STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) EDUCATION, EDUCATION PRACTICES ) COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-236

)

KENNETH R. WILLIAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on May 4, 1982, at Jacksonville, Florida.

APPEARANCES

For Petitioner: L. Haldane Taylor Esquire

1902 Independent Square

Jacksonville, Florida 32202

For Respondent: William J. Sheppard, Esquire

215 Washington Street Jacksonville, Florida 32202

By Administrative Complaint dated 6 January 1982 the Florida Department of Education, Petitioner, seeks to revoke, suspend or otherwise discipline the Teacher's Certificate of Kenneth R. Williams, Respondent. As grounds therefor it is alleged that Respondent, in his application for a teacher's certificate, failed to disclose his prior criminal record and thereby obtained his certificate by fraudulent means; and that his prior record shows Respondent committed acts of gross immorality, acts involving moral turpitude and acts which demonstrate conduct which seriously reduces Respondent's effectiveness as a teacher. In addition, Respondent is charged with intentionally and maliciously setting fire to an automobile owned by Shirley Hall on 1 November 1980, which also constitutes an offense involving gross immorality and moral turpitude.

At the commencement of the hearing, Respondent's Motion to Suppress Evidence was granted on grounds of collateral estoppel. The evidence sought to be suppressed was the same evidence suppressed in Respondent's criminal trial on a charge of arson of Ms. Hall's automobile. The ruling suppressing the evidence in the criminal trial was affirmed in State v. Williams, Case No. AE-454 (Fla.

1st DCA January 19, 1982).

At the hearing Petitioner called ten witnesses, Respondent called one witness, and 32 exhibits were admitted into evidence. Exhibits 6 through 9

consisted of physical objects which were described in the record and not thereafter physically made a part of the record. These exhibits were the milk cartons and paper removed from the car of Ms. Hall by the police who investigated the apparent arson of Ms. Hall's car.

FINDINGS OF FACT

1. On March 28, 1978, Kenneth Williams submitted application for employment to Duval County School Board (Exhibit 24) in which he acknowledged prior arrest for auto theft in 1968 and indicated he was placed on parole. This application was never signed by Williams but was treated for all purposes, including his employment, as a complete application.

   
   

2. Due to administrative error, the normal police name check was not accomplished on this application and Respondent was hired as a science teacher by Duval County school system.

   
   

3. On 24 March 1978 Respondent applied to the Florida Department of Education for a teacher's certificate (Exhibit 12). On this application in Item V which inquired if applicant had been arrested, Respondent checked the "Yes" block and on the two lines below he showed the place, date, nature of charge and disposition of the two most serious charges for which Respondent had been arrested and convicted. He there showed a 1968 auto theft and a 1969 robbery. Disposition of both was that he is on parole.

   
   

4. At the time this application was approved and issued on 23 May 1978, Petitioner was certainly aware that Respondent had been convicted of at least two felonies. Had inquiry been made to determine Respondent's full criminal record, it would have been disclosed that in 1965 Respondent was found guilty of petty larceny (Exhibit 13) and sentenced to six months; in 1967 he was convicted of two counts of larceny of a motor vehicle (Exhibit 14) and sentenced to seven years imprisonment; in 1969 he was convicted of robbery and sentenced to 25 years confinement to start after the seven-year sentence was terminated (Exhibit 15); that a probation of October 7, 1966, was set aside and Respondent was sentenced to serve six months for resisting an officer (Exhibit 16); that in 1974 Respondent was found to be in violation of Florida's Financial Responsibility Law and fined $25 (Exhibit 17); that in 1975 he was found guilty of attempted petty larceny and sentenced to 60 days, of which 45 were suspended (Exhibit 18); that in 1976 he was charged with battery and the charge was nol- prossed (Exhibit 19); and that in 1976 and 1977 he had three convictions for driving with a suspended license (Exhibits 20, 21 and 22). The three offenses for which Respondent had been sentenced to prison for 25 and seven years, i.e., robbery and two larcenies of vehicles, had been reported. Those not reported carried a total sentence of less than six months in jail.

   
   

5. Following Respondent's arrest in 1979 on a charge of battery (Exhibit 19), this was reported to the Duval County school system, security division, with the information that Respondent had a lengthy arrest record. The information was then passed by the security division to the Personnel Department with the recommendation that Respondent not be employed in a position requiring contact with children (Exhibit 26). The information on the arrest record was also passed to the Florida Department of Education for appropriate action. At the time of this arrest, the Respondent was assigned as science teacher at Forrest High School. The battery charge was nol-prossed in 1980.

