STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2108

)

LEONARD LAWRENCE BUXTON, )

)

Respondent. )

) EDUCATION PRACTICES COMMISSION, ) DEPARTMENT OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-3055

)

LEONARD LAWRENCE BUXTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Huff, duly designated Hearing Officer of the Division of Administrative Hearings, on January 7, 1982, in Miami, Florida.

APPEARANCES

For Petitioner: Craig R. Wilson, Esquire

Ralph D. Turlington: Ruffolo & Wilson

315 Third Street, Suite 204 West Palm Beach, Florida 33401

For Petitioner: Jesse McCrary, Esquire

School Board of Dade County

3050 Biscayne Boulevard, Suite 300

Miami, Florida 33137

For Respondent: Elizabeth J. Du Fresne, Esquire

1782 One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

Petitioner, Education Practices Commission, seeks the revocation or suspension of the Respondent's teaching certificate, or other administrative sanctions, in Case No. 81-3055 and Petitioner School Board, in Case No. 81-2108, seeks permanent termination of the Respondent's employment with the School Board of Dade County.

Specifically, it is alleged by the Education Practices Commission that the Respondent violated Section 231.28, Florida Statutes, in that he committed acts of gross immorality, moral turpitude and conduct which seriously reduces his effectiveness as a teacher. The Commission further alleges that the Respondent's conduct, which is the subject of these proceedings, is contrary to Section 231.09, Florida Statutes, in that he failed to set a proper example for students. The Petitioner therefore seeks to revoke, suspend or take other appropriate disciplinary action against the licensure status of the Respondent. The School Board of Dade County, pursuant to Section 231.36(6), Florida Statutes, charges the Respondent with acts of gross immorality, moral turpitude, incompetency and gross insubordination, and urges his permanent dismissal from the employ of the Board. The conduct from which the subject charges arose involved the Respondent's alleged making, uttering and issuance of worthless bank checks on multiple occasions in Palm Beach and Monroe counties, as well as his alleged attempt to defraud his automobile insurance carrier. Twenty of the twenty-one counts in the Administrative Complaint filed by the Commission relate to the issuance of worthless checks, and one of the counts relates to the alleged attempted insurance fraud. The conduct involved in all twenty- one counts culminated in criminal prosecution of the Respondent in Palm Beach and Monroe counties,

and ultimately resulted in his entering guilty pleas to all the charges involving worthless bank checks, insurance fraud, and grand theft. The School Board also seeks his dismissal for alleged improper corporal punishment of a student.

By motion of the School Board of Dade County dated December 10, 1981, the School Board's cause was consolidated with the case filed by the Petitioner, the Education Practices Commission and Department of Education. The cause ultimately came on for formal hearing at which the Petitioners called as their witnesses Ida LaPlant, Joseph Feisthammel, John Askins, Earnestine Person, Aaron Hubert, Wayne Brumn, Lonnie C. Coieman, David Rozak, Kay Hoecherl and Barbara Lois King. The Petitioner introduced Exhibits one through six, eight through fourteen and sixteen through thirty- two. Paragraphs A through X of Article Five of the prehearing stipulation were made a part of the record.

The Respondent took the stand in his own defense and called in his case witnesses Cynthia Leesfield and Mr. William Henry Salinas. The Respondent introduced into evidence Exhibits A, C and

1. The Hearing Officer, at the request of the parties, accepted into evidence as "Court's Exhibit AA", the deposition of the Respondent taken on December 21, 1981 in Miami, Florida. Subsequent to the hearing, the parties elected to obtain a transcription of the record of the proceedings and to avail themselves of the right to file proposed findings of fact and conclusions of law in conjunction therewith waiving the 30 day requirement of Rule 28-5.402.

   
   

   The issues presented therefore concern whether the Respondent knowingly committed the acts alleged in paragraphs two through forty of the Notice of Charges filed by the School Board of Dade County, and in count one through twenty-one of the Administrative Complaint filed by the Department of Education, Education Practices Commission and, if that be the case, the appropriate sanctions to be imposed under the applicable law.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent, Leonard Lawrence Buxton, currently holds a Rank II (Masters) teaching certificate (number 154610) expiring on June 30, 1989.

