STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2250

)

DONNY R. MCCOY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on September 13, 1993 in Tallahassee, Florida.

APPEARANCES

For Petitioner: Gregory Chaires, Esquire

Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

and

Jill M. Boyd, Esquire Bond & Boyd, P.A.

411 East College Avenue Post Office Box 26 Tallahassee, Florida 32302

For Respondent: Thomas H. Lanham, Esquire

1900 South Harbor City Boulevard Melbourne, Florida 32901

STATEMENT OF THE ISSUES

An amended administrative complaint dated February 22, 1992 alleges that Respondent violated several provisions of Section 231.28(1), F.S. and Rule 6B- 1.006(5), F.A.C. Those alleged violations are based on incidents of criminal conduct in 1978 and 1989, and Respondent's failure to disclose the incidents on various employment or teaching certificate applications. The issue in this proceeding is whether the alleged violations occurred, and if so, what discipline is appropriate.

PRELIMINARY STATEMENT

Respondent, through counsel, answered the amended complaint and requested a formal administrative hearing. On April 14, 1993, the case was referred to the Division of Administrative Hearings, and after several continuances for good cause, the case proceeded to hearing as described above.

At the hearing, Petitioner presented a single witness and eight exhibits marked and received in evidence without objection as Petitioner's exhibits #1-8.

Respondent testified in his own behalf and his exhibits #1-5 were received in evidence without objection.

A transcript was filed on September 23, 1993 and thereafter, after a request for extension was granted, both parties filed proposed recommended orders. The findings of fact proposed by each are addressed in the attached appendix.

FINDINGS OF FACT

1. Respondent, Donny R. McCoy (McCoy) currently holds teaching certificate number 431066, in the areas of childhood education, mental retardation, elementary education and English as a second or other language. His recently- renewed certificate is valid through June 30, 1998.

   
   

2. McCoy submitted applications for extension of his Florida teacher's certificate, signed and notarized October 1, 1982 and December 8, 1987. He also submitted an application for addition to his Florida teacher's certificate signed and notarized July 30, 1985. McCoy's application for a professional position with the Brevard County School District was dated September 1, 1990.

   In each of these applications, he responded "no" to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?"

   
   

3. McCoy was hired as a kindergarten teacher at Gardendale Elementary School in the Brevard County School District from July 15, 1991 until September 20, 1991. As a result of his employment, the school district ran a background check and through the Federal Bureau of Investigation (F.B.I.) learned that McCoy had been involved in two criminal proceedings, one involving illegally importing parrots and the other involving charges of indecent exposure.

   
   

4. McCoy resigned from his position effective September 20, 1991, and the Department of Education, Office of Professional Practice Services was notified. That office commenced an investigation consisting primarily of gathering court documents regarding the criminal cases. The investigation addressed three issues: the arrest and conviction for importing parrots, the arrest for indecent exposure, and McCoy's failure to acknowledge the incidents on his applications described above.

   
   

5. McCoy was twenty-three years old on January 29, 1978 when he and a friend were arrested and charged with illegally shipping two parrots from Mexico to the United States. The Judgement Order of the U.S. District Court for the Southern District of Texas, Brownsville Division, reflects that McCoy had counsel, pled guilty and was adjudged guilty. A fine of $100.00 was imposed.

6. McCoy was scared and remembers only going to court and leaving. Discussions were held between the attorney and the magistrate and McCoy has no recollection of the guilty plea. He felt the case was dismissed; someone else, his friend or the friend's father must have paid the fine.

   
   

7. From 1979 until 1991, McCoy worked as a teacher in various places, including Broward County, Florida; Tokyo, Japan, for the Department of Defense; Alachua County, Florida; and St. Louis, Missouri. He claims he has been fingerprinted and had background investigations for these positions and never before has he been informed of the smuggling conviction on his record. He has told people about the parrot incident, but never put it on his application forms because he believed the case was dismissed. The application forms clearly inquire about convictions or adjudications withheld, not arrests.

