vs. ) CASE NO. 91-0651
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on May 30, 1991, in Miami, Florida.
For Petitioner: Madelyn P. Schere, Esquire
2929 S.W. 3rd Avenue Suite One
At issue in this proceeding is whether respondent misrepresented his professional qualifications when he applied for continued employment with petitioner and, if so, what disciplinary action, if any, should be taken against him.
On January 9, 1991, petitioner, School Board of Dade County, Florida (Board), suspended respondent, Ugene Adkins (Adkins), from employment and initiated dismissal proceedings against him. Adkins filed a timely request for formal hearing to challenge the Board's action, and the matter was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.
By specific notice of charges filed February 7, 1991, the Board charged that Adkins submitted a falsified Florida Teachers Certification Examination report, which reflected that he had passed the writing portion of such examination, for the purpose of gaining continued employment with the Board, and that as a consequence of such misrepresentation he secured continued employment with the Board until such time as his deception was discovered and these
proceedings commenced. Based on such conduct, the Board contends that Adkins violated the provisions of Section 231.36(6)(a), Florida Statutes, Rules 6B- 1.001, 6B-1.006, and 6B-4.009, Florida Administrative Code, and proposes to take disciplinary action against him.
At hearing, the Board called Richard Matthews, Turner Jackson Carter, John Layva, Jeannine Marcy, and Joyce Annunziata as witnesses, and its exhibits 1-8 were received into evidence. Adkins testified on his own behalf, and his exhibit 1 was received into evidence. Additionally, joint exhibit 1 (the parties' stipulation as to facts) was received into evidence.
Since the transcript of hearing was not ordered, the parties were granted leave until June 10, 1991, to file proposed findings of fact. The parties' proposed findings are addressed in the appendix to this recommended order.
Pertinent to this case, respondent, Ugene Adkins (Adkins), has been employed by petitioner, School Board of Dade County, Florida (Board), since September 1985, as an auto mechanics instructor, and assigned to Robert Morgan Vocational Technical Institute.
Commencing with the 1985-86 school year, Adkins received an annual contract from the Board, pursuant to Section 231.36(1)(a), Florida Statutes, for five consecutive years, based upon one-year temporary nondegreed vocational certificates issued by the Department of Education. His fifth temporary certificate expired on June 30, 1990, and he was not thereafter eligible for continued certification and employment, under the law as it had existed from the inception of his employment, absent successful completion of all portions of the Florida Teacher Certification Examination (FTCE). 1/ See Section 231.17(2)(g), Florida Statutes (1989).
Adkins was well aware of the foregoing requirement, and took the FTCE on several occasions during the term of his employment; however, he never successfully passed the writing portion of the examination.
Unbeknownst to Adkins or the Board's certification office, Section 231.1725, Florida Statutes (1990), became law on July 3, 1990, retroactive to June 29, 1990. That law effectively exempted nondegreed teachers of vocational programs from the certification requirements of Section 231.17, Florida Statutes, and provided that the school boards would establish the qualifications for such teachers. In establishing such qualifications, the new law did not mandate taking or successfully completing the FTCE, and the Board's rule, 6Gx13- 4-1.007, passed the afternoon of July 25, 1990, which established the qualifications for such teachers, likewise did not require taking or successfully completing the FTCE.
By memorandum, dated July 12, 1990, the Board's certification office, unaware of any changes in existent law, notified Adkins that he had not yet provided proof of his eligibility for continued employment during the 1990-91 school year, and to do so would require, among other things, evidence that he had met the test requirements for certification by the Department of Education that applied to his position. The memorandum concluded:
IT IS YOUR RESPONSIBILITY TO ENSURE THAT THE REQUIRED INFORMATION IS RECEIVED BY THE DADE COUNTY CERTIFICATION OFFICE ON OR BEFORE JULY
27, 1990, FOR YOU TO BE CONSIDERED FOR CONTINUED EMPLOYMENT FOR THE 1990-91 SCHOOL YEAR.
On the morning of July 25, 1990, Adkins, likewise unaware of any changes in existent law, presented to the Board's certification clerk an FTCE report, which he had altered to reflect that he had passed the writing portion of such examination, for the purpose of gaining continued employment with the Board. As a consequence of such misrepresentation, the clerk issued Adkins a clearance of employment form for the 1990-91 school year, based on her assumption that Adkins had passed all portions of the FTCE, and was therefore eligible for certification by the Department of Education.
