the Education Practices om mission of te te of Florida GERARD ROBENSON DEC 2012 Commissioner of Education, Petitioner, STATE 0F FLGRE BA EPC CASE N9 vs. DOAH CASE N9 INDEX NQ WILLIAM RANDALL AYDELOTT, PPS Ng 101-1943 CERTIFICATE N9 697708 Respondent I Corrected Final Order This matter was heard by a Teacher Panel of the Education Practices Commission pursuant to Sections 1012.795, 1012.796 and 120.570), Fiorida Statutes, on November 2, 2012, in Jacksonville, Florida, for consideration of the Recommended Order entered in this case by James H. Peterson, Ili, Administrative Law Judge dated August 29, 2012. Respondent was not present but was represented by counsel. This order is corrected as to minor scrivener?s errors and includes additional attachments. Respondent filed Exceptions to the Recommended Order. A copy of those Exceptions is attached to and incorporated by reference. After reviewing the complete record accompanying the Recommended Order, the Recommended Order, the Exceptions, and being fully advised in the premises, the Commission accepted the exception to the conclusion of law in part and denied in part, finding that the accepted portion was more reasonable than the conclusion of law offered by the administrative law judge based on page 4 paragraph 8 of Petitioner?s Response, which is incorporated herein, Therefore, the Panel hereby adopts the findings of fact, (paragraphs 146), the remaining conclusions of law, (paragraphs 47?65 and 68-86), and the recommendation contained in the Recommended Order. A copy of the Recommended Order, attached to and made a part hereof, is hereby adopted except as modified below= The first sentence of paragraph 66 and the entire paragraph 67 are rejected. The remainder of paragraph 66 is adopted. It is therefore ORDERED that: The Respondent?s Florida educator?s certificate is hereby revoked for a period of 5 years. 2. As a condition of re?certification the educator shall provide written veri?cation from a Recovery Network Program approved, licensed Florida providerthat the educator poses no threat to children and is capable of assuming the responsibilities of an educator. This Order takes effect upon filing with the Clerk of the Education Practices Commission, AND QRDERED, this 19*? day of December, 2012. jig/t id gamer Presiding?f?ficer Finai Order Randall Aydelott Page 3 COPIES FURNISHED TO: Bureau of Professional Practices Bureau of Teacher Certification Florida Administrative Law Reports Superintendent Escambia County Schools 215 W. Garden Street Pensacola, Florida 32501-5782 Assistant Superintendent Human Resource Management. Escambia County Schools 215 W. Garden Street Pensacola, Florida 325974470 Daniel Biggins Assistant Attorney General James H. Peterson, Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Claudia Llado, Clerk Division of Administrative Hearings Probation NOTICE OF RIGHT TO JUDICIAL REVIEW A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES, REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE EDUCATION PRACTICES COMMISSION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THIS ORDER. Finai Order William Randail Aydeiott Page 4 CERTEFECATE OF SERVECE HEREBY CERTIFY that a copy of the foregoing Order was furnished to William Randall Aydelott, Gulf Breeze, Florida 32563 and Peter Caldwell, FEA, 213 South Adams Street, Tallahassee, Florida 32301 by Certified US. Mail and by electronic mail to Margaret O?Sulliyan Parker, Deputy General Counsel, Suite 1232, Turlington Building, 325 West Gaines Street, Tallahassee, Florida 32399?0400 and to J. David Holder, Esquire, 387 Lakeside Drive, DeFuniak Springs, FL 32435 this 20*? day of E:Eliil:EI12: Jailice Harris, Education Practices Commission STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS GERARD ROBINSON, AS COMMISSIONER OF EDUCATION, Petitioner, vs. Case No. WILLIAM RANDALL AYDELOTT, Respondent. RECOMMENDED ORDER An administrative hearing was held in this case on April 24 and 25, 2012, Pensacola, Florida, before: James EL Peterson, Administrative Law Judge of the Division of Administrative Hearings. r3 APPEARANCES ?222, is For Petitioner: J. David Holder, Esquire 387 Lakeside Drive DeFuniak Springs, Florida 32435 3% re For Respondent: Peter J. Caldwell, Esquire A1 213 South Adams Street Tallahassee, Florida 32301 STATEMENT OF THE ISSUES The issues in this case are whether Respondent violated subsections and Florida Statutes,? and Florida Administrative Code Rule and and, if so, what discipline should be imposed. PREL EMINARY STAT EMENT On December 20, 2011, Petitioner, Gerard Robinson as Commissioner of Education (Petitioner), issued a six~count Administrative Complaint {Administrative Complaint) against Respondent, William Randall Aydelott (Respondent), alleging that Respondent exchanged text messages with a female student and attempted to obtain her cellular telephone in a manner which violated subsections and and rule and Respondent timely requested an administrative hearing and, on February 15, 2012, the case was forwarded to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct a final hearing. At the final hearing, Petitioner presented the testimony of Sharon Aydelott, E.M., John Dobbs, Alan Scott, and Tarlanda Gooden, and offered 12 exhibits which were received into evidence as Exhibits P?i through Respondent testified in his own behalf and presented the testimony of Pam Hill and Michael McMillian. By stipulation of the parties, parts of the record from Respondent?s March 15, 2012, terndnation hearing in the matter of Escambia Education Association v. School District of Escambia Countz, Case number 33n390e00376~ll (Termination Hearing), before Arbitrator Jeanne Charles Wood, Esquire, of the American Arbitration Association, were taken into evidence as Joint Exhibit 1, consisting of the transcript and Exhibits C4from that proceeding. At the end of the hearing the record was held open at Petitioner?s request for the purpose of allowing Petitioner to attempt to take the post?hearing depositions of witnesses Y.F. and 8.8., who had been subpoenaed for the final hearing but had failed to appear. Petitioner, however, did not depose those witnesses within the allotted time and the record was closed. The proceedings were recorded and a Transcript was ordered. The parties were initially given 30 days from the filing of the Transcript within which to file their Proposed Recommended Orders. The three?volume Transcript was filed on May 30, 2012. Upon the granting of Respondent?s Partially Unopposed Motion for Enlargement of Time to File Proposed Recommended Orders, the time for filing was extended until July 30, 2012. Thereafter, the parties timely filed their respective Proposed Recommended Orders on July 30, 2012, which have been considered in the preparation of this Recommended Order. FINDINGS OF FACT 1. Petitioner, on behalf of the Education Practices Commission, is charged with the responsibility of certifying and regulating public school teachers in Florida. 2. Respondent holds Florida Educator?s Certificate 697708, covering the areas of Health, General Science, and Physical Education. Respondent?s Educator?s Certificate is valid until June 30, 2013. 3. At all times pertinent to this action, Respondent was employed as a science teacher at Fensacola High School in the Escambia County School District. He also coached football and the girl?s weightlifting team at Pensacola High School. 4. During the 2010*2011 school years, which began in August 2010, Respondent?s science classes had a total enrollment of approximately 120 students. One of his students was Y.F., a 14* yearmold female student, who attended Respondent?s secondvperiod science class which met every school day. 5. Respondent has two children, a daughter and a son. In the fall of 2010, Respondent?s daughter was six years old and his son was 14 and in the ninth grade. 6. During the time period from October 1 through October 8, 2010, approximately 340 text messages were exchanged between Respondent and Y.F. .The frequency of the text messages was inappropriate. In addition, the timing and content of a number of those text messages from Respondent to Y.F. were inappropriate. 7. Y.F. and her mother gave Respondent cellular telephone number so that Respondent could provide Y.F. with information regarding the girls? weightlifting tryouts and tutoring. 8. While some of the texts exchanged between Respondent and Y.F. between October 1 and 8, 2010, involved the subject of tutoring, the girls? weightlifting team, and an in?class review activity, many involved matters. 9. Respondent admits that texting Y.F. hundreds of times was inappropriate. The frequency of texts exchanged between Respondent and Y.F. included: a) 24 texts on Friday October 1, 2010, between 5:13 p.m. and 11:00 12 of which were from Respondent; b) 58 texts on Saturday, October 2, 2010, between 9:04 a.m, and 11:02 p.mJ, 35 of which were from Respondent; c) 88 texts on Sunday, October 3, 2010, between 12:02 p.m. and 11:57 51 of which were from Respondent; d) 26 texts on Monday, October 4, 2010, between 7:18 a.m. and 11:18 15 of which were from Respondent; e) 52 texts on Tuesday, October 5, 2010, between 10:42 a.m. and 11:10 32 of which were from Respondent; f) 40 texts on Wednesday, October 6, 2010, between 9:15 a.m. and 11:52 28 of which were from.Respondent; g) 40 texts on Thursday, October 7, 2010, between 5:24 p.m. and 11:31 27 of which were from Respondent. 