20-002075PL Richard Corcoran, As Commissioner Of Education vs. Tyrhon Renard Crawford Status: Closed Recommended Order on Friday, January 29, 2021.

Summary: Resp. violated professional conduct rule by harassing 2 coaches and 1 sports media sponsor when he was athletic director, and removing 1 from coaching when she rebuffed his advances. Recommend 3-year suspension and 3-year probation.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

R ICHARD C ORCORAN , A S C OMMISSIONER

OF E DUCATION ,

Petitioner ,

Case No. 20 - 20 75PL

vs.

T YRHON R ENARD C RAWFORD ,

Respondent .

/

R ECOMMENDED O RDER

Administrative Law Judge Elizabeth W. McArthur of the Division of

Administrative Hearings (DOAH) conducted a disputed - fact evidentiary

hearing by Zoom conference on October 1, 2020.

A PPEARANCES

For Petitioner: Ron Weaver, Esqu ire

Post Office Box 770088

Ocala, Florida 34477 - 0088

For Respondent: Carol R. Buxton, Esquire

Florida Education Association

1516 East Hillcrest Street, Suite 109

Orlando, Florida 32803

S TATEMENT OF T HE I S SUE S

The issues in this case are whether Respondent violated section

1012.795(1)(g) and (1)(j), Florida Statutes (2017), and Florida Administrative

Code Rule 6A - 10.081(2)(c)4. ; and, if so, what discipline should be imposed.

P RELIMINARY S TATEMENT

On Novem ber 5 , 2019, Richard Corcoran, as Commissioner of Education

(Petitioner), issued an Administrative Complaint against Ty h ron R. Crawford

(Respondent) . The Administrative Complaint alleg ed facts from the 2017 -

2018 school year , which served as the predicate f or violations charged under

sect ion 1012.795(1)(g) and (1)(j), and rule 6A - 10.081(2)(c)4.

Respondent timely filed an Election of Rights by which he requested a

disputed - fact administrative hearing . T he case was referred to DOAH on

April 30, 2020, for the assignment of an administrative law judge to conduct

the requested hearing.

After scheduling input from the parties, a case management conference

was held to address concerns of both parties regarding the impact of the

COVID - 19 pandemic on hearing prepar ation . T he parties requested and were

given extra time for hearing preparation and the hearing was initially set f or

September 4, 2020 , by video teleconference with sites in Tallahassee and

Altamonte Springs, Florida . Petitioner filed an unopposed motion t o convert

the hearing mode to Zoom conference, which was granted. Respondent later

filed an unopposed motion to continue the hearing b ecause of a conflict with a

recently scheduled hearing before the Education Practices Commission,

which wa s also granted. The hearing was rescheduled for October 1, 2020, by

Zoom conference and it went forward as rescheduled.

Prior to the hearing, the parties filed a Joint Pre - hearing Stipulation in

which they stipulated to several facts. The stipulated facts are incorporate d

in the Findings of Fact below , to the extent relevant .

At the hearing, Petitioner presented the testimony of Michael Ganio,

Sheree Carter, Jamila Mitchell, Jessica Kendrick, Gregory Thompson, and

Benjamin Rivers. Petitioner's Exhibits 1 through 14 and 1 7 were admitted in

evidence and o fficial r ecognition was taken of Petitioner's Exhibit 18.

R espondent's objections to the hearsay nature of Petitioner's Exhibits 6 and

12 through 14 were noted , but the objections were overruled. The parties

were reminded t hat use o f hearsay evidence in this proceeding is limited to

supplementing or explaining competent evidence ; h earsay cannot be the sole

basis for a finding of fact unless it would be admissible over objection in a

civil action in Florida. See § 120.57(1)(c ), Fl a. Stat. ; Fl a. Admin. Code

R. 28 - 106.213(3) .

Respondent testified on his own behalf and presented the testimony of

Rolando Bailey, Dale Valente, Iris Woodard, Renee Bellamy, and Whitney

Poole. Respondent did not offer any documentary evidence.

Afte r the hearing, the parties were informed of the ten - day timeframe

provided by rule for filing proposed recommended orders (PROs), running

from the date of filing of the hearing transcript at DOAH.

The two - volume Transcript was filed on November 23 , 2020. The parties

filed a joint motion to extend the PRO deadline , which was granted for good

cause shown . 1 B oth parties subsequently filed their PROs, which have been

carefully c onsidered in the preparation of this Recommended Order.

Unless otherwise noted , c itations to Florida Statutes and rules are to the

2017 codifications in effect at the time of the conduct allege d to warrant

discipline . See McCloskey v. Dep't of Fin. Servs. , 115 So. 3d 441 (Fla. 5th DCA

2013). Transcript references are designated as "Tr. ____."

1 By agreeing to an extended deadline for post - hearing submissions beyond ten days after the

filing of the transcript, the parties waived the 30 - day time frame for issuance of the

Recommended O rd er. See Fla. Admin. Code R. 28 - 1 06.216.

F INDINGS OF F ACT

Based u pon the demeanor and credibility of the witnesses who testified,

the evidence admitted in the record at the final hearing , and the documents

officially recognized , the following Findings of Fact are made:

1. Petitioner is t he agency head of the Florida Department of Education.

Petitioner is responsible for investigating allegations of misconduct against

individuals holding Florida educator certificates. Upon a finding of probable

cause, Petitioner is responsible for filing a n administrative complaint, and

prosecuting the case in a n administrative hearing pursuant to chapter 120,

Florida Statutes, if the educator disputes the allegations.

2. Respondent holds Florida Educator's Certificate 878903, covering the

areas of Athletic Coaching and Physical Education, which is valid through

June 30, 2025.

3. At the time of the allegations in the Administrative Complaint,

Respondent was employed as the a thletic d irector at Evans High School

(Evans) in the Orange County School District (D istrict).

4. Respondent was first employed by the District f rom 2004 to 2008 , when

he worked at Evans as a basketball coach and physical education teacher . He

was re - employed by the District from 2014 until late in the 2017 - 2018 school

year. He worked at Freedom High School (Freedom) as a physical education

teacher and assistant athletic director through the end of the 2016 - 2017

school year . He then was employed at Evans as athletic director f or most of

the 2017 - 2018 school year . H e resigned on April 5, 20 18, pursuant to a

settlement agreement with the School Board of Orange County (School

Board), which is the District's governing body .

5. Rolando Bailey was the assistant principal at Evans when Respondent

was first employed there , and Mr. Bailey was t he pr incipal at Freedom when

Respondent worked there through the end of the 2016 - 2017 school year.

Mr. Bailey acknowledged "situations" during Respondent's earlier time at

Evans and while at Freedom that inv olv ed "conflict" and "communications"

issues with Resp ondent and required administrative intervention, but these

problems were handled without involving the Employee Relations office (now

called the Employee Standards office) to impose discipline.

6 . Mr. Bailey left Freedom to become principal at E vans begin ning in the

2017 - 2018 school year . H e thought Respondent would be a good candidate for

the athletic director position at Evans , because Respondent was familiar with

the community and Mr. Bailey thought he would be good at program

building , which is what Mr . Bailey thought the athletic department needed .

7 . When Mr. Bailey made the move from Freedom to Evans, he brought

not only Respondent with him , b ut also, a t least 15 other administrators and

teachers. This set a bit of an "us against them" tone between the existing

faculty and staff at Evans and the Freedom transplants.

