Ferris v. Austin
| Citation | 487 So.2d 1163,11 Fla. L. Weekly 969 |
| Decision Date | 24 April 1986 |
| Docket Number | No. 85-816,85-816 |
| Parties | 32 Ed. Law Rep. 407, 11 Fla. L. Weekly 969 Thomas B. FERRIS, Appellant, v. James K. AUSTIN, Superintendent of Schools, and the School Board of Hernando County, Florida, Appellees. |
| Court | Court of Appeal of Florida (US) |
Perry Gall Gruman of Chamblee & Miles, Tampa, for appellant.
Joseph E. Johnston, Jr., of Johnston & Sasser, P.A., Brooksville, for appellees.
The appellant, Thomas B. Ferris, respondent below, timely appeals an order by the School Board of Hernando County (School Board), petitioner below, discharging him from his position as a teacher based on charges that he sexually abused a male student.
This case was commenced in 1984 when the Hernando County School Board filed a Notice and Charges Statement informing Ferris that he was suspended without pay and would be dismissed as a teacher based upon immorality charges. This was immediately followed by an administrative complaint from the Department of Education informing Ferris that it was seeking disciplinary sanction against Ferris' teaching certificate, based upon the same charges. These cases were consolidated by stipulation, and heard jointly by an administrative hearing officer. At the conclusion of that hearing, an order was filed which recommended that Ferris be reinstated.
The recommended order made findings of fact in paragraphs one through thirteen which recited the satisfactory record of Ferris as a teacher; the development of his 16. In order to make the findings of fact set forth in paragraphs 1-13 above, it is not essential that this testimony of the minor be rejected as false. There simply is not sufficient evidence in this record to corroborate the minor's testimony. There is no evidence of any previous sexual misconduct on the part of the Respondent in the twelve years he has been teaching physical education. There is no evidence of any sexual misconduct with the subject minor throughout their years of close relationship, except the two incidents described, even though better opportunities for such misconduct existed frequently. Even on the night of the concert in Lakeland, there were opportunities to abuse the minor in a parking lot or along the road during the trip, instead of in the Respondent's house only a wall away from the eyes and ears of his lightly sleeping wife. The guidance counselor at Spring Hill Elementary School who receives complaints of sexual molestation received none concerning the Respondent. Neither the principal of Spring Hill Elementary School nor the assistant superintendent of the Hernando County School Board received any such complaints concerning the Respondent. The evidence discloses that the Respondent has a reputation for being a law abiding citizen in both his local community and his teaching community. In summary, the evidence, apart from the allegations in this case, is that the Respondent has never made any sexual contact with any minor.
friendly relationship with a minor male student over a period of some four years; the student's involvement with the Ferris family; the facts surrounding the two alleged incidents of sexual misconduct between Ferris and the student, one in August and one in October, 1983; and the unequivocal finding that Ferris "had no sexual contact with the minor during either August or October, 1983, or at any other time." In paragraphs fourteen and fifteen, the order recited the testimony of the minor in support of the allegations of misconduct, but did not accept said testimony as factually true. Indeed, several "undisputed facts" which circumstantially supported Ferris' claim of innocence and refuted the minor's testimony were set forth in paragraphs nine through twelve. Paragraphs sixteen and seventeen, which completed the hearing officer's factual findings, read
17. Based upon the allegations of sexual misconduct made against him, the Respondent was arrested on December 22, 1983, and charged by information with the offense of sexual battery. On the advice of his attorney, the Respondent entered a plea of no contest, and on April 18, 1983, the Circuit Court entered its order withholding adjudication, placing the Respondent on probation for three years, and assessing court costs of $515.00 against him. Following the Respondent's arrest, various newspaper articles were published reporting the allegations, his prosecution, and his suspension from the teaching position he held. As a result the local teaching community as well as the student body became aware of the Respondent's situation. Nevertheless, the principal of Spring Hill Elementary School and the assistant superintendent of the Hernando County School Board testified that if the charges against the Respondent were proven to be true, then his effectiveness as a teacher would be seriously impaired, and the principal would not want the Respondent to return to school as a teacher if the allegations were proven to be true. Based upon the failure of the weight of the evidence to support a factual finding that these allegations are true, this testimony is not relevant. Moreover, there is no evidence in this record to support a finding that the Respondent would not be effective as a physical education teacher under the factual situation that is found above, based on the weight of the credible evidence.
The hearing officer's findings of fact were followed by his conclusions of law. In paragraphs eleven and twelve of those conclusions of law, the hearing officer stated:
11. Until the court decision in Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981), charges to support the revocation of a license had to be proven by clear and convincing evidence. Walker v. Florida State Board of Optometry, 322 So.2d 612 (Fla. 3d DCA 1975). In a proceeding brought to suspend or revoke a real estate license on charges of dishonest conduct, it was determined that the dishonesty must be proven by clear and convincing evidence. Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2nd DCA 1966). There is confusion since the Bowling decision, in that it is not clear whether the clear and convincing standard was adopted, or whether some higher or lesser standard was intended. Nevertheless, Bowling does state that, Bowling, supra, at 172.
12. The evidence presented against the Respondent falls short of the clear and convincing standard, and short also of the standard of Bowling, supra, in that the quantity and quality of the competent evidence lacks the substantiability of the consequences. Thus, the Respondent is not guilty of the charges in the Administrative Complaint, and is not guilty of the charges in the School Board's notice. He should be reinstated with pay.
Based on his findings of fact and conclusions of law, the hearing...
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