STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, As Commissioner ) of Education, )

)

Petitioner, )

)

vs. )

)

BARRETT W. PURVIS, )

)

Respondent. )

Case No. 00-1290

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, William R. Pfeiffer, held a formal hearing in the above-styled case on August 16-17, 2000, in Ocala, Florida.

APPEARANCES

For Petitioner: Robert E. Sickles, Esquire

Steven G. Burton, Esquire Broad and Cassel

100 North Tampa Street, No. 3500 Post Office Box 3310

Tampa, Florida 33602

For Respondent: Mark D. Shelnutt, Esquire

421 South Pine Avenue Ocala, Florida 34474

STATEMENT OF THE ISSUES

The issues for consideration in this above-styled cause are as follows:

1. Whether Respondent's actions of alleged misconduct are in violation of Section 231.28(1)(c), Florida Statutes, and constitute gross immorality or an act involving moral turpitude.

2. Whether the allegations of misconduct involving Respondent are in violation of Section 231.28(1)(f), Florida Statutes, thereby seriously reducing his effectiveness as an employee of the school board.

3. Whether Respondent knowingly testified falsely while under oath, and if so, whether such conduct would be a violation of Section 231.28(1)(i), Florida Statutes, and the Principles of Professional Conduct for the education profession provided by the State Board of Education rules, by failing to maintain honesty in all professional dealings.

PRELIMINARY STATEMENT

A two-day administrative hearing was held on August 16-17, 2000, wherein Joint Exhibits lettered A-U and aa-hh were admitted into evidence. Petitioner presented the testimony of: Jason Thomas Tovine; Harold G. Compton; Steven Randall Griffin; Tammy Burke; Wayne Sellers; Clinton Christopher Schweers; Nicholas Frank Viaggio; Tommy Ketner; Dackory Allan Williams; Linda Kish; Patricia Spoerner Purvis; Theresa Purvis; and Albert Chapman.

Respondent did not present any witnesses. The parties each submitted Proposed Recommended Orders, which were duly

considered. The Transcript was filed with the Division of Administrative Hearings on September 15, 2000.

FINDINGS OF FACT

1. Petitioner, Tom Gallagher, as Commissioner of Education, is the state entity responsible for providing public, primary, secondary and adult education teaching certification in Marion County and throughout the State of Florida. Consistent with this responsibility, certified teachers are hired by each individual county for classroom direction and administrative activity.

2. Respondent, Barrett W. Purvis, has been employed in the Marion County School system for five years. He holds Florida Educators Certificate 717483 covering the area of physical education. During the 1997-1998 school year, Respondent was employed as a basketball coach at Dunnellon High School located in Dunnellon, Florida.

3. Ten years ago, in October 1990, Respondent, Barrett W. Purvis, was cited for driving under the influence of alcohol in Mississippi. He pled guilty to the offense and was fined

   $250.00.

   
   

4. On or about June 10, 1994, Respondent was involved in an altercation wherein the daughter of the Sheriff of Dixie County was being harassed by a group of individuals. Respondent became involved in the altercation and acted in defense of both himself and the Sheriff's daughter. Respondent explained his involvement

   in the cause before the County Court at the time of his arraignment, and on June 30, 1994, the County Court dismissed the charge against him.

5. On or about the evening of May 9, 1998, Respondent and his fiancée, along with other individuals attended a local dance club located in Ocala, Marion County, Florida. As a result of an argument between Respondent and his fiancée, Ocala Police were dispatched to the scene. According to various witnesses, Respondent had pushed or slapped his fiancée after being repeatedly punched by her. Pursuant to procedure, Respondent was arrested for Domestic Violence. While being placed in the patrol car, the taller Respondent's head came in contact with the shorter officer's head. There was conflicting testimony as to whether the collision was intentional, yet no injuries nor marks resulted on either man's head. Respondent was immediately pepper sprayed, knocked to the ground, and arrested for Battery on a Law Enforcement Officer. Respondent was taken to the Marion County Jail, where he was released the next day. Respondent was charged by the Office of the State Attorney with Battery on a Law Enforcement Officer, Domestic Violence Battery, and Resisting Arrest with Violence. Subsequently, the Office of the State Attorney reduced the charges to Resisting Arrest Without Violence, Battery on a Law Enforcement Officer and dismissed the charge of Domestic Violence Battery. Respondent was tried on

   March 18, 1999, and after a short jury deliberation, he was acquitted of all charges.

6. During the course of Respondent's criminal trial which stemmed from the incident at the dance club, Respondent testified that he did not receive medical treatment at the scene but had to treat himself at the County Jail.

7. The evidence introduced at the Criminal Trial is unclear as to the extent, if any, that the Respondent received medical treatment. It is clear, however, that the Respondent believed that he had not received medical attention and was not attempting to be dishonest or mislead the jury.

8. During the course of Respondent's criminal trial stemming from that same incident, Respondent unintentionally misrepresented his prior criminal record to the jury. In fact, he had been previously arrested. In addition to the fact that the misrepresentation was an insignificant reference and not in response to a question elicited by counsel for Respondent or the prosecutor, the Respondent was unaware that the Driving Under the Influence charge he received ten years ago was a criminal charge, but believed it was a traffic charge. Moreover, since the 1994 Criminal Mischief charge was dismissed, his benign representation of a lack of a prior arrest record to the jury was intended to be truthful and not misleading.

9. Respondent has received satisfactory evaluations throughout his career in Marion County, and has no record of disciplinary problems throughout his employment.

10. There is insufficient evidence in the record to support a factual finding that Respondent committed an act of gross immorality or an act involving moral turpitude.

11. There is insufficient evidence in the record to support a factual finding that Respondent committed an act which seriously reduces his effectiveness as an employee of the School Board.

