STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5822

)

BRUCE R. FERKO, )

)

Respondent. )

)

RECOMMENDED ORDER

On January 3, 1991, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: Mark S. Herdman, Esquire

Kelly & McKee, P.A. Post Office Box 75638 Tampa, Florida 33675

STATEMENT OF THE ISSUE

The issue in this case is whether the Education Practices Commission (EPC) should discipline the Respondent, Bruce R. Ferko, on charges set out in an Administrative Complaint that he was alcohol intoxicated on and off the job as an elementary school teacher, was convicted of driving under the influence of alcohol (DUI), once falsely represented to the administration at his school that he was unable to teach because he was in the emergency room of a hospital when he was in fact in the county jail on (DUI) charges, and was guilty of personal conduct which seriously reduced his effectiveness as a teacher, in violation of Section 231.28(1)(c), (e), (f) and (h), Fla. Stat. (1989).

PRELIMINARY STATEMENT

Before the final hearing in this case was convened, as scheduled, on January 3, 1991, the Respondent's attorney moved to withdraw on the ground that his efforts to telephone his client before the hearing had been unsuccessful.

The motion was denied, and the attorney appeared at the final hearing. When his client did not appear, the attorney renewed his motion to withdraw, and it again was denied.

The attorney then made an oral motion to continue the hearing after the Petitioner's case-in-chief to give the Respondent an opportunity to present evidence in his behalf. The ground for the motion to continue was that the attorney also did not believe he had mailed his client a copy of the Notice of Hearing and did not believe that his client had actual notice of the hearing. The motion to continue was granted on the condition that the Respondent's evidence, if any, would be presented in Tallahassee.

At the final hearing convened on January 3, 1991, the Petitioner presented its case, including the testimony of five witnesses and an exhibit consisting of certified copies of three court judgments. When the Petitioner rested, an Order Continuing Final Hearing was entered, providing that, if the Respondent wished to present evidence in his behalf in the case, that he should notify the Hearing Officer, in writing, within 15 days. The Order provided that, otherwise, the evidentiary record would be closed, and proposed recommended orders would be due to be filed within ten days after the filing of the transcript of the proceedings held on January 3.

The Respondent has not given notice of his desire to present evidence in his behalf. The transcript was filed on January 17, 1991. The Petitioner's proposed recommended order was filed on January 24, 1991. The Respondent filed a written argument on January 22, 1991, but it did not contain proposed findings of fact. Explicit rulings on the proposed findings of fact contained in the Petitioner's proposed recommended order may be found in the attached Appendix to Recommended Order, Case No. 90-5822.

FINDINGS OF FACT

1. The Respondent, Bruce R. Ferko, held teaching certificate number 553660 issued by the Florida Department of Education, covering elementary education, at all times material to the allegations of the Administrative Complaint, until it expired on June 30, 1990.

   
   

2. From approximately August, 1986, until approximately March, 1990, the Respondent was employed as a teacher at Southern Oak Elementary School in the Pinellas County School District.

   
   

3. On July 11, 1988, the Respondent was arrested for driving under the influence of alcohol (DUI), fleeing and eluding a police officer, and driving with a suspended license. He pled guilty to the charges on August 30, 1988, and was sentenced to 30 days in the county jail, which was suspended, was fined a total of $382, was ordered to pay a total of $425 of court costs, was required to attend DUI school, and was placed on six months probation on two of the charges, to run concurrently.

   
   

4. On several occasions during the 1988/1989 and 1989/1990 school years, the Respondent arrived at school with a smell of alcohol on his breath that was strong enough for at least four different employees at the school to have noticed on different occasions. When the smell was brought to the Respondent's attention, he sometimes would excuse himself to brush his teeth.

   
   

5. On or about May 24, 1989, a fellow teacher with whom the Respondent team taught third grade in the 1988/1989 school year, noticed a very strong smell of alcohol on the Respondent's breath. The teacher was concerned and reported it to the school's assistant principal. The assistant principal consulted with the School District's chief personnel officer, who advised the assistant principal to have a conference with the Respondent about it this time.

   The Respondent admitted that he had been drinking the night before, had about five drinks, and did not eat breakfast. (Later, the assistant principal learned that he had been out until 2:00 a.m. that morning.) The assistant principal decided to send the Respondent to get something to eat and had to make arrangements to cover the Respondent's classroom responsibilities in the meantime.

   
   

6. The Respondent often was late for school, especially during the 1988/1989 and 1989/1990 school years. Sometimes, he would take a shower at school when he arrived; sometimes, he would brush his teeth when he arrived at school. Once, after arriving late, the Respondent told an improbable tale of how his car broke down, requiring the Respondent to jump out and fall on his knee (although his white pants showed no evidence of this). Later the same day, the Respondent lay on top of another teacher's desk, in front of the teacher, and acted as if he was going to sleep. On January 17, 1990, the Respondent came to school late with the strong smell of alcohol on his breath and brushed his teeth when he arrived. While leading his class either to or from physical education class, the Respondent was heard singing "at the top of his lungs" This inappropriate behavior disrupted the classes being held nearby.