8 . Respondent and Mr. Bailey had a close working relationship . T he

perception among Evans personnel , based on observed interactions between

Respondent and Mr. Bailey , was that they were a lso close personal friends .

At the hearing, Mr. Bailey and Respondent both denied being close personal

friends, but they were alumni of the same college , m embers of the same

fraternity , and would frequently meet after regular school working hours .

Mr. Bail ey acknowledged th ese frequent meetings, although he said that the y

w ere work - relate d: "The role itself gave us the opportunity to talk outside of

hours." (Tr. 200 - 01). The se meetings did nothing to dispel the perception

among Evans personnel that Mr. Bail ey and Respondent were close personal

friends.

9 . Evans presented challenges for Mr. Bailey as incoming principal. The

school had not been performing well academically , with a "D " rating by the

state, and he was intent on improving that performance. As for the athletic

department, Mr. Bailey saw th e need for " program building, " noting that

f acilities were in disrepair and resources such as uniforms and equipment

were scarce, resulting in a lack of school pride. Respondent's objective was to

turn the Evans s ports teams into winning programs.

1 0 . Respondent's charge was to "lead and direct" the athletic department

and allow Mr. Bailey to focus on academics. However, Mr. Bailey made a

commitment to the Evans coaches who were already in place when Mr. Bailey

ca me over from Freedom . Mr. Bailey told the Evans coaches that the 2017 -

2018 school year would be an evaluative year, and there would not be any

changes made until after the end of the year . Mr . Bailey committed to

personally participating i n each coach's ev aluation at year - end , along with

Respondent, and Mr. Bailey w ould make the decision then regarding whether

changes were needed to move in a different directio n.

11. Mr. Bailey was of the view that certain changes would be needed after

the evaluative year . For example, he noted that several coaches held more

than one head coaching position, which he generally disagreed with except for

certain "related" sports, such as cross - country and track, w hich had separate

seasons so one individual could be head coach of both . Mr. Bailey also was of

the view that an individual should probably not serve as both a head coach

and an administrative dean, although exceptions could be allowed and

Mr. Bailey was willing to wait and see if individuals at Evans were handling

it well . 2 F or the 2017 - 2018 "evaluative" school year, Mr. Bailey was willing Ð

and had committed Ð to not make changes to conform the staffing to his

views, and instead, to await year - end evaluations to make these decisions.

1 2 . Respondent expressed a different view, stating that if it had been up

to him , he would have terminated all existing coaches when he started at

Evans and he would have made them all reapply . But it was not up to

Respondent, and Mr. Bailey's commitment stood.

1 3 . Respondent started working at Evans during the last few days of July

2017 . He immediately implemented some changes in how the athletic

2 For example, Mr. Thompson w as an administrative dean and head football coach at Evans

for years before Mr. Bailey became principal and he remained in both positions after

Mr. Bailey became pr incipal.

department was run. One change involved employing Ms. Woodard , who

came over from Freedom with Mr. Bailey and the others, as assistant athletic

di rector with the responsibility for inputting team roster information,

including documenting compliant physicals and grade point averages (GPAs)

for the students on the roster. This apparently had the effect of revealing

students who were disqualified becau se they did not meet the minimum

requirement of a 2.0 GPA . P reviously, coaches were responsible for inputting

their own team rosters . The claim asserted at hearing was t hat coaches were

"padding" their rosters w ith disqualified students 3 or inactive studen ts. 4 The

motiv e suggested for "pad ding " a roster would be that for "minor" sports like

cross - country, track, swimming, golf, and others, higher roster numbers could

result in s upplement s being authorized for assistant coaching positions. A

reduction in ros ter numbers could mean a reduction or loss of s upplements,

which could mean that assistant coaches would have to coach on a volunteer

basis , or a head coach might have to do without , or without as many,

assistant coaches . There was no competent credible ev idence proving specific

instances of wrongful or inappropriate roster padding. 5

3 Respondent explained how students without qualifying G PA s might have been mistakenly

listed on rosters showing qualifying GPAs . He acknowledged that coaches did not have

access to detailed GPA data, and instead, might input a student's c umulativ e GPA as shown

on the prior year 's report card. However, that GPA might include grades for classes that

were not eligible for purposes of meeting the minimum GPA required to participate in sports.

4 Ms. Bellamy, the girls' basketball head coach, said she discouraged "her" girls from going

out for cross - country , because they "probably" would not be allowed to compete in meets. Her

comments were more suggestive of a turf war than credible evidence of roster padding.

5 Several witnesses who were not at Eva ns until 2017 - 2018 offered their belief that roster

padding occurred before the 2017 - 2018 school year. The credible testimony established only

that when rosters were prepared or updated under Respondent's system beginning in August

2017, inputting updated GPAs resulted in some students being disqualified. Ms. Woodard,

who implemented the new system, admitted she was not sure how many supplements were

lost or in which sport. She thought cross - country may have lost supplements, but then said

the sport previou sly had four or six supplements and that it had four supplements after she

updated the rosters. Whitney Poole claimed that rosters had been padded the previous year,

but she did not explain how she could have known that, since she was not at Evans before

A ugust 2017 , and then was only a math teacher . She did not have any position in the athletic

department before January 2018 when she became an assistant coach . In general , Ms. Poole

was not a credible witness, and w ith one exception, her testimony wa s not c redited.

Sheree Carter

1 4 . Sheree Carter was a coach and a dministrative dean at Evans in 2017 -

2018, when Mr. Bailey, Respondent, and others came to Evans from

Freedom. She had been employed at Evans since 2012 . She remains

employed at Evans to this day.

1 5 . During the 2016 - 2017 school year , Ms. Carter held the following

positions at Evans : administrative dean over attendance; head coach o f girls'

cross - country and girls' track; and a ssistant coach f o r girls' weightlifting.

Ms. Carter was slated for those same positions headed into the 2017 - 2018

school year. Ms. Carter took comfort from Mr. Bailey's assurance that no

changes would be made until he made the decisions after personally

pa rticipating in the year - end evaluations.

1 6 . Ms. Carter testified that she met Respondent at the end of July,

during the two - week pre - planning period before classes started. W ithin a

week or two after they met, Respondent started saying things to let her know

that he was interested in her . He made her uncomfortable, and she rebuffed

his advances. But r ather than discouraging his comments , the intensity and

frequency of Respondent's advances escalated.

1 7 . Ms. Carter testified that Respondent would walk by her office, which

was at the back of the front office , and he would poke his head in to see if

anyone else was with her . Respondent never came into her office if someone

else was with her; he waited until she was alone, and then he would come in.

His conve rsation opener was that he was recently divorced and was trying to

get his feet wet getting back into the dating game. She responded by saying

okay, cool, good luck with that.

1 8 . Respondent then started coming by Ms. Carter's office to ask if she

wanted to grab lunch together or come eat lunch in his office. She declined

each time he asked. After the rebuffed lunch offers, Respondent started

asking Ms. Carter if she wanted to go to the mo vie s with him or grab drinks

after work. Again, she turned him down each time.

1 9 . Respondent 's next a pproach was to let Ms. Carter know that he had a

sofa in his office, followed by repeated invitations to Ms. Carter to hang out

and chill with him on the sofa in his office . These invitations were conveyed

with a personal, intimate air . Ms. Carter always turned down these advances

and let Respondent know she was uncomfortable with what he was asking.

