STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JIM HORNE, )
AS COMMISSIONER OF EDUCATION,1/ )
)
Petitioner, )
)
vs. ) Case No. 03-0393PL
)
TROY DOYLE, )
)
Respondent. )
_________________________________)
RECOMMENDED ORDER
Notice was provided and on May 23, 2003, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing location was the Board of County Commissioners, Community Treasures Room, First Floor, County Administration Building, 12 Southeast First Street, Gainesville, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.
APPEARANCES
For Petitioner: Ginger L. Barry, Esquire
McFarlain & Cassedy, P.A.
305 South Gadsden Street Tallahassee, Florida 32301
For Respondent: H. B. Stivers, Esquire
Levine, Stivers, and Myers
245 East Virginia Street Tallahassee, Florida 32301
STATEMENT OF THE ISSUE
Should Petitioner impose discipline on Respondent's Florida Educator's Certificate No. 654546, based upon the allegations in the Administrative Complaint, Case No. 001- 1338-A, before the State of Florida, Education Practices Commission?
PRELIMINARY STATEMENT
On February 20, 2002, Charlie Crist, then Commissioner of Education, executed the Administrative Complaint. Respondent selected a settlement option in reply, followed by a request for formal hearing if the case did not settle. Settlement was not achieved. Therefore, the case was transmitted to the Division of Administrative Hearings to conduct a formal hearing in accordance with Sections 120.57(1) and 231.262(5), Florida Statutes. The case was assigned, and following a single continuance the case was heard on the aforementioned date.
Respondent's Motion for Final Summary Order calling for the dismissal of Counts One, Five and Six was denied by written order, with leave to advance the arguments in that motion through a proposed recommended order after the final hearing.
Consistent with the prehearing order the parties prepared and submitted a prehearing statement. That statement includes facts that both sides admit. The admitted facts are accepted and reported in the fact-finding to the recommended order.
At hearing Petitioner presented the testimony of Robert Michael Ice, Dr. Leila Pratt, Terri McKinney, Mary Kay Warner, Linda Karol Yon, and Officer Russ Hamm. Petitioner's Exhibits numbered 1 through 3 were admitted. Respondent testified in his own behalf and presented the testimony of David Beard, and Delores Doyle. Respondent's Exhibits numbered 1 through 8 were admitted, to include Exhibit Numbered 2, the sworn statement of Asa L. Godbey, Jr., M.D.
A hearing transcript was prepared. On June 4, 2003, the hearing transcript was filed with the Division of Administrative Hearings. On June 16, 2003, the parties filed proposed recommended orders. The proposed recommended orders have been considered in preparing the recommended order.
FINDINGS OF FACT
Stipulated Facts:
Respondent holds a Florida Educators Certificate (FEC), number 654546, in the area of Music.
Respondent's FEC is valid through June 30, 2006.
At all times relevant to this proceeding, Respondent was employed as a Music Education Teacher at Chiefland Elementary School in the Levy County School District. Additional Facts: Background
Respondent served as a music teacher at Chiefland Elementary for 12 years.
On January 17, 2001, while at school Respondent spoke to Johnny Turner, the guidance counselor at Chiefland Elementary. In this conversation Respondent commented that he had a problem with alcohol. Mr. Turner did not believe that Respondent was inebriated at that time. Mr. Turner did observe that Respondent was very hyper-active emotionally and verbally.
On the evening of January 17, 2001, Respondent called Mr. Turner several times at Mr. Turner's home. From his remarks Mr. Turner believed that the Respondent was inebriated. Respondent's speech was slurred, Respondent was incoherent and repeated himself often. Respondent commented that he had a problem with alcohol and wanted help.
Mr. Turner directed him to a rehabilitation program and to Alcoholics Anonymous. Mr. Turner also suggested that Respondent not try to come to school on the morning of January 18, 2001, and that they continue their conversation at some future date when Respondent was sober. Respondent asked
Mr. Turner to give him a wakeup call at 5:00 a.m. on January 18, 2001. Mr. Turner made that call intending to remind Respondent to stay home that day but Respondent did not answer the phone.
On January 18, 2001, around 8:15 a.m. Mr. Turner saw Respondent at the school outside the cafeteria. Respondent approached Mr. Turner and said good morning and placed a Catholic missal into Mr. Turner's hands. Respondent then went to this classroom. Respondent was observed by Mr. Turner walking across the courtyard and up the hall in a straight line without staggering. When Respondent greeted Mr. Turner on that morning the greeting was short by not slurred.
Nothing in Respondent's conduct made Mr. Turner believe that Respondent should be reported as constituting a danger to himself or others at that time. Mr. Turner's impression of Respondent on January 18, 2001, was misplaced, for reasons that will be discussed.
Respondent acknowledges that on the night of January 17, 2001, he had been drinking. He describes the amount that he drank as "a couple of drinks." David Beard, a friend of the Respondent, indicated that Respondent and Mr. Beard had a couple of drinks. They were drinking bourbon.
