STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VILMORE EVERETT SHIRLEY, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5586

)

FRANK T. BROGAN, as )

Commissioner of Education, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 4, 1997, at Tallahassee, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Vilmore Everett Shirley, pro se

10561 Southwest 207th Street Miami Florida 33189

For Respondent: J. David Holder, Esquire

14 South 9th Street

Defuniak Springs, Florida 32433

STATEMENT OF THE ISSUES

Whether the petitioner's application for a Florida educator's certificate should be granted or denied.

PRELIMINARY STATEMENT

On March 26, 1996, Vilmore Everett Shirley filed an application for a Florida educator's certificate with the

Department of Education ("Department"). The application was reviewed, and the Department determined that the application should be denied. In a Notice of Reasons dated October 28, 1996, Frank R. Brogan, as Commissioner of Education ("Commissioner"), set out the reasons for the denial of Mr. Shirley's application. The Commissioner alleged in the Notice of Reasons, first, that Mr. Shirley had been convicted of assault and battery in California in 1986 and was sentenced to serve 60 days in jail and two years probation and, secondly, that Mr. Shirley failed to acknowledge his criminal record in his application for an educator's certificate and in three applications for employment with the Dade County School District. The Commissioner asserted in the Notice that this conduct violates section 231.17(1)(c)6. and (5)(a) and section 231.28(1)(c), (e), (i), (j), and (2),

Florida Statutes, and rule 6B-1.006((5)(a), (g), (h), and (i), Florida Administrative Code.

In a document dated November 11, 1996, and entitled "Answers to Charges," Mr. Shirley disputed the facts alleged in the Notice of Reasons and requested a formal administrative hearing. The Commissioner forwarded the request to the Division of Administrative Hearings for the assignment of an administrative law judge. By notice dated January 6, 1997, the case was scheduled for a final hearing on March 4, 1997.

The transcript of the hearing has been filed with the Division, and the parties timely submitted proposed findings of fact and conclusions of law, which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Department of Education is responsible for investigating persons applying for educator's certificates in Florida and proposing that such applications be denied if it thinks denial is warranted by the facts discovered during the investigation. Section 231.17(1) and (5)(a), Fla. Stat. The Education Practices Commission is the entity responsible for imposing penalties on educators, including denying applications for educator's certificates. Section 231.262(6)(a), Fla. Stat.

2. In an Information dated July 11, 1986, the District Attorney of the County of Los Angeles alleged in Count 1 that Vilmore Shirley and another man committed armed robbery, a felony; in Count 2 that Vilmore Shirley and another man committed "assault great bodily injury and with a deadly weapon," a felony; and in Count 3 that Vilmore Shirley and another man committed battery, a felony.

3. A trial on these charges was held in Los Angeles County Superior Court in February, 1987. Vilmore Shirley was the named defendant, and he attended the trial together with his attorney.

4. As recorded in a Minute Order entered February 10, 1987, the judge in the criminal proceeding granted the defense's motion to dismiss Count 1 of the information.

5. As recorded in a Minute Order entered February 13, 1987, the jury found "the Defendant Vilmore Shirley guilty of the crime of Assault, Great Bodily Injury and with a Deadly Weapon, . . . a felony . . . as charged in Count II of the Information." The jury also found "the Defendant Vilmore Shirley guilty of the crime of Battery, . . . a misdemeanor . . . as charged in Count III of the Information."

6. In an order entered February 20, 1987, Vilmore Shirley was placed on misdemeanor probation for two years and sentenced to 60 days in the County Jail; the judge also ordered a stay of execution of the jail sentence until April 24, 1987.

7. In an order entered May 15, 1996, the judge in Mr. Shirley's criminal proceeding reduced to a misdemeanor the charge of "assault, great bodily injury and with a deadly weapon" stated in Count 2 of the Information.

8. Mr. Shirley submitted three applications for employment for a non-instructional position to the Dade County School District. Appended to each of these applications is a Restricted Personal Data form in which the applicant is asked "Have you ever been convicted, fined, imprisoned, or placed on probation in a criminal proceeding. Include any and all offenses for which you have been convicted "

9. In the personal data form submitted with the employment application dated February 25, 1993, Mr. Shirley answered "no" to this question and signed a statement attesting that the answers given in the application "are true, complete, and correct to the best of my knowledge and belief and are made in good faith."

10. In the personal data form submitted with the employment application dated June 25, 1993, Mr. Shirley answered "no" to this question and signed a statement attesting that the answers given in the application "are true, complete, and correct to the best of my knowledge and belief and are made in good faith."

11. In the personal data form submitted with the employment application carrying the date of May 20, 1995, no answer was given to this question.1

12. The Application for Florida Educator's Certificate, as revised in February, 1995, contains the following question:

    Have you ever been convicted, found guilty, entered a plea of nolo contendre (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. A YES or NO answer is required by Florida Law. . . .