12. There is insufficient evidence in the record to support a factual finding that Respondent violated the Principles of Professional Conduct for the Education Profession provided by the State Board of Education Rules, in failing to maintain honesty in all professional dealings.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

14. The State of Florida Education Practices Commission, Tom Gallagher as Commissioner of Education, has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Sections 231.262 and 238.28, Florida Statutes, and

    also pursuant to Rule 6B-1.006, Florida Administrative Code, Principles of Professional Conduct for the Education Professional in Florida.

15. The State of Florida Education Practices Commission has authority to seek sanctions as specifically set forth in Sections 231.262(6) and 231.28(1), Florida Statutes.

16. Petitioner seeks to impose appropriate disciplinary sanctions against Respondent's teaching certificate pursuant to Sections 231.262(6) and 231.28, Florida Statutes, and Rule 6B- 1.006, Florida Administrative Code, Principles of Professional Conduct for the Education Professional in Florida.

17. Petitioner, Tom Gallagher, bears the burden of proof in this proceeding and that proof must be clear and convincing. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1997).

18. In Count I, Petitioner alleges that the misconduct alleged to have been committed by Respondent was a violation of Section 231.28(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude.

19. Although gross immorality is not defined in statute, Rule 6B-4.009(2), Florida Administrative Code, defines immorality as "Conduct that is inconsistent with the standard of 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 service in the community."

20. Moreover, Rule 6B-4.009(6), Florida Administrative Code, defines moral turpitude as "a crime evidenced by an act of baseness, vileness or depravity in the private and social duties, which according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude."

21. While it is clear that the Respondent, at minimum, pushed his fiancée away in defense of her repeated punches, and at most, moderately slapped her once to prevent further attack, neither scenario can be construed or rises to the level of an act involving gross immorality or moral turpitude. The Respondent acted purely in self-defense and his degree of force was not aggressive, excessive, harmful, nor unreasonable.

22. In Count II, Petitioner alleges that the allegations of misconduct against Respondent are in violation of Section 231.28(1)(f), Florida Statutes, in that Respondent is guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board.

23. Petitioner presented insufficient evidence to demonstrate that Respondent has impaired his ability to be of service in the community, or that the education profession was

    brought into public disgrace or disrespect. The only direct evidence on this issue was by Respondent's mother, who has been a teacher and guidance counselor at Dunnellon High School for several years. She testified that the Respondent has not set a bad example for students and the incident has not impaired his ability as a teacher.

24. Although one officer appeared to imply that school resource officers may have difficulties working with the Respondent, no parents, students, teachers, or members of the community demonstrated that Respondent's effectiveness had been impaired. Accordingly, there is no basis to conclude that Respondent cannot effectively continue to serve as a teacher within the State of Florida.

25. In addition, although there were accounts of the incident reported in the various press, publicity attendant of allegations of misconduct in office are not itself a proper basis for a finding of impaired effectiveness as a teacher. See Baker v. School Board of Marion County, 450 So. 2d 1194 (Fla. 5th DCA 1984), and MacMillan v. Nassau County School Board, 629 So. 2d

    226 (Fla. 1st DCA 1993).

    
    

26. In Count III, Petitioner has alleged that Respondent's misconduct is in violation of Section 238.28(1)(i), Florida Statutes, in that Respondent upon investigation has violated the Principles of Professional Conduct for the Education Profession

    provided by the State Board of Education Rules, by failing to maintain honesty in all professional dealings.

27. There is insufficient evidence to conclude that Respondent has engaged in conduct wherein he has knowingly failed to maintain honesty in his professional dealings. As to the evidence presented at hearing, while Respondent may have been factually mistaken as to whether or not he was actually treated at the scene by paramedics and whether he had been previously arrested for a "traffic crime" ten years ago or a minor offense which was immediately dropped, it is insignificant and there is insufficient evidence that such testimony was presented with an intention of being dishonest or deliberately misleading the jury.

28. Petitioner recommends that the Education Practices Commission impose an appropriate penalty pursuant to the authority provided in Sections 231.262(6) and 231.28(1), Florida Statutes, which penalty may include a reprimand, probation, restriction of the authorized scope of the practice, administrative fine, suspension of his teaching certificate not to exceed three years, permanent revocation of the teaching certificate, or a combination thereof. Again, Petitioner bears the burden of proving the allegations by clear and convincing evidence. Failing that proof no penalty may be imposed.

29. Based upon the evidence presented at hearing, the record does not support the conclusion that Respondent's actions

constitute gross immorality or involve moral turpitude, have impaired his effectiveness as a teacher in the school system or demonstrate dishonesty in professional dealings.

RECOMMENDATION

It is hereby

RECOMMENDED that the Department of Education, Education Practices Commission enter its final order that the counts and allegations of misconduct as set forth in the Amended Administrative Complaint be dismissed, and his teaching certificate be reinstated to current good standing.

DONE AND ENTERED this 6th day of December, 2000, in Tallahassee, Leon County, Florida.

WILLIAM R. PFEIFFER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2000.

COPIES FURNISHED:

Steven G. Burton, Esquire Robert E. Sickles, Esquire Broad & Cassel

100 North Tampa Street, Suite 3500 Post Office Box 3310

Tampa, Florida 33602-3310

Philip R. Pignataro 11419 Stoneybrook Path

Port Richey, Florida 34668

Kathleen M. Richards, Executive Director Department of Education,

Education Practices Commission Florida Education Center

325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400

Mark D. Shelnutt, Esquire

421 South Pine Avenue Ocala, Florida 34474-4175

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education

325 West Gaines Street, Suite 224-E 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.

Docket for Case No: 00-001290

Orders for Case No: 00-001290