10. Y.F. provided sworn testimony during Respondent?s Termination Hearing held March 15, 2012, regarding some of the text messages that she received from Respondent.?? When Y.F. asked whether she felt that the 88 messages on Sunday were was bothersome, she testified, little, yes.? When asked whether some of the words Respondent chose in his text messages were inappropriate, Y.F. testified, ?Yes, some.? Those responses by Y.F. are credited. '11. In one of the text exchanges between October 1 and October 8, 2010, Respondent responded to a chain text message that Y.F. sent to her cell phone contacts list, including Respondent. It contained the survey question, ?explain [describe] me in one word,? and provided a list of answers to choose from, one of which was the word ?sexy.? In response, Respondent selected the option ?sexy? and sent this answer to Y.F. 12. In her testimony at Respondent?s Termination Hearing, Y.F. credibly testified that she found Respondent?s use of the word ?sexy? in responding to the survey message was ?kind of a bother.? When asked whether she felt as though Respondent was ?coming on? to her, Y.F. testified, mean in a way, yes, but in another way I was like I just brushed it off.? Y.F. further testified that she was Respondent?s student at the time of the messages and did not feel awkward in class with Respondent. Nevertheless, Respondent?s message was inappropriate and Y.F. perceived that it was not right. 13. In that same time frame, between October 1 and 8, 2010,- Respondent responded to another text message from Y.F. received through her group distribution. This time, the message contained a survey question from Y.F. that asked, ?would you bang or pass?? to which Respondent responded, ?bang.? While Y.F. does not remember receiving Respondent's message, she acknowledged that the group distribution message could have gone out, Respondent admitted that he sent the ?bang? message to Y.F., that the message had a sexual connotation, and that sending the message to a l4wyearwold female student was wrong. 14. A review of the timing and content of some of the actual text messages retrieved from the cell phones belonging to Respondent and Y.F. further reveal the inappropriate nature of Respondent?s text communications with Y.F. 15. Of the text messages exchanged on Wednesday, October 6, 2010, which was a school night, Respondent texted Y.F. at 11:03 ?Sweet dreams.? 16. On Thursday, October 7, 2010, at 5:41 also a school night, Respondent texted Y.F. the message, ?going to game.? She responded at 5:42 p.mw, ?No, no money.? At 5:43 Respondent texted Y.F., ?Next time ask me 4 some.? At 5:44 Y.F. replied, ?Idk, I don?t like asking.? At 6:12 Respondent persisted by texting, ?just ask next time.? At 6:13 p.m. Y.F. responded, ?Idk maybe.? Then, at 6:15 Respondent texted, ?can call me?? At 6:15 Y.F. texted back, don?t call till after Respondent responded at 6:27 ?okay you call me later,? to which Y.F. responded by texting, 17. Later that same evening, Thursday, October 7, 2010, at 10:42 1.8. texted Respondent, ?Hey.? Respondent texted back at 10:44 ?what up At 10:45 Y.F. replied, ?just layin down.? Respondent immediately texted back at 10:45 p.md, ?sexy.? 18. Seven minutes later, at 10:52 Respondent texted ?just want to chat.? He then texted, meant txt.? Y.F. tested back at 10:53 Respondent texted to Y.F. at 10:55 need 2 talk 2 bout ur make up work?? Y.F. responded by texting, ?what about it.? Respondent texted back at 10:58 ?well I was jus gonna tell not 2 worry bout it." Y.F. texted right back, ?Really?? At 10:59 Respondent replied, ?yeah.? Y.F.'texted back, ?Thanx.? Respondent replied at 11:00 ?u I welcome.? 19. After that, beginning at 11:02 that same evening, October 7, until after midnight, October 8, 2010, Respondent engaged in a monologue by texting Y.F. a series of unanswered text messages, as follows: 11:02 Reapondent to Y.F.: ?wish I could talk 2 for a sec.? 11:02 Respondent to Y.F.: ?can 1 call rC5 11:04 Respondent to N: ?1 11:08 Respondent to Y.F.: ?hello? 11:11 8 Respondent to Y. ?Ok we will just text? 11:14 Respondent to Y. ?1 ?do you want me to stop testing 11:18 Respondent to Y. a] ?I?m sorry! nite" 11:25 Respondent to Y.F.: ?if you do chahge [sic] your mind decide 2 me its ok Im at Walmart getting candy for our game that were playing 2 morrow? 11:27 Respondent to Y.F.: ?What kind of chocolate candy is ur favorite? 11:31 Respondent to Y.F.: will be out 4@ least another hour if want 2 or email? October 8, 2010 (after midnight) 12:08 Respondent to ?what kind of chocolate want? 12:25 Respondent to Y.F.: ?Hey I guess gone to sleep I got some choc 2 morrow? 20. In his testimonies, including his Termination Hearing, his deposition taken in this case, as well at the final hearing, Respondent tried to justify his texts to Y.F. by explaining that the text messages with Y.F. between 10:55 October 7, and 12:35 October 8, 2010, concerned makeuup assignment and chocolate candy he was purchasing for an inwclass review game in preparation for a test. He admitted, however, that it was inappropriate for him_to be texting with Y.F. late in the evening. He also admitted that he did not text any other student to ask about what candy they liked. 21. When asked in his deposition why he was texting a 14- yearmold ninth grade student after midnight asking her what kind of chocolate she wants, Respondent testified: I wish I knew the answer to give you for that. I don?t know. I don?t know why I did a lot of the things that I did during that time period. Out of 22 years of teaching, I?ve never done anything remotely close to that. Why 5 did it then, I don?t know. I deeply regret it. If I could take it back, I would. 22. Although there is no evidence that he ever told her, Respondent thought Y.F. was pretty, or even beautiful. He told her that she was his favorite student i, that every year he had a favorite, and this year it was her. 23. Even prior to the period of texting, Respondent initiated a related contact with Y.F., this time offering Y.F. cake. On Sunday, September 27, 2010, Respondent?s wife and two children took Respondent to lunch at a local restaurant to celebrate his birthday that had occurred the day before. His wife bought him a birthday cake and brought it to the restaurant. It was a yellow pound cake with white icing. 24. After lunch, Respondent went to a coaches? meeting and took the cake with him. At some point, Respondent had a telephone conversation with Y.F. during which Respondent asked Y.F. if she would like to have some of his birthday cake. Y.F. told Respondent that she would. Respondent already knew where Y.F. lived. He told Y.F. that he would drop off the cake on his way home. 25. When Respondent left the coachesr meeting, he drove to home in his truckhis truck. Rather, Y.F. met him at his truck. Respondent rolled down his 10 driver?s~side window. According to Respondent, he said, ?Hey, how are you doing? Here?s the cake.? He testified that he then handed Y.F. the cake, she said ?Thank you," and he then immediately drove away. 26. Respondent could have taken the cake home to his family or to school the next day to share it with his other students. Instead, Respondent decided to use the cake as an excuse to meet with Y.F. When asked in his deposition why he took the cake to Y.F. instead of bringing it home to his family, he had no excuse. Respondent answered: I don?t know why. You know, thinking back on it, that?s what I should have done. Why I didn?t, I don?t know. 27. At the final hearing, regarding the fact that he had given his left~over birthday cake to Y.F., Respondent admitted: Looking back on it, it was inappropriate. I shouldn?t, again, it was something that I shouldn?t have done. 28. It is found that, under the circumstances, rather than for the benefit of Y.F., Respondent used the cake as an excuse to see Y.F. for his own personal benefit. 29. During the October 1 through 8, 2010, frequentwtexting time period, Respondent again made arrangements to meet with Y.F. outside the school setting. Respondent knew that Y.F. liked certain types of sweets. He asked Y.F. if she had ever eaten cupcakes from a certain cupcake store located on Cervantes. He suggested to Y.F. that she should meet him there on a Saturday so 11 that he could tutor her. Respondent and never met at the cupcake shop for the contemplated tutoring session. 30. The texting between Respondent and Y.F. came to an abrupt end on Friday, October 8, 2010, when Y.F. lost her cellular telephone early in the morning at school. Student E.M. found the telephone in a classroom during first period. 31. After finding cell phone, E.M. and another student, 8.3., reviewed the text messages on the phone. They were offended by the texts they found from Respondent. The students called Respondent that Friday night, October 8, 2010, and placed him on speakerphone. During the call, student 8.3. confronted Respondent regarding his text messages and called him a ?filthy bastard.? 