STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM W. MacKILLOP, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0574

)

DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 10, 1987 in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Richard Vespucci, Esquire

1675 Palm Beach Lakes Blvd. Suite 200, Forum III

West Palm Beach, Florida 33401

For Respondent: J. David Holder, Esquire

Post Office Box 1694 Tallahassee, Florida 32302

BACKGROUND

This matter began when respondent, Department of Education, Education Practices Commission, issued a notice of reasons on January 15, 1987 advising petitioner, William W. MacKillop, that his application for a teaching certificate had been denied because MacKillop had pled guilty to the offense of trespass on December 19, 1984. The letter further stated the conduct surrounding the plea constituted a ground under Subsection 231.17(6), Florida Statutes (1985), for denying the application. Thereafter, by request dated February 5, 1987 petitioner requested a formal hearing to contest the proposed agency action. The matter was referred to the Division of Administrative Hearings by respondent on February 17, 1987 with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated March 16, 1987, a final hearing was scheduled on June 8, 1987 in West Palm Beach, Florida. The matter was later rescheduled to June 10 at the same location. At final hearing, petitioner testified on his own behalf and presented the testimony of Jean Pierre Czernowski, a West Palm Beach firefighter. He also offered petitioner's exhibits 1-3 which were received in evidence. Respondent presented the testimony of Capt. Deborah S. Moody, acting chief of police of the City of Lake Clarke Shores, Sgt. John B. Nesbitt, II, a police officer for the City of Lake Clarke Shores, Owen H. Gassaway (his ex-

father-in-law), and Marlene Greenfield, administrator for respondent's Professional Practices Services and accepted as an expert in teacher certification. It also offered respondent's exhibit 1. A ruling on its admissibility was reserved.

The transcript of hearing was filed on July 2, 1987. Respondent and petitioner submitted proposed findings of fact and conclusions of law on July 15 and 17, 1987, respectively. A ruling on each finding has been made in the Appendix attached to this Recommended order.

At issue is whether petitioner's application for a teaching certificate should be approved.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. On March 19, 1986, petitioner, William W. MacKillop, filed an application for a teaching certificate with respondent, Department of Education, Education Practices Commission (EPC). The application itself is not a part of this record. On the application, petitioner was asked if he had ever been convicted of a crime, regardless of adjudication. Petitioner responded "Yes," and indicated he had pled guilty to trespass (a misdemeanor) on December 19, 1984 in Palm Beach County.

   
   

2. Through a fingerprint search conducted by the Florida Department of Law Enforcement, respondent confirmed the above incident. It also learned that petitioner had initially been charged with the criminal offenses of burglary, damage to criminal property (criminal mischief) and trespass in a structure, and had pled guilty to the lesser offense of trespass. Because of this, EPC eventually issued a notice of denial of the application on January 15, 1987 on the ground petitioner was guilty of gross immorality or an act involving moral turpitude, or was guilty of personal conduct which would seriously reduce his effectiveness as a school board employee. That precipitated the instant proceeding.

   
   

3. In 1984 petitioner was involved in a divorce proceeding with his wife after a marriage of some eight years. While in a highly emotional state, MacKillop entered the unoccupied home of his estranged wife in Lake Clarke Shores on October 6, 1984. He stated he did so with a key although a broken bathroom window in the home suggested the entry may have been in that manner. In any event, after gaining entry MacKillop proceeded to destroy or damage numerous personal effects of his wife, including dishes and photographs. In

   addition, MacKillop suffered an arm wound during the incident, and smeared blood from the wound on the carpet, bedspread, clothes and other artifacts. Damage was estimated to be around $1,000. One observer described the house as being "a chaotic scene" after the episode. When the incident occurred, MacKillop was under an order of the circuit court which prohibited him from entering his wife's home. This order was the result of several prior acts of "harassment" on the part of MacKillop.

   
   

4. Local police suspected that petitioner was responsible for the incident. Before formal action was taken, on October 8, 1984 petitioner, in the presence of an attorney, voluntarily turned himself in to local authorities where he was placed under arrest. An information was later filed by the state attorney charging petitioner with three offenses. Through a plea negotiation,

   petitioner pled guilty on December 13, 1984 to trespass, a misdemeanor, and all other charges were dropped. The court withheld adjudication of guilt and placed petitioner on six months unsupervised probation. On January 6, 1987 a motion for expungement was granted by the circuit court and petitioner's record of arrest and conviction was expunged.

