12-002481PL Gerard Robinson, As Commissioner Of Education vs. Roderic Andery Gadson Status: Closed Recommended Order on Thursday, February 14, 2013.

Summary: Petitioner proved that Respondent committed acts which were grossly immoral and which seriously reduced his effectiveness as an employee of the School Board. Recommend penalty of one-year suspension and one year of probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERARD ROBINSON, AS )

COMMISSIONER OF EDUCATION , )

)

Petitioner , )

)

vs. ) Case No. 12 - 2481PL

)

RODERIC ANDERY GADSON , )

)

Respondent . )

)

RECOMMENDED ORDER

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

by video teleconference between sites in Ft. Myers and

Tallahassee, Florida, on January 11, 2013, before the Division of

Administrative Hearings by its designated Administrative Law

Judge L inzie F. Bogan.

APPEARANCES

For Petitioner: Dean Johnson, Esquire

Brooks, LeBoeuf, Bennett,

Foster and Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whet her Respondent committed the violations alleged in the

Administrative Complaint, and , if so, the penalty that should be

imposed.

PRELIMINARY STATEMENT

On or about March 5, 2012, Petitioner, Gerard Robinson, in

his capacity as C ommissioner of E ducation (Pet itioner), filed an

Administrative Complaint against Respondent, Roderic Andery

Gadson (Respondent). Respondent timely filed his request for

administrative hearing, and on July 17, 2012, the matter was

referred to the Division of Administrative Hearings (D OAH) for a

disputed fact hearing. The disputed fact hearing was held on

January 11, 2013.

During the final hearing, Petitioner offered the testimony

of David P. LaRosa. Respondent did not appear for the final

hearing. Petitioner ' s Exhibits 1 through 7 w ere admitted into

evidence.

A Transcript of the proceeding was filed with DOAH on

January 24, 2012. Neither party filed a proposed recommended

order .

FINDING S OF FACT

1. During all times relevant hereto, Petitioner served as

head of the Florida Depart ment of Education, the state agency

charged with the responsibility of investigating and prosecuting

complaints of violations of section 1012.795, Florida Statutes

(201 0 ) , 1/ against teachers holding Florida e ducator's

c ertificates .

2. Respondent holds Fl orida Educator ' s Certificate 801726,

covering the area of general science, which is valid through

June 30, 2013. No evidence was presented indicating that

Respondent was previously the subject of disciplinary action by

either Petitioner or the School Dist rict of Lee County, Florida

(School Board).

3. During the 2010 - 2011 school year, Respondent, who was

then employed by the School Board, told female Lee County

students E.B. and A.C. that they were " hot. " On or about

April 20, 2011, Respondent sent a tex t message to female student

E.B. that read, " This is Rod, you are so hot, all I can do is

smile when I see you. This is our secret, don ' t tell anyone.

This is my personal number. " Respondent ' s reference to the

female students as being " hot " was intended to convey to the

students that Respondent found them to be sexually attractive.

4. On April 21, 2011, witnesses reported to Mr. LaRosa,

p rincipal of Fort Myers High School, that a text message that

they considered inappropriate was seen by them on stu dent E.B. ' s

cell phone. The text message was allegedly sent to E.B. by

Respondent.

5. Soon after receiving the complaint, Mr. LaRosa contacted

Respondent and met with him to discuss the allegations.

Respondent prepared a written statement and admitted therein to

his " exercise of poor judgment. " According to Respondent ' s

written statement, his only intention, as to the allegations,

" was to encourage and compliment [the] two young ladies. "

Contrary to his declaration of pure motives, had Respondent ' s

in tentions been benign, then he certainly would not have told

E.B. that " This is our secret, don ' t tell anyone. "

6. On April 21, 2011, Respondent was suspended with pay

pending the outcome of the School Board ' s investigation of the

allegations. On April 29 , 2011, Respondent tendered to the

School Board his notice of resignation from employment.

CONCLUSIONS OF LAW

7. DOAH has jurisdiction over the subject matter of and the

parties to this proceeding pursuant to sections 120.569 and

120.57(1) , Florida Sta tutes (2012) .

8. Petitioner seeks disciplinary action against the Florida

Educator Certificate held by Respondent. Petitioner , therefore ,

has the burden of proving by clear and convincing evidence the

allegations against Respondent. See Ferris v. Turl ington , 510

So. 2d 292 (Fla. 1987); Evans Packing Co. v. Dep ' t of Agric.

& Consumer Servs. , 550 So. 2d 112 (Fla. 1st DCA 1989); and

Inquiry Concerning a Judge , 645 So. 2d 398 (Fla. 1994).

9. Section 1012.795(1) provides, in relevant part, as

follows:

( 1) The Education Practices Commission may

suspend the educator certificate of any

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

for up to 5 years, thereby denying that

person the right to teach or otherwise be

employed by a district school board or

public sch ool in any capacity requiring

direct contact with students for that period

of time, after which the holder may return

to teaching as provided in subsection (4);

may revoke the educator certificate of any

person, thereby denying that person the

right to tea ch or otherwise be employed by a

district school board or public school in

any capacity requiring direct contact with

students for up to 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certifica te of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon an

order of the court or notice by the

Department of Revenue relating to the

payment of child support; or may impose any

other penalty provided by law, if the

person:

* * *

(d) Has been guilty of gross immorality or

an act involving moral turpitude as defined

by rule of th e State Board of Education.