      
      

   2. In September, 1980, the Respondent was a teacher of Spanish students at American Senior High School in Dade County, Florida) Mr. Buxton was appointed class sponsor for the "class of 83" a short time after the beginning of the school year and after the initial orientation of sponsors. Some time soon after being appointed class sponsor, Mr. Buxton received authorization to conduct a class candy sale for money-raising purposes. The school treasurer, Mrs. Person, as well as Aaron Brumm, the director of student activities, instructed Mr. Buxton on financial matters concerning the candy sale and Mr. Brumm personally delivered all the subject boxes of candy to Mr. Buxton at the commencement of the sale activity. The record is not clear as to whether Mr. Buxton was instructed to turn in all monies derived from candy sales on a daily basis, weekly basis, or in some other fashion.

      
      

   3. The Respondent experienced difficulties soon after the beginning of the sale on January 20, 1981, involving collecting monies from students and missing boxes of candy. The missing candy disappeared while in Buxton's custody, since Brumm accounted for every box upon delivering it to Buxton. The Respondent's collection problems with his students concerning the proceeds of candy sales caused the sale to extend over a three month period. At the urging of Mr. Brumm, as well as his principal Lonnie Coleman, Respondent ultimately attempted to resolve the matter of collection of money and the missing boxes of candy, finally writing a personal check in the approximate amount of

      $302.40 payable to the school. That check was returned for insufficient funds by the payer bank. The Respondent contended that the account the check was written on had insufficient funds because his foster child, unknown to him, had withdrawn approximately $800 from that account, leaving insufficient funds to cover the check. In any event, the Respondent's principal, Lonnie Coleman, became aware of the deficiency and had a conference with the Respondent. Mr. Coleman told the Respondent to make the check good and "nothing will ever happen, there will be no problem". The Respondent paid the check and the principal considered the incident closed and initiated no negative job action toward the Respondent, merely orally reprimanding him. The principal felt this was an adequate remedy for any wrong the Respondent had committed in this instance, and following the incident, the principal recommended the Respondent for continued employement at his high school and found all his behavior as a teacher to be acceptable. The principal established that Buxton's personal problems did not render him ineffective as a teacher. Indeed, the principal found the Respondent to be a highly motivated, quite effective teacher, especially with Spanish-speaking students, and the principal would rehire the Respondent at the present time. It has been the practice in Dade County in the past for negative job action to only be initiated upon the principal's initial recommendation.

      
      

   4. On or about December 30, 1980, the Respondent was a passenger in his 1972 Pontiac which was being driven by an acquaintance, James Dausey, a young man who performed mechanical work on the vehicle. While Dausey was driving, the car was struck by a vehicle driven by Mrs. Ida LaPlant.

      Mrs. LaPlant offered to settle any damage claim Mr. Buxton might have "on the spot" or after he had

      obtained an accurate estimate of the damage to his car. The two parties negotiated for a time discussing the amount and the method of reaching the amount. Mrs. LaPlant offered approximately