At hearing, the Board contended that, notwithstanding the enactment of Section 231.1725, Florida Statutes, and the existence of its Rule 6Gx13-4-1.007, Adkins' failure to successfully complete all parts of the FTCE, and therefore qualify for certification by the Department of Education under prior law, precluded his reemployment for the 1990-91 school year. To support this position, the Board points to Section 231.17(7), Florida Statutes (1990), which provides:
PRIOR APPLICATION. -- Those persons who applied for initial regular or temporary certification under the law preceding July 1, 1990, shall be governed by the law and rules in effect at the time of application for issuance of the initial certificate.
Based on such provision, the Board concludes that, notwithstanding the absence of any present need to satisfy FTCE requirements to qualify for employment as a nondegreed teacher of vocational education, Adkins' failure to pass all portions of the FTCE, and therefore qualify for certification by the Department of Education under prior law, precluded his reemployment. Such conclusion is, however, contrary to the express language of Section 231.1725, Florida Statutes, which expressly reposes the authority and obligation to establish the qualifications for such teachers in the school boards, notwithstanding the provisions of Section 231.17 or any other provision of law to the contrary.
Notwithstanding the Board's erroneous interpretation of existent law, the proof demonstrates that it firmly held such conviction, and that had it known Adkins had not passed the writing portion of the FTCE, and was therefore not eligible for certification by the Department of Education under prior law, it would not have reemployed him for the 1990-91 school year.
Adkins' falsification of the FTCE report to gain reemployment is common knowledge among the faculty and administration at Robert Morgan Vocational Technical Institute, and has rendered him untrustworthy in the opinion of the Board. Under such circumstances, Adkins, through his dishonesty, has seriously impaired his effectiveness in the school system.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.
Pertinent to this case, Section 231.36(6)(a), Florida Statutes, provides:
Any member of the instructional staff, excluding an employee specified in subsection (4), may be suspended or dismissed at any
time during the term of the contract; however, the charges against him must be based on just cause as provided in paragraph (1)(a).
Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay; but, if the charges are not sustained, he shall be immediately reinstated, and his back salary shall be paid.
Paragraph (1)(a) of the foregoing section defines just cause as follows:
...Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.
Rule 6B-4.009(3), Florida Administrative Code, defines misconduct in office as follows:
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.
The Code of Ethics of the Education Profession in Florida, Rule 6B-1.001(3), Florida Administrative Code, provides:
Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
And, the Principles of Professional Conduct for the Education Profession in Florida, Rule 6B-1.006, Florida Administrative Code, provides:
Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
* * *
Shall not misrepresent one's own professional qualifications.
Shall not submit fraudulent information on any document in connection with professional activities.
Shall not make any fraudulent statement or fail to disclose a material fact in one's own or another's application for a professional position.
Here, the proof demonstrates that Adkins' conduct, as set forth in the findings of fact, violated the provisions of Section 231.36, Florida Statutes, and Rules 6B-1.001(3), 6B-1.006(4)(a), (f), (g), and (h), and 6B-4.009(3), Florida Administrative Code.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which sustains Adkins' suspension
without pay, and which dismisses him from employment with the Board.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1991.
WILLIAM J. KENDRICK
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 21st day of June 1991.
ENDNOTES
1/ Section 231.17(2)(g), Florida Statutes, permitted nondegreed teachers of vocational education to defer the examination requirements for a five-year professional certificate for up to five years; however, all such requirements had to be met prior to beginning the sixth year of employment.
APPENDIX TO RECOMMENDED ORDER
The Board's proposed findings of fact are addressed as follows: 1-3. Addressed in paragraph 1.
4-8. Addressed in paragraphs 2 and 3.
9-13. Addressed in paragraphs 4-6.
Addressed in paragraphs 7-9.
Rejected as not a finding of fact, but comment on the evidence.
Addressed in paragraph 8.
Addressed in paragraph 10.
1-5. To the extent necessary, addressed in paragraphs 1 and 2.
6. Addressed in paragraphs 3 and 5.
7 & 8. Rejected as not supported by credible proof.
Madelyn P. Schere, Esquire
William Du Fresne, Esquire 2929 S.W. 3rd Avenue
Dr. Joseph A. Fernandez, Superintendent Dade County School Board
1450 N.E. 2nd Avenue Miami, Florida 33132
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