* * *

(g) Upon investigation, has been found

guilty of personal conduct that seriously

reduces that person ' s effectiveness as an

employee of the district school board.

* * *

(j) Has violated the Principles of

Prof essional Conduct for the Education

Profession prescribed by State Board of

Education rules.

A. Gross I mmorality/ M oral T urpitude

10. In Count One of the Administrative Complaint,

Petitioner alleges that Respondent is " in violation of section

1012.795(1 )(d), Florida Statu t es, in that Respondent [is] guilty

of gross immorality or an act involving moral turpitude as

defined by rule of the State Board of Education. "

11. No rule defines the term " gross immorality. " However,

Florida Administrative Code Rule 6A - 5.056(2) contains the

following definition of the term immorality:

(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 concer ned or the education

profession into public disgrace or

disrespect and impair the individual ' s

service in the community.

12. " Gross immorality " has been defined to mean an act of

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

flagrant disregard of proper moral standards. See Educ.

Practices Comm ' n v. Knox , 3 FALR 1373 - A (Fla. Dep ' t of Educ.

1981) ; and Frank T. Brogan v. Eston Mansfield , Case No. 96 - 0286

(Fla. DOAH Aug. 1, 1996; Fla. DOE/ EPC Oct. 18, 1996).

1 3 . Petitioner proved by cl ear and convincing evidence that

Respondent ' s sexually suggestive comments , and his related

request to the student that she refrain from telling anyone about

his overtures, rose to the level of gross immorality.

B. Misconduct and the Principles of Prof essional Conduct

1 4 . Counts Two, Three, Four, and Five of the Administrative

Complaint allege collectively that Respondent violated the

Principles of Professional Conduct for the Education Profession

in Florida, as set forth in Florida Administrative Co de Rule

6B - 1.006(3)(a) and (h), and the violation of the same was so

severe that it seriously reduced his effectiveness as an employee

of the School Board within the meaning of section 1012.795(1)(g).

1 5 . Rule 6B - 1.006 provides, in relevant part, as follo ws:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator ' s

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student ' s mental

a nd/or physical health and/or safety.

* * *

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

1 6 . Petitioner established by clear and convincing evidence

that Respondent, in making sexually suggestive comments to

s tudents E.B. and A.C., violated r ule 6B - 1.006(3)(a).

1 7 . Also, Respondent ' s statement to student E.B. that she

is " hot " was more than a benign , inappropriate comment.

Respondent paired the reference to E.B. being hot with a request

that she keep his inte rest in her a " secret. " Respondent also

provided E.B. with his personal phone number. These acts

establish that Respondent was attempting to cultivate, in a n

abhorrent sense, an illicit relationship with E.B. in furtherance

of his prurient interest in th e student. Petitioner established

by clear and convincing evidence that Respondent ' s actions

violated r ule 6B - 1.006(3)(h).

1 8 . As previously noted, section 1012.795(1)(g) provides

for discipline against an individual ' s educator certificate in

instances where the individual ' s effectiveness as a school board

employee has been seriously compromised by the individual ' s

conduct. Given the nature and seriousness of Respondent ' s

conduct, it is reasonable to infer, as contemplated by section

1012.795(1)(g), th at Respondent ' s effectiveness as an employee of

the School Board has been seriously impaired. See Walker v.

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

Purvis v. Marion Cnty. Sch. Bd. , 766 So. 2d 492 (Fla. 5th DCA

2000)(reduced effec tiveness may be inferred from the nature and

seriousness of the conduct). Petitioner has met its burden.

C. Penalty

19 . In the Administrative Complaint, Petitioner generically

" recommends that the Education Practices Commission impose an

appropriate san ction against Respondent ' s educator ' s

certificate. . . . " Petitioner did not file a proposed

recommended order and otherwise does not make a specific

recommendation regarding the appropriate sanction against

Respondent ' s educator ' s certificate. Given the circumstances

present in the instant matter, it is reasonable that Respondent ' s

educator 's certificate be suspended for a period of one year,

followed by one year of probation. The Education Practices

Commission shall establish the terms and conditions f or both the

suspension and probation. In making this recommendation, the

undersigned considered the Disciplinary Guidelines set forth in

Florida Administrative Code Rule 6B - 11.007.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions o f

Law, it is RECOMMENDED that the Education Practices Commission

enter a final order finding Respondent guilty of the violations

alleged in Counts One, Two, Three, Four, and Five of the

Administrative Complaint.

It is further RECOMMENDED that the final o rder suspend

Respondent ' s Florida educator's certificate for a period of one

year , to be followed by a one - year period of probation. The

terms and conditions of Respondent ' s suspension and probation

shall be established by the Education Practices Commissi on.

DONE AND ENTERED this 14th day of February , 2013 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallaha ssee, 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 14th day of February , 2013 .

ENDNOTE

1/ Unless otherwise indicated, all rule and statutory refe rences

are to the (201 0 ) versions , which w ere in effect at the time of

the alleged misconduct.

COPIES FURNISHED:

Matthew Carson , General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0 400

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Serv ices

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Roderic Gadson

8875 Falcon Point Loop

Fort Myers, Florida 33912 - 1472

Dean Johnson, Esquire

Matthew K. Foster, Esquire

Brooks, LeBoeuf, Bennett,

Foster and Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301 - 2646

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 exceptio ns

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.