      $500 to Mr. Buxton, but Mr. Buxton demanded $1,000 as he represented to Mrs. LaPlant that that amount was needed to cover any injury to Mr. Dausey as well as damage to his car. Mrs. LaPlant expressed the desire that they go to a body shop and obtain an estimate. He refused and demanded that she pay him $1,000 or he would call the police to investigate the accident. She did not want the police to become involved, so ultimately, at the Respondent's insistence, they went together to her bank where she withdrew $1,000 and gave it to the Respondent. The driver, Mr. Dausey, never complained of any injuries in her presence. In any event, the Respondent ultimately filed a claim for payment for damages sustained to his vehicle with his own insurance company representing that he had received no monies in payment for any damages sustained in that accident. Because of his misrepresentation concerning his reimbursement for damages sustained to his vehicle, the Respondent was prosecuted by the State Attorney for the Eleventh Judicial Circuit on, a two-count information charging the Respondent with filing a false and fraudulent insurance claim contrary to Section 817.234, Florida Statutes, and a count of grand theft pursuant to Section 812.014, Florida Statutes. On or about September 30, 1981, Respondent entered a plea of guilty to both counts and was placed on probation for a term of three years, although adjudication was withheld. He was ordered to make restitution to the Allstate Insurance Company in the amount of $294.00. The Respondent maintained he was attempting to get money from his insurance company to reimburse Mrs. LaPlant some of the money she had given him. In any event, it is uncontroverted that Mr. Buxton misrepresented to his insurance company the fact that he had received monies from Mrs. LaPlant, hence the prosecution.

      
      

   5. In March, 1979, the Respondent received from an employee and friend at the Salon of Music, located in Palm Beach County, a Sony radio "on approval". His friend who was employed at the store asked the Respondent to leave a check with him to hold "as security" while the radio was in the Respondent's possession. Respondent left a check for $436.75 with the Salon of Music, indicating at the time that there was probably not enough money to cover the check in the account. The two of them envisioned the check primarily as a receipt to secure future payment for the radio should the Respondent elect to buy it rather than present payment for the radio. After taking possession of the radio, the radio was stolen from the Respondent's apartment. The Respondent informed his friend at the Salon of Music and the check was then presented to the bank for payment and returned for insufficient funds. This check later became one of a number of checks for which the Respondent was criminally prosecuted in Palm Beach County, with the result that a plea of guilty was entered, with adjudication withheld and a full restitution made in the matter.

      
      

   6. Some time in May or June, 1980, the Respondent's life became emotionally and financially awry. The Respondent had been recently divorced, apparently without custody of his son. The Respondent became involved in an "affair of the heart" with a married woman who lived next door. This relationship apparently was concluded rather abruptly when her husband presented himself on the premises one day threatening the life of the Respondent and, being armed with a gun, demonstrating the present ability to carry out those threats. With some aid from the Boca Raton Police Department the Respondent precipitously and permanently vacated the area, and "went into hiding" for approximately one month. The Respondent "hid out" for approximately a week at an establishment called "the Bridge Hotel", later moving to the Florida Keys for the remainder of the month he was "under cover". The Respondent was obviously frightened and in fear of his life. As described by the psychiatric social worker with whom the Respondent counselled for approximately one year, the Respondent, during this period of hiding, made a series of precipitate "inappropriate decisions".

      
      

   7. The Respondent in effect, lived for the month he was under cover, at least in part, on checks written for cash, or directly for shelter or incidentals, to hotels and small commercial establishments in Palm Beach and Monroe counties, which proved to be invalid. In some instances the Respondent believed he had sufficient funds on deposit or could "cover" the checks before presentment. In at least one instance, a motel operator took his check with knowledge of its invalidity, allowing him time to secure its payment.

      
      

   8. The charges involved herein, or all but two of them, each relate to one of those invalid checks. The Respondent has admitted, in the pretrial factual stipulation, that he entered pleas of guilty to the criminal charges in Palm Beach and Monroe counties which stemmed from those various checks which had been written on insufficient funds. Both the judges in Palm Beach and Monroe counties accepted those guilty pleas, withheld adjudication of guilt in each case and established restitution schedules as part of the probation they imposed on the Respondent. The checks relating to Palm Beach county have all been paid. The Respondent is meeting all his probation requirements and is making regular payments as scheduled on the restitution plan imposed on him. His probation officer has found him very cooperative and making a genuine effort to reorganize his life and live it on a more positive and responsible plane.

