. I would rather

just suck it up and deal with it. "

59 . Respondent 's description of his keyboard encounters was

somewhat different than C.R. ' s and B.G. ' s descriptions, but he

admitted key parts of those description s. Respondent explained

that he frequently assist ed his keyboard students while they are

seated in a single chair at a piano or keyboard. Respondent

chooses to remain standing , instead of pulling up another chair.

Respondent emphatically denied standing behind his students; he

claims to have always stood next to the playing student.

However, Respondent admits that he would reach over the student

(from the side) and lean over to the keyboard to demonstrate with

one hand how to position the fingers on the keys. Respondent

also admits that providing assistance this way puts him in a

precarious position, so that he has to use his other hand to

brace himself on the student ' s shoulder. Respondent said that he

puts his hand " on their shoulder that ' s nearest m e or on the

shoulder that ' s on the opposite side of me, " which means that

Respondent would put an arm around the playing student, a strange

way of bracing himself with his hand on their far shoulder.

6 0 . Thus, Respondent admits regularly touching C.R. and

B.G., and presumably all of his other keyboard students, with his

hand braced on their shoulders for the duration of the piece the

student is playing. The only part Respondent disputes is the

hand slippage from its shoulder perch down to the chest are a in

B.G. ' s case, and still further down to the breast in C.R. ' s case.

However, C.R. ' s and B.G. ' s testimony was otherwise undisputed,

and each of their stories was corroborative of the other ' s.

Respondent ' s denial was not credible.

6 1 . In addition to t he keyboard encounters, on multiple

occasions in the few months before Respondent was suspended, C.R.

would go to see Respondent in his office and he would ask her to

come stand by him when he was sitting at his desk. When C.R.

complied, Respondent would wrap his arm around her waist and rub

or stroke her buttocks and thigh, while showing her something on

the computer or telling her something he wanted her to do. C.R.

estimated that these office encounters occurred ten or 15 times,

until C.R. started tryi ng to avoid going to his office or ignore

his requests to come stand next to him. C.R. also began leaving

Respondent's classroom between classes, instead of just stay ing

in the r oom where she also had her next class with Respondent .

To avoid encounters w ith Respondent between classes , C.R. would

wait in the bathroom until students for the next class would

arrive, and then she would join them for her next class.

6 2 . When asked whether she knew if Respondent intentionally

touched her inappropriately, C.R. responded: " I think if a man

touches you on your breast and on your hips and boob and your

butt that he is being inappropriate. "

6 3 . Once again, Respondent admitted frequent encounters

with C.R. in his office, because, after all, he put her to work

cle aning it and running errands for him. In addition, Respondent

admitted that he would make physical contact with C.R., putting

his arm around her while she stood next to him when he was seated

at his computer. Once again, Respondent ' s description of these

encounters stopped a bit short of C.R. ' s version. According to

Respondent, he would reach his arm (awkwardly) around and upward

so that he could pat C.R. on her back for emphasis as he showed

her something on the computer or showed her paperwork that he

wanted her to copy. Once again, Respondent testified that

although it was possible that his hand had an accidental

encounter with C.R. ' s buttocks, any such accident was just that --

accidental.

6 4 . C.R. also described Respondent ' s inappropriate conduct

on e day in her AP music theory class, in the presence of four or

five other students. On that day, any time C.R. had a question

or needed help, Respondent made her hug him before she could ask

her question. Respondent also kissed her forehead when she

answ ered a question correctly. She found this behavior

objectionable. Respondent did not address this aspect of C.R. ' s

testimony, which stands unrebutted.

6 5 . C.R. also recounted her discomfort with Respondent ' s

running brassiere commentaries. This string of incidents started

during homecoming week, when there was a celebrity dress - up day

on which C.R. went to class wearing an outfit that featured a

neon - colored bra. Respondent made a joking comment, saying

something like, " C., why is your bra so bright? " C.R. did not

take this comment in the wrong way, because Respondent said it

jokingly.

6 6 . What bothered C.R., however, was the progression of

Respondent ' s brassiere comments and touchings that followed after

that day. For example, when C.R. wore a low - cut or v - neck shirt,

Respondent stood above her and looked down her shirt, and ma d e

comments such as, " I ' m glad you ' re not wearing your neon bra

today " ; or " this bra is much nicer. " Once when C.R. ' s bra strap

was showing, Respondent pushed the bra strap over and repeated

one of the comments about the color of her bra. Respondent gave

a slightly different story . He testified that after the neon bra

joke, on another day when C.R. ' s shirt had slipped and exposed

her bra strap, he moved her shirt to cover u p the bra strap,

while commenting that he was glad she was not wearing the neon

bra today. Respondent ' s version is almost as bad as C.R. ' s

description. Respondent has no business rearranging clothing of

his female students in such a personal manner, nor commenting on

their intimate apparel.

