STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, ) and RALPH D. TURLINGTON, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2220

)

SHIRLEY LAMBERT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on October 27, 1983, in Jacksonville, Florida. The Recommended Order is being entered following the receipt and review of the transcript of proceedings which was filed with the Division of Administrative Hearings on November 3, 1983. The proposed Recommended Order of petitioner has also been considered subsequent to its filing on November 14, 1983. To the extent that the proposals are consistent with this Recommended Order they have been utilized. To the extent that the proposals are not consistent with the Recommended Order they are rejected as being irrelevant, immaterial or contrary to facts found or contrary to conclusions of law reached.

APPEARANCES

For Petitioner: L. Haldane Taylor, Esquire

331 East Union Street Jacksonville, Florida 32202

For Respondent: Shirley Lambert

3020 West Montague Avenue, B-3 Charleston, South Carolina 29405

ISSUES

The issues here are as presented through an administrative complaint brought by the Petitioner against Respondent. In particular, it is alleged that Respondent falsified applications related to her certification as a teacher in the State of Florida and her employment as a teacher in the Duval County, Florida School System. In particular it is alleged that Respondent falsely answered questions pertaining to her arrest or conviction for a misdemeanor offense in Jacksonville, Florida. For these acts, Respondent is alleged to have violated Section 231.28(1), Florida Statutes, in that she has obtained her teaching certificate by fraudulent means and been guilty of personal conduct which seriously reduces her effectiveness as an employee of the school system.

Moreover, it is alleged that further fraud was committed related to Rule 6B-

1.06(5)(a)(g) and (h) Florida Administrative Code, pertaining to fraudulent statements or disclosures.

FINDINGS OF FACT

1. On April 28, 1981, Shirley Lambert made application to be certified as a teacher in the fields of health education and physical education. This certification request was made with a State of Florida, Department of Education Teacher Certification section. A copy of the application may be found as Petitioner's Exhibit No. 2, admitted into evidence. As part of the application, question V asks, "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?" Lambert responded in the negative. Lambert also signed the application form below that portion of the application related to notarization which states "I understand that Florida Statutes provide revocation of a teacher's certificate if evidence and proof is established that the certificate is obtained by fraudulent means. (Section 231.28 FS). I certify that all information pertaining to this application is true and correct." As a result of this application, Respondent was issued a teacher's certificate from the State of Florida, Department of Education in the field of physical education. The date of the issuance was June 25, 1982, for a period ending June 30, 1983. A copy of this certificate is found as petitioner's Exhibit No. 1, admitted into evidence.

   
   

2. In fact, as was known to the Respondent at the time of making the application for certificate, she had been arrested and charged with petit theft for an offense that occurred on April 11, 1978, the taking of clothing less than

   $100 in value. The basis of the charge was Section 812.014(2)(c), Florida Statutes. Respondent pled guilty to this offense and was given a ten day jail sentence which was suspended and probation imposed for a period of six months. The particulars of this disposition may be found in Petitioner's composite Exhibit No. 3, which contained records of court related to the offense.

   
   

3. On August 10, 1982, Respondent made application for employment with the Duval County School Board, Jacksonville, Florida. A copy of that application may be found as Petitioner's Exhibit No. 4. This application had a similar question related to prior criminal offenses. The application stated, "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?" Again, the question was answered in the negative although Respondent was aware of the aforementioned criminal violation at the time she answered this questionnaire. The application was signed by Respondent and at the place of signature, Lambert was exposed to the language at the signature line which states "I certify that all information on this application is true and accurate and recognize that it is subject to verification and that my employment and/or continuance thereof is contingent upon its accuracy." Not being mindful of her prior criminal involvement the Duval County School System hired Respondent as a substitute teacher on September 13, 1982. Her criminal record was later disclosed to the administrators within that system and her employment was terminated effective October 12, 1982. Had the administration known of the prior criminal involvement, they would not have hired Lambert in view of the fact that they could be more selective and not choose a person with a prior criminal involvement, given the high number of applicants for jobs within their system. Dalton Epting, Director of Certified personnel of Duval County Public Schools, felt that a prior conviction of a misdemeanor offense of petit larceny would be in violation of standards required of teachers in Duval County. Likewise, the offense of petit larceny would be

   sufficient grounds to deny certification when requested of the State of Florida, Department of Education.

   
   

4. Respondent testified that in the course of the final hearing and indicated in discussing both applications which are at issue that she read those applications too fast and made a mistake in answering the questions related to her prior criminal involvement. She felt in effect that she had not read the applications carefully. Moreover, in giving her explanation at final hearing, even though she recognized her prior criminal involvement in the way of arrest and the plea of guilty to petit theft, she stated that she did not feel the questions in the applications related to misdemeanors. She was of the opinion that the questions pertained to more serious crimes. Given the plain language of the questions in the application for certification with the State of Florida and the application for a position with the Duval County School Board and the precautionary statements related to accuracy and possible penalties for inaccuracy, Respondent's explanations are not plausible. Respondent's comments do not constitute a reasonable excuse for having falsified her applications for certification and employment.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Subsection 120.57(1), Florida Statutes.

   
   

6. Respondent, in falsifying her answer to question V on the application for certification, knowing that she had been arrested and convicted of petit larceny was an act of obtaining her teaching certificate by fraudulent means, within the meaning of Subsection 231.28(1), Florida Statutes. This is the type of criminal offense that would have authorized the State of Florida, Department of Education, to deny her application for certification. For the offense she is subject to the penalties set forth in Section 231.28, Florida Statutes. In addition, the falsehood set forth in the application for employment with the Duval County School System related to her criminal involvement, made at a time when she knew that she had been accused and convicted of petit larceny, was conduct which seriously reduced her effectiveness as an employee of the school board, to the extent that she lost her position with the school board and is a further violation of Section 231.28(1), Florida Statutes. For this violation, she is subject to the penalty set forth in Section 231.28, Florida Statutes. Finally, Respondent's conduct in completing the employment application was a violation of the principles set forth in Rule 6B-1.06(5)(a)(g) and (h), Florida Administrative Code, which had an effective date of July 6, 1982. Her act of misstating her circumstance related to criminal convictions in applying for employment with the Duval County School Board was dishonesty in a professional dealing, constituted the submission of fraudulent information on a document in connection with professional activities and was a fraudulent statement and failure to disclose a material fact in one's application for a professional position. In view of these rules violations, Respondent has acted in violation of Section 231.28(1), Florida Statutes, and is subject to the penalties set forth in Section 231.28, Florida Statutes.

Upon consideration of the facts found and the conclusions of law reached, it is

RECOMMENDED:

That a final order be entered which revokes the teaching certificate of Respondent for a period of five years, with reinstatement subject to provisions of Section 231.28(4), Florida Statutes.

DONE and ENTERED this 20th day of December, 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 20th day of December, 1983.

COPIES FURNISHED:

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

Ms. Shirley Lambert

3020 West Montague Avenue, B-3 Charleston, South Carolina 29405

Donald L. Griesheimer Education Practices Commission Room 125 Knott Building Tallahassee, Florida 32301

Honorable Ralph D. Turlington Commissioner of Education The Capitol

Tallahassee, Florida 32301

Docket for Case No: 83-002220

Orders for Case No: 83-002220