32. The callers did not identify themselves and Respondent did not know whether he was speaking to adults or students. During the call, Respondent told the caller that he would pay if she would not tell or turn in the phone. 8.8. said she wanted one hundred dollars. Respondent said that he only had fifty. 33. At the final hearing, Respondent denied that he ever offered money in exchange for the phone. He admitted, however, that he arranged to meet the callers at a local convenience store, and then later at another location for purposes of obtaining the cell phone from the callers. At the final hearing, when asked whether he wanted to get the phone back so that nobody else would learn about the texts, Reapondent testified, ?Yes sir. 12 Damage control so nobody else would call.? When further asked whether he wanted the phone back so that nobody else would know about it, Respondent testified, ?Yes, sir.? 34. Respondent also offered the inconsistent explanation 'during his testimony that he wanted to get the phone back so that he could turn it in to the principal at Pensacola High School. That testimony was not credible and is not credited. Rather, it is found that Respondent wanted to get cell phone back so that his texts to Y.F. would not be further discovered. 35. Respondent and the students with phone arranged to meet at a convenience stored named ?Trisha?s One Stop? to exchange the phone for money oanaturday. Reapondent drove around that Saturday, October 9, 2010, but could not find the convenience store. He called the callers and suggested that they meet at the Brownsville Assembly of God Church in Pensacola. The girls agreed, but never went to the church. Respondent, however, went to the church and waited for some time. 36. During the weekend of October 9 and 10, 2010, Respondent became despondent. He punched holes in walls at his home, banged his head against the wall, rolled around on the floor, and at one point grabbed a gun and threatened to harm himself. While some of this behavior might be attributed to marital distress he was experiencing at the time, apart from the allegations in this case, it is found that the primary reason_for Respondent?s ?bizarre? behavior that weekend was because of his 13 guilt and concern he felt over the fact that the discovery of cell phone would reveal his inappropriate communications with Y.F. 37. According to Respondent, after waiting for some time at the church to meet with the callers and obtain phone, he decided instead to turn himself into the principal of Pensacola High. He testified that, after meeting with another high school coach, he arranged to meet the principal during the weekend to report what had happened and turn in his own cell phone. 38. Student 8.3. turned in cell phone to the Eensacola High School administration on Monday, October ll, 2010. 39. Upon discovery of the text messages between Respondent and Y.F., the Escambia County School Board suspended Respondent from his teaching position, and on January 19, 2011, terminated Respondent?s employment with the Escambia County School District. Respondent challenged his termination by requesting arbitration on the issue of his dismissal. The outcome of that arbitration proceeding was pending as of the hearing in the instant case. 40. Prior to the incidents that are the subject matter of this case, Respondent has had no discipline in his years as a teacher, and neither of Respondent?s Florida nor Alabama teaching certificates has ever been disciplined. In addition, all of Respondent?s performance evaluations throughout his 22*year teaching career have been satisfactory or higher. 14 41. Respondent?s former supervisor, Michael McMillian, wrote a recommendation and testified about Respondent?s excellent teaching performance, how students? benefited from his teaching, and his good moral character. Mr. MoMillian, however, was unaware of the allegations or facts of this case. 42. There is no evidence that Reapondent ever touched Y.F. 43. Escambia County School Board asked Pensacola Police to investigate whether Respondent had violated any criminal laws. No criminal violations were found. however, according to Pensacola Police Detective Tarlanda Gooden, who conducted the investigation, based upon her experience as a sex crime investigator who has investigated numerous sex crimes, Respondent?s actions with minor female student Y.F. constituted ?grooming? behavior for eventual sexual contact with Y.F. The undersigned agrees and further finds that Respondent?s grooming behavior towards Y.F. was for Respondent?s personal benefit. 44. Based upon his review of materials from Respondent?s leveluone grievance hearing, as well as his Termination Hearing, Dr. Alan Scott, Assistant Superintendent for Human Resource Services, was of the professional opinion that Respondent?s misconduct violated the statutory and rule provisions cited in the Administrative Complaint filed against Respondent in this proceeding. Dr. Scott?s opinion is based on thirty~two years of experience in the field of education in the State of Florida, where he has served as a teacher, coach, assistant principal, 15 principal, county administrator for curriculum, instruction and discipline, and as assistant superintendent. While Dr. Scott?s opinion has not been used to supplant legal conclusions recommended herein, his opinion is credible and has been considered. 45. In sum, as alleged in the Administrative Complaint, ?Respondent engaged in inappropriate conduct towards fourteen year?old female student Y.F., in that from October 1, 2010, through October 8, 2010, Respondent exchanged approximately 340 text messages with Y.F. Several of Reapondent?s messages were of a flirtatious and suggestive nature and included offering to pay way to attend sporting events, offering to purchase [candyl for Y.F., and telling Y.F. that Respondent could be described as ?sexy.?? 46. Based upon the clear and convincing evidence reflected in the factual findings above, it is further found that Respondent?s behavior toward Y.F. was unacceptable and should not be tolerated from a licensed school teacher in Florida. CONCLUSIONS OF LAW 47. The DiviSion of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to section 120.569 and subsection Florida Statutes<2012). 48. Subsection Florida Statutes, authorizes the Commissioner of Education to file a formal complaint and prosecute the complaint against a teacher?s certificate pursuant to the provisions of chapter 120, Florida Statutes. 49. Petitioner, as the party asserting the affirmative in this proceeding, has the burden of proo?. See, Balino v. Dep?t of HRS, 348 So. 2d 349 (Fla. DCA 1977). 50. Because Respondent's teaching certificate is at risk, Petitioner has the burden to prove the allegations in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). 51. Clear and convincing evidence: [rJeguires that evidence must be found to be credible; the facts to which the witnesses testify must be remembered; the testimony must be precise and explicit and the witnesses must be lacking confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. In re Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)). 52. Disciplinary statutes are penal in nature, and must be construed against the authorization of discipline and in favor of the individual sought to be penalized. Munch v. Dep?t of Bus. Prof?l Reg., 592 So. 2d 1136 (Fla. DCA 1992). A statute imposing a penalty is never to be construed in a manner that expands the statute. Hotel a Restaurant Comm?n v. Sunny Seas No. One, 104 So. 2d 570, 571 (1958). 17 53. The Administrative Complaint alleges that Respondent violated subsections and Florida Statutes, and Florida Administrative Code Rule subsections 68~ and 54? Section 1012.795 provides in pertinent part: Education Practices Commission; authority to discipline.?- (1) The Education Practices Commission may suspend the educator certificate of any person as defined in s. lOl2.0l(2) or (3) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection may revoke the educator certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection may revoke permanently the educator certificate of any person; may suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, provided it can be shown that the person: *s?c'k Has been guilty of gross immorality or an act involving moral turpitude. Upon investigation, has been found guilty of personal conduct that seriously reduces that person?s effectiveness as an employee of the district school board? *i'ir Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. 