Judges: LINDA M. RIGOT
Agency: County School Boards
Latest Update: May 01, 1985
Summary: Respondent engaged in illegal sales of firearms. Suspend Respondent from School Board without pay for a period of three years and suspend his teaching certificate for a period of three years.
83-3017.PDFSTATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )
)
Petitioner, )
)
vs. ) CASE NO. 83-3017
)
IVAN DANGER, )
)
Respondent. )
) DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, ) and RALPH D. TURLINGTON, as )
Commissioner of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 83-3447
)
IVAN DANGER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 8, 1984, in Miami, Florida.
Petitioner School Board of Dade County, Florida, was represented by Thomas
Robertson, Esquire, Miami, Florida; Petitioner Department of Education was represented by Wilson Jerry Foster, Esquire, Tallahassee, Florida; and Respondent Ivan F. Danger was represented by Harold N. Braxton, Esquire, Miami, Florida.
In August 1983, Petitioner School Board of Dade County, Florida (hereinafter "School Board"), suspended Respondent from his position as Assistant Principal at Ponce de Leon Junior High School and initiated dismissal proceedings. Based upon his timely request for a formal hearing, the School Board referred the case to the Division of Administrative Hearings and filed its Specific Notice of Charges on October 17, 1983. Concurrently, Respondent requested a formal hearing on the Administrative Complaint issued against him by the Commissioner of Education (hereinafter "the Deoartment") seeking to take action against Respondent's Teaching Certificate. The Department's Administrative Complaint was filed with the Division of Administrative Hearings on November 3, 1983. On November 21, 1983, these causes were consolidated. At the final hearing, the Department made an ore tenus motion for leave to file a First Amended Administrative Complaint, which motion was denied. Accordingly, the issues for determination herein are whether Respondent is guilty of the
allegations contained in the specific Notice of Charges and in the Administrative Complaint and, if so, what disciplinary action should be taken, if any.
Petitioners presented the testimony of Donald R. Kimbler and Patrick Gray, Jr. The Respondent testified on his own behalf and presented the testimony of Stuart Mishkin, Robert Edwards, Father Lois G. Ripoll, Anthony Villaamil, and Martha Ann Bowden. Additionally, the Department's Exhibit number 1, the Petitioner's Joint Exhibits numbered 1-5, and Respondent's Exhibits numbered 1-3 were admitted in evidence.
All parties submitted posthearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
FINDINGS OF FACT
Until his suspension in August 1983, Respondent has been continuously employed by the School Board since August 1983, as a teacher, psychologist, and Assistant Principal. He holds Florida Teacher's Certificate Number 232311 and has been on continuing contract with the School Board.
During Respondent's 15 years of employment with the School Board, he was evaluated as average and above average as a teacher, psychologist, and Assistant Principal. He was particularly effective as an assistant principal and in diagnosing learning and behavioral problems experienced by kindergarten and first-grade children.
On August 9, 1983, Respondent entered a guilty plea and was therefore convicted in the United States District Court for the Southern District of Florida of one count of conspiracy to transfer firearms in violation of Title 18, United States Code Section 371 because the subject firearms were not registered with the Secretary of the Treasury as required by the applicable federal laws. Respondent was originally sentenced to be confined to a minimum security institution for a period of six months with a subsequent period of two years probation. This sentence was then modified to four months in a community treatment center (halfway house) with a subsequent period of three years probation. Respondent is presently serving his probation period.
This conviction forms the sole factual basis for the charges herein by both the School Board and the Department. Because the Specific Notice of Charges and the Administrative Complaint are based upon allegations involving Respondent's immorality, moral turpitude and his effectiveness as a teacher, the circumstances surrounding Respondent's arrest, plea, and conviction are extremely pertinent.
Respondent's first involvement with the circumstances leading to his conviction stems from conversations he had with his neighbor Jose Lopez regarding the sale of hand guns. At all times material hereto, Respondent was the holder of a Federal Firearms License. Although Lopez knew that Respondent was a licensed gun dealer, Respondent did not know that Lopez was a paid federal informant.
Lopez asked Respondent if Respondent could put him in touch with anyone who would sell unregistered firearms. Respondent knew a gun dealer named Zarraga who had previously introduced Respondent to a man named Navarro who owned a gun shop. Respondent told Lopez about these men and introduced them to each other.