   
   

8. After the Brevard County background check, McCoy's attorney obtained an

   F.B.I. identification record on Donny McCoy. That record, dated 9/3/91, and provided to McCoy after he resigned from his Brevard County teaching position, reflects that the parrot charge was dismissed.

   
   

9. On January 25, 1989 in Tazewell County, Illinois, McCoy was charged by information with three counts of "public indecency" in that he publicly "exposed his sex organ in a lewd manner." (Petitioner's Exhibit 6) Two of the counts were dismissed and the third was reduced to disorderly conduct. McCoy pled guilty to the count of disorderly conduct and adjudication was deferred on February 27, 1990. He was placed on twelve months supervision, was required to attend counselling, and was fined $100.00, plus $80.00 in court costs. After he complied with all the conditions of supervision, the case was dismissed on February 5, 1991.

   
   

10. The case had not been dismissed as of September 1, 1990, the date of McCoy's Brevard County School District application. As of that date, he was still under supervision and adjudication was deferred. His "no" response described in paragraph 2, above, was untruthful.

    
    

11. At some time prior to the hearing in this proceeding, McCoy, or his attorney sent to the Department of Education an affidavit that he had executed on February 7, 1992 and the copy of a polygraph report dated April 3, 1989. The polygraph report is referenced in the affidavit. The substance of these documents is an admission by McCoy that he had exposed his underwear and, at most, his pubic hair, but not his penis, to a high school youth he encountered on the street. He had done this on more than one occasion for the purpose of determining whether the individual might be gay. He did this because someone had done it to him. He participated in counselling and understood the reason for his behavior. He disavowed any desire to repeat the behavior.

    
    

12. Throughout his teaching career, McCoy has received a series of excellent recommendations and commendations. He admits that none of the authors of those letters is aware of the Illinois incident.

    
    

13. A criminal record does not automatically reduce a teacher's effectiveness or make him ineligible for licensure. The Department of Education, Office of Professional Practices Services looks beyond the criminal charge and disposition to the underlying incident and circumstances. In this case, it had McCoy's own explanation of the Illinois incident and it had the applications which he had submitted. These documents and the agency's long- standing policy of taking very seriously any sexual charges involving teachers,

    a policy reasonably based on the expectations of the public that children should be safe with people employed in schools, resulted in the agency's determination that McCoy is unfit to hold a teaching certificate in Florida.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S. and Section 231.262(5), F.S. (1992 Supp.).

    
    

15. Petitioner has the burden of proving its charges with evidence that is clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

16. The violations with which McCoy is charged are described in the following provisions of Section 231.28, F.S. and Rule 6B-1.006(5), F.A.C. Section 231.28, Florida Statutes, provides, in pertinent part:

    
    

    1. The Education Practices Commission shall have authority to suspend the teaching certificate of any person as defined in s. 228.04(9) or (10) 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 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:

       1. Obtained the teaching certificate by fraudulent means;

          * * *

          (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 certificate holder 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 certificate holder that the plea of guilty, forfeiture of bond, or admission of guilty was caused by threats, coercion, or fraudulent means.

       
       

       Rule 6B-1.006(5), F.A.C., provides, in pertinent part:

       
       

       Obligation to the profession of education requires that the individual:

       1. Shall maintain honesty in all professional dealings.

          * * *

          1. Shall not submit fraudulent information on any document in connection with professional activities.

             * * *

          2. Shall not make any fraudulent statement or fail to disclose a material fact in his application for a professional position.

          
          

17. The parrot smuggling incident may be regarded a youthful indiscretion and McCoy's explanation of why he never disclosed the criminal violation is reasonable. Moreover, the evidence of disposition of the case is itself unclear and inconsistent. That is, one report reflects a guilty adjudication, the other reflects dismissal.