   
   

7. The evidence was insufficient to causally connect the unusual behavior described in Finding 6, above, to the Respondent's use of alcohol.

   
   

8. On the morning of October 12, 1989, the Respondent called the school office to arrange for a substitute classroom teacher to take his place for the morning. He reported that he was in the hospital emergency room and was spitting blood. The Respondent was asked if he was sure he only needed a substitute for the morning and was asked to call again if he would not be able to be in that afternoon. The Respondent neither called nor appeared for work the rest of the day, and last minute attempts had to be made to find a substitute for the Respondent for his afternoon classes. That evening, between 10:00 and 11:00 p.m., the Respondent telephoned the school secretary at home to ask if he was in trouble. He gave the excuse that he was lying on a table in the emergency room all morning having a barium enema and was not permitted to get up to call the school to get a substitute for the afternoon. Later, school officials learned that the Respondent had not been at the hospital that morning but rather, in fact, had been arrested earlier on the morning of October 12, 1989, and was in the Pinellas County Jail. (The evidence at the final hearing did not specify the charges or their disposition.)

   
   

9. On the morning of October 24, 1989, the Respondent was scheduled to take his class on a field trip to Ruth Eckerd Hall, a performing arts center in Clearwater, with the other third grade class. The Respondent was late for school again, so late that the field trip almost had to be cancelled. He arrived with the strong smell of alcohol on his breath and complaining of a headache. When the bus arrived at Ruth Eckerd Hall, the Respondent jumped off and, inappropriately, headed across the busy parking lot toward the building well ahead of the children in his class, who were hurrying to try to keep up with him. The other third grade teacher was concerned for the safety of the children in the Respondent's class and had to take some of the stragglers from the Respondent's class, of whom the Respondent appeared oblivious, under her care for their safety. When the Respondent returned to school after the field trip, still complaining of a headache, he inappropriately yelled at one of the children in his class for not being appropriately dressed for Ruth Eckerd Hall, upsetting the child.

10. On November 11, 1989, a Pinellas Park Police Department patrol officer saw the Respondent in his car weaving down the street and running a stop light. The officer attempted to stop the Respondent, who sped off in his car, leading the officer on a two mile chase at 60 miles per hour, 20 mile per hour over the legal speed limit, that ended in the driveway of the Respondent's residence.

    The Respondent resisted arrest (without violence), saying that he did not want to go back to jail because he would lose his job. The patrol officer had to call for back up assistance, and it took three officers to take the Respondent down to the ground to handcuff and arrest him. Although the Respondent's breathalyzer showed 13 to 14 percent blood alcohol, there was no evidence whether the breathalyzer was properly calibrated. However, the Respondent failed all four field sobriety tests, and it is found that he was intoxicated at the time of his arrest. Criminal charges are pending against the Respondent.

    He has failed to appear for criminal court proceedings, and there is an outstanding warrant for his arrest.

    
    

    CONCLUSIONS OF LAW

    
    

11. The burden is on the Petitioner in this case to prove the allegations in the Administrative Complaint against the Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

12. Section 231.28, Fla. Stat. (1989), provides in pertinent part:

    
    

    1. The Education Practices Commission [EPC] shall have authority to suspend the teaching certificated of any [teacher] for a period of time not to exceed 3 years, thereby denying that

       person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to

       the provisions of subsection (4); to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law, provided it can be shown that such person:

       
       

       (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;

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

       
       

       (h) Has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

    2. The plea of guilty in any court, the decision

       of guilty by any court, the forfeiture by the teaching certificateholder of a bond in any court of law, or

       the written acknowledgment, duly witnessed, of offenses

       listed in subsection (1) to the superintendent or a duly appointed representative or to the school board shall be prima facie proof of grounds for revocation of the certificate as listed in subsection (1) in the

       absence of proof by the certificateholder that the plea of guilty, forfeiture of bond, or admission of guilt was caused by threats, coercion, or fraudulent means.

       
       

       (4)(a) A teaching certificate which has been suspended under this section is automatically reinstated at the end of the suspension period, provided such certificate did not expire during the period of suspension. If the certificate expired during the period of suspension, the holder of the former certificate may secure a new certificate by making application therefor and by meeting the certification requirements of the state board current a the time of the application for the new certificate.

       (b) A person whose teaching certificate has been revoked under this section may apply for a new certificate at the expiration of that period of ineligibility fixed by the Education Practices Commission by making application therefor and by meeting the certification requirements of the state board current at the time of the application for the new certificate.