   
   

5. Until recently, petitioner had been a member of the fire department for the City of West Palm Beach for some fourteen years. While employed with the City, MacKillop had advanced through the ranks and achieved the position of head of a fire station and was in charge of the station, its equipment and men. In school year 1985-86 MacKillop became a substitute teacher for Palm Beach County. He taught on approximately fifty occasions during the school year at some six or seven schools. Although he offered no witnesses or documentation concerning his teaching experience, MacKillop stated he had done a good job while working as a substitute teacher and that no complaints had been lodged by supervisors. This was not disputed by respondent. He now desires to pursue teaching on a full- time basis.

   
   

6. Through the testimony of a City of West Palm Beach firefighter, it was established that MacKillop had been a capable and respected firefighter with good moral character. It was also established that MacKillop had responded to hundreds of emergency calls over the years, and while doing so, had never acted in an irrational or impulsive manner. When judged with his work record, the October 6 incident was an isolated incident. This was corroborated by MacKillop's former father-in-law who stated the incident was out of character for petitioner. At hearing, MacKillop expressed remorse and regret for the incident, and blamed it on a highly emotional state of mind caused by a divorce with a woman he still loved. He has successfully completed probation, offered to make full restitution, served in an effective manner in the classroom since the incident, and has no other blemishes on his record. He is therefore rehabilitated.

   
   

7. Respondent's expert in teacher certification opined that the incident, standing alone, without contrasting evidence of good moral character, rehabilitation or that the outburst was isolated, constituted a lack of judgment and self-control on petitioner's part. It also placed into question his ability to control and manage a classroom. She also pointed out that on June 19, 1986, or shortly after the application was filed, EPC requested additional facts from MacKillop concerning his arrest but that MacKillop did not respond. She conceded, however, that his lawyer gave general details in a letter dated July 28, 1986. A follow-up request by EPC made on August 26, 1986 resulted in MacKillop's counsel advising EPC that it could obtain such records at the local court. The EPC also suggested that petitioner sought expungement of his conviction to deny EPC access to his records, but there is insufficient evidence to support this charge.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986).

   
   

9. Subsection 231.17(6)(a), Florida Statutes (1985), provides that:

   
   

   The Department of Education is authorized to deny an applicant a certificate if it possesses evidence satisfactory to it that

   the applicant has committed an act or acts or that a situation exists for which the Department of Education would be authorized to revoke a teaching certificate.

   
   

   Also relevant is Subsection 231.28(1)(c), Florida Statutes (1985), which authorizes EPC to discipline a licensee who:

   
   

   (c) Has been guilty of gross immorality or an act involving moral turpitude.

   
   

   Since the EPC may revoke a certificate for the reasons given in Subsection 231.28(1)(c), it may likewise deny an application for a certificate on the same ground if it is shown the applicant is guilty of the proscribed conduct.

   
   

10. The cited reasons for denying the application are that applicant, through his conduct on October 6, 1984, is guilty of gross immorality, an act involving moral turpitude, or with having committed conduct which impairs his effectiveness as a teacher. Since none of these terms are defined by statute, reference to the rules which define those terms is helpful. Immorality, misconduct in office (which forms the basis for a lack of effectiveness in the classroom) and moral turpitude are defined in Rule 6B-4.09(2), (3) and (6), Florida Administrative Code (1987), respectively, and read as follows:

    
    

    * * *

    1. 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.

    2. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

       * * *

       (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 fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

       
       

11. MacKillop is not charged with immorality as defined in Rule 6B- 4.09(2). Rather, he is charged with gross immorality, which implies something more serious than immorality. Cf. Smith v. School Board of Leon County, 405 So.2d 183, 185 (Fla. 1st DCA 1981)(where employee charged with gross insubordination, this imposed upon board burden of proof of a more serious

    degree of conduct than mere insubordination.) Obviously, MacKillop's conduct is "inconsistent with the standards of public conscience and good morals."