      
      

   9. The genuineness of the Respondent's effort at personal improvement is borne out by the fact that he voluntarily sought aid from a psychiatric social worker, Cynthia Leesfield. Ms. Leesfield testified on behalf of the Respondent. She established him to be highly motivated and genuinely remorseful at the offenses he committed. She demonstrated those offenses to be unique and peculiar to the period of mental and emotional stress he was experiencing at the time. Ms. Leesfield

      established that the Respondent had engaged in a number of unfortunate illegal acts, but that he did not truly do so with a criminal intent, rather, during a stressful period when he was under fear for his life, he simply fled his apartment with his belongings and checkbook and wrote checks in order to live while he was in hiding and not earning any money. Ms. Leesfield had been a teacher with seven years experience prior to embarking on her present career. Her expert opinion, after counseling and treating the Respondent over a period of approximately one year, was that none of the behavior she had seen manifested by the Respondent made it inappropriate for him to return to a classroom setting. The episodes involving the invalid checks were not a planned pattern of misconduct, but rather related to his fear and anxiety concerning his personal life at the time.

      
      

   10. Two individuals with direct knowledge testified regarding the charges pertaining to the School Board's original action which thus only relate to the issue of dismissal. They were the Respondent himself and Lonnie Coleman, the Respondent's principal at American Senior High School.

       
       

   11. Regarding the incident charged involving kicking a student, Mr. Buxton readily admitted the incident. He stated that the kick was merely "in jest" or in the form of good-natured horseplay, and that he had, both before and after the incident, an excellent rapport with the student (a "mariel refugee") and the student's sponsor. Mr. Coleman, the principal, was aware of the kicking incident and orally reprimanded Mr. Buxton for it. He did not feel the incident was serious. He felt that such a reprimand was an adequate admonishment for this occurrence and established that there was obviously no intent to injure the student. No negative job action was suggested by the School Board at the time of the incident and after the discussion between the principal and Mr. Buxton regarding that matter it was considered closed by both of them. Indeed, a number of months later, after the incident was well known to Mr. Coleman, he still recommended Mr. Buxton for continued employment at American High School. Pat Gray, a personnel administrator in the school system, admitted that it was very unusual to bring charges against a teacher on an incident such as kicking a student unless the principal himself suggested such an action.

       
       

   12. The Respondent's principal, Lonnie Coleman, was the only witness other than the Respondent himself, to testify regarding the Respondent's competency and effectiveness as a teacher. He performed the annual evaluation on Mr. Buxton for the 1980-81 school year. He gave him a favorable evaluation. He found even after the incidents in question that he would continue to recommend Mr. Buxton for a position in instruction at American Senior High School. He found his behavior and record as a teacher to be consistently superior. Mr. Buxton performed well in the classroom and experienced problems only with his personal life. Mr. Coleman did not find the Respondent's personal problems of a sufficiently serious nature to alter his recommendation for continued employment. Mr. Buxton is an exceptional teacher, very effective at getting students interested in his subject matter, and in his preparation before his classes. Mr. Coleman was fully informed regarding the "candy sale charges" and the "kicking incident", and counselled with Mr. Buxton about those two situations and considered them closed without the necessity for any negative job action, and he is still of that opinion.

       
       

   13. The Respondent was recommended for summer employment in the school system after each of the acts charged against him in this case had occurred and were matters of record. Mr. Coleman initially recommended him for half-time work in the school system's summer program. Subsequently, at the request of the principal at Miami Springs Summer School where he was teaching half-time, he was asked to work full-time for the remainder of the summer. Mr. Buxton has held no other job in his adult life except teaching positions. He remains a highly effective and dedicated teacher, both in his preparation for and presentation of his subject matter, his conduct of classes, as well as his relations with his fellow professionals and his students. He presently works as a substitute teacher and does private tutoring during the period of his suspension. He is earnestly attempting to rehabilitate himself and keenly desires to continue his profession as an educator.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1979).

       
       

   15. Section 231.36(6), Florida Statutes, under which the School Board has charged the Respondent, provides in pertinent part that charges against such a Respondent must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness or conviction of any crime involving moral turpitude.