       
       

13. F.A.C. Rule 6B-4.009 sets out the following definitions of gross immorality and moral turpitude for use in proceedings for dismissal or suspension from employment with a school district:

    
    

    (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.

    
    

14. It is concluded that the evidence did not prove that the Respondent was guilty of gross immorality or acts of moral turpitude in violation of Section 231.28(1)(c). The holding in Kiner v. State Board of Education, 344 So. 2d 656 (Fla. 1st DCA 1977), that conviction of manslaughter is prima facie evidence of an act of moral turpitude, should not be extended to a plea and adjudication of guilt for driving under the influence (unless it results in manslaughter or worse), fleeing and eluding a police officer and driving with a suspended license.

15. The evidence does prove by clear and convincing evidence that the Respondent pled and was adjudicated guilty of criminal charges other than minor traffic violations--namely, DUI and fleeing and eluding a police officer-- violations of Section 231.28(1)(e).

16. As for Section 231.28(1)(f), F.A.C. Rule 6B Misconduct in office is defined as a violation

    of the Code of Ethics of the Education Profession

    as adopted in Rule 6B

    of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B

    is so serious as to impair the individual's effectiveness in the school system.

    
    

    1. Rule 6B

       
       

       1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.

       2. Violation of any of these principles shall subject the individual to revocation or suspension

          of the individual teacher's certificate, or the other penalties as provided by law.

       3. Obligation to the student requires that the individual:

          1. Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.

    
    

    1. Obligation to the profession of education requires that the individual:

       1. Shall maintain honesty in all professional dealings.

          
          

17. The evidence proves by clear and convincing evidence that the Respondent was guilty of misconduct in office, in violation of F.A.C. Rule 6B- 4.009(3), and of personal conduct which seriously reduced his effectiveness at Southern Oaks Elementary, in violation of Section 231.28(1)(f). He lied to the school administration concerning the events of October 12, 1989, undermining the administration's confidence in his truthfulness. He also told a fellow teacher an improbable story to excuse one of his absences, also undermining her confidence in his truthfulness. He also came to school on several occasions with the strong smell of alcohol on his breath. Several teachers and administrators noticed this, and it undermined the teachers' and administration's confidence in him as the person responsible for the children in his class. On one occasion, the school's assistant principal was required to send the Respondent to get something to eat, requiring that arrangements be made to take care of the Respondent's classroom responsibilities in the meantime.

    His personal conduct on October 12, 1989, also caused difficulty in providing a substitute teacher to carry out his responsibilities to the children in his class. On October 24, 1989, the smell of alcohol on his breath, combined with his irresponsible behavior with the children under his care in the Ruth Eckerd Hall parking lot, undermined the confidence of the teacher he was with in the Respondent's abilities and responsibility as a teacher.

18. The Petitioner argues, for several reasons, that revocation is "the only authorized penalty" for the violations proven in this case. The Petitioner then argues that a two-year revocation, with a three-year period of probation after reinstatement, is the appropriate revocation. But Section 231.262(6), Fla. Stat. (1989), provides in pertinent part that, upon receipt of a hearing officer's recommended order on an administrative complaint in a teacher discipline proceeding such as this one:

A panel of the [EPC] shall enter a final order either dismissing the complaint or imposing one or more of the following penalties:

1. Revocation or suspension of a certificate.

2. Imposition of an administrative fine not to exceed $2,000 for each count or separate offense. . .

3. Placement of the teacher . . . on probation for a period of time and subject to such conditions as the commission may specify, including requiring the certified teacher . . . to complete additional appropriate college courses or work with another certified teacher.

4. Restriction of the authorized scope of practice of the teacher . . ..

5. Reprimand of the teacher . . . in writing, with a copy to be placed in the certification file of such person.

6. Imposition of an administrative sanction, upon a person whose teaching certificate has expired, for an act or acts committed while that person possessed

a teaching certificate, which sanction bars that person from applying for a new certificate for a period of 10 years or less, or permanently.

(Emphasis added.) In light of the emphasized language of the statute, since the Respondent's teacher certificate already has expired, as found, the appropriate sanction is to specify how long the Respondent should be barred from applying for a new teacher certificate. At the time of the application, consideration can be given to the necessity for placing conditions on the new certificate.

Section 231.262(6)(d) and (e).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission enter a final order finding the Respondent, Bruce R. Ferko, guilty as specified in the Findings of Fact and Conclusions of Law and imposing the sanction that he be barred from applying for a new teacher certificate for a period of two years.

RECOMMENDED this 18th day of February, 1991, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5822

To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any):

1.-2. Accepted and incorporated.

