Jenkins v. State Bd. of Ed.

• Decision Date: 29 May 1981
• Docket Number: No. UU-191,UU-191
• Citation: 399 So.2d 103
• Parties: Neil JENKINS, Appellant, v. STATE BOARD OF EDUCATION, Appellee.
• Court: Florida District Court of Appeals

Page 103

399 So.2d 103

Neil JENKINS, Appellant, v. STATE BOARD OF EDUCATION, Appellee.

No. UU-191.

District Court of Appeal of Florida, First District.

May 29, 1981.

Leslie King O'Neal of Graham, Markel, Scott, Marlowe, Appleton & McDonough, P. A., Orlando, for appellant.

Gene T. Sellers, Tallahassee, for appellee.

ROBERT P. SMITH, Jr., Judge.

Jenkins, holder of a Florida teaching certificate in the areas of music, education, and junior college, appeals from an order of the Governor and Cabinet, sitting as the State Board of Education, suspending his certificate for two years. The stated basis for the suspension is that Jenkins violated Fla.Admin.Code R. 6B-1.02(2)(c), a rule of the State Board of Education, in that he "did not 'make reasonable effort to protect (a certain student) from conditions harmful to learning or to health and safety.' " We reverse the Board's order.

The Board entered its order to this effect on findings of fact adopted from the recommended order of a DOAH hearing officer, who heard the testimony and recommended dismissal of this petition by the Professional Practices Council for the revocation or suspension of Jenkins's license. Sections 231.09, .28, Fla.Stat. (1979). At the time of the incident complained of, Jenkins was employed by the Osceola County School Board as a high school music teacher. The hearing officer's findings of fact that were the stated basis for the State Board's order were that Jenkins and a 16-year-old female student were driving back at night to St. Cloud from Cocoa, where they and other students had attended a church drama program;

They stopped at Burger King to get some food, and then began to drive back to St. Cloud; the student later complained of stomach cramps and got into the back seat of Respondent's car; some time later, the student asked the Respondent to stop the car because she was feeling worse; Respondent pulled off the road into a dirt side road and backed his car into a cattlegap entrance way with his car facing toward the side road ....

When police officers approached to investigate the parked car, Jenkins was in the back seat of the car with the student. There was evidence before the hearing officer, not alluded to either in the hearing officer's findings or in the State Board's order, that Jenkins was clad only in trousers and socks when the police approached, though the temperature on that March night was in the "high 30's to low 40's."

Little imagination is required to raise suspicions that this teacher was engaged in sexual misconduct toward and with his student. That in effect was the formal charge against Jenkins that he "was guilty of improper conduct toward a female student," otherwise described as "conduct which is improper and a poor example for students and personal conduct which seriously reduces his effectiveness as an employee of the school board." Section 231.28 provides that the Department may suspend or revoke a teaching certificate if the teacher is

(1) ... found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board ....

With an exaggerated sense of delicacy, the formal charge against Jenkins alluded only to "improper conduct toward a female student" and left the rest to imagination, but the Professional Practices Council made clear before the hearing officer, by argument and by its proposed recommended order, that the "improper conduct" was of a sexual nature. The Council's presentation to the Governor and Cabinet was freighted with the same implications. In the briefs and oral argument before us, counsel for the State Board made the same suggestion.

The trouble with this view of the record is that the DOAH hearing officer explicitly rejected it as a matter of fact, and the Governor and Cabinet expressly adopted the hearing officer's findings of fact. The recommended order stated at length:

Several students testified that Respondent and the subject student were often together, but the overwhelming weight of the evidence is that relationship was not improper or any different from Respondent's relationship with other students.

James Heberlin and Bruce DeBoard, both Osceola School Board Members, testified that they would vote to rehire Respondent as an employee of the School Board. Mr. DeBoard also testified that he received several letters from citizens supportive of Respondent and had received no letters opposing him.

Mrs. Ramona Norman, mother of the female student involved in the subject incident, testified that she trusted Respondent as a teacher with her daughter and did not believe that any improper conduct occurred during the subject incident or at any other time. Mrs. Norman also testified that her daughter had been treated medically before and after the March 11, 1979, incident for stomach and adolescent emotional problems.

Reverend Myra James, former minister at Respondent's church, testified that Respondent was very active in church activities, particularly with youth groups. She added that he was very conscientious, dedicated and interacted extremely well with youth. Based on her familiarity with Respondent, Reverend James could not perceive the Respondent engaging in any...