   
   

6. Upon receipt of Respondent's arrest record at the Department of Education, the case was assigned to a staff member for investigation and

   recommendation. His report (Exhibit 31) states that Respondent does not deny the arrest record and "indeed recorded same in his application for certification." As noted above, Respondent reported the three most serious offenses of which he had been convicted in the space provided on the application form. The fact that arrests for the less serious offenses of petty larceny were not included by Respondent on his application was evidently known and considered by this investigator in reaching his conclusion that the issue of fraudulent application for certification does not arise in this application.

   
   

7. At the time Exhibit 31 was prepared, the procedure for processing complaints against teachers was being revised and neither the old system nor the new system was followed to its proper conclusion. As a result no final action was taken by Petitioner on the recommendation of the investigator that no probable cause for disciplinary action existed on the allegation that Williams was unfit to retain his certification.

   
   

8. At the time this recommendation was made (and without the prescribed follow-up to a final agency action), Respondent's record, as known by Petitioner, showed Respondent had been paroled in 1973, to remain on probation until 1986; that he enrolled at the University of North Florida and graduated with a BA degree in 1978 with a major in natural science; that he had been teaching with satisfactory evaluations in the Duval County school system for over a year; and that the battery charge stemmed from a domestic dispute.

   
   

9. On 31 October 1980 Respondent proceeded to the apartment of his former girlfriend, Shirley Hall, and the mother of his eight-year-old son to take the boy a Halloween costume. When Ms. Hall would not allow the Respondent to see the boy, angry words were exchanged and Respondent departed. He was later seen shortly after midnight, November 1, 1980, in the vicinity of Ms. Hall's car which was parked in a lot near her apartment by both Ms. Hall's mother, who was visiting, and by a neighbor.

   
   

10. By mid-morning on November 1, 1980, Ms. Hall became aware that the interior of her car had been burned during the night and she called the police. When she parked the car on the evening of October 31, 1980, Ms. Hall locked the car as she did every time she left the car unattended. Williams, two or three years ago when on friendly relations with Ms. Hall, had been given a key to Ms. Hall's car. No evidence was presented that he had returned the key or that he still had the key. Upon arrival, the police found the car unlocked and two plastic milk cartons of one-gallon capacity inside the car. Both of these cartons contained gasoline and one was melted about one-third away from the top. The physical evidence indicates that one carton with gasoline and rolled paper wick had been placed under the steering wheel and one placed on the back seat of the car. The wicks had been lighted, the door closed and the ensuing flames and smoke had blackened the windows and cause serious damage to the upholstery and overhead of the car. Lack of oxygen in the car caused both fires to become extinguished before enough heat was generated to cause the gas to explode or to blow out the windows.

    
    

11. Approximately two days later Respondent was arrested and charged with arson (Exhibit 23). Following a mistrial the case was nol-prossed. This charge against Respondent received publicity in the Jacksonville papers and at least once was reported on TV news. While these charges were pending, Respondent was removed from his position at Forrest High School and assigned to the media center for the duration of that school year. In September 1981 Respondent was assigned to Ribault Junior High School as a science teacher. In March 1982 he received an overall evaluation of satisfactory from his principal at Ribault.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

13. Respondent is here charged with violation of Section 231.28, Florida Statutes, which provides in pertinent part:

    
    

    The Education Practices Commission shall have the authority to suspend the teaching certificate of any person. . .for a period of time not to exceed three (3) years. . .to revoke the teaching certificate of any person.

    . .for a period of time not to exceed ten (10) years. . .or revoke permanently the teaching certificate of any person, provided:

    
    

    1. It can be shown that such person obtained the teaching certificate by fraudulent means; has proved to be incompetent to teach or perform the duties of an employee. . .has been guilty of gross immorality or an act involving moral turpitude; 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 revocation of the teaching certificate.

       
       

14. The evidence presented respecting the charge of arson in the Administrative Complaint shows only that Respondent was in the vicinity of Ms. Hall's car shortly before it was torched and that he possibly had a motive to cause injury to Ms. Hall because she had earlier refused to allow him to see his son. There is no evidence to tie Respondent to any of the items used in the alleged arson nor is there evidence that Respondent did any one of a chain of events from the acquisition of gasoline to the lighting of the wick in carrying out the alleged arson. In short, the preponderance of the evidence does not show Respondent as the perpetrator of the crime of arson on Ms. Hall's car. Placing Respondent in the area at or about the time the crime was committed is hardly sufficient under any standard of proof to find Respondent guilty of arson.