       
       

   16. No testimony was adduced by the Petitioners to show any incompetency, gross insubordination, willful neglect of duty, drunkenness or conviction of any crime involving moral turpitude on the part of the Respondent. There is no "conviction" of a crime involving moral turpitude for purposes of Section 231. 36(6), Florida Statutes, which is the subject of the School Board's prosecution herein since the law is clear that the term "conviction" means an adjudication of guilt by a court. There has been no conviction herein, since the Respondent pled guilty to all charges and adjudication of guilt was withheld in each case, with probation and restitution being

       imposed. See: Fla. Jur. 2d Vol. XIV, Criminal Law, Section 3 and Smith v. State, 75 CIa. 1468, 78 So. 530 (1918); Timmons v. State, 97 Fla. 23,119 So. 393 (1929); Delta Truck Brokers, Inc. v.

       King, 142 So.2d 273 (Fla. 1962). The Florida Supreme Court has long held that there is no conviction unless there is an adjudication of guilt. Daughtery v. State, 46 Fla. 109, 35 So. 397 (1903); Weathers v. State, 56 So.2d 536 (Fla. 1952)

       
       

   17. The remaining statutory grounds upon which the School Board's charges are predicated involve immorality and misconduct in office, there clearly being no evidence to support guilt of any of the other enumerated wrongful acts in Section 231.36(6), Florida Statutes. Since the cases have been consolidated these two remaining charges, as well as those raised by the Education Practices Commission will be discussed and considered together.

       
       

   18. The Education Practices Commission has the authority to suspend or revoke the Respondent's teaching certificate pursuant to Section 231.28, Florida Statutes (Supp. 1980), which provides in part:

       
       

       The Education Practices Commission shall have the authority to suspend the teaching certificate of any person as defined in s228.041(9) or (10) for a period of time not to exceed three years, thereby denying him the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to

       revoke the teaching certificate of any person, thereby denying him the right to teach for a period of time not to exceed ten years, with reinstatement subject to provisions of subsection (4); or to revoke permanently the teaching certificate of any person, provided:

       1. It can be shown that such person

          obtained a teaching certificate by fraudulent means; has proved to be incompetent to teach or to perform his duties as an employee of the public school system or to teach in or operate a private school; has been guilty of gross immorality or an act involving moral turpitude; has had his certificate revoked in has been convicted of a misdemeanor, felony, another state; or any other criminal charge, other than a minor traffic violation; upon investigation has been found guilty of personal conduct which seriously reduces

          his effectiveness as an employee of the School Board; or has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

       2. The plea of guilty in any court, or

          the decision of guilty by any court, or the forfeiture by the teaching certificate holder of a bond in any court of law, or the written acknowledgement, duly witnessed of offenses listed in subsection (1) to the superintendent or his duly appointed representative or to the School Board shall be prima facia proof of grounds for revocation of the certificate as listed in subsection (1) in the absence of proof by the certificate holder at his plea

          of guilty, forfeiture of bond, or admission of guilt was caused by threats, coercion, or fraudulent means.

          
          

          As can be seen, a plea of guilty to a criminal charge other than a minor traffic violation constitutes prima facia proof of the grounds for revocation enumerated in subsection (1) above. Section 231.28(2), Florida Statutes (1979); Kiner v. State Board of Education, 344 So.2d 656 (Fla. 1st DCA 1977). In subsection (1) above however, it is provided that the commission of crimes can be the subject of revocation or other disciplinary action only if the Respondent has been convicted of such charges. Thus the two provisions are inconsistent when applied to the circumstances of this case, since upon the authority cited above a mere plea of guilty with adjudication withheld does not constitute a conviction. Thus, since the Respondent pled guilty to all the criminal charges

          involved with no adjudication entered, it follows that the only just and fair interpretation of these two subsections is that the pleas of guilty cannot constitute prima facia proof of the particular ground of revocation enumerated in section (1) involving conviction of "a misdemeanor, felony or any other criminal charge...". Section 231.28, Florida Statutes (1979), is a penal provision and consequently must be strictly construed, with doubt resolved in favor of the Respondent. See, Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). The plea of guilty to criminal charges involved herein can, however, constitute prima facia proof of the other enumerated grounds for revocation contained in Section 238.28(1), Florida Statutes.

