STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDUCATION PRACTICES COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-493

)

HAROLD THOMAS SCOTT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., conducted a formal hearing in this case on May 29, 1981, in Miami, Florida.

APPEARANCES

For Petitioner: Craig Wilson, Esquire

The Law Building

315 Third Street

West Palm Beach, Florida 33401

For Respondent: William Du Fresne, Esquire

1782 One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether Respondent's teaching certificate should be disciplined on grounds that he fraudulently obtained a higher ranking teaching certificate, and thereby also committed an act of gross immorality and moral turpitude.

PRELIMINARY STATEMENT

By Administrative Complaint dated February 17, 1981, Ralph D. Turlington, as Commissioner of Education, charged Respondent, Harold Thomas Scott ("Respondent"), with committing acts of fraud, gross immorality, and moral turpitude justifying suspension or revocation of his teaching certificate.

Specifically, the complaint charges that Respondent obtained his teaching certificate (post-graduate level) by fraudulent means and submitted it to his employer--the Dade County School District--in order to receive a higher salary.

By answer dated March 2, 1981, Respondent contested the charges and requested a formal hearing.

On March 11, 1981, Petitioner, Education Practices Commission ("Commission"), forwarded this case to the Division of Administrative Hearings; hearing was subsequently set for May 29, 1981.

At final hearing, the Commission called as its witnesses Karen Jacobson, investigator with the Dade County State Attorney's Office; Eugene McAllister, investigator with the Dade County Public Schools; and Desmond P. Gray, Assistant Superintendent for Personnel, Dade County School Board. The Commission also presented deposition testimony by John F. McCarthy, a handwriting expert with the Florida Department of Law Enforcement; Dale E. Croy, investigator with the State Attorney's Office, Second Judicial Circuit; and Dr. Garfield Wilson, Director of Teacher Education, Certification and Staff Development with the Florida Department of Education. The Commission offered into evidence Petitioner's Exhibit 1/ Nos. 1 through 9, each of which was received.

Respondent testified on his own behalf and offered Respondent's Exhibit1 Nos. 1 and 2 into evidence: Exhibit No. 1 was received, while ruling on Exhibit 2--the deposition of Eugene Sutton was reserved pending submittal of posthearing memoranda. For the reasons stated in Conclusion of Law No. 2 below, the Commissions' objection is overruled and Respondent's Exhibit No. 2 is now admitted.

At close of hearing, the Commission was allowed 14 days in which to submit copies of its prior administrative precedent relative to the penalty it now seeks to impose against Respondent; opportunity for rebuttal was offered Respondent. The transcript of hearing was filed on June 9, 1981. Neither party filed proposed findings of fact or conclusions of law.

Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT

1. Respondent is a 46-year-old school teacher who has taught in the public elementary schools of Dade County since 1962. After earning a Bachelor of Science Degree in Elementary Education from Florida A & M University, he applied for and was issued a state teacher's certificate in 1976, he successfully completed several post-graduate courses offered in the Miami area by Florida A & M, the University of Miami, and Dade County Junior College. (Testimony of Scott; P-1, P-3).

   
   

2. While teaching at Biscayne Elementary School in 1978, Respondent met Eugene Sutton, a Florida A & M instructor from Tallahassee, Florida. It was Sutton's responsibility to observe and supervise Florida A & M students serving as intern elementary education teachers in various schools throughout the state. In exchange for help with his student teachers, Sutton offered to help Respondent pursue a Master's Degree at Florida A & M. Respondent, beset with financial difficulties, 2/ accepted Sutton's offer. (Testimony of Scott, McAllister; R-2)

   
   

   II.

   
   

3. Thereafter, Sutton enrolled Respondent at Florida A & M for the summer and fall quarters of 1978. Sutton, acting as an intermediary, transmitted assignments and course work between Respondent and the various instructors. In this manner, Respondent completed eight courses at Florida A & M; by the end of the 1978 fall quarter, he had legitimately earned 29 hours toward a Master of Education Degree in Elementary Education. To earn the degree, an additional 25 hours was required. (Testimony of Scott; P-3, R-1, R-2.)

4. The course registration fees which Respondent paid Sutton were not, however, deposited with the university. In lieu of the fees-- and without Respondent's knowledge--Sutton filed two "Certificates of Participation" purporting to entitle Respondent to waiver of registration fees. Such certificates are ordinarily issued in recognition of services rendered to the teaching profession. (Testimony of Scott; P-2.)

   
   

   III.

   
   

5. Toward the end of 1978, Sutton offered to supply Respondent with a completed Florida A & M Master's Degree transcript--without his having to earn the remaining 25 credit hours--for a fee of $2,500. In December, 1978, Respondent accepted the offer and began making $250 payments--usually in cash-- every two weeks. (Testimony of Scott; P-2, R-2).