18 55. Rule 6B?l.006 contains the Principles of Professional Conduct and provides, in pertinent part: 56. (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: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Shall not exploit a relationship with a student for personal gain or advantage. The six?count Administrative Complaint tracks the language of the abovewrecited statutes and rules. It first sets forth the following material allegations in paragraphs 3 through 6 of the Administrative Complaint: 3. During the beginning of the 2010*2011 school year, the Respondent engaged in inappropriate conduct towards fourteenwyearm old_female student Y.F., in that from October 1, 2010, through October 10, 2010, the Respondent exchanged approximately 340 text messages with Y.F., including offering to pay way to attend sporting events, offering to purchase gifts for Y.F., and telling Y.F. that the Respondent could be described as ?sexy.? 19 57. 4. Two female students, E.M. and 8.8., discovered cell phone and observed he text messages between Y.F. and the Respondent. E.M. and 8.8. contacted the Respondent to tell him that they had observed the text messages and offered to give him the phone for $100.00. The Respondent initially offered to pay E.M. and 8.8. $50.00 for the phone and later cancelled the offer. 5. Upon discovery of the text messages between Y.F. and the Respondent, the Escambia County School District suspended the Respondent from his position. 6. On or about January'lQ, 2011, the Escambia County School District terminated the Respondent from his position as a result of his conduct towards Y.F. As demonstrated by the factual findings under the Findings of Fact, above, Petitioner proved all of the material allegations recited in the Administrative Complaint. All of the findings were based upon clear and convincing evidence. 58. 59. Count 1 Count 1 of the Administrative Complaint alleges: The Respondent is in violation of Section Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education. The terms "gross immorality" and ?moral turpitude" are not defined in any statute or rule applicable to the Education Practices Commission in license disciplinary cases under chapter lOl2. However, the definitions in Florida Administrative Code Rule which relate to the suspension and dismissal of teachers by school districts, are instructive in defining terms 20 as used by the Education Practices CommiSsion in revocation actions. 60. Rule 6Ae5.056 provides the following definitions: (2) lmmorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual?s service in the community. (6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, - which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude. 61. "?Gross immorality' has been described as misconduct that is serious, rather than minor in nature; it is a flagrant disregard of proper moral standards." Smith, Commfr of Ed. v. Malvar, Case No. (DOAH Sept. 13, 2010); RFC Jan. 13, 2011) (citing Education Practices Comm?n v. Knox, 3 FALR 1373mA (Fla. Dep?t of Education 1981)). 62. Moral turpitude has also been defined by the Supreme Court of Florida as "anything done contrary to justice, honesty, principle, or good morals, although it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.? State ex 21 rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933). 63. Respondent argues in his Proposed Recommended Order that, ?although ?gross immorality? is identified as grounds for discipline in Section Fla. Stat., the term ?gross immorality? has never been defined in statute or in rule.? Indeed, Florida Administrative Code Rule 6Ae5.056, quoted above, defines ?immorality? but does not define ?gross immorality.? For this reason, there have been cases brought before the Division of Administrative Hearing resulting in recommendations that have not applied charges alleging ?gross immorality? in a proceeding against a Florida Educator Certificate. See, Hodges v. Commissioner of Education, Case No. 09w3048; 2009 WL 4543095 (Fla. DOAH Dec. 2, 2009)(teacher ?cannot be found guilty of gross immorality as defined by rule since there is no rule providing a definition, as is required by the statute?). 64. Unlike the term ?gross immorality,? which is not defined by rule, ?moral turpitude? is defined, as set forth in rule quoted above. As to that provision, Respondent argues, by relying on the rule?s reference to ?crime,? that he cannot be found guilty of an act involving moral turpitude because he has committed no ?crime.? 65. While Respondent?s argument regarding the lack of rule definition of the term ?gross immorality? has some support, his argument that he must have committed a crime in order to be found 22 _guilty of an act involving moral turpitude is rejected. Teachers are traditionally held to a high moral standard in the community. Adams v. Professional Practices Council, 406 So. 2d 1170, 1172 (Fla. DCA 1981). As a teacher, it is not necessary that Respondent be charged or convicted of a crime in order to be disciplined for conduct involving moral turpitude. Walton v. Turlington, 444 So. 2d 1082,1084 (Fla. DCA 1984). 66. Considering the material allegations which have been proven against Respondent in light of the definition of moral turpitude, it is found that Respondent is guilty of acts involving moral turpitude. Respondent?s conduct constituted obsessive grooming behavior towards one of his l4~year~old stndents which violated accepted standards of society, as well as the higher moral standards expected of teachers. His actions were wrong and Respondent knew it, as demonstrated by his attempts to retrieve phone to cover his base actions. 67. Respondent?s actions, which were proven by clear and convincing evidence, violated section as charged in the Administrative Complaint. Count 2 68. In Count 2 of the Administrative Complaint alleges: The Respondent is in violation of Section Florida Statutes, in that Respondent has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. 23 69. Whether Respondent?s misconduct seriously reduces his effectiveness as an employee of the school board may be inferred from the nature and seriousness of the misconduct. Walker v. Highlands Cnty. Sch. Bd., 752 So. 2d 127, 128 (Fla. 2d DCA 2000). Expert opinion may also provide evidence on whether the misconduct seriously reduced Respondent?s effectiveness as a school board employee. Woodward v. Prof?l Practices Council, 388 So. 2d 343, 344 (Fla. DCA 1980). 70. Considering the nature and seriousness of Respondent?s misconduct proved in this action, the opinions offered by Assistant Superintendent Scott, as well as the actions of the Escambia County School Board, it is concluded that Respondent violated section as alleged in the Administrative Complaint. Respondent?s misconduct involved a l?wyearmold ninth" grader in the same grade as Respondent?s son, who also attended Pensacola High School at the time of the actions giving rise to this case. As a result, Respondent?s son was transferred to another high school. 71. Respondent admitted that, as a result of his misconduct, he would not be effective at Pensacola High School. Instead, he would opt for another assignment. The Escambia County School Board, however, upon the discovery of the misconduct, immediately suspended Respondent and took legal action to terminate his employment with the School Board. 24 72. Assistant Superintendent Scott, who was involved in the investigation of the case for the Escambia County School Board, offered the following opinion testimony which was persuasive on the issue of whether Respondent?s misconduct seriously reduces his effectiveness as an employee of the School Board: As we go through the facts of the case, also, the situation, what would you do, the whole bang me comment, trying to go to the cupcake store, taking the cake by the house, offering to buy chocolate, I?ll pay your way into a football game, don?t worry about your make up work with a struggling student. You take all of that and then you factor in that you have an individual that another group of students knows about this because a cell phone has been lost, there?s an extortion thing where Coach Aydelott actively involves in trying to negotiate and get this cell phone back, based on the opinion of this group {referring to the Escambia County Schools Superintendent?s discipline committee] that made this decision that we needed to move forward with the termination, based on the report we have from Detective Gooden that this individual was grooming this young lady, . . . you take that all into consideration and say, did Coach Adyelott impugn his ability to be effective in that school, yes. Me, as a former principal, having dealt with situatiOns like this in the past, when you have an individual that participates in that kind of conduct is known by the school community makes a very untenable situation at that school. You have parents calling. They don?t want their students in that class. And I have a daughter and I don?t know who else in this room has a daughter. I can clearly understand the reaction of some parents, they do not want their daughters in this gentleman?s class. I?ve had to deal with that the principal as a principal, I?ve had to deal with it as a director, on those phone calls and the outrage that comes in from a community. So, based on the facts that were presented to us, it was the opinion 25 of that committee to the Superintendent who has the final say, who nakes a recommendation to the Escambia County School Board, that he had impugned his ability to be effective in Escambia County School District. And the appropriate penalty here was termination. Count 3 73. Count 3 of the Administrative Complaint alleges: The Respondent is in violation of Section Florida Statutes, in that Respondent has violated the Principals of Professional Conduct for the Education Profession prescribed by State Board of Education Rules. 