    However, it is doubtful whether the conduct rises to a level more serious than being "sufficiently notorious to bring (MacKillop) or the education profession into public disgrace or disrespect and impair the individual's service in the community." This is because, after the incident occurred, MacKillop became a substitute teacher and effectively performed in that capacity in six or seven different schools over a one- year period without complaint or incident.

    Therefore, it is concluded the conduct does not equate to gross immorality.

    
    

12. MacKillop is next charged with having committed an act involving moral turpitude. Here, by rule EPC has defined this term as being:

    
    

    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 fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

    The agency's denial is based on the conduct of October 6, 1984, and upon MacKillop's plea of guilty to trespass a few months later. The issue, then, is whether the conduct was an "act of baseness, vileness or depravity" so as to constitute an act of moral turpitude. By entering the home of his estranged wife without permission and in violation of a court order, and then damaging or destroying numerous personal effects, and smearing blood on various items, the conduct in question equates to an act of moral turpitude within the meaning of the law. Even so, the conduct is not a permanent bar to licensure, particularly where it was isolated, did not directly relate to the profession of teaching, and the applicant has satisfactorily rehabilitated himself. Cf. Bachynsky v.

    State, Department of Professional Regulation, 471 So.2d 1305 (Fla. 1st DCA 1985); Aquino v. Department of Professional Regulation, 430 So.2d 598 (Fla. 5th DCA 1983). Because each of the foregoing conditions is present, licensure should be granted, assuming the last ground for denial has been countered.

    
    

13. The final objection to licensure is that MacKillop's personal conduct seriously reduced his effectiveness as a teacher. To counter this objection MacKillop offered testimony, albeit his own, that he had effectively worked as a substitute teacher for a year after the incident. This was not contradicted by respondent, and there was no showing that the "notoriety" of the events and attendant publicity, if any, had impaired his effectiveness as a teacher. Therefore, this ground should not serve as an impediment to licensure.

    
    

14. Having satisfied all requirements for licensure, it is concluded petitioner's application should be granted.

    
    

15. The objection to respondent's exhibit 1 is overruled, and it is hereby received in evidence.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's application for certification as a teacher

should be APPROVED.

DONE AND ORDERED this 20th day of July, 1987, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 20th day of July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0574

Petitioner:

1. Covered in Background and finding of fact 3.

2. Covered in finding of fact 3.

3. Covered in finding of fact 6.

4. Covered in Background and finding of fact 4.

5. Covered in Background and finding of fact 6.

6. Covered in finding of fact 6.

7. Covered in finding of fact 5.

8. Covered in finding of fact 6.

9. Covered in finding of fact 6.

10. Rejected as unnecessary.

11. Rejected as unnecessary.

12. Covered in finding of fact 3.

13. Rejected as unnecessary.

14. Covered in findings of fact 4 and 6.

15. Covered in finding of fact 3.

16. Covered in findings of fact 4 and 7.

17. Covered in finding of fact 7.

18. Covered in finding of fact 7.

19. Covered in finding of fact 7.

20. Rejected as unnecessary.

Respondent:

1. Covered in finding of fact 3.

2. Covered in finding of fact 3.

3. Covered in finding of fact 3.

4. Covered in finding of fact 3.

5. Covered in finding of fact 3.

6. Covered in finding of fact 3.

7. Rejected as unnecessary.

8. Covered in findings of fact 3 and 4.

9. Covered in finding of fact 4.

10. Covered in finding of fact 7.

11. Covered in finding of fact 7.

12. Covered in finding of fact 7.

13. Covered in findings of fact 5 and 7.

14. Covered in finding of fact 3.

COPIES FURNISHED:

Richard Vespucci, Esquire

1675 Palm Beach Lakes Boulevard Suite 200, Forum III

West Palm Beach, Florida 33401

J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302

Karen Barr Wilde, Executive Director Education Practices Commission

125 Knott Building Tallahassee, Florida 32399

Marlene T. Greenfield, Administrator Professional Practices Services

319 West Madison Street Room 3

Tallahassee, Florida 32399

Docket for Case No: 87-000574

Orders for Case No: 87-000574