20 . Respondent approached Ms. Carter with these advances not only when

she was alone in her office, but also, on the practice fields and in the hallways

or courtyard, if she was alone. Respondent only approached Ms. Carter to

make these advances when no one else was around. 6 Ms. Carter described it

as "creepy," like "in a stalking type of way. Like he would just wait for that

ri ght moment to approach you when you're by yourself and then throw these

advances at me." (Tr. 74).

21. Respondent's stalking - type behavior and frequent approaches affected

Ms. Carter's ability to do her job. She delayed or avoided communicating with

Respo ndent about coaching matters, despite needing to communicate with

the athletic director. She would check hallways before freely moving around

to make sure Respondent was not present, and she took to closing her office

door to give the impression she was no t there.

2 2 . Ms. Carter 's testimony was credible and clear. Her demeanor was

earnest and believable.

2 3 . In contrast, Respondent's testimony regarding the advances claimed

by Ms. Carter lacked credibility. Respondent was evasive . He frequently

avoiding a direct answer to the question, as illustrated by the following:

Q: And did you invite her to your office to chill?

A: I was hardly ever in the office. I mean, so, it's very

hard to chill in there. I was very, very on the go. I

was very, very on the go. Yo u know, Mr. Bailey was

big on the look and appearance. So there was stuff

always that needed to be done with the field and

6 Mr. Bailey testified that he never observed Respondent engage in sexual harassment, but

conceded that sexual harassment is not normally something that he sees people doing out in

the open.

with the cosmetics. So I was hardly ever in the

office. The only time I was in the office if I had to be

[sic] . But I was hardly ever in the office, so I

definitely couldn't be there just to chill because it

was just too much work to do . (Tr. 324).

* * *

Q: Did you ever invite her to eat lunch in your office?

A: I never ate lunch. It's hard for me to eat lunch

because I had lunch duty and we had three

lunches. So, when am I going to ea t lunch when I'm

constantly being fussed at by Mr. Bailey about not

answering e - mails. Because I was never in my

office so my e - mails were forwarded to

Ms. Woodard so I didn't have to hear from him

a bout why I don't answer e - mails. So I never ate

lunch during the day. (Tr. 327).

Respondent avoided answering the questions posed Ð whether he ever invited

Ms. Carter to chill or eat lunch in his office . Respondent danced around the

subject, n ever den ying o r refut ing Ms. Carter's clear testimony that he had,

in fact, invited her multiple times to eat lunch in his office and to chill on the

sofa in his office, but she turned him down each time.

2 4 . Respondent did deny that he had asked Ms. Carter to go to the

movies 7 or out for drinks with him, but h e offered weak explanations , which

were not persuasive , for why he would not have extended these invitations.

When asked if he ever asked Ms. Carter to go to the movies with him, he

responded: "No. I was too busy t o be trying to go to the movies and live in a

whole different county and try to work. You know, Evans was an hour and 20

minutes away. Freedom was 38. So there's no time to go to the movies .

E specially with a person you don't know, you know. " (Tr. 325 - 26 ). And when

7 Ms. Poole, a witness for Respondent who generally wen t out of her way attempting to

testify favorably for Respondent, said that she had been friendly with Ms. Carter at the

beginning of the 2017 - 2018 school year. Ms. Poole admitted that during this time, Ms. Carter

told Ms. Poole that Respondent had ask ed he r out to the movies. To that extent, Ms. Poole's

testimony was credible, and it corroborated Ms. Carter's testimony.

asked if he ever asked Ms. Carter out for a drink, he said: "No, because I

don't drink. È I just never had a drink, never smoked. So I don't drink. And

because I don't drink, I'm not going to invite somebody out to watch them

drink. So." (Tr. 32 6 - 2 7). Respondent's testimony on these points was less

credible than Ms. Carter's testimony, and her testimony is credited.

2 5 . Ms. Carter testified that her discomfort with Respondent's advances

came to a head at a soccer game, when he approached her and o nce again

asked her out for drinks, and she got upset. She said that she blew up,

emphat ically re iterat ing (punctuated with curse words) that she had told him

before she was not interested and expressing her frustration that he had not

yet accepted the mes sage t hat she want ed him to stop making advances at

her. This was on a weeknight during the week of December 4, 2017.

2 6 . On Friday, December 8, 2017, Respondent went to Ms. Carter's office

and told her : (1) that she was immediately removed , mid - season, fr om the

assistant coach position for weightlifting, though she could keep the

s upplement; (2) that they would be moving in a different direction and she

would no longer be head coach for girls' cross - country (which had ended its

season one month earlier ); a nd (3) that they would evaluate her position as

head coach for girl's track after the spring. Respondent told Ms. Carter that

he and Mr. Bailey had made these decisions because Mr. Bailey did not want

her coaching and serving as an administrative dean at t he same time. 8

2 7 . Ms. Carter was very upset because she loves coaching. She broke down

crying and was so distraught, she was unable to perform her job duties to

supervise during either lunch periods that day. Ms. Carter believed that

8 Respondent admitted to delivering this news to Ms. Carter, although he said it was in a

routine meeting in his office that he had schedul ed to give Ms. Carter her end - of - season

evaluation for coaching girls' cross - country (conflicting with Mr. Bailey's clear testimony that

he always participated in evaluations, which were done at the end of the year) . Curiously,

Respondent testified that hi s evaluation had no meaning, and its only purpose was to give

coaches something for possible future employers wanting to see evaluations. Respondent

failed to ex plain, if the meeting was only to address a meaningless end - of - season evaluation

for one sport, why he used the occasion to deliver meaningful consequences or why he

addressed more than that one sport.

R espondent took this action to retaliate against her because she had rebuffed

his advances, particularly after her strong rebuke of him earlier that week.

2 8 . Up to this point, Ms. Carter had confided in two different colleagues

regarding Respondent's advances and her discomf ort with them , but she had

not lodged a formal complaint against Respondent with Mr. Bailey. She was

concerned that Mr. Bailey would take Respondent's side in a dispute because

of their longstanding relationship and apparent close personal friendship .

Prev iously, when she had confided in Mr. Thompson, he had told her she

should talk to Respondent regarding her discomfort, but she had tried that

repeatedly. When s he confided again in Mr. Thompson upon being reduced to

tears on December 8, 2017, this time he told her she should not be talking

with colleagues rather than going through proper channels, and he urged her

to file a complaint.

2 9 . Ms. Carter followed that advice, submitt ing a complaint in an email to

Mr. Bailey , which she sent to him just after mid night, very early on Monday

morning, December 11, 2017 . She asked if she could meet with Mr. Bailey to

discuss what Respondent had told her regarding her coaching responsibilities

and her concern that Respondent had taken this action because she had

turned down his advances.

30 . Directly contradicting Respondent's claim, Mr. Bailey testified that he

did not make the decision to remove Ms. Carter from her coaching duties

during the 2017 - 2018 school year , nor did he direct Respondent to tell

Ms. Carter in De cember Ð in the middle of the "evaluative year" Ð that she

could not remain as coach and administrative dean . 9 Instead, as he had

committed to do at the beginning of the year, Mr. Bailey waited until the end

of the school year to have the conversation with Ms. Carter about changes

going forward . At that time, he inform ed her tha t he did not want her to

continue in the dual roles of coaching and administrative dean in the 2018 -

9 When Mr. Bailey found out that Respondent had that conversation with Ms. Carter on

December 8, 2017, he had a meeting with Respondent to find out w hy he did that.