74. As discussed under Count 4 through Count 6, below, Respondent violated Principals of Professional Conduct for the Education Profession set forth in Florida Administrative Rules and Therefore, Respondent violated section Florida Statutes, as alleged in Count 3 of the Administrative Complaint. Count 4 75. Count 4 of the Administrative Complaint alleges: The allegations of misconduct set forth herein are in violation of Rule Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning andXor to the student?s mental health and/or physical health and/or safety. 76. Contrary to the argument advanced in Respondent?s Proposed Recommended Order, violation of rule does not require evidence that Respondent actually harmed health or safety. Rather, it requires a showing that Respondent 26 failed to make reasonable efforts to protect the student from such harm. 77. The clear and convincing evidence demonstrated that Respondent not only failed to make reasonable efforts to protect IY.F., but that he actively pursued a course of action which could lead to harm, in violation of rule Count 5 78. Count 5 of the Administrative Complaint alleges: The allegations of misconduct set forth herein are in violation of Rule 68? Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. 79. In addition to her realization that, on at least one occasion, Respondent was ?coming on? to her, as a result of Respondent?s multiple intentional inappropriate contacts, Y.F. was injected into investigations requiring that she provide a written statement to school officials and to a Department of Education investigator, undergo interviews with a school investigator and Detective Gooden, testify at Respondent?s Termination Hearing, and be subjected to a subpoena in this proceeding. 80. Despite Respondent?s argument to the contrary, rule 68* does not require that Respondent intended to embarrass student Y.F. As noted by the Hearing Officer in School Board of Pinellas County v. Ray, DOAH Case No. 9491631 (June 13, 1994): Specific intent to embarrass is not required where ?a 27 general intent to act in a way which one could expect to result in embarrassment or disparagement.? 81. As evidenced by his acknowledgment that his actions were inappropriate, as well as his attempt to get back phone, Respondent knew and expected that, if discovered, his actions would expose both Y.F. and him to scrutiny and embarrassment. 82. The clear and convincing evidence showed that Respondent violated rule Count 6 83. Count 6 of the Administrative Complaint alleges: The allegations of misconduct set forth herein are in violation of Rule 68" Florida Administrative Code, in that Respondent has exploited a relationship with a student for personal gain or advantage. 84. The evidence in this case, supporting the Findings of Fact above, clearly and convincingly demonstrated that Respondent engaged in inappropriate grooming behavior toward Y.F. His obsessive texting, inappropriate sexual comments, and arrangements to meet .F. outside the school setting were exploitive towards Y.F. and designed for Respondent?s personal benefit. As such, Respondent?s actions violated rule Penalties 85. The Education Practices Commission has adopted guidelines for the imposition of penalties for violations under 28 1012.795, Florida Statutes, and Florida Administrative Code Rule 6B?l.006. Rule 6B~ll.007, entitled ?Disciplinary Guidelines? discipline ranging from probation to revocation for the statutory and rule violations for which Respondent is charged in this proceeding. Rule provides a number of aggravating and mitigating factors that can be considered in determining the appropriate penalties, as follows: The severity of the offense; The danger to the public; The number of repetitions of offenses; The length of time since the violation; The number of times the educator has been previously disciplined by the Commission; The length of time the educator has practiced and the contribution as an educator; 1 The actual damage, physical or otherwise, caused by the violation; The deterrent effect of the penalty imposed; The effect of the penalty upon the educator?s livelihood; Any effort of rehabilitation by the educator; The actual knowledge of the educator pertaining to the violation; (1) Employment status; Attempts by the educator to correct or stop the violation or refusal by the educator to correct or stop the violation; Related violations against the educator in another state including findings of guilt or innocence, penalties imposed and penalties served; (0) Actual negligence of the educator pertaining to any violation; Penalties imposed for related offenses under subsection (2) above; Pecuniary benefit or selfegain inuring to the educator; - Degree of physical and mental harm to a student or a child; 29 (5) Present status of physical and/or mental condition contributing to the violation including recovery from addiction; Any other relevant mitigating or aggravating factors under the circumstances. 86. While there were some mitigating factors offered by Respondent, including his years of serviCe without discipline and successes as a teacher and coach, the aggravating factors predominate under the facts and circumstances of this case.? The types and seriousness of Respondent?s violations and Respondent's repetitive misconduct in light of his awareness that his actions were wrong implicate factors and as aggravating factors from list in Rule 11.007, listed above. Factor (h)(deterrent effect) and the final orders cited in Petitioner?s Proposed Recommended Order involving similar facts have also been considered in crafting an appropriate recommended penalty. RECOMMENDATION Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued finding that 'Respondent, William Randall Aydelott, violated the provisions of subsections and Florida Statutes, and Florida Administrative Code Rule or revoking Respondent's Florida educator?s certificate for a period of five years, and imposing as a condition of rewcertification that Respondent provide written verification from a Recovery 30 Network Program approved, licensed Florida provider, that Respondent poses no threat to children and is capable of assuming the reaponsibilities of an educator. DONE AND ENTERED this 29th day of August, 2012, in Tallahassee, Leon County, Florida. JAMES H. PETERSON, Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399?3060 (850) 488*9675 Fax Filing (850) 921w6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2012. ENDNOTES Unless otherwise noted, all citations to the Florida Statutes and the Florida Administrative Code are to the 2010 versions which were in effect at the time of the alleged violations. Although subpoenaed, Y.F. did not appear at the final hearing in this case. Y.F., however, provided written statements to school officials and the Department of Education, was interviewed by a school investigator and Pensacola Police Detective Gooden, and testified at Respondent's Termination Hearing. 3/ Effective April 5, 1983, Florida Administrative Code Rule 613- 4.009 was transferred to Florida Administrative Code Rule 5.056. The quoted version of the rule, as all other rules cited in this Recommended Order, is the version effective in 2010. 31 COPIES FURNISHED: Peter James Caldwell, Esquire Florida Education Association 213 South Adams Street Tallahassee, Florida 32301 peter.caldwell@floridaea.org David Holder, Esquire J. David Holder, P.A. 387 Lakeside Drive Defuuiak Springs, Florida 32435 jdholderlaw@earthlink.net Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street? Tallahassee, Florida 32399-0400 Lois Tapper, Interim General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee,_Florida 32399m0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224E 325 West Gaines Street Tallahassee, Florida 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. 32 SEKETE FMSEESES as Cemmissianeir 0f .Edusatis?zm, Patitianar, vs; DQAH Case NO. i $562131; WHLIAM RANBALL AYEELGTT, 303 Case Ni}. 1014943 Ragga-admit Eff}; Pa??amrg hay and Emuugh m?ersigned mange}, hemiay ?les his resp 0'21} 36 ?re Respan?em? s- axceptiom claim Sepia-tribe? 