STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

COMMISSION, Betty Castor, as ) Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1671

) CONSTANCE GRANT JOHNSON; a/k/a ) CONNIE MARIE JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing, in the above-styled matter was held on July 15, 1987 at Miami, Florida, before Joyous Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Craig R. Wilson, Esquire

215 Fifth Street, Suite 302 West Palm Reach, Florida 33401

For Respondent: William DuFresne, Esquire

2929 SW Third Avenue Miami, Florida 33129

BACKGROUND AND PROCEDURAL MATTERS

This case began on March 16, 1987, with the filing of an Administrative Complaint against Respondent. This complaint alleged Respondent to be guilty of certain acts constituting gross immorality and/or moral turpitude such that Respondent's effectiveness as an employee of the School Board of Dade County had been seriously reduced. The complaint further alleged Respondent had been found guilty of a felony. The case was forwarded to the Division of Administrative Hearings for formal proceedings on or about April 29, 1987. By Order entered July 9, 1987, Petitioner was permitted to amend the Administrative Complaint to correct the "Introduction" and "Wherefore" paragraphs of the complaint.

At the final hearing Petitioner presented the testimony of one witness, Dr. Patrick Gray, who was accepted as an expert in the fields of professional ethics and personnel management. Petitioner offered nine exhibits which were admitted into evidence: deposition of T. C. Simms, III; deposition of R. A. Walsh; deposition of Niels H. Bernstein; application for extension of certificate; copy of an Amended Information, Case No. 85-5659-CF; copy of a Judgment filed in Case No. 85-5659-CF; copy of a Sentence in Case No. 85-5659-CF; copy of Respondent's

resignation dated December 26, 1985; and a copy of an agenda item from the Office of Superintendent dated January 8, 1986. Respondent testified on her own behalf.

The transcript of the proceedings was filed August 14, 1987, and both parties submitted Proposed Recommended Orders. These proposals have been carefully considered in the preparation of this Recommended Order and specific rulings on the Proposed Findings of Fact are included in the attached Appendix.

ISSUE

The central issue in this case is whether Respondent is guilty of the violations alleged in the Amended Administrative Complaint; and, if so, what penalty should be imposed.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. Respondent, Constance Grant Johnson, was licensed by the Department of Education for the State of Florida, Certificate No. 239817, and was employed by the Dade County School Board for sixteen years.

   
   

2. On December 20, 1985, Respondent, after a jury trial, was found guilty of two felonies: possession of cocaine and conspiracy to traffic in cocaine. Respondent was sentenced to a prison term of four and one-half years and fined

   $25,000. Respondent served the sentence and the convictions are on appeal.

   
   

3. On December 26, 1985, Respondent resigned her job as a visiting teacher (truant officer) "for personal reasons." On January 8 1986, the School Board of Dade County accepted Respondent's resignation but required:

   
   

   1. Formal notification to the Educational Practices Commission for licensure investigation;

   2. Prevention of any future employment in any capacity by the Dade County Public Schools; and

   3. Retention of the information regarding the dismissal action by the Superintendent of Schools as a matter of official record.

      
      

      There is no record to suggest Respondent contested the requirements of the Board's acceptance.

      
      

4. On April 27, 1985, Respondent was visiting her cousin, Lola Thomas, in Jacksonville, Florida. Respondent had traveled from Miami on April 26, 1985, and had checked into the Rodeway Inn, room 117, with her companion, Danielle Valdez Baro. Respondent registered as "Mr and Mrs. D. Johnson." Respondent had rented a car for the purpose of this trip.

   
   

5. Sometime prior to noon on April 27, 1985, Lola Thomas arrived at the Rodeway Inn to pick Respondent up to go shopping for a family dinner to be prepared later in the day. The two cousins did not go grocery shopping. Instead, they traveled back to the Thomas home where they picked up Arthur

   Thomas, Lola's husband. The three then traveled to Yancy Park, an area a few blocks from a Pic N' Save store located on Soutel and Norfolk.

   
   

6. An undercover sheriff's officer, R. A. Walsh, had met with one Joseph Mack at this Pic N' Save and had arranged to purchase two ounces of cocaine for

   $4000.00. Walsh then followed Joseph Mack to Yancy Park to complete the transaction. Walsh observed Mack walk to the vehicle wherein Respondent and the Thomases were seated and obtain a white bundle which Mack placed under his shirt. Mack and Arthur Thomas then walked back to Walsh's vehicle to receive payment. Respondent had handed the bundle, wrapped in a hand towel from the Rodeway, Inn, to Arthur Thomas who had, in turn, handed it to Mack. The bundle contained approximately two ounces of cocaine.

   
   

7. Respondent's testimony that she did not know the bundle contained cocaine was not credible.

   
   

8. Respondent's testimony that she merely passed the bundle at her cousin Lola's direction was not credible.

   
   

9. Respondent and Lola Thomas were seated in the front seat of the Thomas' 1984 Pontiac Bonneville. Lola Thomas was in the driver's seat and her husband, Arthur, was seated directly behind her.

   
   

10. Respondent admitted she had removed a hand towel from the Rodeway Inn and that the bundle had been wrapped in a similar towel. Respondent claimed Lola Thomas had also removed a second hand towel from the Rodeway Inn, but such second towel was not located and was not listed on the police reports of the incident. Respondent admitted that only one towel was utilized in the criminal proceedings which resulted in her convictions. Respondent's claim that Lola Thomas had taken a towel was not credible.

    
    

11. Respondent's testimony that the Thomas vehicle was parked in a center shopping or strip mall and that she only discussed needed grocery items with Lola Thomas was not credible. The weight of credible evidence established the Thomases and Respondent were apprehended at Yancy Park.