2019 school year . Ms. Carter wanted to remain in coaching to continue

building her pro grams . With Mr. Bailey's agreement, she gave up the

administrative dean position and returned to classroom teaching the next

school year s o she could continue coaching .

31 . Mr. Bailey was a witness for Respondent and he attempted to be

supportive of Respon dent in his testimony . However, Mr. Bailey clearly and

directly contradicted Respondent's claim that he had instructed Respondent

to remove Ms. Carter from coaching on December 8, 2017. Mr. Bailey was

surprised by Ms. Carter's email reporting that Responde nt had done so and

had attributed the decision to Mr. Bailey. After meeting with Ms. Carter ,

Mr. Bailey reported Ms. Carter's complaint to the Employee Relations office

for investig ation . 10 In contrast to the "situations" involving Respondent when

he was f irst at Evans and again while at Freedom, which were handled by

administrative interventions without involving Employee Relations, this time

Mr. Bailey found it necessary to involve Employee Relations.

Jamila Mitchell

32 . Jamila Mitchell, Ph.D., also prov ided testimony regarding

ina ppropriate statements and conduct by Respondent t hat made her feel very

uncomfortable and that interfered with her doing her job.

3 3 . Dr. Mitchell has been working at Evans since 2014. Her doctorate

degree is in computer science . She has been the computer science instructor

at Evans and the sports media sponsor. She held those two positions during

the 2017 - 2018 school year. She was not a coach or assistant coach.

3 4 . As sports media sponsor, Dr. Mitchell is involved in all sports - related

media, including film, photography, social media, and the school's website.

10 Two separate investigations were initiated: the first addressed alleged sexual harassment

and retaliation by Respondent, pursuant to the District's responsibilities under civil rights

laws as Ms. Carter's employer not to commit unlawful e mployment practices. When that

investigation was completed with a finding of probable cause to believe there was sexual

harassment, Mr. Ganio, then - manager of the District's Employee Relations office, completed

an investigation into whether Respondent had engaged in misconduct, which would provide

just cause for the School Board to take action against him as a District employee.

Her responsibilities include manag ing sports - related website content and

ensuring information is disseminate d for all sports - related events . She must

keep up with schedule s, rosters, college recruiting activities, and events such

as college scholarship signing days and awards banquets. Frequent

communications with t he Evans athletic director are essential to her job

duties, at least by the time sports activities are in full swing after the first

couple of weeks of each school year.

3 5 . Dr. Mitchell testified that beginning in September 2017, when her job

required her to be in frequent communications with Respondent , he started

saying and doing things that made Dr. Mitchell u ncomfortable .

3 6 . On several occasions, Respondent referred to Dr. Mitchell as his "little

Mexican." Dr. Mitchell is not Mexican. Respondent would say this when

passing her in the hallway, if they were both at a game or event, or when he

came to her class room. Sometimes she was alone when he said this, but

sometimes other people overheard what Respondent said . She was offended

by Respondent's words, and also, uncomfortable having to explain to others

who heard Respondent call her his little Mexican that sh e was not Mexican,

but was biracial. Despite taking offense , she tried to ignore it or laugh it off.

3 7 . Respondent frequently came by Dr. Mitchell's classroom during her

planning period when she was the only one there. At least initially, t hey

would discu ss sports media matters. But then the conversations would turn

to Respondent telling Dr. Mitchell that he " liked the way her butt looked " in

the pants she was wearing that day, or how whatever she was wearing

accentuated some part of her body. She tried to change the subject back to

work , but his comments made her feel weird and "creeped out."

3 8 . Respondent's frequent comments about her clothing and body impeded

communications regarding sports media issues. Respondent's comments also

caused Dr. Mitchell t o stop wearing form - fitting clothing , pants that were a

little bit tight, or shirts cut a little bit low. 11 She began wearing loose clothing

and when Respondent came by her classroom , she stayed seated behind her

desk so he would not comment on " how her but t looked. " Her discomfort and

worries distracted from ne eded communications and interfered with getting

the job done. It got to the point where Dr. Mitchell avoided communicat ing in

person with Respondent, resorting to communicating by text or phone cal l .

3 9 . Dr. Mitchell described the "tipping point" for her was when she was

walking through a courtyard to go to the front office and Respondent was

coming out of the front office. Dr. Mitchell was wearing her hair down ( loose ) ,

which she rarely did. When they passed in the courtyard, Respondent

commented that he liked it when she wore her hair down because it gave him

something to grab onto. There were other people in the courtyard Ð teachers

and students Ð and Dr. Mitchell testified that s he just pray ed that nobo dy

heard what Respondent said to her. She was highly embarrassed by what she

reasonably interpreted as a sexual reference.

40 . Dr. Mitchell did not immediately complain about Respondent's

inappropriate conduct, in part because she was embarrassed, but also ,

because she did not know to who m she could complain . S he had seen how

Mr . Bailey interacted with Respondent, and observed that they seemed to

have a very friendly, personal relationship. She was concerned that if she

said anything, it would be her job on the line. But when she was contacted by

an investigator looking into Sheree Carter's complaint , who had been told

that Respondent may have also harassed Dr. Mitchell, s he spoke with the

11 Respondent suggested in his PRO that Dr. Mitchell should be faulted for her choice of

attire in a school "full of hormonal high school students that most likely has a dress code,

stated or implied, for teachers." (Resp. PRO at 28). No credible evidence supports a finding

that Dr. Mitchell's attire was provocative, inappropriate, or contrary to any dress code, and

none was cited. R espondent's argument is, in effect, that Dr. Mitchell "asked for it" Ð a classic

means to deflect blame and excuse inappropriate sexual conduct, which is, or should be, a

relic of the past. Respondent's veiled hint that Dr. Mitchell asked for it is tantamoun t to a

concession that "it" occurred, necessitating an excuse for his behavior. There is no excuse.

investigator and provided the same information about Respondent's of fensive

conduct to which she testified at the hearing.

41 . Dr. Mitchell was very credible and genuinely distraught as she

described these uncomfortable encounters with Respondent .

42 . As with Ms. Carter's specific complaints, Respondent denied (or gave

ev asive, less - than - clear answers) that he said or did the things described by

Dr. Mitchell. 12 Respondent's testimony was not as credible as Dr. Mitchell's

testimony. Dr. Mitchell's testimony is credited.

Jessica Kendrick

4 3 . Jessica Kendrick was the head swim coach at Evans, coaching both

the boys' and girls' swim teams, from 2013 through the 2018 - 2019 school

year . Her testimony was fairly narrow in scope , but clear and to the point:

when Respondent was the head of the athletics department in the 2017 - 2018

sch ool year, he made her uncomfortable by standing very close whenever they

talked with no one else nearby Ð that is, when there were no witnesses.

4 4 . Ms. Kendrick is five feet, eight inches in height. Respondent is six feet,

one inch tall . He used his height advantage to intimidate Ms. Kendrick,

making her feel like he was towering over her when he stood very close and

looked down at her. Ms. Kendrick's vivid description was that Respondent

would be standing so close to her that she could tell what he had for lunch.

