vs. ) CASE NO. 96-5512
FRANK T. BROGAN, )
Respondent. )
The parties presented the case through exhibits to Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: John J. Chamblee, Jr.
Law Offices of John J. Chamblee, Jr.
For Respondent: Attorney Bruce P. Taylor
501 First Avenue North, Suite 600 St. Petersburg, Florida 33701
The issue is whether Petitioner is entitled to the issuance of a teacher certificate despite two convictions for driving under the influence, including one for manslaughter, and the failure to disclose on her application two teenaged offenses--one resulting in a petit theft conviction for shoplifting and one resulting in a dismissed charge for giving false information of an accident.
By application dated April 12, 1995, Petitioner requested an educator’s certificate. Respondent denied the application, citing various reasons in a Notice of Reasons dated August 7, 1995, and later supplemented with the second conviction for driving under the influence.
The parties elected to present the case without a hearing.
Petitioner filed 11 exhibits, and Respondent filed nine exhibits. All exhibits were admitted.
By application dated April 12, 1995, Petitioner applied for an Florida educator’s certificate from Respondent.
By Notice of Reasons dated August 7, 1995, Respondent rejected the application. In the Notice of Reasons, Respondent stated that on July 7, 1980, Petitioner pleaded guilty to petit theft in Lee County, for which she was sentenced to six months’ probation and $221.05 in fines and costs; on September 3, 1981, Petitioner pleaded no contest to a charge of giving false information of accident, as to which the court dismissed the charge; on July 16, 1987, Petitioner drove her vehicle while intoxicated and had an accident that killed her passenger, for which she was adjudicated guilty of driving under the influence and manslaughter and sentenced to three years in jail, 12 years’ probation, counseling, 50 hours of community service, limited driving privileges, and $250 in court costs; and Petitioner
submitted an application for a Florida educator’s certificate notarized on August 12, 1994, and, in responding to a question as to convictions or no-contest pleas, disclosed the DUI/manslaughter conviction, but not the conviction for petit theft and no contest plea to giving false information of accident.
With leave of the administrative law judge, Respondent amended the Notice of Reasons to add the additional reason that, on July 19, 1995, Petitioner operated a motor vehicle while under the influence. On December 13, 1995, she was convicted of her second offense of driving under the influence of alcohol and sentenced to 270 days in jail, a $1000 fine, permanent revocation of her driver’s license, one year’s probation, and $230 in court costs.
The Notice of Reasons states that Section 231.17(1)(c)6 requires good moral character of holders of Florida educator’s certificates. Section 231.17(5)(a) authorizes Respondent to deny an application for an educator’s certificate if he possesses evidence that the applicant has committed an act for which the Education Practices Commission would be authorized to revoke the certificate.
The Notice of Reasons asserts that Petitioner has been guilty of gross immorality or moral turpitude, in violation of Section 231.28(1)(c); a conviction of a criminal charge, other than a minor traffic violation, in violation of Section
231.28(1)(e); a violation of the Principles of Professional Conduct for the Teaching Profession, as set forth in the Department of Education (DOE) rules; failure to maintain honesty in all of her professional dealings, in violation of Rule
6B-1.006(5)(a); submission of fraudulent information on documents in connection with professional activities, in violation of Rule 6B-1.006(5)(h); and making fraudulent statements or failure to disclose a material fact on her application for a professional position, in violation of Rule 6B-1.006(5)(i).
Petitioner admits all of the factual assertions in the Notice of Reasons through the manslaughter conviction for driving under the influence. As to the 1994 application, Petitioner admits the basic facts, but denies that the omissions constituted the submission of fraudulent information. The question to which Petitioner responded asks:
Have you ever been convicted, found guilty, or entered a plea of nolo contendere (no contest), or had adjudication withheld in a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation); or are there any criminal charges now pending against you? . . . Failure to answer this question accurately could cause denial of certification.
Petitioner also denies all allegations contained in the Notice of Reasons that she acted fraudulently.
As to the petit theft, Petitioner was 18 years old at the time and living at her parents’ home, when, in June 1980, she and a friend shoplifted an item at a local department store. Her
parents picked her up from the store. Petitioner pleaded guilty to the charge. The court found her guilty and sentenced her to six months’ probation and $221.05 in fines and costs. Petitioner has never been involved in a similar incident.
In September 1981, when 19 years old, Petitioner pleaded no contest to the charge of giving false information of accident, and the court dismissed the charge. The record does not disclose any details concerning this charge.