6 7 . Respondent often gave nicknames to his students, naming

them some kind of " smurf " that suited them, such as " good singer

smurf. " C.R. described an encounter with Respondent that

bothered her, when he pushed up the bottom part of her shirt in

the back and said, " We should call you " love handle smurf. "

6 8 . Finally, C.R. described what she thought was the final

incident with Respondent before his suspension. This incident

occurred in the piano room. C.R. had g one in the room between

classes when no one else was there. She was tired from soccer

practice, so she moved several chairs together so they were

touching. S he laid down across the seats, which formed a kind of

bench. Her shirt had ridden up so some of her waist was exposed,

though she had a jacket on over it. Respondent came into the

room, pushed up her jacket, and started rubbing her waist and

sides. C.R. was uncomfortable so she jumped up, said she had to

go do something , and walked out.

69 . Respo ndent admitted that he found C.R. lying down as

she had described. Respondent testified that he used his hands

to rhythmically beat on her back as he told her to get up, that

it was time to get to work. Respondent denied pushing up C.R. ' s

jacket and he d enied that his hands made contact with her skin.

7 0 . Respondent offered a new fact at the final hearing

regarding this incident that he did not mention at the pre -

determination conference. According to Respondent, after he had

been beating on C.R. ' s bac k, she commented, " oh, this feels

better than my boyfriend. And at that point I stopped, because

that was an inappropriate statement, and that was not the nature

of any of that. I left, and that was it. " He later elaborated

on why he stopped: " Because that was very inappropriate, and

that was not -- that was not my intention to make it -- for her to

compare me to her boyfriend or anything like that was way above --

I mean way crossed the line. "

7 1 . Respondent also offered his opinion that the reason why

C. R. had said all these things about him was because he thinks

she had a crush on him and was jealous , or felt threatened , when

she saw Respondent touching B.G. ' s chest while she was playing

piano. This too was a new twist to Respondent ' s final hearing

test imony that Respondent did not see fit to share at his pre -

determination conference. No other testimony was offered to

support Respondent ' s new theory; none of the witnesses testifying

on Respondent ' s behalf were even asked if they knew about C.R. ' s

suppos ed crush on Respondent. Respondent ' s unsupported

speculation lacks credibility, in part because C.R. was not the

one to report Respondent to the school administrators; in fact,

she was the last of his victims to give a statement.

General D efenses

7 2 . A n overall theme of Respondent ' s attempt to refute the

allegations against him was that the three young ladies

misunderstood his intentions, which were not sexual in nature.

Respondent attempted to prove that B.G., P.P., and C.R. were

impressionable and th at each of them was influenced to embellish

what happened because of the stories that each of them told about

Respondent. This effort was ineffective. Respondent, having

admitted the core facts of each of the young ladies ' allegations,

was not credible i n his denials of some of the details, as found

above. Respondent's admission of serial "accidents" suggests

that the incidents were no accident at all.

7 3. Respondent also attempted to cast doubt on the

allegations of the three young ladies by emphasizi ng the

visibility of his office from the classroom and the partial

visibility of the classroom and the piano and keyboard practice

rooms from the hall, through window panels on the tops of the

doorways. Respondent also attempted to suggest that there were

always students in these areas. While the testimony established

that most of Respondent ' s inner office would be visible to

persons in the classroom, the testimony also established that

there were times when Respondent would be in his office with a

studen t and no one else around. The same is true with respect to

the piano and keyboard rooms -- the testimony established that

these rooms may have been at least somewhat visible, but others

were not always around. All of the student witnesses, including

the fo ur witnesses who attempted to support Respondent with their

testimony, confirmed this fact; each of them had, on occasion,

been alone with Respondent.

7 4 . The witnesses testifying in support of Respondent think

highly of him as a teacher and do not bel ieve the allegations

against him. However, their testimony lacked substance to refute

the allegations in any respect. For example, all of Respondent ' s

student witnesses admitted that they were not always with B.G.,

P.P., M.M., and C.R. when those four gi rls were in Respondent ' s

presence. All but one of Respondent ' s student witnesses said

that they would be surprised to hear Respondent describe himself

as a hugger. One student witness never saw Respondent hug any

student; another student witness said tha t Respondent hugged

everyone.

