STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN as ) COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2470

)

RALPH RECO MARSHALL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on March 20, 1997, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Barbara J. Staros, Esquire

131 North Gadsden Street Tallahassee, Florida 32301-1507

For Respondent: Reese Marshall, Esquire

214 East Ashley Street Jacksonville, Florida 32202-3120

STATEMENT OF THE ISSUE

The issue is whether respondent's teaching certificate should be disciplined for the reasons cited in the amended administrative complaint filed on March 21, 1996.

PRELIMINARY STATEMENT

This matter began on February 25, 1995, when petitioner, Frank T. Brogan, as Commissioner of Education, issued an administrative complaint alleging that respondent, Ralph Reco Marshall, a licensed teacher, had violated Section 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(5)(a) and (o), Florida Administrative Code, by failing to comply with the terms of his probation as mandated by a stipulated settlement approved by the Education Practices Commission on December 10, 1992. On March 21, 1996, petitioner amended its complaint by adding an allegation that on December 1, 1995, respondent entered a plea of guilty to a charge of armed kidnapping and was sentenced to a term of five years imprisonment, with a three year mandatory minimum. According to the amended complaint, this conduct violated Sections 231.28(1)(c), (e) and (f), Florida Statutes. Respondent disputed the above allegations and requested a formal hearing to contest the agency's proposed action. The matter was referred by petitioner to the Division of Administrative Hearings on May 15, 1995, with a request that an Administrative Law Judge be assigned to conduct a formal hearing.

By Notice of Hearing dated June 7, 1995, a final hearing was scheduled on October 9, 1995, in Jacksonville, Florida. At petitioner’s request, the matter was rescheduled to April 2, 1996, then to December 10, 1996, and finally to March 20, 1997, at the same location.

At final hearing, petitioner presented the testimony of Karen Barr Wilde, executive director of the Education Practices Commission; B. J. McDuffy, former principal at Grand Park Career Center; and Patrick T. Ahern, former principal at Fort Caroline Middle School. Also, it offered petitioner's exhibits 1 and 2. Both exhibits were received in evidence. Respondent offered respondent’s exhibit 1 which was received in evidence.

The transcript of hearing was filed on April 11, 1997. Proposed findings of fact and conclusions of law were filed by petitioner on April 26, 1997, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

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

1. Background

   
   

   1. Respondent, Ralph Rico Marshall, is a licensed teacher having been issued certificate number 497505 by the Department of Education. The certificate covers the areas of guidance counseling and industrial arts and technology education, and is valid through June 30, 1999. In this proceeding, petitioner, Frank T. Brogan, as Commissioner of Education, seeks to discipline respondent’s license on the grounds he allegedly violated state law and two rules.

   2. In an amended administrative complaint filed on March 21, 1996, petitioner has alleged generally that (a) after June

      18, 1993, respondent failed to comply in various respects with the terms of his probation as set forth in a final order issued by the Education Practices Commission (EPC) on December 10, 1992, and (b) on December 1, 1995, respondent pled guilty to a charge of armed kidnapping, a felony. Respondent has denied these allegations and initiated this proceeding to contest the charges.

2. The Felony Charge

   
   

   1. As to the charge that respondent has been convicted of a felony, the evidence shows that on December 1, 1995, respondent pled guilty to a charge of armed kidnapping and was sentenced to a term of five years in state prison with three years minimum mandatory. He is now incarcerated at a facility in Lake County, Florida.

   2. After being incarcerated, petitioner filed for post- conviction relief under Florida Rule of Criminal Procedure 3.850 claiming that his trial counsel was ineffective and that the minimum three-year sentence was illegal. The trial court denied his motion on April 11, 1996. In the case of Ralph Marshall v. State of Florida, 685 So.2d 63 (Fla. 1st DCA 1996), the court reversed the trial court’s order and held in relevant part as follows:

   The portions of the record attached to the trial court’s order denying relief do not conclusively show that appellant is entitled to no relief on these claims. Accordingly, we reverse and remand. If the trial court again determines that appellant is entitled to no relief, it shall attach to its order those portions of the record which

   conclusively establish that. Id. at 63.

   
   

   1. On remand, the trial court entered an order on February 21, 1997, again denying respondent’s post-conviction relief. On March 6, 1997, respondent filed a notice of appeal of that order with the Fourth District Court of Appeal. The matter is now pending before that court.