    
    

18. The Illinois incident may not be so readily disregarded. McCoy's own admissions at hearing and to the agency in its investigation provide the description of the underlying incident as bizarre conduct, sexual in nature, and involving several youths. It is that underlying conduct, and not the criminal charge or its eventual disposition, which provides the basis here for disciplinary action. Walton v. Turlington 444 So.2d 1082 (Fla. 1st DCA 1984)

    
    

19. Rule 6B-4.009(2), F.A.C. defines immorality as

    
    

    "conduct that is inconsistent with the standards of the 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 individuals services in the community."

    
    

    McCoy's conduct of exposure, whether he exposed his penis or simply his underwear and pubic hair, constitutes gross immorality and seriously reduces his effectiveness as an employee of the school board.

    
    

20. McCoy's failure to disclose the Illinois case on his Brevard County School District application in September 1990, before the case was dismissed, was dishonest and fraudulent.

21. Petitioner has met its burden of proving the violations of Section 231.28(1)(c),(f) and (h), F.S. and Rules 6B-1.006(5)(a),(g) and (h), F.A.C.

    
    

22. Section 231.262(5), F.A.C. requires that the hearing officer make a recommendation to the Education Practices Commission in accordance with subsection (6). That subsection provides for a range of penalties including revocation or suspension of a certificate, probation, restriction of scope of practice, reprimand and imposition of an administrative sanction.

    
    

23. Counsel for Petitioner suggests a penalty of revocation for five years, followed by two years' probation. As reflected above, some, but not all of the charges of the amended complaint were proven and a less severe penalty is appropriate.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

that a final order be entered finding that Respondent, Donny McCoy violated Sections 231.28(1)(c), (f) and (h), F.S., and Rules 6B-1.006(5)(a), (g) and (h), F.A.C., and imposing the following penalty: three years suspension, followed by two years probation, under terms to be specified by the Educational Practices Commission, which terms should assist in insuring that Respondent does not represent a threat to the safety or well-being of students under his responsibility.

DONE AND RECOMMENDED this 9th day of December, 1993, in Tallahassee, Florida.

MARY CLARK

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 9th day of December, 1993.

APPENDIX TO RECOMMENDED ORDER, DOAH CASE NO. 93-2250

The following constitute rulings on the findings of fact proposed by each party:

Petitioner's Proposed Findings

1. Adopted in paragraph 1.

2. Adopted in paragraph 3.

3. Adopted in paragraph 5 to the extent that the referenced exhibit reflects those findings. However, other evidence conflicts with, or supplements the disposition of the case.

4. Adopted in paragraph 9.

5. and 6. Adopted in paragraph 2.

1. Adopted in paragraphs 3 and 4.

2. Rejected as unnecessary.

3. Adopted in paragraph 13.

4. Adopted in paragraph 11.

5. Adopted in paragraph 4.

Respondent's Proposed Findings

1. and 2. Adopted in paragraph 1.

1. Adopted in paragraphs 3 and 4, except that it was not established the resignation was "forced".

2. Rejected as unsubstantiated by evidence.

3. Reflected in the Administrative Complaint and unnecessary.

4. Adopted in paragraph 5.

5. Rejected as to the Illinois incident; adopted as to the Texas incident, see paragraph 6.

6. Rejected as contrary to the weight of evidence.

7. Adopted in paragraph 7.

8. Rejected as unnecessary.

9. Adopted in paragraph 9.

10. Rejected as contrary to the weight of evidence.

11. Adopted in paragraph 12.

12. Rejected as contrary to the weight of evidence.

COPIES FURNISHED:

Gregory Chaires, Esquire Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jill M. Boyd, Esquire Bond & Boyd, P.A.

411 East College Avenue Post Office Box 26 Tallahassee, Florida 32302

Thomas H. Lanham, Esquire

1900 South Harbor City Boulevard Melbourne, Florida 32901

Karen B. Wilde, Executive Director Education Practices Commission Florida Education Center, Room 301 Tallahassee, Florida 32399

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Sydney H. McKenzie, General Counsel Department of Education

The Capitol, PL-08

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 93-002250

Orders for Case No: 93-002250