    
    

12. Dr. Gray, an expert in professional ethics and personnel management, testified that the proof of either Count I or Count II would warrant permanent revocation of Respondent's teaching certificate.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. The Education Practices Commission, within the Department of Education, is authorized to suspend, revoke, or revoke permanently a teacher's certificate, or to impose any other penalty provided by law, Section 231.28(1), Florida Statutes (1985), upon proof that the holder of the certificate:

    
    

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

    * * *

    1. Has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation; or

    2. Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board:

    
    

15. Immorality and moral turpitude are defined in Rule 6B- 4.009(2) and

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

    
    

16. In the Amended Administrative Complaint, Petitioner has charged Respondent to be guilty of the commission of certain acts which constitute gross immorality and/or involve moral turpitude and that Respondent's effectiveness as an employee of the School Board of Dade County has been reduced. Additionally, Respondent was alleged to have been found guilty of certain felonies. Because revocation of Respondent's license is a potential consequence of this proceeding, Petitioner bears the burden of proving its allegations by clear and convincing evidence. Ferris v. Turlington, 12 FLW 393 (Fla. July 16, 1987).

    
    

17. Respondent admitted that she was convicted of two felonies: possession of cocaine and conspiracy to traffic in cocaine. Moreover, Petitioner introduced certified copies of the relevant court documents to establish the two convictions. Consequently, Petitioner has met its burden by clear and convincing evidence as to Count II of the Amended Administrative

    Complaint. Respondent's argument, that the convictions may not stand as a basis for disciplinary action since they are on appeal, does not prohibit the suspension or revocation of the certificate pending the appeal.

    
    

18. As to Count I of the Amended Administrative Complaint, it is not necessary for a teacher to be charged with or convicted of a crime in order to be subject to revocation of the certificate based upon conduct reflecting gross immorality or moral turpitude. Walton v. Turlington, 444 So.2d 1082 (Fla 1st DCA 1984). Thus, if the conduct alleged constitutes gross immorality and/or moral turpitude and if proven by clear and convincing evidence, disciplinary action may be taken.

    
    

19. The standard to be upheld by teachers is different than that of other regulated licenses since teachers are charged with providing leadership and maintaining effectiveness as teachers. Teachers are held to a high moral

    standard in a community. Adams v. State Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981). Consequently, the possession of cocaine and/or conspiracy to traffic in cocaine must be considered immorality or moral turpitude where there is clear and convincing evidence of those acts.

    
    

20. In the case at hand, the evidence clearly established Respondent had possession of approximately two ounces of cocaine. The bundle was wrapped in a towel from her hotel room and was physically handed, by Respondent, to the next person. To accept Respondent's version, that she was merely passing an object at her cousin's request, defies logic. This was not a child's game of "hot potato" where an object is mindlessly passed from one participant to another. Respondent was involved in the $4000.00 sale of cocaine and necessarily had to possess the bundle in order to complete the illegal transaction.

    
    

21. In the case at hand, the evidence clearly established Respondent conspired to traffic in cocaine. Why else would she have been a part of the Thomases' transaction? They certainly would not have encouraged an observer to attend the sale. The only reasonable inference that can be made is that Respondent, a resident of Miami, used the Thomases to make contact with a Jacksonville buyer. Neither party to the deal would have required the others to be present were this not so.

    
    

22. Despite Respondent's protests that she did not know what was in the bundle, an allegation which I find to be incredible, it is contrary to reason to presume she would pass a towel, knowing it to contain something, when it would have been just as easy for Lola Thomas to pass the bundle.

    
    

23. For the reasons set forth herein, I find the Petitioner has proven by clear and convincing evidence the allegations of Count I of the Amended Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the petitioner enter a Final Order permanently revoking Respondent's teacher's certificate.

DONE and ORDERED this 14th day of September, 1987, in Tallahassee, Florida.

JOYOUS D. PARRISH

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 14th day of September, 1987.

APPENDIX

Rulings on the Proposed Findings of Fact submitted by Petitioner:

1. Accepted in Finding of Fact 1.

2. Accepted in Findings of Fact 1 and 3.

3. Rejected as argument. However, point is addressed in conclusions of law 5. See also Finding of Fact 2.

4. Accepted in Finding of Fact 2.

5. Accepted in Finding of Fact 2.

6. Accepted in Finding of Fact 3.

7. Rejected as argument. See relevant Findings of Fact 7 and 8.

8. Accepted but unnecessary and argument. See Finding of Fact 10.

9. Accepted in Finding of Fact 12.

Rulings on the Proposed Findings of Fact submitted by Respondent.

1. Accepted in Finding of Fact 1.

2. Accepted in Findings of Fact 2 and 11.

3. Accepted in Findings of Fact 6, 9, and 10. But see Findings of Fact 7 and 8.

4. Rejected as contrary to the weight of credible evidence.

5. Accepted to the extent addressed in Findings of Fact 5 and 6 otherwise rejected as contrary to the weight of credible evidence. See Findings of Fact 7 and 8.

COPIES FURNISHED:

Craig Wilson, Esquire

215 Fifth Street, Suite 302 West Palm Beach, Florida 33401

Hon. Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Marlene T. Greenfield, Administrator Professional Practices Services

319 West Madison Street, Room 3 Tallahassee, Florida 32399

Karen Barr Wilde, Executive Director Education Practices Commission

125 Knott Building Tallahassee, Florida 32399

Docket for Case No: 87-001671

Orders for Case No: 87-001671