7 5 . The shame of it is that Respondent has been a very good

and talented teacher. Indeed, after he was suspended, each of

the young ladies who made statements against Respondent stated

publicly that they wished he was sti ll teaching because he was

such a good teacher (and also because they did not think much of

his replacement). But each of these young ladies made clear that

they were speaking only of teaching ability, and if he had

actually come back to teach them, they would have felt very

uncomfortable because of his misconduct and because they spoke up

against him.

Prior N otice

7 6 . Respondent makes much of the fact that the three

students whose allegations are the predicate for the charge of

misconduct never compl ained to him about his conduct, so that he

could change his conduct to address their concerns.

7 7 . Under the circumstances found above, notice should not

have been required for Respondent to realize that serial

" accidents " in which his hands found themse lves on the buttocks

of female students and other " accidents " in which his bracing

hand slipped from shoulder perches downward in the direction of

the breasts of female students, was improper conduct on his part.

7 8 . Moreover, Respondent admitted that he was indeed on

notice about Lehigh ' s concern with him bre a ching body boundaries

with female students. Respondent testified that he met with

Lehigh Assistant Principal Niki Carthan sometime during the

2010 - 2011 school year, about a student complaint. Ms . Carthan

informed Respondent that a student had complained to another

teacher that Respondent made her feel uncomfortable. That

teacher reported the complaint to Ms. Carthan, who spoke with

Respondent about it.

79 . The student who had complained was a senior who was

going to apply to FAMU, where Respondent attended. Respondent

invited the student to his office to pull up her application

essays on his computer. According to Respondent, the student was

sitting down at his computer , and he reached around her for the

mouse which was on the other side of her. He claims he did not

touch her, but he acknowledged that by the nature of him reaching

around her to click on the mouse that was on her other side and

" being in close proximity to her looking at the c omputer screen,

it might have made her uneasy . . . . "

8 0 . Respondent testified that Ms. Carthan warned him to be

more careful and that he needed to be " very cognizant of your

spacing " when it came to students.

8 1 . Rather than heeding Ms. Carthan ' s w arning, Respondent

was plainly less careful, not more careful. He did not learn his

lesson from his close encounter that violated body space

boundaries and made the FAMU - bound student uneasy enough to

complain during the 2010 - 2011 school year. Instead, t hat

too - close encounter in 2010 - 2011 progressed to numerous incidents

of improper physical contacts by Respondent, with actual touching

of private body parts, making three different young ladies very

uncomfortable, fearful, and anxious about encounters wit h the one

teacher who could teach them the music they loved.

CONCLUSIONS OF LAW

8 2 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2011). 5/

8 3 . In this proceeding, Petitioner seeks to terminate

Respondent ' s employment. Petitioner bears the burden of proof,

and the standard of proof is by a preponderance of the evidence.

McNeill v. Pinellas Cnty . Sch . Bd . , 678 So. 2d 476, 477 (Fla. 2d

DCA 1996) ; Dileo v. Sch . Bd . of Dade Cnty . , 569 So. 2d 883 (Fla.

3d DCA 1990).

8 4 . Pursuant to section 1012.33(1)(a), Florida Statutes,

" just cause " is the standard established for termination of

instructional personnel. That is the same standard set forth in

th e applicable Collective Bargaining Agreement . " Just cause " is

described in section 1012.33(1)(a), in pertinent part, as

follows:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education:

immo rality, misconduct in office,

incompetency, . . . gross insubordination,

willful neglect of duty, or being convicted

or found guilty of, or entering a plea of

guilty to, regardless of adjudication of

guilt, any crime involving moral turpitude.

8 5 . Peti tioner has charged Respondent with committing acts

that constitute misconduct in office, as defined by Florida

Administrative Code Rule 6A - 5.056(3) (formerly rule

6B - 4.009(3)). 6 / That rule provides:

Misconduct in office is defined as a

violation of the Co de of Ethics of the

Education Profession as adopted in Rule

6B - 1.001, F.A.C. and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule

6B - 1.006, F.A.C., which is so serious as to

impair the individual ' s effective ness in the

school system.

8 6 . Rule 6B - 1.001, incorporated into the rule definition of

" misconduct in office, " sets forth the Code of Ethics of the

Education Profession in Florida, as follows:

(1) The educator values the worth and

dignity of every pe rson, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) The educator ' s primary professional

concern will always be for the student and

for the development of the student ' s

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and i ntegrity.