When preparing the 1994 application, Petitioner neglected to mention the charges from when she was in her teens because she was preoccupied with the effect of the disclosure of the much more serious matter of the DUI--manslaughter.
The conviction for shoplifting and the dismissal of a charge of giving false information of accident, to which Petitioner nonetheless had pleaded guilty, are not material omissions. The failure to include such items, without evidence of some fraudulent intent, does not establish a lack of integrity on Petitioner’s part.
As to the driving under the influence/manslaughter conviction, Petitioner does not contest that she was at fault for causing the death of her passenger, who was her best friend, nor that Petitioner was under the influence of alcohol at the time of the accident.
Following the accident, Petitioner became involved in education efforts to prevent drunk driving, especially among
younger drivers. She spoke to teenagers at various programs around Lee County and tried to increase public awareness of the devastation caused by drinking and driving. She gave up drinking for about five years.
Petitioner successfully completed the Florida Teacher Certification Examination on January 22, 1994, and obtained her bachelor of arts from the University of South Florida College of Education on May 2, 1994. She completed her internship at Cape Elementary School in Lee County on May 2, 1994.
From August 1994 to November 1995, Petitioner was employed at Gulf Elementary School as a specific learning disabilities (SLD) teacher under principal Martin Mesch. For the 1994-95 school year and two or three months of the 1995-96 school year, Petitioner demonstrated many of the attributes of a successful teacher. She projected a caring presence in the classroom while still maintaining a professional distance that allowed her to maintain order in the challenging setting of an SLD classroom. She volunteered for the Young Writers’ Program and went out of her way to reach out to children from poorer families. She was an active part of the school, where her two children also attended.
Mr. Mesch opined that Petitioner’s past problems have not affected her ability to teach and would recommend to the School Board that she return to teach at his school. Aware of the details that contribute to effective teaching, Mr. Mesch
immerses himself in the teaching that takes place at his school and appears to be a keen judge of teaching talent. In his opinion, Petitioner is an extraordinary teacher, whose problems, if known to parents and students, would not impair her effectiveness as a teacher.
Mr. Mesch, who has served as principal or assistant principal at Gulf Elementary School for 15 years, also understands the community that his school serves. He is aware of local community values, and he emphasizes that good moral character and teacher effectiveness are based on the totality of the circumstances, not on isolated facts.
Petitioner’s tenure at Mr. Mesch’s school ended when she resigned in November 1995 to begin serving her sentence due to the second DUI charge. She resigned at Mr. Mesch’s sensible suggestion, in order to spare the school, herself, and her children adverse publicity. She served more than 200 days in jail from December 1995 to July 1996.
Petitioner disputes the underlying facts of the 1995 arrest and conviction for the second DUI offense. Although the law enforcement officer at the scene may have confused some of the details of the incident, Petitioner has not shown that she was not driving under the influence of alcohol and has not successfully mitigated the effects of the second conviction.
Petitioner admits that she had consumed an alcoholic beverage a couple of hours prior to when she was stopped.
Petitioner declined a breathalyzer test without a witness present, claiming that she did not trust the arresting officer or presumably the officer who would have administered the breathalyzer test. If she had not been drinking excessively, Petitioner made a bad choice when she declined to take the breathalyzer test. More likely, she made the bad choice a few minutes earlier when she decided to drive her car after drinking more than the single drink to which she admits.
Since the 1995 arrest in July, Petitioner has abstained from the use of alcohol and enrolled in Alcoholics Anonymous.
Petitioner has continued with treatment, last having been treated by a therapist with Southwest Florida Addiction Services in December 1996, when she successfully completed its program.
Petitioner suffers from the illnesses of alcohol abuse and bipolar disorder, but, provided she continues to receive counseling as needed, these conditions do not impair her effectiveness as a teacher.
In his proposed recommended order, Respondent does not seek permanent denial of the application, but asks that the application be denied for a period of ten years.
In her proposed recommended order, Petitioner asks for the immediate issuance of her educator’s certificate subject to restrictions, such as random testing, continued counseling, and probation.
There is no evidence whatsoever to suggest that Petitioner abused alcohol during the school day. The evidence conflicts as to whether she can ever regain her driving privileges; Petitioner testified that she believes that she can. The evidence does not suggest that Petitioner has lost her effectiveness in the classroom or that she has been guilty of moral turpitude in the omissions from the 1994 application or the two convictions for driving under the influence, including the first one for manslaughter.
The main issue in this case is to determine the effect of two convictions for driving under the influence--eight years apart--where the first one resulted in the death of another person. It is difficult to reconcile Petitioner’s expressions of remorse and edification resulting from the first incident with the occurrence of the second incident, even if the second incident were no more than driving after consuming a single
drink--though, more likely, it was more than one drink.