261.2, which shai?ienge {313.6, am} only 0116, c-Gnelusinn oflaw, midi. in. t?zarsm says: 1. {3m ?ugaist 29, 28-129 Admi?isimtiwe Law 3114:3343 3' 3351388 B, 'Pemrsm, EH ante-red his Gyrciiez? if} ?ns 832133, 2'11 his Emigs famd ?rm the Pa??m?z?r yrs-wad. and wary a?cgatim. senmined in Admini?sizati?w Camzplaim. Ha states; in Wigwam mge AS ?gm?n??a?md ?by {$36 fmm? ?'xadings under Fimiif?gs {3f F3615 amaze, Petitiamr praveii 0f ?ne matmal ai'iega?timg waited in; ?rm Administrative Complaim. Kali 9f the ?ndings wage has-?53 11pm clear and mnyimi?g Widen-ca. 2. E'ucigia Pam'son 21130 fat-Jami that'tha was gui?y 0f vk?a?mg 311. cf the: gummy? and rule pram-Signs set. faith i1} Caums 0m Maugh Six 0f the Adminis?ative Camp-iaim. Speci?caiiy, {he Adminisim?w Law fudga Emu-{Id Rawemiient wag guilt}? of 2m act's. or acts ?thle mam} mm'itHdB; was ggu?iy' 6f {38mm amduc? Which S?f?ausly mammal his. effectivamss as am mnpkayee (3f the sch?ai Marci; was guiity g-i?vioiafiing ??216 Frinc?gples Of?mee-mianai far Educarim}. was guilty 0f to ma?a mamnabie sffm'i: to pretest the statics-m from. can-ditians hamfui is) leamizzg Emmi/Q}: 13:} time amazimfs manta} mam; andfor physical health alzdfar safety; was guilty 0f Emamiom?y expming the smciem "w ummcegsary embem?agsmam or di-Syamgemmi; and wag of axplei?ng his raia?am?ifg} mm @3123 fer peywnal gaiz': gr advantage. (Sea paragraphs 56 ihmugh 844, pages; 39~28 0f the 0166:). 3? 812 Sepia-mm? E7, 2812? the Respendent {Eleni excap?ions ft} the Rem-mmen?sd 0mm attacking the Administrativa Law Emige?s- ?n?ing that ?116: Respimdem was; gum}? 01?. an act {3r acts inwiving mam! iti??iade. It m; mic that ?rm Ramadan? hasm?f?akm ex cept?gn an}: af the ?ndings Fact any {3f the eihar Camiusiem 9f Law GHQ th? Recomme?dcd Panaity. 4. Tim axcepiimg t0 the my 3 emaciusion regatding moral mmit'ude is based. 11pm. his argument $23.31; the mic de?niag mam} Empimde was 011 8, E372 his E?mpamd Qrder wkich 216: ?lmi 0'13; .?'uiy 3f}, 2&2? hewever,. we ".Regp'orzdem makes- 11{) S??h argumm?i. Accordingly? the Respgniiem has waived. 33335123 argument: by his fa?ms Kai-36 it with thee Acimi-mizgtm?ve Law Judge prim may of'ma Order. 5 . in his. exceptiems the Ra'smndem was my? present my supper?, damm?nmion er citaticm of may ammzity far the pmpasitim f?hat the; mla mm ?mpaaled?i 6. The ri?e- in. questimz, a saggy wik?sh iizg slimmed "harem as Exhibit caniains the da?ni?iim 0f mam-3; turgimde ?rm-ch wag mkad won. by the: Admi'zxis?raiive Law Judge hii?: Remmw??w Swazi {8652? m?s?gmp? 68,, pag? 2 i. @?i?fm it was the ?ia?ni?m 0f mam} mrpimde in affect at ma mne- ?116 Regpsn?em committed "?316 affemive conduct that was; af?gzged and maven. 1% W33 the: d??-nitien in. e?mt 23 the 'timsa {if the A?mimi-S-?tratiw Cempiaim was ?led. 1% was 2115;0- t?a de?ni?m in. effect at this ?time 01" 'th@ faring}. hearing 0f {big cease em April 2e 8.335125%. 29:12., 7. It appears ?be- mlewmaking legislative hiemry appended {a .056 Eh at't'he maize wee ?ameeded? 0e 2812, me?) ?repeeied?, es a?eged by'me (See Exhibii 2, e?aehed in we histery is there any to a ?repeat?? ef 6 as the Respendee?? el?leges, 2101? ?ees the Respen?iem previde any eitetiee ef eutherii?y' ?re'peei?. "Unfortunately, the exist-f rzzie~meking hiseozfy awe-need {e the (anti 9f the rule dees not prescribe an e?ec?ve date. 1331* emee?mem (If em mie, 01? provide any disemssien as te the 'i'etent Uf the emeedmem. 8.. In. that '6An5i355 has never been repeeied, there exis?ts; the questie'n Ofwhie?z vet's-ice ofihe-relm- She'uld be eppiie'dm this (if in fact it was mneeded effeetive .fe?y 8, 28-22, adete prior i1} time ?fee entry {3f the Greer and ef came prim}? the ?ne} aetien eff this Gi?een the emiz?e-eeding ?z?e ifs-see and in age eb-mleieme 0f the iih?i??fm?? res-Gmmeedzs fhet {he E-Liuea?oe Practices Sammie-Sim} .remlve the meme? in the fe?owimg maneer: Me?ify ?ne Gee-Eerie ere-maize, er delete: the first 0f paragraph. 66 and the one ie. paragraph 0f the Reecmmeneied? Qrder and Medi?fy the ?Reeoemee?e?en? paragraph em eege 30 {e delete referenee to Section 1012.?95 War-?Eda Ste-tame. These prep-ewe. medi?eetiene weuld. remeve {he candies-?23125 with the Esme ef mere} ?mrp?ude. The memes fer ties are: the Respeedee: was maven to have engaged in. ail of the set fe?h in. the meteriei a?ege?em ef {be A?m?eis?e?ve Campieim; the. law aiu?gg imam {?13 by his. mismndua: Ea ha; guiity 017 mm gammy and ?three mis pmvisians in addifian the Violaiziw regarding 9f merai turpimde; "the Respen?mi has mt taken: exception to any o'f?xa ?ndings; 0f farm: to the 01" law? all {15f which. Wm remain 3111139?: and una?ecmd if ting ?nding regarding mum} wipimde 15' remwed; ?112: has moi "taken any exceptiox; it} "the" recommended pe?aity sat fart}: page 33-31 af?x:- Omar; ?rm ultimata 0211430313 0f this pmeeading Wi? not $38 aimed by remacwai 01? {he {111:1ng regardi?ug mar-a1 tarp-imde, 8&1 of the ?'miings of fact ram-aim as M13 {he since rm cx'cap?cns have: bat-3n ?led the pe?alty; {it} the premsad mad??m?imsm the Order-Wm pmcimia appeal 'mgaz'diag. ?516 isms {x?fmamii iurp?mai? 331d th?mfam amid?. further ?me, 398%, ami {ifsiay (if this; cause in: mikes-s that ism-a. WHEREFORE: i3$ti?amer reguesm that the: Respan?mt" exceptions be. denied, but. that ?113 Ql?d?l? as fe'il?ws: magma, (mime, 1:21-6- ?rst sm?mce remwe? at tha 9m. sax-imam ca?taimd Sen paragraph. 67; m??fy the recommended pazxaiiy 621 pages 36 and 31 t0 fame-we of &elete reference {a $12,795 (1) Flarida Siamf?s. The ?3?i?immr mail; the 011131; as thus ma?i?ed be adopiad 21101} wi?z penaity by ju?ge- Petarswn. HEREBY CERTEFY ?mat a {ma 39p}?- Qf?iihe {mega-mg: has beer: ?n?nii'she?. to Pam? J, {Saki-wall, atmmay fer the ?aspgn?em, 12513 Swath Adams; Sweet, Ikliahasgaa, Fim?dac 32301 by 5&3 LL 8. mail} 6333 {1733.3 LMLD {1213 of 86333333333363: 2012 {j ?w?a?swm ?1 Lakmidg Drive 1338}? 33333313 Spr3z3gs., FL 32435 (8563) 568~4964 FL 833* ID N33. 199%? ATTORNEY FUR STATE OF FLORIDA EDUCATEON PRACTICES DR. EREC J. SMITH, as Commissioner of Education, Petitioner, vs. DOAH Case No. EPC Case No. WILLIAM RANDALL AYDELOTT, Respondent. EXCEPTION TO RECOMMENDED ORDER 1TH INCORPORATED MEMORANDUM OF LAW Petitioner WILLIAM RANDALL AYDELOTT (?ReSpondent?; ?Mr. Aydelott?), pursuant to Subsections (1), Florida Statutes (?Fla Stat?), hereby submits the following exceptions to the Recommended Order of Judge James H. Peterson 111, Administrative Law Judge of the State of Florida Division of Administrative Hearings which was filed with the Education. Practices Commission on August 29, 2012. I The review of the instant Recommended Order is governed by Fla. Stat. which section provides in full as follows: (1) The agency may adopt the recommended order as the ?nal order of the agency. The agency in its ?nal order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion. of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion. of law or interpretation of administrative rule and must make a ?nding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modi?ed. Rejection or modi?cation of conclusions of law may not form the basis for rejection or modi?cation of ?ndings of fact. The agency may not reject or modify the findings of fact unless the agency ?rst determines from a review of the entire record, and states with particularity in the order, that the ?ndings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and Without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action. Fla. Stat. (2012). FIRST EXCEPTION: CONCLUSION OF LAW ON Respondent takes exception to the following conclusion of law excerpted from paragraphs 64 through 67 of the Recommended Order: . . . ?moral turpitude? is de?ned, as set forth in rule quoted above. As to that provision, Respondent argues, by relying on the rule?s reference to ?crime,? that he cannot be found guilty of an act involving moral turpitude because he has committed no ?crime.? . . . [Respondent?s] argument that he must have committed a crime in order to be found guilty of an act involving moral turpitude is rejected. . . . As a teacher, it is not necessary that Respondent be charged or convicted of a crime in order to be disciplined for conduct involving moral turpitude. Walton v. Turlington, 444 So. 2d 1082,1084 (Fla. DCA 1984). Considering the material allegations which have been proven against Respondent in light of the de?nition of moral tnrpitude, it is found that Respondent is guilty of acts involving moral tnrpitude. Respondent?s conduct constituted obsessive grooming behavior towards one of his 14?year?old students which violated accepted standards of society, as well as the higher moral standards expected of teachers. His actions were wrong and Respondent knew it, as demonstrated by his attempts to retrieve phone to cover his base actions. Respondent?s actions, which were proven by clear and convincing evidence, violated section as charged in the Administrative Complaint. 12.0. at 64, 65,1] 66 a 67.1 (emphasis added) I. was REPEALED on JULY 8, 2012; THE arc CANNOT MAKE A DECISION BASED ON A LAW WHICH NO LONGER EXISTS AT THE TIME OF ITS FINAL NOR DID Respondent does not take exception to the other statements made in paragraphs 64 through 67. Only the language excerpted. in the above quote from the Recommended Order is part of this Exception. 2 EXEST BY THE TIME THE JWGE ENTEREB HIS RECOMMENBEE ORDER 0N JULY 29, 2012 When the undersigned tiled Respondent?s Proposed Recommended Order on July 29. 