          
          

   19. There is no dispute that the Respondent pled guilty to two felony counts involving a false and fraudulent insurance claim and grand theft pursuant to Sections 817.234 and 812.014, Florida Statutes (1980). The Respondent also pled guilty to misdemeanors involving a number of charges, in Palm Beach and Monroe counties, of violations of Section 832.05(2)(a), Florida Statutes, for knowingly making and issuing, uttering and delivering worthless bank checks. These criminal acts form the basis for the Administrative Complaint herein in which the Education Practices Commission has charged the Respondent only with the acts of gross immorality, moral turpitude, and conduct which reduces his effectiveness as a teacher, of the various grounds for disciplinary action available to it in subsection (1) of that section. It also charges that that conduct is contrary to Section 231.09, Florida Statutes, in that the Respondent allegedly failed to set a proper example for his students.

       
       

   20. Although the above statutory section contains no definition of "gross immorality", guidance is afforded by the Petitioner's Rule 6B-4.09(2), Florida Administrative Code, which defines immorality 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." The term "gross" within the statutory term "gross immorality" is viewed as immorality involving acts which are serious rather than minor in nature and which involve a flagrant disregard of the standard of moral conduct embodied in the above rule. See, Education Practices Commission v. David Michael Knox, Case No. 81-056, Recommended Order (DOAH) May 18, 1981, Final Order entered June 29, 1981. See, also Negrich v. Dade County Board of Public Instruction, 143 So.2d 498, 501 (Fla. 3rd DCA 1962)

   21. "Moral turpitude" has been defined in State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (Fla. 1933):

       
       

       Moral Turpitude involved the idea of inherent baseness or depravity in the private social relations or duties owed by man to man, or 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 a question of intent, as when unintentionally committed through error of judgment when wrong was not contemplated.

       Id. (emphasis supplied)

       
       

       Moral turpitude has more recently been defined as a crime having as its essential element the intent of the perpetrator to defraud or deceive another. See, Winestock v. Immigration and Naturalization Service, 576 Fed. 2d 234 (9th Cir. 1978).

       
       

   22. Although the pleas of guilty to crimes other than traffic offenses involved herein, for purposes of subsection (2) above do constitute prima facia evidence of guilt of acts of moral turpitude for purposes of subsection (1) above, evidence adduced by the Respondent in the form of his own forthright testimony and that of witness Leesfield, the psychiatric social worker, lead the undersigned to the conclusion that the instances of writing and issuing worthless checks were not done with overt intent to defraud or deceive another for purposes of the above definitions of moral turpitude. The Respondent committed these acts at a time of great emotional stress and fear for his life, and the Respondent's demonstration that he felt the checks were covered, or would be covered by the money due him from his private school teaching job, although it may have been extremely poor judgement, establishes in the face of the prima facia case put on by the Petitioner that, indeed, there was no actual element of scienter or specific fraudulent intent. Thus, with regard to the Petitioner's allegation that the plea of guilty to the bad check charges constitutes an act of moral turpitude, the undersigned concludes that the Petitioner has not, in this regard, met its burden of proof, nor has it shown that these acts meet the above definition or immorality in that it was not shown that the Respondent intended to defraud the payees of his checks of their property, services, goods or money without compensation, but rather felt at the time that some of the checks were good and those that were not would be immediately made good by the deposit of his funds from the above- named private school. Here again, the petitioner's. failure to demonstrate intent to defraud or deceive another beyond the mere plea of guilty to the acts involving issuing worthless checks, obviates the conclusion that these acts were so seriously inconsistent with the standards of public conscience and good morals or sufficiently notorious as to bring the Respondent, as a member of the education profession, into public disgrace or disrespect or impair his service in the community so as to be considered "immorality" for purposes of either Sections 231.28 or 231.36(6) or the above definition. Thus, the undersigned concludes that with regard to the charges involving the issuance of worthless checks, the Petitioners have failed to meet their burden of proof.