(3) Aware of the importance of maintaining

the respect and confidence of one ' s

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

8 7 . The Petition also alleges that Respondent ' s misconduct

violated Petitioner ' s promulgated policies 5.02 and 5.29. In

policy 5.02, petitioner has adopted its own professional

standards which are similar to rule 6B - 1.001. This policy

establishes " high stan dards and expectations for [Petitioner ' s]

faculty and staff, including: . . . (2) Dedication to high

ethical standards[; and ] (3) Establishment of high standards in

educational practice. " The policy warns that " [a]n employee ' s

failure to meet the above s tandards and expectations may result

in discipline, up to and including termination of employment. "

8 8 . Policy 5.29, regarding complaints against employees,

provides in paragraph (1) that " [a]ll employees are expected to

exemplify conduct that is lawful and professional and contributes

to a positive learning environment for students. "

89 . Petitioner proved that Respondent ' s conduct constituted

misconduct in office as defined in rule 6A - 5.056 and that such

misconduct also violated Petitioner ' s policies 5 .02(2) and (3)

and 5.29(1). The common thread of these three rules is that

teachers are held to high ethical standards and their conduct

must be beyond reproach, particularly when dealing in the school

setting with students whose care has been entrusted t o the

teachers. A teacher falls below that high ethical bar by failing

to exemplify professionalism at all times in dealings with

students, so as to foster a positive learning environment for

students. Respondent ' s conduct failed to live up to the ethica l

and professional standards expected of, and imposed on, teachers.

9 0 . A teacher ' s ineffectiveness in a school system may be

inferred from the teacher ' s misconduct. See Walker v. Highlands

Cnty . Sch . Bd . , 752 So. 2d 127, 128 - 129 (Fla. 2d DCA 2000)

(ine ffectiveness patent and obvious from the misconduct). The

misconduct in this case involves Respondent ' s inappropriate

touching of students and inappropriate comments to students,

making the students anxious and fearful of being with Respondent.

Yet becau se of Respondent ' s authoritative position as their

teacher, these students believed they were supposed to trust him

and did not think they could talk to him about their discomfort

with his liberties. As in Walker , supra , the impairment of

Respondent ' s eff ectiveness as a teacher in this school system is

" patent and obvious. " As in Brevard Cnty . Sch . Bd . v. Gary , Case

No. 03 - 4052 (Fla. DOAH June 24, 2004), " This misconduct goes to

the very heart of a teacher ' s relationship to his students. As

such, it can be inferred that such conduct impairs [Respondent ' s]

effectiveness in the [Lee] County School system. " RO at 13, ¶27.

9 1 . Respondent argues in his defense that his admitted

frequent physical contact with the three students , whose

statements gave rise to this proceeding , was misunderstood by

them in that he did not intend anything sexual. However, it is

Respondent who misunderstands. Respondent admittedly and

repeatedly put himself in situations in which there was at least

a high likelihood, if not a certainty, that a blatantly improper

" accidental " encounter would result between Respondent ' s hand and

a young lady ' s buttocks or between Respondent ' s hand and the

slippery slope southward from a young lady ' s shoulder.

9 2 . Respondent admitted to this con duct. He admitted that

from his seated position at his desk, he would encourage ladies

to stand next to him, and he would reach his arm around them.

Even if, as he tried to demonstrate, he reached out (at buttocks

level) and then strained his arm to reac h up and grasp them

around their waist, Respondent conceded that at some point he

would have to retract his arm, and the hand would, as a matter of

physics and gravity, " accidentally " graze the buttocks on its way

back where it belonged. This happened too many times to accept

Respondent's claim of "accidents."

9 3 . Respondent also admitted that rather than sit next to

his keyboard students on a bench or another chair pulled up to

the keyboard where he could demonstrate the proper positioning of

fingers on the keys, Respondent would stand next to the seated

students, reach one hand to the keyboard, and " brace " himself by

placing his other hand on their shoulders. This was apparently

such a precarious position -- since Respondent was worried that he

needed to brace himself -- that it was easy and common for

Respondent ' s bracing hand to slip forward and down.

9 4 . In a disciplinary case against a band director ' s

teaching certificate, which was similar factually to this case,

then - Hearing Officer Charles C. Ada ms concluded as follows in

language that is equally applicable here:

The Respondent ' s improper physical contact

with his students was a breach of his

obligation to the public and to his

students. By engaging in such improper

conduct, the Respondent eroded his students '

confidence in him, placing his students in

fear and eroding the faith and trust of his

students, their parents and the

administration.

State, Dep ' t of Educ., Educ. Practices Comm ' n, and Betty Castor

as Comm ' r of Educ. v. Edward M. Haley , Ca se No. 87 - 0092 (Fla.

DOAH Feb. 1, 1988; Fla. EPC April 5, 1988), RO at 5, ¶ 37.