Lopez contacted Donald R. Kimbler, a Special Agent for the Bureau of Alcohol Tobacco and Firearms of the United States Treasury Department. Lopez, acting with Kimbler's knowledge, then entered into a deal with Navarro and Zarraga wherein Lopez was to purchase seven Ingram submachine guns and eight silencers. Lopez, Navarro, and Zarraga arranged to deliver the guns and silencers to Respondent's home where they were to be picked up by Lopez.
Respondent earned no money from the transaction. He was willing to help Lopez locate the guns because he was under the belief that they were to be sent to Nicaragua to aid in the fight against the Communists in that country. Respondent believed that to be a worthy cause based upon Respondent's personal flight as a young man with his family from Communist Cuba.
Respondent believed that the persons offering the guns for sale (Navarro and Zarraga) were the ones who had the responsibility to register them with the federal government. The first time Respondent realized he was involved in a serious crime was when he was confronted by Agent Kimbler at Respondent's school. At that meeting, Respondent cooperated with Kimbler and gave a voluntary statement regarding the transaction under investigation. In a subsequent meeting with Kimbler, Respondent gave another statement which constituted a complete account of the events regarding the sale of guns by Navarro and Zarraga in which Respondent was involved. At the time Respondent gave his cooperation and first statement to Kimbler, he was not under arrest and no arrest of Respondent was contemplated by Kimbler.
Respondent's attitude throughout the investigative proceedings was one of total and above excellent cooperation with the authorities. His cooperation was based upon his desire to be honest and do what was right rather than on a desire to "make a deal" with the government. Based upon Respondent's cooperation and subsequent testimony, the federal government was able to indict and convict Zarraga and Navarro. Contrary to Agent Kimbler's recommendation, Respondent was also indicted.
Although it is common knowledge that machine guns are used to kill people and silencers are used to muffle the sounds of such a weapon, there was no direct evidence as to what use these guns and silencers were to be put.
Petitioner's only witness to testify that Respondent's effectiveness as a teacher has been reduced was Patrick Gray, Jr., the Executive Director for the School Board's Division of Personnel Control. That witness further admitted that he did not recall ever having seen a newspaper article regarding Respondent's arrest or conviction. Two other employees of the School Board who are involved in the actual school setting did not believe Respondent has lost his effectiveless.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
The School Board of Dade County has suspended Respondent without pay from his position as Assistant Principal and seeks to dismiss him from its employment based upon his alleged violations of Section 231.36, Florida Statutes (1983), and Section 6B-4.09(2), Florida Administrative Code. The Commissioner of Education seeks to revoke the teaching certificate of Respondent based upon violations of Section 231.28, Florida Statutes (1983), and Section 6B-1.01, Florida Administrative Code.
Section 231.36, Florida Statutes, provides that a school board may suspend or dismiss a member of its administrative or supervisory staff based on immorality or conviction of a crime involving moral turpitude. Section 231.28, Florida Statutes, the Education Practices Commission to suspend or revoke the teaching certificate of a person who has been guilty of gross immorality or an act involving moral turpitude, has been convicted of a felony, or has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board.
Respondent pled guilty in the United States District Court for the Southern District of Florida to a violation of Title 18, U.S.C. Section 371. This statute makes conspiracy to commit an offense against the United States a federal crime. The offense to which Respondent pled guilty that he conspired to commit was a violation of Title 26, U.S.C. Section 5812, which requires the registration with the Secretary of the Treasury of all firearms before their transfer. Section 231.28(2), Florida Statutes, provides that a plea of guilty in any court shall be prima facie proof of grounds for revocation of a teaching certificate. Accordingly, the Petitioners have proved a violation of Sections
231.28 and 231.36, Florida Statutes.
Section 6B-4.09, Florida Administrative Code, defines immorality and moral turpitude as follows:
(2) Immorality is defined 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.
(6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her follow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
In order to determine whether Respondent's acts involved moral turpitude, the entire circumstances surrounding his involvement must be considered. There is no doubt he committed the act for which he pled guilty. However, this was a negotiated plea based upon the complete and valuable cooperation of Respondent with the federal authorities. Respondent was a go- between; he introduced the buyer and sellers. He was not concerned with details of the proposed sale, nor was he to profit therefrom. Respondent was motivated by his clear impression that the weapons were to be used outside the United States to fight the Communists in Nicaragua. In response to the request of his friend and neighbor, the purported buyer, Respondent's house was utilized for
pickup and delivery of the weapons. This was not pursuant to a pro-designed plan. Immediately upon confrontation by the federal authorities, Respondent fully cooperated with the agent involved. As a direct result of Respondent's cooperation and testimony, the government was able to convict the targets of its investigation, the sellers. This was the only such incident in Respondent's life. The extent of Respondent's involvement, his motives and subsequent cooperation with the federal authorities mitigate any moral turpitude on his part. By proving the act which led to Respondent's indictment and conviction, and with no further evidence, the Petitioners have failed to sustain their burden of proof that the act involved moral turpitude. Respondent has been a respected and valuable teacher and administrator in the Dade County school system for 15 years. Where one's general professional reputation and behavior have been good, and he has shown a repentant and cooperative attitude, no moral turpitude accompanies the commission of the offense.