3. Compliance With Terms of Probation

1. In school year 1992-93, respondent was employed at Mattie Rutherford Alternative Education Center. After an administrative complaint was issued by petitioner, a settlement was reached by the parties. On December 10, 1992, the EPC entered its final order approving a settlement agreement with respondent, reprimanding him, and placing him on three years’ probation, or until December 10, 1995. Among other things, respondent agreed, as a condition of probation, to

   immediately contact the EPC upon any reemployment in the teaching profession within the State of Florida, indicating the name and address of the school at which he is employed, as well as the name, address and telephone number of his immediate supervisor; (and)

   
   

   make arrangements for his immediate supervisor to provide the Education Practices Commission with quarterly reports of the Respondent’s performance, including but not limited to compliance with school rules and school district regulations and any disciplinary actions imposed upon the Respondent by his immediate supervisor or by the school district; (and)

   make arrangements for his immediate

   supervisor to provide the Education Practices Commission with a true and accurate copy of each written performance evaluation or assessment prepared by his supervisor within ten (10) days of its issuance; (and)

   
   

   satisfactorily perform his assigned duties in a competent, professional manner;

2. In addition, paragraph 6 of the agreement provided that in the event that the Respondent fails to

   comply with any term or condition of this agreement, the Petitioner will be authorized to file an Administrative Complaint seeking further sanctions or revocation of the Respondent’s certificate, based upon violation of the terms of probation set forth herein.

   An alleged violation of the agreement forms the basis, in part, for the issuance of the amended administrative complaint.

3. On January 19, 1993, the EPC sent respondent a letter specifying the conditions of probation enumerated in the order. On February 17, 1993, a second letter was sent by the EPC reminding him of these conditions. Therefore, there can be no doubt that respondent was aware of the probationary requirements imposed under the settlement agreement.

4. Respondent timely filed his quarterly performance reports for the months of March and June 1993. While acknowledging that the reports had been timely filed, the EPC cautioned him that he needed improvement in the areas of classroom management and teacher-student relationships.

5. In school year 1993-94, respondent was transferred to the pretrial detention center of the Grand Park Career Center

   where he served as a guidance counselor. Before his transfer, respondent was notified by letter dated July 23, 1993, that his next performance report would be due by September 10, 1993. He was also told in a telephone call with the EPC executive director on August 2, 1993, that he should “call if you are reassigned and have a different principal.”

6. On February 14, 1994, respondent was advised by letter from the EPC that the first two reports of his performance during school year 1993-94 had been due on September 10 and December 10, 1993, but had not yet been filed. He was told to arrange for their submission by March 1, 1994.

7. When the reports were still not filed by the latter part of May, the EPC’s executive director made inquiry with respondent’s former principal and learned for the first time that respondent had been transferred to Grand Park Career Center. She then contacted the principal of Grand Park Career Center, Dr. McDuffie, and asked that he forward a copy of respondent’s annual evalution. Until that time, Dr. McDuffie did not know that respondent was on probation or that performance reports were to be filed. By failing to advise the EPC of his new employer, and to file his performance reports on a timely basis, respondent violated the terms of his probation. He also failed to maintain honesty in his professional dealings by not notifying his supervisor of the reporting requirements.

8. In an undated letter sent to the EPC several months

   later, respondent stated that due to a “very busy (school) year,” he “forgot to get the necessary reports completed,” and this oversight “was not intentional.” This explanation, however, is not found to be credible or a valid excuse for his conduct. He also advised that he had been reassigned to the Fort Caroline Middle School for school year 1994-95.

9. In school year 1994-95, respondent again failed to have his immediate supervisor, Patrick T. Ahern, file the quarterly performance reports. Notwithstanding this omission, in a letter to the EPC dated May 17, 1995, respondent asked if any reports for the year had been filed. He also represented that he had met with Ahern on January 5, 1995, regarding the need for such reports. At hearing, however, Ahern established that until he was contacted by the EPC at the end of the school year, and asked to provide a report, he was not aware of the fact that respondent was on probation or that quarterly performance reports were to be filed. By failing to file the required reports during the school year, respondent violated the terms of his probation. Respondent also failed to maintain honesty in his professional dealings by not notifying his supervisor of the reporting requirements.

10. No evidence was presented on the issue of whether respondent’s personal conduct has seriously reduced his effectiveness as a teacher.