2012, it had not come to the undersigned?s attention that the de?nition of ?moral turpitude? in the Florida Administrative Code had been repealed on July 8, 2012, only days earlier. Florida Statutes section states that the EPC may discipline a certi?cate~holder person: . . . Has been guilty ofgross immorality or an act involving mom! tarpimd'e as de?ned by rule ofthe State Board of Education. Fla. Stat. (2012). This statute requires that the certificate-holder?s conduct fall within the defmition of ?moral turpitude? in the State Board of Education?s rule under the Florida Administrative Code. Until July 8, 2012, ?moral turpitude? was de?ned in two rules of the Florida Administrative Code, both of which contained the identical de?nition of ?moral turpitude.? The de?nition under Fla. Admin. Code R. has traditionally been used in EPC cases because Chapter 6B of the Code is entitled ?Education Practices Commission? and contains rules over which the EPC has jurisdiction. However, Rule 684.009 was repealed on July 8, 2012 and no longer exists. Consequently, as of the time the ALJ rendered his Recommended Order, Rule no longer existed and could not be used to support the judge?s decision. Nor can it be used to support the Final Order. The only other State Board of Education rule defining ?moral turpitude? in the Florida Administrative Code was Rule which historically contained the same definition as Rule Rule explicitly stated that it was to be used for determining whether ?dismissal? was appropriate in school board proceedings - not in EPC proceedings. For this reason, it has not traditionally been used in EPC proceedings. However, Rule was also amended on July 8, 20120 to remove the de?nition of ?moral tnrpitude? which the quoted and applied to Respondent. The ALJ was without authority to base his decision on that repealed language. Nor does the EXPC have jurisdiction to base its decision on a definition of ?moral turpitude? which no longer exists in any State Board of Education rule by the time of its forthcoming Final Order. Florida Statutes Section requires that the educator must be ?guilty of . . . an act involving moral turpitude as de?ned by rule ofthe State Board of Education.? Ever since July 8, 2012, the only remaining reference to ?moral turpitude? in Fla. Admin. Code R. is the following: Just cause? rneans cause that is legally suf?cient. Each of the charges upon which just cause for a dismissal action against Specified school personnel may be pursued are set forth in Sections 1012.33 and 1012.335, BS. in ful?llment of these laws, the basis for each such charge is hereby defined: . . . (8) ?Crimes involving moral nirpitude? means offenses listed in Section 1012.315, F.S., and the following crimes: Section 77 5.085, F.S., relating to evidencing prejudice while committing offense, if reclassi?ed as a felony. Section 782.051, F.S., relating to attempted felony murder. Section 7 8209(1), F.S., relating to killing of unborn quick child by injury to mother. Section 787.06, F.S., relating to human traf?cking. Section 790.166, 13.8., relating to weapons of mass destruction. Section 838.015, F.S., relating to bribery. Section 847.0135, F.S., relating to computer pornography and/or traveling to meet a minor. Section 859.01, F.S., relating to poisoning of food or water. Section 876.32, F.S., relating to treason. An out-of~state offense, federal offense or an offense in another nation, which, if committed in this state, constitutes an offense prohibited under Section RS. R. Fla. Admin. Code (2012). The foregoing is not a definition of ?moral turpitude? and is not a de?nition of an ?act involving moral turpitude?, as Section requires in order for a violation to he established. Rather, the new Rule 5.056(8) is a definition of ?crimes involving moral turpitude,? as it clearly states. In any event, Respondent did not commit any of the crimes listed in the new Fla. Admin. Code R. In fact, the Administrative Law Judge made the following Finding of Fact in his Recommended Order: Escarnbia County School Board asked Pensacola Police to investigate whether Respondent had violated any criminal laws. No criminal violations were found. RIO. at ii 43. Thus, the found that Respondent had committed no crime whatsoever. In the hearing record, testimony disclosed that the Pensacola Police Department had investigated Respondent?s communications with student Y.F. and found. that there was no probable cause to proceed with anycriminal charges. Tr. l83, Line 3. The witness who testi?ed for the Pensacola Police Department, Of?cer Tarianda Gooden, was aware of all of the conduct alleged. Tr. l70~71. She testi?ed, don?t ?nd that a criminal act was committed here.? Tr. 181, Line 13-l4. Accordingly, Judge Peterson erred in his Recommended Order by basing his decision on a repealed de?nition of ?moral tquitude? that was no longer in effect at the time his order was issued. S.G. v. Dep?t of Health and Rehabilitative Serv., 647 So.2d 243, 243 (Fla. DCA 1994) (?In entering a ?nal order, the agency relied on Rule 10Mm29. 018, Florida Administrative Code, and concluded that the circuit court dependency order compelled a?nding of neglect. . . As appellant correctly informs us, HRS repealed Rule several weeks before it entered it?s?hal order relying upon the rule. . . Below, however, the now?repealed rule represented the only basisfor the agency ?3 disagreement with the hearing o??icer. In the absence ofariy argument that the rule could he applied on remand, we reverse and direct HRS to enter on order consonant with the conclusions oflaw reached by the hearing o?icer. Thus, Judge Peterson incorrectly reached the legal conclusion that Respondent was guilty of an act involving moral turpitude, as defined in a State Board of Education rule. it has long been established by the highest court in this nation that, subsequent to its repeal, a law imposing penalties cannot be used as the basis of a tribunal?s decision thereafter, regardless of the law in effect at the time the impugned activity took place. The United States Supreme Court articulated this long-standing principle in United. States v. Chambers: The continued prosecution necessarily depended upon the continued life of the statute which the prosecution seeks to apply. In case a statute is repealed or rendered inoperative, no thither proceedings can be had to enforce it in pending prosecutions unless competent authority has kept the statute alive for that purpose. The decisions of this Court afford abundant illustration of this principle. In Yeaton gThe General Pinkney) v. US. 5 Cranch, 281, 283, 3 101, where the statute under which a ship had been condemned in admiralty had expired while the case was pending on appeal, the Court held that the cause was to be considered as if no sentence had been pronounced. Chief Justice Marshall said that ?it has long been settled, on general principles, that after the expiration or repeal of a law, no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force, unless some special provision be made for that puipose by statute.? Chief Justice Taney observed in Maryland V. Baltimore 85 Ohio R.R. Co, 3 How. 534, 552, ll 714: ?The repeal of the law imposing the penalty, is of itself a remission.? US. V. Chambers, 291. U.S. 2l7, 223 (1934). Over the decades, the United States Supreme Court has maintained this position with respect to the application of repealed laws, as it did in the following ?ndings from United States V. Dawson: It is a well-settled principle, that where a-statute creating an offence is repealed, and no provision is made for carrying forward prosecutions commenced under it, all such prosecutions are absolutely ended with the repeal of the law. Such was decided to be the effect of the act repealing the bankrupt act of 1803, in United States v. Passrnore, 4 Ball. 372. And the same decision was made in Miller?s case, 1 W. Bla. 451. No proceedings are pursuable under a repealed statute,.which commenced before the repeal. USV These decisions, and others to which we shall refer, do not proceed upon any peculiar principle especially applying to penalties imposed by repealed acts, or to the destruction of the criminal character of acts done before the repeal, but upon a broad general principle of universal application. And that principle is simply that stated by Lord T'enterden, in Surtees v. Ellison, 9 Barn. Cresw. 