Although no evidence of gross immorality was presented, the Petitioners have made a prima facie showing that the acts of Respondent involved immorality as defined by Rule 6B-4.09(2). However, in matters involving a statutory definition of immorality, some emphasis must be placed on mitigating circumstances in order to arrive at a fair and just penalty to be assessed. The circumstances surrounding the extent of Respondent's participation in the events leading to his plea of guilty, his motives and his subsequent cooperation with the federal authorities must be considered. So, too, consideration must be given to his fifteen years of devotion to the educational system.
In determining whether Respondent's conduct reduces his effectiveness as a teacher, one must consider the likelihood that his conduct may adversely affect students, the degree of such adversity, the proximity or remoteness in time of the conduct and the likelihood of the recurrence of the questioned conduct. As in Sherburne v. School Board of Suwannee County, 455 So.2d 1057 (Fla. 1st Dist. 1984), there was no evidence or testimony offered by Petitioners that Respondent's conduct has adversely affected any student. His activities did not involve any of responsibilities as a teacher or Assistant Principal. Based upon his testimony, that of the arresting federal agent and that of his criminal attorney, there is little, if any, likelihood that he will indulge in any criminal activity again.
The Department further alleges that Respondent has violated the Code of Ethics of the Education Profession in Florida, Section 6B-1.01, Florida Administrative Code, by failing to maintain the respect and confidence of one's colleagues, of students, of parents, and of other members of the community and by failing to achieve and sustain the highest degree of ethical standard. Even if the failure to follow such a subjective code of conduct could form the basis for a disciplinary proceeding, Petitioner Department of Education has failed to offer any evidence in support of this nebulous charge. Not only are respect and confidence difficult, if not impossible, to measure, but it can also be said that Respondent's voluntary cooperation with the government when his arrest was improbable reveals a truthful and honest character consistent with a high degree of ethical conduct.
Although Petitioners have proven Respondent's conviction and have made a prima facie showing that Respondent has been guilty of an isolated incident of immorality, the circumstances of that conviction do not warrant severe disciplinary action. Taking into consideration the mitigating factors relative to the extent of Respondent's participation in the offense for which he was convicted, the circumstances surrounding his voluntary plea, his valuable cooperation with the authorities, and his long history as a respected employee
of the school system, it is recommended that the license of Respondent be suspended for a period of three years, the length of time for which he was placed on probation.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that Final Orders be entered:
In Case No. 83-3017 suspending Respondent from his employment by the School Hoard without pay for a period of three years from the effective date of his suspension, and
In Case No. 83-3447 suspending Respondent's Florida Teacher's Certificate for a period of three years from the effective date of his suspension by the School Board.
Done and Recommended this 30th day of November 1984, in Tallahassee, Florida.
LINDA M. RIGOT
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 30th day of November 1984.
COPIES FURNISHED:
Thomas Robertson, Esquire 3050 Biscayne Boulevard Third Floor
Miami, Florida 33137
Wilson Jerry Foster, Esquire
Suite 616, Lewis State Bank Building Tallahassee, Florida 32302
Harold M. Braxton, Esquire
45 SW 36 Court Miami, Florida 33135
Dr. Leonard Britton Superintendent
School Board of Dade County 1410 NE Second Avenue Miami, Florida 33132
Ralph D. Turlington Commissioner
Department of Education The Capitol
Tallahassee, Florid 32301
================================================================= AGENCY FINAL ORDER
================================================================= THE SCHOOL BOARD OF DADE COUNTY, FLORIDA
SCHOOL BOARD OF DADE COUNTY,
Petitioner.
CASE NO. 83-3017
IVAN DANGER,
Respondent.