4 5 . Ms. Kendrick's reaction to these close encounters was to back up to

create space between Respondent and herself. But Respondent would quickly

move forward to close the space she had created. She would inch back again ;

he would inch toward her to close the gap again . Respondent made

Ms. Kendrick feel very uncomfortable.

12 In contrast, the investigative summary of the District's investigation into Ms. Carter's

sexual harassment complaint reported that Respondent stated he "does not recall if he made

inappropriate comments to [Dr.] Mitchell." (Pet. Ex. 14, Bates p. 35). Although statements of

non - party witnesses reported in the investigative summary are hearsay, and thereby limited

in use to supplementing or explaining comp etent evidence, Respondent's statements reported

in the investigative summary that was offered against him are party admissions, excepted

from hearsay , and admissible for all purposes. See § 90.803(18) (a) , Fla. Stat.

4 6 . Ms. Kendrick had been the head swim head coach at Evans for four

years before Respondent became athletic director. He made her so

uncomfortable when they spoke in person that s he went out of her way to

avoid him . She told the two assistant swim coaches, Mr. Rivers and M r. Ross ,

about her discomfort with Respondent . She asked her assistants to take her

place for in - person meetings or discussions with Respondent so she could

avoid any more uncomfortable close encounters with Respondent . It affected

her job; communications with the athletic director were necessary for her to

function effectively as head coach.

4 7 . Ms. Kendrick testified that rather than having to interact with

Respo ndent, if Respondent had continued on as athletic director at Evans,

she would have give n up the head coaching position. Instead, Respondent

resigned, and Ms. Kendrick decided to remain h ead swim coach at Evans for

the 2018 - 2019 school year.

4 8 . Responden t testified that he had no idea what Ms. Kendrick was

talking about. Ms. Kendrick's testimony was more credible than Respondent's

and is credited.

4 9 . At the hearing, Respondent made the blanket statement th a t all the

witnesses testifying against him were lying. He claimed that Ms. Carter and

Ms. Kendrick were lying to get back at him for changing the procedures to

prevent roster padding and costing them coaching supplements . 13 He claimed

that their colleagues , in whom they had confided and who corroborated their

testimony, were also lying. Res pondent's attempted attacks on the credibility

13 Ironically, the suggestion that Ms. C arter was mad because she lost supplements as a

result of the changed roster procedures was contradicted by Respondent's own testimony. As

for her head coaching positions, Respondent testified that head coaches receive supplemental

pay irrespective of rost er numbers. Ms. Carter might have lost those supplements as a result

of Respondent's unauthorized attempt to remove Ms. Carter from cross - country head coach

and t o t hreaten removal from track, had those actions stood, but they w ere reversed by

Mr. Bailey. As for the supplement Ms. Carter received as assistant weightlifting coach,

Respondent admitted that when he told Ms. Carter she was relieved of her assistant

coaching duties mid - season, he told her she could retain the supplement. Respondent's

actions had nothing to do with supplements or rosters; Respondent acted to retaliate against

Ms. Carter for rebuffing his repeated advances.

of the witnesses testifying against him w ere not persuasive and did not

undermine the ir clear, credible testimony.

50 . Most notably, although Respondent claim ed some witne sses had a

motive to lie to get back at him because of los t coaching supplements, no such

motive was or could be attributed to Dr. Mitchell. Dr. Mitchell was not a

coach or a n assistant coach . Respondent offered no cogent theory t o explain

why Dr. Mitchell would fabricate her testimony . Respondent's accusation

that Dr. Mitchell's testimony was invented does not square with her display

of emotions at the hearing. She was visibly shaken and crying when she

described her embarrassment with Respondent's sexual innuendos, and when

she explained why she did not complain about Respondent at the time .

Ul u nda Frazier

51 . The pattern of behavior evident from the complaints of Ms. Carter,

Dr. Mitchell, and Ms. Kendrick is f urther buttressed, at least generally , by

cour t records r egarding Ul u nda Frazier and Respondent .

52 . Ms. Frazier is a teacher . At the time pertinent to this case, she taught

at Oak Ridge High School (Oak Ridge), within the District. At the hearing,

Respondent described Ms. Frazier as a longtime person al friend he has

known for 15 or 16 years . He said Ms. Frazier used to babysit for

Respondent's 15 - year - old son when the teenager was an infant and toddler .

5 3 . Respondent admitted that his personal relationship with Ms. Frazier

had turned "toxic." He did not offer any detail s to explain in what way the

relationship turned toxic . Instead, alluding to a close intimate relationship

gone bad, he said only t hat his relationship with Ms. Frazier "had become

toxic and out of control that was actually birthed out of both of our pains.

We -- she was going through an ugly divorce and I was going through my

treatments and stuff. And so the relationship had just got toxic and it had --

it was no longer a friendly environment." (Tr. 351).

5 4 . Court records in Frazier v . Crawford , Case No. 48 - 2018 - DR - 000923 - O,

in the Circuit Court of the Ninth Judicial Circuit in and for Orange County,

Florida, were officially recognized . The records reflect that on January 24,

2018, Ms. Frazier filed a Petition for Injunction Against St alking under

section 784.0485, Florida Statutes , seeking to enjoin Respondent from

stalking her . That same day, the court issued a Temporary Injunction for

Protection Against Stalking.

5 5 . On January 2 5 , 2018, the Polk County Sheriff's Office served the

Te mporary Injunction, Ms. Frazier's Petition , and a Notice of Hearing on

Respondent at his residence .

5 6 . The hearing was scheduled for February 6, 2018, and w as held as

noticed. Both Ms. Frazier and Respondent attended. A t the conclusion of the

hearing , th e court issued a Final Judgment of Injunction for Protection

Against Stalking (Stalking Injunction). Respondent received a copy by hand

deliver y in open court, as acknowledged by his signature on the Stalking

Injunction. He is therefore "deemed to have kno wledge of and to be bound by

all matters occurring at the hearing and on the face of" the Stalking

Injunction. (Pet. Ex. 18, Bates p. 51 - 52).

5 7 . The Stalking Injunction contains the following finding: "After hearing

the testimony of each party present and of any witnesses, or upon consent of

Respondent, the Court finds, based on the specific facts of this case, that

Petitioner is a victim of stalking." 14 (Pet. Ex. 18, Bates p. 47). On that basis,

the Stalking Injunction ordered as follows: "Respondent shall not commit, or

cause any other person to commit, any acts of stalking against Petitioner,

including stalking, cyberstalking, aggravated stalking, or any criminal

offense resulting in physical injury or death. Respondent shall not commit

any other violatio n of the injunction through an intentional unlawful threat,

word or act to do violence to Petitioner." (Pet. Ex. 18, Bates p. 50). The

Stalking Injunction is in effect until February 26, 2021.

14 "A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks

another person commits the offense o f stalking, a misdemeanor of the first degree[.]"

§ 784.048(2), Fla. Stat. (2017). Section 784.0485 creates a cause of action for a person who is

a victim of stalking to obtain an injunction for protection against stalking.

5 8 . The Administrative Complaint alleged that the Stalking Inju nction

"reduced Respondent's effectiveness as an athletic director because it limited

his ability to travel to that school and perform his duties."

5 9 . The terms of the Stalking Injunction do not support this allegation.