       
       

   23. The Administrative Complaint also alleges that the Respondent's actions were in violation of Section 231.09, Florida Statutes, in that he failed to provide a proper example for his students. Section 231.09, Florida Statutes, deals with the duties of instructional personnel, and, although it might be argued that conduct such as that involved herein might tend to reduce his effectiveness as a teacher, his failure to measure up to the standard required in that section cannot serve as an additional ground for disciplinary action. The language in Section 231.28(1), Florida Statutes, which concerns one who has "otherwise violated the provisions of law, the penalty for which is the revocation of teaching certificate", cannot be applied in this instance because Section 231.09, Florida Statutes, does not provide a penalty for failure to perform the duties enumerated thereunder. See, Education Practices Commission v. David Michael Knox, supra. Further, the evidence in the record does not establish that the Respondent's conduct achieved such notoriety as to become known to his students, and thus to serve as a poor example for those students. The testimony of principal Coleman established that the Respondent has consistently demonstrated the highest concern for, and interest in, the welfare of his students and has likewise gained their respect. Concomitantly, there has been no showing that the Respondent has suffered any reduced effectiveness as a teacher and member of the teaching profession due to the events described herein. The most significant and convincing evidence concerning whether the Respondent has been and continues to maintain effectiveness as a teacher (and ought to continue as a teacher) comes from his principal, Mr. Coleman (Petitioner's witness). He is the person best able to evaluate the impact of the Respondent's acts on the Respondent's effectiveness as a teacher. He commended Buxton's qualities as a teacher and would like to have the Respondent back in his school as one of his teachers. He, indeed, recommended his hiring as a teacher both part-time and full-time after the events described above were known to him. Consequently, it has not been proven that the Respondent has lost his effectiveness as a member of the teaching profession and as a teacher in the Dade County school system.

   24. There is, however, no question that the Respondent has committed an act of moral turpitude with regard to the plea of guilty to the felony charges involving the falsely sworn statement given to his automobile insurance carrier. That statement resulted in his obtaining in excess of $200 from the Allstate Insurance Company, upon his swearing that he had obtained no compensation elsewhere which was, in fact, a false statement. The Respondent thus intentionally committed an act designed to permanently deprive another of the possession of property through deceptive and fraudulent act. The plea of guilty to such a crime constitutes a prima facia violation of Subsection (1) enumerated above involving an act of moral turpitude, was not refuted, and was candidly admitted by the Respondent. It has thus been proven that Mr. Buxton has been guilty of an act involving moral turpitude and of the charges in Count II of the Administrative Complaint since he pled guilty to an act involving fraud; dishonesty, and deception. See, Bavis v. Board of Real Estate, Case No. 80-2343, Recommended Order (DOAH May 8, 1981)

       
       

   25. The acts involved in Count II also constitute "immorality" for purposes of the charge brought by the School Board in its notice of charges since they involve the element of fraud or dishonesty envisioned in the above definition of the term. In the face of the testimony of Mr. Coleman, Ms. Leesfield and the Respondent, however, there has been adduced no preponderant evidence justifying dismissal, especially since Mr. Coleman, the Petitioners' own witness, established that in spite of the charges and acts involved herein that the Respondent was an effective, highly skilled teacher, with the respect and love of his students, and he would rehire him without hesitation. Similarly the acts involved cannot constitute "misconduct in office" since they had no rational relationship to the Respondent's performance of his duties and his effectiveness as a teacher at American Senior High School. As found above, the only acts charged which involve his actual duties as a teacher were the so-called "kicking incident" and the hiatus regarding the "candy sale check", both of which Petitioners' witness Coleman felt were of minor importance and did not justify any formal disciplinary action. The undersigned similarly concludes that these incidents did not amount to misconduct in office. Thus, there has been no justification demonstrated for the Respondent's dismissal by the Petitioner School Board. Finally, Section 112.011(1)(a) and (b) precludes the denial of employment, licensing, or the revocation of a license to practice a profession by reason of the prior conviction of a felony or first degree misdemeanor if the crime involved was not directly related to the specific occupation or profession for which the license was issued. See, also Attorney General's Opinion, 073-355 (September 20, 1973)