/
FINAL ORDER
OF THE SCHOOL BOARD OF DADE COUNTY, FLORIDA
THIS CAUSE coming on for hearing before The School Board of Dade County, Florida, at its regular meeting of January 23, 1985, and the Board having heard arguments on the exceptions filed by Petitioner herein and responses thereto by the attorney for the Respondent, and having read the record in this case and being otherwise fully advised in the premises, it is therefore ordered as follows:
The recommended order of Hearing Officer Linda
M. Rigot, entered November 30, 1984, and attached hereto, is hereby adopted as the final order of The School Board of Dade County, Florida;
Ivan Danger be and is hereby suspended from his employment with the School Board, without pay, for a period of three years from the effective date of his original suspension; and
At the conclusion of the three-year suspension, Ivan Danger may return to his employment with The School Board of Dade County, Florida, providing he possesses a valid Florida teaching certificate.
DONE AND ORDERED this 23rd day of January, 1985.
THE SCHOOL BOARD OF DADE COUNTY,
By: Chairman
COPIES FURNISHED:
Thomas A. Robertson, Esquire Harold N. Braxton, Esquire Wilson Jerry Foster, Esquire
APPEAL OF FINAL ORDER
This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), Florida Statutes, and Florida Rule of Appellate Procedure 9.110(b) and (c), within thirty (30) days of the date of the rendition of this Order.
=================================================================
AGENCY FINAL ORDER
=================================================================
BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA
RALPH D. TURLINGTON, as
Commission of Education, Petitioner,
vs. 83-3447
IVAN F. DANGER,
Respondent.
/
FINAL ORDER
Respondent, IVAN F. DANGER, holds Florida Teaching Certificate Number 232311. 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.; it is attached to and made a part of this Order.
A panel of the Education Practices Commission met on March 1, 1985, in Tallahassee, Florida, to take final agency action. The Petitioner was represented by Wilson Jerry Foster, Esquire. The Respondent was represented by Harold M. Braxton, Esquire. The panel has reviewed the entire record in the case.
The panel adopts the Findings of Fact of the Recommended Order with the exception of paragraph twelve of the Recommended Order regarding Respondent's reduced effectiveness as a teacher. The panel specifically and additionally finds that Respondent's conduct seriously reduced his effectiveness as an employee of the school board.
The panel adopts the Conclusions of Law contained in paragraphs one, two, four and five of the Recommended Order and specifically rejects the Conclusions of Law contained in paragraphs three and six through ten of the Recommended Order. The panel specifically concludes that Respondent has been guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, that Respondent has been guilty of gross immorality and an act involving moral turpitude, all in violation of Section 231.28(1), F.S., and has failed to maintain the respect and confidence of his colleagues in violation of Rule 6B-1.01, F.A.C., for which the panel may impose discipline pursuant to Section 231.262(6), F.S.
The panel adopts the penalty recommended by the hearing officer.
Therefore, it is hereby ORDERED that Respondent's teaching certificate, number 232311, be suspended for a period of three (3) years from the effective date of his suspension by the School Board of Dade County.
This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.658(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within 30 days of the date of filing.
DONE AND ORDERED this 18th day of April, 1985.
ABE COLLINSWORTH, Presiding Officer
I HEREBY CERTIFY that a copy of the foregoing Final Order in the matter of RDT v. Ivan F. Danger has been furnished to Harold M. Braxton, Esquire, by U.S. Mail this 24th day of April 1985.
KAREN B. WILDE, Clerk
COPIES FURNISHED TO:
Marlene Greenfield, Administrator Professional Practices Services
Susan Tully, Esquire Attorney General's Office
Judith Brechner, General Counsel
Dr. Patrick Gray, Exec. Director Division of Personnel Control Dade County Schools
1450 N.E. 2nd Avenue Miami, Florida 33132
Jerry Foster, Esquire Harold M. Braxton, Esquire
45 S.W. 36th Court
Miami, Florida 33315
Ms. Linda Rigot Hearing Officer
Division of Administrative Hearings The Oakland Bldg.
2009 Apalachee Parkway
Tallahassee, Florida 32301
Dr. Leonard Britton, Supt. Dade County Schools
1450 N.E. 2nd Avenue Miami, Florida 33132
Docket for Case No: 83-003017
Orders for Case No: 83-003017
| Issue Date |
Document |
Summary |
|
Apr. 18, 1985 |
Agency Final Order
|
|
|
Nov. 30, 1984 |
Recommended Order
|
Respondent engaged in illegal sales of firearms. Suspend Respondent from School Board without pay for a period of three years and suspend his teaching certificate for a period of three years.
|