While the Stalking Injunction gene rally and broadly prohibited Respondent

from having any contact with Ms. Frazier, including at Oak Ridge where she

worked and at her residence (both of which were in Orlando), there is an

express exception to the no - contact prohibition, as follows: "The Re spondent

may go to Oakridge [sic] High School only for a valid business reason. If any

contact occurs, it shall be non - hostile contact." (Pet. Ex. 18, Bates p. 49).

60 . In several respects, however, the Stalking Injunction contradicts

Respondent's testimo ny. Respondent denied that he would have made

advances on Ms. Carter because he was married and had been married to the

same woman since 2010. Yet his close personal relationship with Ms. Frazier

predated his marriage by five or six years . Respondent testi fied that

Ms. Frazier babysat for Respondent's 15 - year - old son when the teenager was

an infant . T he fact that Respondent got married to someone else five years

later did not prevent Respondent from engaging in a first "friendly" and then

"toxic" close rela tionship with Ms. Frazier, or from stalking Ms. Frazier

before the Stalking Injunction was issued against him on February 6, 2018.

61 . Whatever the details may be regarding Respondent's stalking of

Ms. Frazier, it is noteworthy that she lived and worked i n Orlando. This

belies Respondent's claim that he could not have harassed Ms. Carter with

the repeated advances she described, because he would not have had time to

go to the movies or out for drinks near where he worked in Orange County .

He attempted to p aint the picture that he spent every moment in Orange

County working or commuting to and from his home in distant Polk County.

The Stalking Injunction stands as evidence that , contrary to Respondent's

claim, in addition to working at Evans and commuting to and from Polk

County, Respondent f ound time to have a first friendly, then toxic

relationship with Ms. Frazier and to stalk Ms. Frazier where she lived and

worked in Or ange County.

Respondent's Separation from the District

62 . The investigation into Ms. C arter's complaint identified individuals

who were potential witnesses with relevant information or possible victims.

After conducting interviews, the District held a pre - determination meeting on

March 7 , 2018, to share with Respondent the information learn ed during the

investigation and give him an opportunity to respond. Respondent appeared

with a union representative, who instructed him not to respond.

6 3 . On March 27, 2018, Respondent was suspended from work with pay

while the District completed its inv estigation. This "Relief of Duty" status is

employed when warranted by the seriousness of the allegations. "Relief of

Duty" included an immediate suspension of network access, including email.

6 4 . During the process of completing the investigation, the D istrict

discovered a new allegation of inappropriate conduct by Respondent. T he

District learned of Ms. Frazier's P etition and the resulting Stalking

Injunction . It held a second pre - determination meeting on April 3, 2018, to

inform Respondent that it had learned about the Stalking Injunction. Again,

Respondent was given the chance to respond, but again, he refused to say

anything on advice of his union representative.

6 5 . On the same day as the second pre - determination meeting, Barbara

Jenkins, the Distric t Superintendent, issued a memorandum to the School

Board , transmitting a complaint charging Respondent with misconduct in

office and c onduct unbecoming a public employee , and recommending that

Respondent be terminated from employment for the charged viola tions.

6 6 . Immediately after the complaint and recommend ation for termination

were released, Respondent negotiated and finalized a Settlement Agreement

and General Release (Agreement) with the School Board.

6 7 . The Agreement expressly state d that it was n ot to be construed as an

admission by Respondent or the District of any wrongdoing. Nonetheless,

pursuant to the Agreement, Respondent was required to resign as of April 5,

2018, and to tender a written letter of resignation.

6 8 . Pursuant to the Agreement , Respondent agreed "he will not reapply

for or accept employment [ at a District school ] at any time in the future."

Respondent also acknowledged that the District would be submitting its

investigation into Respondent's alleged misconduct to the Department of

Education Professional Practices Commission, as required by section

1012.796(1)(d), Florida Statutes.

6 9 . In form and substance, the Agreement i s a common vehicle utilized for

resignation of an employee in lieu of the employee having to answer to

charg es and face the prospect of termination.

70 . Respondent attempted to suggest that his resignation was purely

voluntary, b as ed on his decision that he did not want to work in a place

where people would lie about him. His claim was not credible. Respondent

f ully understood when he took the position at Evans, along with at least 15

other s brought over from Freedom by Mr. Bailey, that there would be an "us

against them" air that he would have to overcome. Mr. Bailey attempted to

set the stage for developing goo d relationships with existing Evans coaches

and other staff, by deeming the first year an "evaluative year" in which there

would not be any position c hanges until the evaluative year was discussed

with Mr. Bailey, Respondent, and the coach at the end of th e year.

Respondent knew that Evans had challenging problems to overcome, with

scarce resources in terms of facilities , equipment, and uniforms, and that he

was expected to build winning programs and instill school pride. He knew he

was expected to put in p lace the systems, policies, and procedures that would

allow for program building, and he was well aware that his changes would be

unpopular with some . It defies logic and credibility for Respondent to suggest

that he chose to walk away from his commitment before completing one

school year only because existing Evans coaches and assistant coaches were

lying about him.

71 . Mr. Bailey acknowledged that , as principal, he was compelled to let

the investigation process be carried out. As he put it: "[W]hat I perf ormed is

my role as a principal. That when there's conduct that's unbecoming of an

employee, or an employee feeling as if they have been, in this case, harassed,

I'm going to follow the guidance that has been presented to me in my role as

the leader of the school." (Tr. 209). He acknowledged that at the culmination

of that process, when it was reported to him, he followed the guidance that he

was supposed to follow, and as a result, Respondent was no longer at his

school.

C ONCLUSIONS OF L AW

72 . The Divisi on of Administrative Hearings has jurisdiction over the

parties and the subject matter of this proceeding, pursuant to sections

120.569 and 120.57(1), Florida Statutes (2020).

7 3 . In this proceeding, Petitioner seeks to impose discipline against

Respondent 's educator 's certifi cate , a form of license. § 120.52(10), Fla. Stat.

A proceeding to suspend, revoke, or impose other discipline upon a license is

penal in nature. State ex rel. Vining v. Fla. Real Estate Comm'n , 281 So. 2d

487, 491 (Fla. 1973). Accordi ngly, to impose such discipline, Petitioner must

prove the allegations in the Administrative Complaint by clear and

convincing evidence. Dep't of Banking & Fin., Div. of Sec. & Investor Prot. v.

Osborne Stern & Co. , 670 So. 2d 932, 933 - 34 (Fla. 1996); Ferr is v. Turlington ,

510 So. 2d 292, 294 - 95 (Fla. 1987).

7 4 . As stated by the Supreme Court of Florida:

Clear and convincing evidence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly

remembe red; the testimony must be precise and

lacking in confusion as to the facts at issue. The

evidence must be of such a weight that it produces

in the mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the truth of the

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)). This burden of proof may be met

where the evidence is in conflict; however, "it seems to preclude evidence th at

is ambiguous." Westinghouse Elec. Corp. v. Shuler Bros., Inc. , 590 So. 2d 986,

988 (Fla. 1st DCA 1991).