9 5 . There is " just cause " to terminate Respondent ' s

employment, within the meaning of section 1012.33(1)(a).

RECOMMENDATION

Based on the foregoing Findings of Fact and Concl usions of

Law, it is RECOMMENDED that Petitioner, Lee County School Board,

enter a final order terminating Respondent , Willie Sparrow ' s ,

employment.

DONE AND ENTERED this 18th day of July, 2012 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative 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

this 18th day of July , 2012 .

ENDNOTE S

1/ Mr. Givens is the pastor at Respondent ' s church, and his

proffered testimony addressed his observations of Respondent in

the church setting. However, Mr. Givens has n o knowledge of any

facts relevant to the allegations in the Petition, and none of

his observations of Respondent occurred at school or in

connection with school - related functions. At the beginning of

the final hearing, Petitioner submitted a motion in lim ine to

keep out such general character testimony, because Respondent ' s

general character is not at issue; rather, the Petition alleges

specific conduct that is at issue. Petitioner ' s objection to

Mr. Givens ' testimony was sustained, but Respondent was all owed

to proffer Mr. Givens ' testimony, and because the motion in

limine was filed too late for Respondent to respond before

hearing, the parties were invited to brief the issue in their

proposed recommended orders. Instead of arguing the point

further, Re spondent ' s proposed recommended order concedes the

correctness of Petitioner ' s motion in limine, and , accordingly,

Respondent withdrew the proffer of Mr. Given ' s testimony.

2/ Respondent also gave a different explanation for stopping hugs

with P.P. sho rtly before he was suspended. He claimed that it

" struck " him that their hugs had gotten to be a " Mr. Sparrow

likes me better than the rest of you kids kind of thing, a

show - off thing " for P.P., and that is when he stopped " with

hugging her and her huggin g me and everything else. " However,

according to B.W. and S.M., both of whom testified on

Respondent ' s behalf, P.P. frequently would hug Respondent, and

there was no change in the way P.P. interacted with Respondent up

to the time when he was suspended.

3/ Respondent also points to a field trip taken near the end of

P.P. ' s freshman year, the 2010 - 2011 school year, as evidence that

P.P. was not being honest about her discomfort. Respondent and

several adult chaperones each drove vans with students to Bus ch

Gardens. P.P. and her best friend, B.G., were passengers in

Respondent ' s van, along with four other students. P.P. testified

that she and B.G. ended up in Respondent ' s van because no other

van had two open seats to accommodate both of them and they di d

not want to be split up. By all accounts, nothing inappropriate

occurred during this field trip. However, neither the fact that

P.P. and B.G. rode in Respondent ' s van because no other van could

accommodate them, nor the fact that there was no misconduc t

during this trip, undermine P.P. ' s testimony of her discomfort

with Respondent in her freshman year, much less her testimony of

Respondent ' s improper physical contacts with her in the first few

months of her sophomore year.

4/ M.M. clarified in her tes timony that the word she meant to use

in her written statement was " grope. " She backtracked just a bit

from the written statement, while confirming that she observed

Respondent ' s hand on P.P. ' s buttocks. M.M. testified that while

she guessed that what sh e saw was " sort of like, oh, groping,

. . . I really just saw his hand there [on her buttocks]. " M.M.

also agreed with a question by Respondent ' s counsel that asked

whether it was conceivable that Respondent ' s hand was on P.P. ' s

buttocks by accident.

5 / All statutory references are to the Florida Statutes (2011),

the law in effect when the hearing took place. It is noted that

the events giving rise to this disciplinary action occurred, at

least in part, when the 2010 statutes were still in effect;

how ever, between 2010 and 2011, there were no material changes to

the statutory and rule provisions relied on in the charges

against Respondent.

6/ The Petition for Termination of Employment, which serves as

the administrative complaint in this case, charge s Respondent

with engaging in acts that constitute misconduct in office as

defined by rule 6B - 4.009(3). The rule quoted herein is the same

substantive rule that was in effect at all times pertinent to

this proceeding. Without amendment, the rule was tran sferred and

reassigned a different rule number, 6A - 5.065. The renumbered

rule was very recently amended, effective July 8, 2012. The

newly amended rule, which contains a new and substantially

broader definition of " misconduct in office, " is not applicabl e

to Respondent ' s prior conduct.

COPIES FURNISHED:

Gerard Robinson, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Joseph Burke

Superintendent of Schools

Lee County Sch ool Board

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

Charles M. Deal, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Robert J. Coleman, Esquire

Coleman and Cole man

Post Office Box 2089

2080 McGregor Boulevard, Suite 202

Fort Myers, Florida 33902

Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

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.