DISCIPLINE

Pursuant to the above statutory authority, the School Board has authority to suspend a respondent temporarily, to dismiss permanently and to withhold back pay. The Education Practices Commission has the authority to suspend the Respondent's certificate for three years or less, to revoke the certificate for ten years or less, or to permanently revoke the certificate. Because of the conclusion that the Respondent is guilty of the charge represented by Count II of the Administrative Complaint, discipline is required herein. It should, however, be mitigated by the following circumstances: Mr. Buxton has demonstrated a conscientious effort to improve his personality, his emotional stability, and his general life-style and organization. He voluntarily sought and obtained treatment for over a year by Ms. Leesfield, a psychiatric social worker. The Respondent's testimony, as well as that of Ms. Leesfield, establishes that the aberrant behavior exhibited herein was unique behavior for the Respondent and does not represent a pattern of conduct occurring and recurring over a substantial period of time. The events described herein occurred when the Respondent was under great emotional strain involving his divorce, his relationship with his neighbor and resultant fear for his personal safety, and even his life, which resulted (although it is granted that he is not blameless in that turn of events) . The Respondent, as well as the person most qualified to evaluate his performance and character as a professional educator, principal Lonnie Coleman, established that the Respondent is an effective, dedicated and highly motivated teacher who has the respect, and even the love, of his students. The Respondent has faithfully obeyed the terms of his probation and made all required payments pursuant to the restitution schedule imposed upon him by the courts. His devotion to his career as a teacher is demonstrated by the fact that he has never been employed in any other type of job and earnestly desires to continue in that career, even after causing great embarrassment to himself. The undersigned concludes that he has made honest, genuine and effective efforts at his own rehabilitation and that the dishonest, deceptive behavior demonstrated, with regard to the charges he is guilty of, is not a manifestation of the Respondent's basic character, but rather a brief transient deviation from his normal traits and pattern of forthright, honest character and conduct resulting from the unusual factors enumerated above. Thus, although a single violation of the above authority of a serious nature has been committed by the Respondent, the undersigned concludes that he is genuinely remorseful and repentant regarding that behavior and is therefore entitled to mitigation of the penalty normally imposed for such conduct.

RECOMMENDATION

Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is therefore

RECOMMENDED:

That the Education Practices Commission enter a final order suspending teacher's certificate number 154610 issued to Leonard Lawrence Buxton for a period of one year, provided however, that the imposition of that suspension be stayed so long as the Respondent remains in compliance with the terms of his probation as determined by the Circuit Courts in and for Palm Beach and Monroe counties, Florida, and is guilty of no other violations of Chapter 231, Florida Statutes, during the suspension period. Should those courts revoke his probation for any reason, or should he be found guilty of such violations, that stay should immediately be lifted and his license suspended for the remainder of the suspension period. The final order should provide that if he successfully completes his term of probation then these proceedings shall be dismissed. It is further recommended that the School Board of Dade County reinstate the Respondent in his position of employment, but retain his back pay.

DONE and ENTERED this 7th day of July, 1982 in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1982.

COPIES FURNISHED:

Craig R. Wilson, Esquire Ruffolo & Wilson

315 Third Street, Suite 204 West Palm Beach, Florida 33401

Jesse McCrary, Esquire

3050 Biscayne Blvd., Suite 300

Miami, Florida 33137

Elizabeth J. Du Fresne, Esquire 1782 One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

Donald L. Griesheimer Executive Director

Education Practices Commission Department of Education

The Knott Building Tallahassee, Florida 32301

Docket for Case No: 81-002108

Orders for Case No: 81-002108