1. Rejected in part as not proven. There was no evidence to prove the third and fourth sentences. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted and incorporated.

5.-10. Accepted but subordinate, mostly to facts found.

11. Accepted and incorporated.

12.-21. Accepted but subordinate, mostly to facts found.

1. Rejected as not proven. The witnesses were not clear as to the Respondent's contract status, and there was no evidence to prove the rest of the proposed finding.

2. Accepted and incorporated to the extent not subordinate or unnecessary.

COPIES FURNISHED:

Robert J. Boyd, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Mark S. Herdman, Esquire Kelly & McKee, P.A.

Post Office Box 75638 Tampa, Florida 33675

Bruce R. Ferko

109 Collier Place, Apt. 2C Cary, North Carolina 27513

George A. Bowen

Acting Executive Director

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry Moore, Program Director Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE EDUCATION PRACTICES COMMISSION WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE EDUCATION PRACTICES COMMISSION CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

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

AGENCY FINAL ORDER

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

BEFORE THE EDUCATION PRACTICES COMMISSION

Of the State of Florida

BETTY CASTOR, as

Commissioner of Education,

Petitioner,

vs FINAL ORDER

BRUCE R. FERKO, EPC CASE NO. 90-133-RT DOAH CASE NO. 90-5822

Respondent,

/

Respondent, BRUCE R. FERKO, holds Florida educator's certificate no.

553660. Petitioner filed an Administrative Complaint seeking revocation or other disciplinary action against the certificate.

Respondent requested a formal hearing and such was held before a Division of Administrative Hearings. A Recommended Order was forwarded to the Commission pursuant to section 120.57(1), F.S., which is attached to made a part of this Order.

A panel of the Education practices commission met on April 25, 1991, in Tampa Florida to take final agency action. Petitioner was represented by Robert Boyd, Esquire. Respondent was represented by Mark Herdman, Esquire. The panel reviewed the entire record in the case.

The panel adopts the Hearing officer's Findings of Fact and conclusions of Law of the Recommended Order. The panel also adopts the Recommended Order penalty of a two year bar from reapplying for a Florida teaching certificate, as the penalty assessed by this Order with the addition of the requirement that the Respondent not be granted recertification as a Florida educator until such time that he provides the EPC written certification from a licensed psychologist, psychiatrist, ormental health counselor that he poses no threat to children and that he is capable of resuming his responsibilities as an educator, and that he has been free of use of controlled substances and alcohol for two year period prior to recertif- ication. Also as a condition on being grantedrecertification, Respondent shall provide the EPC with documentation of regular participation in Alcoholics Anonymous or Narcotics Anonymous during said two year period prior to recertification and complete a college course in classroom management. Furthermore, upon recertification and reemployment in a position requiring a Florida teaching certificate, Respondent shall serve a period of probation for the two years of such employment immediately following the effective date of this Order. Conditions of such probation shall be that Respondent notify the EPC immediately upon reemployment in a position requiring a Florida teachingcertificate and arrange for his immediate supervisor to submit performance reports on Respondent to the EPC at least every three months. Furthermore, as conditions of probation, Respondent shall obtain counseling from a licensed psychologist, psychiatrist or mental health counselor untilreleased from counseling, and Respondent shall not consume, ingest or inject alcohol or controlled substances. All costs of probation to be borne by the Respondent. The above stated increase of the penalty over that in the Recommended Order was specifically made to assure the safety of the children with whom the Respondent may come into contact with as a teacher.Specific references to the record supporting the necessity of this increase are the statements made in paragraphs 3, 4, 5 and 6 of the Findings of Fact in the Recommended Order. This Order takes effect upon filing.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in section 120.68(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 20 day of May , 1991.

COPIES FURNISHED TO:

Jerry Moore, Program Director Professional Practices Services BRENDA WALLACE, Presiding Officer

Daniel Bosanko, Esquire I HEREBY CERTIFY that a copy of Attorney General's Office the foregoing Order in the matter

of BC vs. Bruce R. Ferko was

Sydney McKenzie, III mailed to Mark S. Herdman,

General Counsel, Esquire, P.O.Box 7563, Tampa, Florida 33675, this 31 day

Florida Admin. Law Reports of May 1991, by U S. Mail.

Dr. J. Howard Hinesley, Supt. Pinellas County Schools

1960 East Druid Road Clearwater, Florida 33546

Steve Crosby, Director Personnel Services Pinellas County schools

J. Lawrence Johnston, Hearing Officer Robert Boyd, Esquire Div. of Administrative Hearings Department of Education

The DeSoto Building 325 W. Gaines St., Room 354

1230 Apalachee Parkway Tallahassee, Florida 32599

Tallahassee, Florida 32399-1550

Docket for Case No: 90-005822

Orders for Case No: 90-005822