   
   

6. At hearing, Respondent testified that--at the time of the transaction-- he believed that his other accomplishments would substitute for the course work ordinarily required for a Master's Degree:

   
   

   Based on my experience as a teacher in Dade County, based on the fact that I was successful in the area of teaching reading using the developmental approach, the system approach in reading and math, and based on my ability to manage a classroom and my knowledge of the balanced curriculum for

   Dade County, these things were taken into consideration. And a lot of the course work I didn't have to pursue, I was given credit for those experiences. (Tr. 97) 3/

   * * *

   I didn't have a degree given to me. I worked and I paid my money. Nobody gave me anything. (Tr. 100.)

   
   

   In sum, Respondent contends that he was entitled to the Master's Degree because of his past achievements and experience as a teacher in Dade County. This contention is expressly rejected as unworthy of belief. It is self-serving and non-specific; it is uncorroborated by any independent evidence and inconsistent with his prior explanations to law enforcement authorities. When interrogated on September 4, 1980, Respondent admitted to authorities that his actions were wrong and improper. His sole defense was that he legitimately completed part of the course work required for the Master's Degree. (Testimony of Scott, McAllister; P-2.)

   
   

   IV.

   
   

7. In February, 1979, Sutton sent to Respondent the agreed upon Master's Degree transcript and an application for a state teacher's certificate. The transcript falsely indicated: (1) that Respondent had successfully completed a total of 15 courses at Florida A & M between 1971 and 1978; and (2) that he had successfully completed 63 credit hours and was awarded a Master of Education Degree in Elementary Education on March 16, 1979. In truth, Respondent neither took those courses nor received a Master's Degree: the transcript was a forgery. (Testimony of Scott; P-2.)

8. Thereafter, Respondent completed and filed with the State Department of Education an application for a higher ranking teacher's certificate. After indicating on the application that Florida A & M had awarded him a Master of Education Degree he signed a notarized statement:

   
   

   I understand that Florida Statutes provided for revocation of a teacher's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means. (Section 231.28, Florida Statutes.) I further certify that all information pertaining to this application is true and correct. (P-2).

   
   

   (Testimony of Scott; P-2.)

   
   

9. On June 5, 1979, the Florida Department of Education approved Respondent's application and issued a new higher ranking teacher's certificate, No. 122380 (post-graduate level). (Testimony of Scott, Gray; P-2.)

   
   

   V.

   
   

10. On April 25, 1979, Respondent completed and filed with his employer, Dade County Public Schools, an "Application for Credential Payment for Advanced Degree(s)." As basis for the credential payment, i.e., increased salary, Respondent represented that he had obtained a Master of Education Degree on March 16, 1979, and attached, as documentation, the false Florida A & M transcript. 4/ (Testimony of Gray, Scott; P-2.)

    
    

11. The Dade County School System approved Respondent's application for credential payment based on his purported advanced degree and paid him an increased salary retroactive to the date on which the advanced degree was allegedly conferred: March 16, 1979. During the ensuing months, Respondent was paid--as a result of the claimed post-graduate degree--$2,951.41 in excess of the salary to which he was entitled. (Testimony of Gray; P-8.)

    
    

12. On June 25, 1979, Respondent made the last payment on the $2,500 fee owed to Sutton for obtaining the Master's Degree; it consisted of a check in the amount of $452. (Testimony of Scott; P-2.)

    
    

13. Respondent falsely represented to the Florida Department of Education and the Dade County Public School System that he had been awarded a Master of Education Degree by Florida A & M on March 16, 1979; as a result, the Department issued him a higher ranking (post-graduate level) teacher's certificate and the school system increased his salary. When he made such representations, he well knew they were false. (Testimony of Scott, McAllister; P-1, P-2.)

    
    

14. This ultimate finding of Respondent's guilty knowledge-- notwithstanding his disclaim--is based on his subsequent admission to law enforcement authorities that he had acted wrongfully. Several factors buttress this finding: (1) Respondent paid Sutton $2,500 for the false transcript--a fee disproportionate to its ordinary cost; 5/ (2) most payments were made in cash and hand delivered; and (3) the transcript was replete with entries that Respondent would have easily recognized as false. 6/ (Testimony of Scott, McAllister; P-1, P-2.)

15. By fraudulently obtaining a post-graduate teacher's certificate and a corresponding increase in salary, Respondent's effectiveness as a teacher in the Dade County School System has been seriously reduced. (Testimony of Gray.)

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.7(1), Fla. Stat. (1979).

    
    

17. At hearing, the Respondent moved into evidence the deposition of Eugene Sutton (R-2); the Commission objected on the ground that Sutton had terminated his deposition without giving the Commission an opportunity to cross- examine him.

    
    

18. Having considered the parties' posthearing memoranda, the Commission's objection is overruled and Respondent's Exhibit No. 2 is now admitted into evidence. The Commission's loss of opportunity to cross-examine Sutton was brought about by its own actions. Furthermore, there was no showing that the Commission subsequently sought to examine Sutton or compel his testimony at final hearing.

