STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDUCATION PRACTICES COMMISSION, ) STATE OF FLORIDA, DEPARTMENT OF ) EDUCATION, RALPH D. TURLINGTON, ) COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2834

)

PAUL JAMES JENKINS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Bearings. This hearing was conducted on March 17, 1983, in Jacksonville, Florida. This Recommended Order is being entered following the receipt of the transcript of proceedings which was filed with the Division of Administrative Hearings on April 5, 1983. The parties, in the person of counsel, have offered proposed recommended orders.

These proposals have been reviewed Prior to the entry of the Recommended Order. To the extent that the proposals are consistent with the Recommended Order, they have been utilized. To the extent that the proposals are inconsistent with the Recommended Order, they are rejected.

APPEARANCES

For Petitioner: L. Haldane Taylor, Esquire

1902 Independent Square

Jacksonville, Florida 32202

For Respondent: Joseph S. Farley, Jr., Esquire

350 East Adams Street Jacksonville, Florida 32202

ISSUE

The issues in this case are presented upon the administrative complaint of Ralph D. Turlington, Commissioner of Education, filed against the named Respondent. Through this complaint, Respondent is accused of failure to disclose his involvement in a criminal offense in responding to Question V on his application for certification as a Florida teacher. The complaint also makes allegations related to the facts involved in the criminal offense. Based upon the purported non-disclosure and in view of the facts related to the criminal offense, Respondent is accused of violating Section 231.28, Florida Statutes, in that he obtained his teacher's certificate by fraudulent means; has been guilty of gross immorality or an act involving moral turpitude; and has evidenced personal conduct 1which reduces his effectiveness as an educator and employee of a school board. It is also alleged that Respondent's conduct is

contrary to Subsection 231.09(2), Florida Statutes, in that he has failed to set a proper example for students.

FINDINGS OF FACT

1. On July 11, 1980, Respondent was arrested for grand theft and resisting arrest with violence. This arrest occurred in Jacksonville, Duval County, Florida. As a result of the arrest, a criminal information was filed against Respondent in Circuit Court, Fourth Judicial Circuit of Florida, in and for Duval County, Florida. The date of that information was August 8, 1980. The information accused Respondent of those violations for which he was arrested.

   On November 20, 1980, Respondent pled guilty to resisting arrest without violence, a misdemeanor, and lesser included offense to Count II of the criminal law information. In disposing of the plea, the Court withheld adjudication of guilt and placed Respondent on one-year probation. That probationary period expired on November 20, 1981.

   
   

2. Subsequent to the arrest, filing of the information, and disposition of his plea, Respondent executed an application to be certified as a teacher in the State of Florida. A copy of this application may be found as petitioner's Exhibit No. 2 admitted into evidence. That application contains Question V. That question states: "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" Respondent's answer to this question was no. That answer was false in view of the fact of the November 20, 1980, plea to resisting arrest without violence, and the action of the Court withholding adjudication and placing Respondent on one-year probation., The non-disclosure was intentional. In the course of this proceeding, Respondent has offered no explanation for the false answer he gave in responding to Question V.

   
   

3. The Florida Department of Education, Teacher Certification Section, received the application for teacher's certificate on March 18, 1981. After reviewing the application, and being unaware of the fraudulent answer to Question V, the State of Florida, Department of Education, issued Respondent teacher's certificate No. 467175. The certificate allows Respondent to serve as a substitute teacher. That certificate is effective from July 1, 1980, through June 30, 1985. A copy of this certificate may be found as Petitioner's Exhibit No. 1 admitted into evidence.

   
   

4. In October, 1981, Respondent obtained a position with the Duval County, Florida School System as a substitute teacher. On this occasion, Respondent indicated that he had no prior criminal arrests. This claim was found to be false, in view of the prior arrest referred to before. When the Duval County School System ascertained the falsehood in the application for employment with their system, Respondent was dismissed on December 1, 1981. A copy of the letter of dismissal may be found as petitioner's Exhibit No. 3 admitted into evidence.

   
   

5. Dalton Epting, Director of Certified personnel for Duval County Schools, established that Respondent would not be the type of individual who would be qualified to be a teacher in Duval County, in view of the fact that teachers are required to set examples for students on a daily basis, and individuals such as Respondent, who are dishonest, in the sense of falsifying records related to an arrest, are not acceptable teachers in the system. Mr. Epting, who is responsible for employing teaching personnel in the Duval County

   School System, indicated that he would not employ Respondent even if Mr. Jenkins continues to hold a valid certificate to teach in Florida.

   
   

6. On January 5, 1982, the Circuit Court, Fourth Judicial Circuit, in and for Duval County, Florida, entered an order sealing the arrest record related to the aforementioned arrest for grand larceny and resisting arrest with violence.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Bearings has jurisdiction over the parties and the subject matter of this proceeding. See Subsection 120.57(1), Florida Statutes.