7 5 . Section 1012.796 sets forth the disciplinary process for educators, and

provides in pertinent part:

(6) Upon the finding of probable cause, the

c ommissioner shall file a formal complaint and

prosecute the complaint pursuant to the provisions

of chapter 120. An administrative law judge shall

be assigned by the Division of Administrative

Hearings of the Department of Management

Services to hear the c omplaint if there are disputed

issues of material fact. The administrative law

judge shall make recommendations in accordance

with the provisions of subsection (7) to the

appropriate Education Practices Commission panel

which shall conduct a formal review of such

recommendations and other pertinent information

and issue a final order. The commission shall

consult with its legal counsel prior to issuance of a

final order.

(7) A panel of the commission shall enter a final

order either dismissing the complain t or imposing

one or more of the following penalties:

(a) Denial of an application for a teaching

certificate or for an administrative or supervisory

endorsement on a teaching certificate. The denial

may provide that the applicant may not reapply for

cert ification, and that the department may refuse

to consider that applicantÔs application, for a

specified period of time or permanently.

(b) Revocation or suspension of a certificate.

(c) Imposition of an administrative fine not to

exceed $2,000 for each c ount or separate offense.

(d) Placement of the teacher, administrator, or

supervisor on probation for a period of time and

subject to such conditions as the commission may

specify, including requiring the certified teacher,

administrator, or supervisor to complete additional

appropriate college courses or work with another

certified educator, with the administrative costs of

monitoring the probation assessed to the educator

placed on probation. È

* * *

(e) Restriction of the authorized scope of pract ice

of the teacher, administrator, or supervisor.

(f) Reprimand of the teacher, administrator, or

supervisor in writing, with a copy to be placed in

the certification file of such person.

(g) Imposition of an administrative sanction, upon

a person whose teaching certificate has expired, for

an act or acts committed while that person

possessed a teaching certificate or an expired

certificate subject to late renewal, which sanction

bars that person from applying for a new certificate

for a period of 10 year s or less, or permanently.

(h) Refer the teacher, administrator, or supervisor

to the recovery network program provided in

s. 1012.798 under such terms and conditions as the

commission may specify.

7 6 . Penal statutes and rules authorizing discipline agai nst a professional

license must be strictly construed, with any ambiguity resolved in favor of the

licensee. Elmariah v. Dep't of Prof'l Reg., Bd. of Med. , 574 So. 2d 164, 165

(Fla. 1st DCA 1990).

7 7 . In addition, disciplinary action must be predicated on facts alleged and

charges set forth in an administrative complaint. See § 120.60(5), Fla. Stat.;

Trevisani v. Dep't of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005);

Cottrill v. Dep't of Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).

7 8 . Count 1 of t he Administrative Complaint charges Respondent with a

violation of section 1012.795(1)(g), for having " been found guilty of personal

conduct that seriously reduces that personÔs effectiveness as an employee of

the district school board. " The only factual p redicate for this charge in the

Administrative Complaint was the allegation that the Stalking Injunction

reduced Respondent's effectiveness as an athletic director because it limited

his ability to travel to Oak Ridge and perform his duties . As found above , th is

charge was not proven. Respondent was permitted under the terms of the

Stalking Injunction to go to Oak Ridge for business purposes. 15

7 9 . Count 2 of the Administrative Complaint charges Respondent with a

violation of section 1012.795(1)(j), which au thorizes discipline for violations of

the Principles of Professional Conduct for the Education Profession

prescribed by the State Board of Education rules. This count does not charge

an independent violation, but rather, is dependent upon a corresponding

v iolation of the rules prescribing the Principles of Professional Conduct.

80 . Count 3 of the Administrative Complaint charges Respondent with

violating rule 6A - 10.081(2)( c ) 4 ., providing as follows:

(2) Florida educators shall comply with the

following disc iplinary principles. Violation of any of

these principles shall subject the individual to

revocation or suspension of the individual

educatorÔs certificate, or the other penalties as

provided by law.

( c ) Obligation to the profession of education

requires that the individual:

4 . Shall not engage in harassment or

discriminatory conduct which unreasonably

15 Petitioner argued in its PRO that Respondent's effectiveness was also reduced as a District

e mployee by his harassment of four District employees (including Ms. Frazier). That factual

predicate for Count 1 was not alleged in the Administrative Complaint and cannot be

inferred aft er the fact.

interferes with an individualÔs performance of

professional or work responsibilities or with the

orderly processes of education or which creates a

hostile, intimidating, abusive, offensive, or

oppressive environment; and, further, shall make

reasonable effort to assure that each individual is

protected from such harassment or discrimination.

8 1 . Based on the Findings of Fact above, Petitioner proved by clea r and

convincing evidence that Respondent violated rule 6A - 10.081(2)(c)4., by

engaging in harassment of three female employees at Evans, two of whom

were coaches under his direct leadership and control as athletic director and

head of the athletic departme nt . His inappropriate conduct interfered with

these three individuals' performance of their professional work

responsibilities and with the orderly processes of education . His

inappropriate conduct also created a hostile, intimidating, offensive, and

oppre ssive work environment in which all three professional women had to

alter their mode of communications, and became skittish about simply

walking down the hallways and courtyard of the school out of fear of being

accosted by Respondent with unwanted advance s, offensive comments with

sexual overtones, and physical posturing that was intimidating.

82. R ather than arguing whether R espondent 's conduct was proscribed b y

the words chosen to be codified in rule 6A - 10.081(2)(c)4. , Respondent argued

in his PRO that t he rule should be interpreted to require proof of "sexual

harassment" as defined in different statutes and rules that do not apply here

and that were not charged . Respondent offers no authority to support this

reach . Indeed, to accept Respondent's argument , for starters it would be

necessary to add the word "sexual" before "harassment" in the rule. It must

be assumed that this rule, codifying a principle of professional conduct for the

education profession , intentionally omits the word "sexual" as a limitat ion on

the specific type of "harassment" encompassed therein.

8 3 . After offering inapplicable statutes and rules that address and define

sexual harassment for purposes other than Florida regulation of the

education profession, Respondent then further misch aracterized the law by

stating: "Florida's sexual harassment laws are modeled after Title VII of the

Civil Rights Act. Federal cases construing this issue offer some guidance."

(Resp. PRO at 24). This statement is a loose (and therefore, incorrect)

referen ce to Florida case law providing that the Florida Civil Rights Act ,

codified in chapter 760, Florida Statutes , is modeled after Title VII of the

federal Civil Rights Act, and, in that context , Florida courts and tribunals

applying chapter 760 routinely rel y on federal cases interpreting the federal

act. See, e.g. , Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3 d 17, 21 (Fla.

3d DCA 2009 ). But the Florida Civil Rights Act is not at issue in this case. No

authority was offered by Respondent for draw ing any ki nd of parallel

between the Principles of Professional Conduct for the Educat ion Profession

and sexual harassment employment law s , in general , or the Florida Civil

Rights Act , in particular.

8 4 . The inquiry under the charged p rinciple of p rofessional c onduc t

governing educators such as Respondent is different than the inquiry under

the civil rights laws. Here, at issue is whether Respondent violated his

professional obligation s as an educator by engaging in harassment of his

colleagues, two of whom worked as coaches under his leadership and

direction as athletic director . The inquiry under the Florida Civil Rights Act

would be whether an employer, such as the District, committ ed an unlawful

employment practice. That is why the inapposite federal cases offered by

Respondent focus on whether another employee's sexual harassment of a

complainant was so pervasive and severe as to alter the terms and conditions

of employment. It is unnecessary to debate whether Respondent's sexual

harassment of three employees at E vans rose to such level as would implicate

the District as their employer. That is a wholly separate inquiry.