752, where he said: ?It has been long established that, when an act of parliament is repealed, it must be considered, except as to transactions passed and closed, as if it had never existed. . . . We are therefore to look at the statute, 6 Geowere the ?rst that had ever been passed on the subject of bankruptcy. . . . Dawson, 56 118.467, 476-77 (1853). II. BEFORE ITS REPEAL 0N JULY 3, 2912, THE F.A.C. RULE PLAINLY STATEB THAT ONLY A COULD CONSTITUTE THE JUDGE CHANGED LAW BY SAYING THAT NO CRIME IS NECESSARY, CONTRARY TO THE PLAIN LANGUAGE (3F THE RULE Even if the former de?nition of ?moral turpitude? from Fla. Admin. Code Rules 6B- 4.009(6) and could be applied in an administrative order after its repeal, Judge Peterson erred in his interpretation of the former rule. In the above-quoted portions of Judge Peterson?s Recommended Order, the ALJ blatantly changes the state of the law by asserting that no ?crime? is necessary for ?moral turpitude? to be established. It is grossly contrary to current law to say that an educator may be found guilty of ?moral turpitude? when the educator has not committed any ?Crime?. The very de?nition of ?moral turpitude? under former Fla. Admin. Code Rules and stated that the educator?s conduct must constitute a ?crime? and, in the absence of a ?crime?, the educator cannot be found guilty of ?moral turpitude?. Prior to July 8, 2012, these rules both contained the following de?nition of ?rnoral turpitude?: Moral turpitude is a crime that is evidenced by an act ofbaseness, Vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statutes fixes the moral mrpitude. R. Fla. Admin. Code (2010) (emphasis added). DOAH has long interpreted this language as requiring the presence of a crime in order for the de?nition of ?moral tu-rpitude? to be made out. in Commissioner of Education v. Troche, a Administrative Law Judge found that the teacher was guilty of ?gross immorality?, but not ?moral turpitude? because no crime had been committed. DOAH found that, ?Petitioner has established that Respondent is guilty ofgross immorality. Petitioner did not establish that Respondent is guilty ofan act quoral tumitude. His actions did not rise to the level of a crime. Commissioner of Education v. Troche, Case No. Case No. 2004 1773687 (Fla, DOAH August 10, 2004) (emphasis added). This same principle was also echoed in the leading DOAH case interpreting the former ?moral turpitude? rule, namely Miami-Dade County School Board V. Singleton. In that case, the Administrative Law Judge found as follows: The bottom line is that the Rule, as written, vests considerable discretion in the decision maker to distinguish between, on the one hand, acts that are ?merely? contrary to good morals (practically Speaking, most criminal acts) and acts that are morally repugnant subset of all criminal acts), on the other. The Rule trusts that decision?makers will, on balance, reach just conclusions on a. case~by~case basis, albeit at some expense to consistency. Turning to the merits of Singleton?s case, an important threshold consideration, given Singleton?s defense, which focuses on her good intentions, is whether the determination of moral turpitude must be made based solely on an examination of the statutory elements of the crime, or whether the underlying factual circumstances regarding the employee?s particular act may be considered. The answer is that, under Florida law, it is permissible to take the facts into account, as the following cases demonstrate. ?mere possession of a controlled substance is not a? CIMT. That is not to say, however, that Singleton?s crime involved no taint of immorality. The undersigned submits that honesty and truth?telling are transcendent principles of good behavior precepts of public morality which are violated by deceptive behavior. Being in con?ict with widely accepted moral principles, deceptive conduct is immoral conduct. But not all conduct that is contrary to good morals falls into the abyss of moral turpitude. Davis, 361 So. 2d at 161. The particular facts must be examined. Looking at the circumstances underlying Singleton's conviction, the one fact of potential moral signi?cance that jumps out at the undersigned is that Singleton committed the crime, not for personal enrichment, but to bene?t another. If, in contrast to the actual facts, Singleton had knowingly converted a housing voucher in order to receive a subsidy for which she knew she was not eligible, for the purpose of having more diSposable income, then, in the undersigned?s judgment, the act would have been morally worse than that which got her in trouble with the law. unless one is prepared to accept the idea that good intentions always remove the sting of moral turpitude from criminal conduct, which is nonsense in the undersigned?s View, some objective limits to the defense are necessary. Unless neutral principles are in place to circumscribe the altruism defense, then the risk is present that the decision~rnaker will explain away evil (as might have happened, one could argue, in Yaltov). It must be found, in short, that crime was motivated by an objectively reasonable need or desire to help another person or benefit society. . . The undersigned agrees that if the perpetrator enjoyed some material bene?t in consequence of the crime, then the claim of altruism would be undermined. it is concluded, therefore, that the altruism defense has merit only if the crime did not enrich the perpetrator herself or otherwise redound to her material benefit. If the broker in Nelson had burned down the Water Management District?s of?ce as a political protest, the undersigned suspects the court would have been less willing to hold that his crime did not involve moral turpitude For altruism to remove enough of the moral sting from the perpetrator?s criminal act to take it outside the set of the act must have been reasonably calibrated to accomplish the desired good without excessive or frivolous criminality. It is concluded that, for the altruism defense to work, the perpetrator must establish that the crime was proportionate to the perceived problem. The moral. turpitude that stains crimes which transgress these fundamental rights cannot, in the undersigneds opinion, be washed away by good intentions. it is concluded, therefore, that crimes involving cruelty, violence, nonconsensual sexual activity, the in?iction of physical or emotional injury on another, or any act that actually placed or reasonably appeared to place another person in danger of physical or emotional harm cannot constitute altruistic crimes for purposes of establishing a defense to the charge of moral mrpitude. in sum, it is the undersigned?s opinion that Singleton?s misconduct was contrary to good morals. Nevertheless, after evaluating the totality of the circumstances surrounding the sole criminal offense that Singleton committed, the undersigned has determined, for the reasons set forth above, that Singleton was not convicted in consequence of an act exhibiting such Vileness, baseness, or depravity as to constitute a CIMT. It is determined as a matter of ultimate fact that she is not guilty of this charge. Miami-Dade County School Board v. Singleton, Case No. 07-0559; 2007 WL 1809532 (Fla. June 21, 2007). in Singleton, the judge?s thorough analysis of ?moral turpitude? under its former de?nition (quoted above) only involved consideration of ?acts that are morally repugnant (a subset ofall criminal acts). By no means was the judge willing to consider non- criminal acts since the rule plainly requires a ?crime? by its very language. The judge went further to state that his analysis of ?moral turpitude? under the former rule involved ?whether the determination of moral tarpttude mast-be made based solely on an examination. ofthe statutory elements ofthe crime, or whether the underlying factual circumstances regarding the employeeis particular act may be considered. The answer is that, under Florida law, it is permissible to take the facts into account.? Clearly, the Singleton judge was limiting his analysis to ?crimes? alone, although he was Willing to extend his analysis to the factual background in addition to the statutory elements of the crime in question. In short, in the Recommended Order at issue here, Judge Peterson erred in his legal conclusion that the former ?moral turpitude? definition could be met even where no crime had been committed. The only case law Judge Peterson relied on for this principle was Walton v. Turlington, 44-4 So. 2d 1082 (Fla. DCA 1984). Yet this is not what says. only states that, under the former (now repealed) ?moral turpitude? rule, the crime need not be one which resulted in an actual conviction or even criminal charges. Walton does not say that no crime is necessary to meet the de?nition of ?moral nn'pitnde.? Arguably, according to .10 W, a teacher could commit a ?crime? and still be guilty of ?moral turpitude? if the underlying criminal act took place, but the perpetrator was never arrested. This happens Whenever a crime is committed but law enforcement authorities do not ?nd out about the conduct. All the court says is that ?it is not necessary for a teacher to be charged with or convicted of a crime in order to be subject to revocation of his certi?cate based upon conduct re?ecting gross immoraliw or moral turpitude.? Walton V. Turlinaton, 444 So. 2d 1082, 1084 (Fla. DCA 1984). Thus, does not support the new rule that Judge Peterson articulates in his Recommended Order. The judge himself stated in his Findings of Fact that Respondent did not commit a Crime. 11 For the reasons stated herein, the EPC is urged to reject the Conclusions of Law identi?ed above and to substitute the ALPS legal conclusion, as set forth herein. FILED this 17th day of September, 2012. Peter Caldwell PETER l. CALDWELL, Esquire Florida Education Association 213 S. Adams Street Tallahassee, Florida 32301 Telephone: (850) 201-2800 Facsimile: (850) 224?0447 Florida Bar No; 0020751 ATTORNEY FOR PETITIONER 12 CERTEFICATE 8F SERVICE I HEREBY CERTIFY that a tme and correct copy of the foregoing was served 0n Petitioner?s counsel, J. David Holder, by Mail. to 387 Lakeside Drive, DeFurliak Springs, FL 32435 on September 17, 201.2, and by email to Peter Caldwell PETER I. CALDWELL FEA Staff Attorney 13