   
   

8. Subsection 231.28(1), Florida Statutes, sets forth various grounds to discipline those persons who hold teaching certificates in Florida. That provision includes those substantive allegations set forth in the administrative complaint, related to a showing that a person obtained the teaching certificate by fraudulent means; the person 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 the effectiveness of that individual as an employee of the school board. This provision also allows disciplinary action to be taken for violations of provisions of laws of the State Board of Education, which would encompass a violation of Subsection 231.09(2), Florida Statutes, which requires teachers to set the proper example for pupils in an effort to advance the pupils deportment and morals and as teachers to embrace all opportunities to establish principles of truth and honesty for the benefit of pupils.

   
   

9. Clearly, Respondent has obtained his teaching certificate by fraudulent means in lying on his application concerning the subject of his arrest and subsequent plea to the criminal offense of resisting arrest without violence. The revelation of that arrest, plea, and treatment of the plea by the Court would have allowed the Petitioner to deny his certification in keeping with Subsection 231.17, Florida Statutes. Once Respondent obtained his certificate by fraudulent means, that fraudulent act has continued throughout the history of his certificate. The perpetuation of this falsehood makes Respondent guilty of gross immorality and an act involving moral turpitude; seriously reduces his effectiveness as an employee of the Duval County School Board or other potential school board; and fails to set the proper example for students at present. See Negrich v. Dade County Board of Public Instruction, 143 So.2d 493 (Fla. 3d DCA 1962). While Respondent is guilty of the aforementioned provisions of Subsection 23l.28(1), Florida Statutes, pertaining to the continuing fraud or deception in his failure to reveal the disposition of his criminal offense, Respondent may not be tried in this forum for the evidential facts leading to that disposition. Those facts constitute matters which occurred prior to his application and acceptance for certification by petitioner. They nay not be adjudicated on this occasion. Finally, they are not an essential element to be considered in examining the fraud Respondent perpetrated in his failure to disclose the disposition of the criminal offense.

Based upon a consideration of the facts found and the conclusions of law reached, it is

RECOMMENDED:

That a Final Order be entered which permanently revokes Respondent's teaching certificate.

DONE and ENTERED this 10th day of May, 1983, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 10th day of May, 1983.

COPIES FURNISHED:

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

Joseph S. Farley, Jr., Esquire

350 East Adams Street Jacksonville, Florida 32202

Mr. Don Griesheimer

Education Practices Commission

125 Knott Building Tallahassee, Florida 32301

Honorable Ralph Turlington Commissioner of Education The Capitol, Plaza Level Tallahassee, Florida 32301

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AGENCY FINAL ORDER

=================================================================

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

RALPH D. TURLINGTON, as

Commissioner of Education, Petitioner,

vs. CASE NO. 82-2834

PAUL J. JENKINS,

Respondent.

/

FINAL ORDER

Respondent, Paul J. Jenkins, holds Florida teaching certificate number 467175. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the certificate.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Panel pursuant to Section 120.57(1), F.S. and it is attached to and made a part of this Order.

A panel of the Education Practices Commission met on June 16, 1983 in Sarasota, Florida to take final agency action. The Petitioner was represented by L. Haldane Taylor, Esquire. The Respondent was not represented. The panel has reviewed the entire record in this case.

FINDINGS OF FACT

1. The panel adopts the Findings of Fact of the Recommended Order.

   
   

   CONCLUSIONS OF LAW

   
   

   The Commission adopts these Conclusions of Law from the Recommended Order.

   
   

2. Subsection 231.28(1), Florida Statutes, set forth various grounds to discipline those persons who hold teaching certificates in Florida. That provision includes those substantive allegations set forth in the Administrative Complaint, related to a showing that a person obtained the teaching certificate by fraudulent means; the person has been guilty of gross immorality or an act involving moral turpitude; or upon investigation has been found guilty or personal conduct which seriously reduces the effectiveness of that individual as an employee of the school board. This provision also allows disciplinary action to be taken for violations of provisions of laws of the State Board of Education, which would encompass a violation of Subsection 231.09(2), Florida Statutes, which requires teachers to set the proper example for pupils in an

   effort to advance the pupils department and morals and as teachers to embrace all opportunities to establish principles of truth and honesty for the benefit of pupils.

   
   

3. Clearly, Respondent has obtained his teaching certificate by fraudulent means in lying on his application concerning the subject of his arrest and subsequent plea to the criminal offense of resisting arrest without violence. The revelation of that arrest, plea, and treatment of the plea by the Court would have allowed the Petitioner to deny his certification in keeping with Subsection 231.17, Florida Statutes. Once Respondent obtained his certificate by fraudulent means, that fraudulent act has continued throughout the history of his certificate. The perpetuation of this falsehood makes Respondent guilty of gross immorality and an act involving moral turpitude; seriously reduces his effectiveness as an employee of the Duval County School Board or other potential school board; and fails to set the proper example for students at present. See Negrich v. Dade County Board of Public Information, 143 So.2d 493 (Fla. 3d DCA 1962).

The Commission is authorized by Section 231.262(6), Florida Statutes to impose a penalty.

IT IS THEREFORE ORDERED that the Respondent's certificate is hereby PERMANENTLY REVOKED.

DONE AND ORDERED this 27th day of June, 1983.

Marjorie Hankins, Presiding Officer

Docket for Case No: 82-002834

Orders for Case No: 82-002834