13. Mr. Shirley submitted an Application for Florida Educator's Certificate on or about June 29, 1996. Mr. Shirley did not answer this question either "Yes" or "No."

14. By his signature, Mr. Shirley certified "that all information pertaining to this application is true, correct, and complete."

15. The evidence presented by the Commissioner is sufficient to prove that Vilmore Shirley was convicted in 1987 in the State of California of one felony, which was later reduced to a misdemeanor, and of one misdemeanor. Mr. Shirley's testimony that he did not intentionally misrepresent or omit reference to these convictions because he either was not aware that he had been convicted of any crimes or that he had been found not guilty of the crimes charged is rejected as not credible. The court minutes indicate that he was present when the jury read its "guilty" verdicts, and he was sentenced to serve 60 days in jail, followed by two years on probation.

16. The evidence presented by the Commissioner is sufficient to establish that, when he failed to answer the question relating to convictions and then certified that his answers were complete, Mr. Shirley was not honest when he completed his application for certification with the Department. Likewise, when he answered "no" to the question relating to convictions, Mr. Shirley submitted fraudulent information in two of his applications for employment to the Dade County School District.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to sections 120.569 and .57(1), Florida Statutes (Supp. 1996).

18. Since Mr. Shirley is an applicant for an educator's certificate, he has the burden of proving entitlement to the certificate by a preponderance of the evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932, 934 (Fla. 1996), approving in relevant part 647 So. 2d 245 (Fla. 1st DCA 1994). However, in order to deny his application for a certificate, the Commissioner must come forward and prove by a preponderance of the evidence the grounds for denial alleged in the Notice of Reasons. Id.; Osborne Stern, 647 So. 2d at 248.

19. Section 231.17(5)(a), Florida Statutes, provides:

    
    

    The Department of Education is authorized to deny an applicant a certificate if it possesses evidence satisfactory to it that the applicant has committed an act or acts or that a situation exists for which the Education Practices Commission would be authorized to revoke a teaching certificate.

    
    

20. Section 231.28, Florida Statutes, defines the situations in which the Education Practices Commission can revoke an educator's certificate:

    1. The Education Practices Commission shall have authority to suspend the teaching certificate of any person as defined in s. 228.041(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 the provisions of subsection (4); to revoke permanently the teaching certificate of any person; to suspend the teaching certificate, upon order of the court, of any person found to have a delinquent child support obligation; or to impose any other penalty provided by law, provided it can be shown that such person:

       ***

       (e) Has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation;

       ***

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

       
       

21. Section 231.28(2) provides in pertinent part that "the decision of guilty entered by any court . . . shall be prima facie proof of grounds for revocation of the [educator's] certificate.

22. Rule 6B-1.006, Florida Administrative Code, which sets out the Principles of Professional Conduct, provides in pertinent part:

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

       1. Shall maintain honesty in all professional dealings.

    ***

    (h) Shall not submit fraudulent information on any document in connection with professional activities.

23. Based on the facts as found herein, Mr. Shirley has failed to prove by a preponderance of the evidence that he is entitled to an educator's certificate under Florida law. Rather, the Department has proven by at least a preponderance of the evidence that, by virtue of his conviction of two misdemeanors in California and of his failure to disclose these convictions to either the Dade County School District or the Department of Education, Mr. Shirley has violated the above-quoted statutory and rule provisions. Because these violations would support revocation of an educator's certificate, the denial of Mr. Shirley's application is 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 that Vilmore Everett Shirley violated section 231.28(1)(e) and (i), Florida Statutes, and rule 6B- 1.006(5)(a) and (h), Florida Administrative Code, and denying his application for a Florida educator's certificate.

DONE AND ENTERED this 13th day of May, 1997, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1997.

ENDNOTE

1 It must be noted, however, that even though this application appears to be completely filled out and was contained in Mr. Shirley's personnel file with the Dade County School District, Mr. Shirley did not sign this application.

COPIES FURNISHED:

J. David Holder

14 South 9th Street

Defuniak Springs, Florida 32433

Vilmore Everett Shirley 10561 Southwest 207th Street Miami, Florida 33184

Karen B. Wilde, Executive Director Education Practices Commission

325 West Gaines Street, Suite 224-E Tallahassee, Florida 3239-0400

Kathleen M. Richards, Administrator Professional Practices Services

325 West Gaines Street Tallahassee, Florida 3239-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, PL-08

Tallahassee, Florida 32399-0400

Frank T. Brogan, Commissioner Department of Education

The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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 should be filed with the agency that will issue the final order in this case.

1 It must be noted, however, that even though this application appears to be completely filled out and was contained in Mr. Shirley's personnel file with the Dade County School District, Mr. Shirley did not sign this application.

Docket for Case No: 96-005586

Orders for Case No: 96-005586