On the other hand, Mr. Mesch is a strong witness on Petitioner’s behalf. He works daily in the elementary school setting where Petitioner would likely return to work, if she were to receive her educator’s certificate. And Mr. Mesch displays no reservations about returning Petitioner to the classroom. In effect, by not introducing expert testimony to counter Mr. Mesch’s testimony, Respondent relies solely on the inference that two convictions for driving under the influence--with the former
conviction also involving manslaughter--ought to suffice to deny Petitioner her certificate for ten years.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)
Section 231.17(5) authorizes, but does not require, DOE to deny an application for an educator’s certificate if the applicant has committed an act for which the Education Practices Commission would be authorized to revoke the certificate.
Sections 231.28(1)(c), (e), and (i) authorize, but do not require, the Education Practices Commission to suspend or revoke an educator’s certificate if the person holding the certificate is “guilty of gross immorality or an act involving moral turpitude,” “has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation,” or has otherwise violated the law or rules of the State Board of Education. Rules 6B-1.006(5)(a), (h), and (i) require the certificate holder to be honest in all professional dealings and not to submit fraudulent information or make any fraudulent statements.
Section 231.28(2) provides that a plea of guilty or a judicial decision of guilt of any offenses listed in Section 231.28(1) is “prima facie proof of grounds for revocation ”
As the applicant, Petitioner has the burden of proof. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Petitioner has proved that the facts relied on for denial of her application for an educator’s certificate do not constitute gross immorality, moral turpitude, dishonesty, or fraud.
However, Petitioner has been convicted of criminal charges, for which she could have had her certificate revoked. Thus, Respondent may cite these grounds as reasons for denial.
But denial of the certificate for ten years is excessive. Respondent may impose restrictions upon Petitioner’s certificate to ensure that there will be no recurrence of her problem, which has been driving under the influence, not working under the influence. Respondent is justifiably concerned about not undermining educators’ efforts to prevent drug use and alcohol abuse among children, but, as is implicit in Mr. Mesch’s reasoned support for Petitioner, these issues are at most only indirectly implicated by the reintroduction of Petitioner into an elementary school where the students are of very young ages.
Nonetheless, Petitioner drove under the influence while her application for an educator’s certificate was pending.
Worse, Petitioner permitted herself to get into another situation that posed the real threat of injury to herself or others and
incarceration--just eight years after causing the death of a friend while driving under the influence
Petitioner appears to be intelligent and is highly articulate. The second incident of driving under the influence demonstrates that Petitioner has not yet grasped the enormity of her problem with drinking and driving. Her dispassionate, detailed denunciation of the police work in the 1995 arrest and conviction suggests that she still needs to apply her intelligence to greater self-insight, especially before she reenters the demanding SLD classroom.
Presently, Petitioner has been out of teaching for nearly two years. In that time, she has had an opportunity to consider her behaviors and attitudes and revisit her priorities in terms of job and family versus recreational activities. This self-discovery process would likely be facilitated by resolution of the uncertainties concerning the issuance of an educator’s certificate; Petitioner would then not have to worry that any acknowledgment of responsibility could prevent her return to teaching. It is unlikely that elementary school students are going to be aware of Petitioner’s convictions. But for those schoolchildren who learn about Petitioner’s background, nine months’ incarceration and nearly three years’ forced absence from teaching should convey to them the high price of drinking and driving.
RECOMMENDED that the Department of Education enter a final order granting Petitioner an educator’s certificate, effective one year from the date that the final order becomes final and subject to the following restrictions: Petitioner shall never operate a motor vehicle on the campus of a primary or secondary private or public school in Florida, including in transporting her children to school; Petitioner, in her capacity as a teacher, shall never transport any schoolchildren, except her own children, to or from school or on any school trips; Petitioner shall obtain addiction and behavioral counseling, whenever and for as long as or as frequently determined by the counselor to be needed; and another conviction for driving under the influence shall result in the permanent revocation of her certificate.
ENTERED in Tallahassee, Florida, on June 4, 1997.
ROBERT E. MEALE
Filed with the Clerk of the Division of Administrative Hearings on June 4, 1997.
Frank T. Brogan Commissioner of Education The Capitol
Michael H. Olenick General Counsel Department of Education
John J. Chamblee, Jr.
Law Offices of John J. Chamblee, Jr.
Attorney Bruce P. Taylor
501 First Avenue North, Suite 600 St. Petersburg, Florida 33701
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.