8 5 . It has been settled in Florida that educators are expected to conform to

high moral standards. As courts and tribunals have held, "by virtue o f their

leadership capacity, teachers are traditionally held to a higher moral

standard in the community." Adams v. Prof 'l Prac . Council , 406

So. 2d 1170, 1171 (Fla. 1st DCA 1981). Respondent repeatedly crossed the

line of propriety and high moral standar ds expected of educators by his

repeated harassment, ranging from unwelcome advances with sexual

overtones and inappropriate sexually - charged comments to physical

intimidation . Respondent's conduct clearly violated rule 6A - 10.081(2)(c)4.

Appropriate Penalt y

86. At the time of Respondent's conduct , the disciplinary guidelines,

codified in Florida Administrative Code Rule 6B - 11.007, provided the normal

penalty f or the violation found here broadly ranged f rom reprimand to

revocation. Fla. Admin. Code R. 6B - 11 .007(2)(i)1 1 ., effective Apr . 9, 2009. 16

87 . Rule 6B - 11.007(3) provided that a penalty outside the normal range

was allowed when warranted by consideration of mitigating and aggravating

circumstances. However, the broad penalty range that applies to the violation

found is essentially all - encompassing, from a simple reprimand to revocation.

No mitigating or aggravating circumstances suggest imposition of a penalty

outside the normal range.

16 The 2009 version of the disciplinary guidelines cross - referenced the Principles of

Professional Conduct then - codified in Florida Administrative Code Rule 6B - 1.006 , and

paraphrased the principle to which a particular penalty range applied . The penalty range

referenced above applied to "[h]arassment or discrimination which interfer e s with an

individual's performance or work in violation of [rule] 6B - 1.006(5)(d)." Rule 6B - 1.006(5)(d)

contained the same principle now codified in rule 6A - 10.08 1(2)( c ) 4 . , providing then and now,

in pertinent part : "Obligation to the profession of education requires that the individual È

[s] hall not engage in harassment or discriminatory conduct which unreasonably interferes

with an individual ' s performance of pro fessional or work responsibilities or with the orderly

processes of education or which creates a hostile, intimidating, abusive, offensive, or

oppressive environment [.]" The disciplinary guidelines rule , a s amended May 29, 2018 , and

recalibrated to the tra nsferred Principles of Professional Conduct now has a penalty range of

probation to revocation for a violation of rule 6A - 10.081(2)(a)1. Petitioner's PRO relies on the

penalty guideline rule not adopted until after Respondent's conduct charged here. Howeve r,

the penalty guideline s rule in effect at the time of Respondent's conduct appl ies. Orasan v.

Ag. for Health Care Admin. , Bd. of Med. , 668 So. 2d 1062, 1063 (Fla. 1st DCA 1996).

88. Instead, given the all - encompassing penalty range that applies, factors

embodied in the codified mitigating and aggravating circumstances are more

appropriately considered and balanced to determin e the appropriate penalty

within that broad range.

89. Respondent argues, if a violation is found, there should only be a

r eprimand. Petitioner argues the opposite end of the spectrum, that

Respondent's certificate should be revoked, albeit for five years instead of

permanently.

90. One difficulty in addressing factors such as the codified mitigating and

aggravating circumstan ces is that the record contains only spotty history for

Respondent's career as an educator. There is no evidence that his record as

an educator is spotless, although there is no indication that he has previously

been disciplined by the Education Practices Commission. There is some

evidence , collected in the District's investigation, that Respondent has be en

disciplined previously by the District during his intermittent employment

stretches in Orange County. The circumstances of his first departure from

Evan s are unknown. Mr. Bailey referred rather obliquely to "situations" and

"conflict" involving Respondent during his first tenure at Evans and also at

Freedom. And Respondent's record as an educator during the gaps in his

employment with the District is anyo ne's guess, as far as the record is

concerned.

91. The seriousness of the violations found here dictate s against a penalty

at the lowest end of the permissible range, as does Respondent's less than

forthright testimony, which shows a complete lack of remo rse for his

inappropriate conduct. Consideration is also warranted of the deterrent effect

of more than a token penalty, especially where, as here, Respondent has

attempted to avoid consequences for his wrongdoing by walking away and

then claiming he did s o voluntarily.

92. On the other side of the equation, the violation that was charged and

that Respondent is found to have committed is, by its nature, one that does

not involve harm to a student. Moreover, Respondent removing himself from

the setting brou ght instant relief to the targets of his harassment. But there

were multiple targets of his inappropriate conduct and harassment . And

there was lingering distress for at least two of the targets caused by the

violation , and by having to relive the events d uring the hearing.

93. A s Petitioner noted in its PRO , there are other final orders finding

violations of the same rule at issue here that are based on more egregious

facts , including one cited by Petitioner in which the penalty imposed was

permanent revo cation.

94. All things considered, the undersigned has determined that an

appropriate penalty is as follows: a three - year suspension of Respondent's

certificate, followed by a three - year probationary term with such conditions

as are deemed appropriate by the Education Practices Commission , which

should include a requirement that Respondent take two college level course s,

one in p rofessional ethics for educators and one related to women's rights in

the workplace ; and payment of a $750.00 fine (less than hal f of the

authorized fine of up to $2,000.00 per count) . 17

17 Petitioner's PRO proposes an additional penalty Ð that Respondent be requir ed to

participate in the Recovery Network Program Ð but offers no record evidence or argument to

suggest imposing that additional penalty is warranted here. While it is conceivable that

conduct of the type Respondent is found to have committed could be the p roduct of some

impairment, there is nothing in the record on this subject. In fairness to Respondent, if

Petitioner intended to pursue that theory, it should have included allegations of the claimed

impairment in the Administrative Complaint affording Resp ondent notice and an

opportunity to defend against that claim.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Education Practices Commission issue a final order

finding Respondent guilty of violating section 1012.795(1)(j) through a

violation of rule 6A - 10.081(2)(c)4., and imposing the following as penalties:

suspension of Respondent's educator's certificate for a period of t hree years

from the date of the final order; probation for a period of t hree y ears after the

suspension, with conditions to be determined by the Education Practices

Commission , which should include a requirement that Respondent take two

college level course s, one in p rofessional ethics for educators and one related

to women's rights in the workplace ; and payment of a $750.00 fine.

D ONE A ND E NTERED this 29th day of January , 2021 , in Tallahassee, Leon

County, Florida.

S

E LIZABETH W. M CARTHUR

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9 675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of January , 2021 .

C OPIES F URNISHED :

Carol R. Buxton, Esquire Matthew Mears, General Counsel

Florida Education Association Department of Education

1516 East Hillcrest Street , Suite 109 Turlington Building, Suite 1244

Orlando, Florida 328 03 325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Ron Weaver, Esquire

Post Office Box 770088

Ocala, Florida 34477 - 0088

Lisa M. Forbess, Interim Randy Kosec, Jr., Chief

Executive Director Office of Professional Practices Services

Education Practices Commission Department of Education

Department of Education Turlington Building , Suite 224 - E

Turlington Building, Suite 316 325 West Gaines Street

325 West Gaines Street Tallahassee, Florida 32399 - 0400

Tallahassee, Florida 32399

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.