11. At hearing, respondent suggested that because his overall evaluations in school years 1993-94 and 1994-95 were

    satisfactory, he fulfilled the terms of his probation. However, the performance of his duties in a competent, professional manner was but one of several conditions imposed by the EPC. Respondent also suggested that he was required to notify the EPC of new job assignments only if he accepted a job outside of the Duval County School District. This interpretation, however, is not reasonable and is contrary to the written instructions given to him in the EPC’s letter dated January 19, 1993, and verbal instructions given to him on August 2, 1993, by the EPC executive director. Respondent further suggested that he was told by someone at EPC that an annual performance report would satisfy all reporting requirements. This assertion, however, is not supported by the evidence. Finally, as to his felony conviction, respondent contended that until his appeal is concluded, the EPC should not pursue this action. For the reasons given in the Conclusions of Law portion of this order, this contention is found to be without merit.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes.

13. Because respondent's teaching certificate is at risk, petitioner bears the burden of proving the allegations in the complaint by clear and convincing evidence. See, e.g., Ferris v. Turlington, 510 So.2d 292, 294 (Fla. 1987).

14. The administrative complaint, as amended, alleges that respondent violated Sections 231.28(1)(c), (e), (f), and (i), Florida Statutes, and Rules 6B-1.006(5)(a) and (o), Florida Administrative Code, by failing to conform with the terms of his probation and having been convicted of a felony. Those statutes authorize the Education Practices Commission to take disciplinary action against a licensee if it can be shown that such person:

    (c) Has been found 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;

    
    

    (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules;

    
    

    The two rules require that an educator maintain honesty in all professional dealings and comply with the conditions of an order of the EPC imposing probation.

15. By clear and convincing evidence, petitioner has demonstrated that respondent has been convicted of a felony in violation of section 231.28(1)(e). Because the crime of armed kidnapping is clearly an act involving moral turpitude, respondent is also guilty of violating section 231.28(1)(c). Next, by clear and convincing evidence, petitioner has established that by not filing the required performance reports in school years 1993-94 and 1994-95, or notifying EPC of a change in his employment for school year 1993-94, respondent has violated rule 6B-1.006(5)(o), which requires that an educator comply with the conditions of an order of the EPC imposing probation. Likewise, by failing to notify his current supervisors of the reporting requirements, respondent did not maintain honesty in his professional dealings in contravention of rule 6B-1.006(5)(a). These rule violations constitute a violation of section 231.28(1)(i).

16. As to the allegation that respondent “has been found

    guilty of personal conduct which seriously reduces (his) effectiveness as an employee of the school board,” this charge must fail since there was no evidence presented on this issue. See, e.g., Braddock v. School Bd. of Nassau County, 455 So.2d 394 (Fla. 1st DCA 1984)(to substantiate such a charge, there must be evidence adduced at hearing that licensee’s effectiveness as a teacher was impaired or diminished in some way).

17. In reaching the above conclusions, the undersigned has considered respondent’s contention, as to the felony conviction, that petitioner must await the outcome of his appeal before seeking to discipline his teaching certificate. But the law is clear that petitioner need not wait the outcome of his appeal. See, e.g., Rife v. Dep’t of Pro. Reg., 638 So.2d 542, 543 (Fla. 2nd DCA 1994)(“the Board was authorized to revoke Dr. Rife’s license, even though there are appellate proceedings pending in Vermont”); Dep’t of Pro. Reg. v. Stern, 522 So.2d 77, 79 (Fla. 3d DCA 1988)(abuse of discretion to delay state license revocation proceedings pending exhaustion of appellate process).

18. Rule 6B-11.007, Florida Administrative Code, contains the disciplinary guidelines to apply to statutory and rule violations. For violating the terms of probation, paragraph (2)(c) of the rule calls for a penalty ranging from a period of one year probation to a three-year suspension of a license. For committing a felony, paragraph (2)(g) of the rule specifies a penalty ranging from suspension to revocation of one’s license.

Through its counsel, petitioner recommends permanent revocation of respondent’s license. Given the circumstances here, and the lack of any mitigating considerations, this penalty is found to be appropriate.

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 respondent guilty of violating Sections 231.28(1)(a), (c), and (i), Florida Statutes, and Rules 6B- 1.006(5)(a) and (o), Florida Administrative Code, and that his teaching certificate be permanently revoked.

DONE AND ENTERED this 6th day of May, 1997, in Tallahassee, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1997.

COPIES FURNISHED:

Karen B. Wilde, Executive Director Education Practices Commission

224-B Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Barbara J. Staros, Esquire

131 North Gadsden Street Tallahassee, Florida 32301-1507

Reese Marshall, Esquire

214 Ashley Street

Jacksonville, Florida 32202-3120

Michael H. Olenick, Esquire 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 within fifteen days of this order. Any exceptions to this Recommended Order should be filed with the Education Practices Commission.

Docket for Case No: 95-002470

Orders for Case No: 95-002470