    
    

15. With no evidence that Respondent was deficient in carrying out the function of a classroom teacher and absent the arson charge which, if proved, would have provided the evidence of gross immorality or moral turpitude to justify revocation of his teaching certificate, there remains only the criminal record of Respondent on which to predicate disciplinary action. Petitioner contends that by failure to disclose his prior record Respondent obtained his teaching certificate by fraudulent means. At the time Respondent submitted his application for a certificate, he had five felony arrests yet he reported only three. The three that he did report carried sentences totalling some 32 years in she State Prison and showed he was still on probation, while the remaining two had resulted in a total of less than six months confinement.

16. With this information, with the knowledge that the 1975 conviction of attempted petty larceny had not resulted in revocation of Respondent's parole, and with the satisfactory performance report received from Respondent's principal, it is readily apparent why Petitioner's investigator found no evidence of fraud in obtaining the certificate and recommended on June 20, 1980, no probable cause to take action against Respondent's certificate. Had this report received the prescribed attention it was supposed to get, there is little doubt that the council would likewise have found no fraud and no probable cause when the facts known to the investigator were presented to the council.

    
    

17. Here Respondent was guilty of acts involving gross immorality and moral turpitude in the felony convictions between 1965 and 1969. However, these acts, or at least the most serious of them, were listed by Respondent on his application for a teaching certificate in 1978. As a man in his late teens or early twenties, Respondent was convicted of serious criminal charges. When released on parole in 1973, Respondent entered college, satisfactorily completed the curriculum and obtained a baccalaureate degree. No brush with the law had been sufficient to revoke Respondent's parole and the evidence clearly indicated that Respondent had "turned the corner" and was a good risk for certification.

    
    

18. These circumstances place this Administrative Complaint in a typical "but for" situation. But for the charge of arson, this Administrative Complaint would never have been filed. But for the administrative mix-up during the change-over from Professional Practices Council to Education Practices Commission, final agency action would have been taken in 1980 with a finding of no probable cause to file an Administrative Complaint against Respondent and this determination would have constituted administrative res judicata.

    
    

19. The arson charge remains only an unproven charge. Since Respondent is presumed innocent of this charge until competent evidence of guilt is established, this charge is not one on which disciplinary action can be based. Nor is it a charge that can be used to revive grounds for denying certification formerly laid to rest.

    
    

20. Although a legal argument can be made that, because the prescribed administrative procedures were not completed in reviewing and acting upon Respondent's criminal record when it was reported to Petitioner by the Duval County School Board in 1979, this action is not now precluded, such argument elevates form over substance. The information on Respondent's prior criminal record was acted upon by the staff member primarily charged with the duty and responsibility of investigating charges against teachers and making recommendations. His recommendation, which would be expected to be followed in the vast majority of cases, was "no probable cause." Had the prescribed follow- up action on this recommendation been taken, there is little question but the result would be to adopt the recommendation of "no probable cause."

    
    

21. From the foregoing it is concluded that a preponderance of the evidence will not support a finding that Respondent was guilty of arson in the burning of Ms. Hall's car; that Respondent disclosed enough of his prior criminal record on his application for a teacher's certificate to preclude a finding that he fraudulently obtained his certificate; and no evidence of offenses committed by Respondent subsequent to 1979 was presented to warrant disciplinary action against Respondent's certificate nor to show that his effectiveness has been seriously reduced in the school system. It is, therefore,

RECOMMENDED that the charges against Kenneth R. Williams contained in the Administrative Complaint dated 6 January 1982 be DISMISSED.

ENTERED this 15th day of June, 1982, at Tallahassee, Florida.

1. N. AYERS 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 15th day of June, 1982.

   
   

   COPIES FURNISHED:

   
   

2. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202

William J. Sheppard, Esquire

215 Washington Street Jacksonville, Florida 32202

Donald L. Griesheimer, Executive Director

Education Practices Commission

125 Knott Building Tallahassee, Florida 32301

Ralph D. Turlington Commissioner of Education The Capitol

Tallahassee, Florida 32301

Docket for Case No: 82-000236

Orders for Case No: 82-000236