    
    

19. The Commission initially subpoenaed Sutton to be deposed on May 18, 1981, in accordance with an agreement with Sutton's counsel that the scope of inquiry would be limited to matters involving Respondent and two other teachers. However, on May 18, 1981 the Commission unexpectedly released Sutton and declined to depose him. Respondent then deposed Sutton as his own witness. In so doing, Respondent limited the scope of his direct interrogation to the matters earlier agreed to by the Commission. However, in an apparent attempt to dissuade the witness from testifying further, the Commission counsel interrupted Sutton's direct testimony and announced:

    
    

    At your conclusion of inquiring of this witness that you've [Respondent] called as your own witness, I'm going to go into all cases pending; because I feel that's going to be proper in my scope of cross-examination and to into the authenticity of his testimony today.

    
    

    And if he is not going to answer, I'm going to move to strike all his testimony. So, you may want to recess and call his lawyer, because I feel that I've discharged him; and legally and ethically, that's it.

    
    

    But it you're going to call him-- and I was going to call him with the understanding that if you went in on cross-examination and pass that, that may be my lump. But I'm shifting the burden now; so, I want you to proceed knowing that I'm going to go into every case that has been investigated by any State Attorney Office before this deposition is over. If he's not going to answer them,

    then-- (R-2, p. 5-6.)

    After talking with his attorney--who had been telephoned at the Commission counsel's direction--Sutton terminated the deposition.

    
    

20. The evidence of record supports an inference that--when Sutton's testimony turned favorable toward Respondent--the Commission precipitously announced its cross-examination intentions knowing that such action would result in Sutton terminating his deposition. Sutton subsequently terminated his deposition before the Commission was allowed to cross-examine. However, the Commission cannot complain of a result dictated by its own actions.

    
    

21. The Commission may revoke or suspend the teaching certificate of any person provided:

    
    

    1. It can be shown that such person obtained the teaching certificate by fraudulent means; . . . has been guilty of gross immorality or an act involving moral turpitude; [or] upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board; . . . Section 231.28(1), Fla. Stat. (1980 supp.).

       
       

22. Fraud consists of two primary elements: intentional misrepresentation of a material fact, and detrimental reliance by another on the misrepresentation. See, 14, Fla. Jur. False Representation, Section 9, p. 531 (1957).

    
    

23. "Moral turpitude" has been defined by the Florida Supreme Court:

    
    

    Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. (citations omitted). It has also been defined as anything done contrary to justice, honesty, principle, or good

    morals though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated. State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So.

    660, 661 (1933).

    
    

24. In the instant case, the Commission established by a preponderance of evidence that Respondent violated Section 231.28(1), Florida Statutes (Supp. 1980), by obtaining a higher ranking teaching certificate by fraudulent means. He knowingly and falsely represented to the Florida Department of Education that he had been awarded a Master of Education Degree; he knew and intended that the Department would rely on his representation. Such actions involved gross immorality or moral turpitude within the meaning of Section 231.28(1), supra, and seriously reduced his effectiveness as an employee of the school board. Id.

    
    

25. Petitioner seeks permanent revocation of Respondent's teacher's certificate, a penalty consistent with its previous actions against teachers who obtained teacher's certificates by fraudulent means. See, Case No. 77190, Board of Education v. Bernard A. Minogue, dated February 6, 1978; Case No. 77129, Board of Education v. Marsha D. Shumaker, dated December 9, 1977; Case No. 76176, Rita E. Jones v. Paul Charles Mangiaracina, dated April 7, 1977. No

extenuating or mitigating evidence was presented to show imposition of such a penalty would be unfair or inappropriate here.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That Respondent be found guilty of violating Section 231.28(1), Florida Statutes (Supp. 1980), and his teacher's certificate, No. 122380, (post-graduate level), be permanently revoked.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of July, 1981.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1981.

ENDNOTES

1/ Petitioner's and Respondent's Exhibits will be referred to as "P- " and "R- ", respectively.

2/ Respondent's teaching salary would be increased if he obtained a post- graduate degree.

3/ Pages in the transcript of hearing will be referenced as "Tr. ".

4/ Respondent's claim that he filed only the teacher's certificate with the application is rejected because the certificate had not yet been issued.

Desmond Gray's testimony is accepted as persuasive since the application required both the transcript and teacher's certificate to be attached and both were subsequently found in the proper personnel file. The application was accepted contingent upon subsequently supplying the necessary teacher's certificate. (Testimony of Gray; P-2)

5/ Respondent had just paid $231 to earn nine credit hours at Florida A & M. Since he needed only 25 more hours to earn a Master's Degree, the cost should have been less than $700.

6/ Sutton's inference (R-1, p.8) that Respondent did not know that the transcript was falsified is rejected as inconsistent with this finding.

COPIES FURNISHED:

Craig Wilson, Esquire The Law Building

315 Third Street

West Palm Beach, Florida 33401

William Du Fresne, Esquire 1782 One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

Docket for Case No: 81-000493

Orders for Case No: 81-000493