In addition to the alcohol which Respondent consumed on the night of January 17, 2001, Respondent was also taking
medication. That medication had been prescribed by Asa L. Godbey, Jr., M.D., a physician practicing outpatient psychiatry with adults.
Dr. Godbey had first seen Respondent in 1997.
Dr. Godbey diagnosed Respondent as having dysthymic disorder, a chronic non-psychotic depression.
As of January 18, 2001, Dr. Godbey had prescribed Amitriptyline and Prozac, anti-depressant medications and Xanax, which is a benzodiazepine, used to help with anxiety when patients are depressed. Xanax is a non-depressant. In 1999 Dr. Godbey had prescribed Respondent Ritalin, a mild stimulant to address episodes of acute severe depression. Dr. Godbey was aware that Respondent had been treated for migraine headaches in the past by the use of small doses of narcotics. This refers to Tylenol No. 3 PRN.
The record reveals that on January 17, 2001, and on the morning of January 18, 2001, Respondent took some medications prescribed for him. The exact medications taken on those dates is not clear from the record. In this connection, Dr. Godbey had told Respondent that he should not drink alcohol because he does not handle it well. As the doctor explained, alcohol by itself prevents deep sleep, a particular problem for people who are depressed. As
Dr. Godbey explained, Respondent does not metabolize alcohol
as well as some people. So it can be a real problem for him. As Dr. Godbey established, the mixing of alcoholic beverages and the drugs prescribed for Respondent is a problem. It worsens depression.
Respondent's testimony that "he did not know to what extent" his use of alcohol presented a problem for him, given Dr. Godbey's advice against using alcohol, does not create forgiveness for his misconduct.
The January 18, 2001 Incident at School:
Linda Karol Yon is a speech language pathologist at Chiefland Elementary. This is a position that she has held for 27 years. Before the incident at issue Ms. Yon and Respondent would carpool from Gainesville to Chiefland on work days. Ms. Yon drove Respondent and herself to work on January 18, 2001.
Ms. Yon drove Respondent and herself on the day in question because Respondent called her and said that he was not feeling really well. In particular Respondent told
Ms. Yon that he had been out the night before with friends. He said that he had had a lot to drink. In essence, Respondent's description indicated he was hung over.
On the morning of January 18, 2001, as they drove to school Respondent was very chatty. He was talking about the evening before when he celebrated the birthday of his friend.
On January 18, 2001, Respondent conducted his 8:30
a.m. class, at Chiefland Elementary.
Early in the morning on the date in question Respondent went to the office of the principal of Chiefland Elementary School, Michael Ice. While in the office Respondent handed Mr. Ice a piece of paper stating that the paper had been put in his mailbox and he believed it belonged to Mr. Ice. Respondent then left. The paper was a letter which had been written from Respondent to Mr. Ice requesting Mr. Ice to check into Respondent's user I.D. and password for the school computer system used to enter grades. The letter was from October 2000. Although Mr. Ice considered the provision of the letter at that time as being "kind of strange," Mr. Ice called the school data center to inquire about the matters set forth in the correspondence. Mr. Ice was told that there was nothing wrong with the user I.D. and password. Under the circumstances Mr. Ice decided to go to Respondent's classroom to talk to Respondent about the letter.
When Mr. Ice arrived at Respondent's classroom the
students in attendance were getting ready to leave the music class. Their regular teacher was coming to pick them up.
Once in the room Mr. Ice showed Respondent the letter and asked what it was about, any why was Respondent asking him to respond to something that was from earlier in the year.
Respondent asked the principal to come from the classroom into Respondent's office which is connected to the classroom. Once in the office Respondent asked the principal to look at his desk. The principal complied. Then Respondent asked the principal to come out with Respondent into the classroom.
Once they returned to the classroom Respondent put his hands up in the air and said "and this is my classroom." Mr. Ice observed the Respondent to be "a little giddy." Mr. Ice questioned the Respondent in more detail about the letter and asked Respondent to go back to the principal's office and talk about it. Then Respondent started telling the principal about Respondent's alarm clocks, that he had three alarm clocks that he was having problems with and that he was having a problem with an alarm system at his house. Respondent remarked about something with his telephones. Respondent was going on and on about those subjects. None of those topics was in relation to the reason for the principal's visit to Respondent's classroom. Those extraneous remarks were unsolicited.
Mr. Ice considered that there was a problem with Respondent and realizing that another class would be coming into the music room within 5 to 10 minutes, he asked
Respondent to stay in the principal's office while he arranged to contact the next teacher bringing students to the music room and instruct the teacher to not escort the students to Respondent's classroom. Respondent did not conduct his next class.
Mr. Ice also believed that he needed to call the School District's Director of Personnel, Dr. Leila Pratt.
Mr. Ice called Dr. Pratt and explained his perceptions of the problem with Respondent and she agreed to come to the school. The reason why Mr. Ice called Dr. Pratt was that he had smelled an odor on Respondent's breath, that Respondent had slurred speech and that Respondent was believed to be under the influence of drugs or overly medicated.
Respondent came back to the principal's office.
Once in the principal's office Mr. Ice asked Respondent to be seated and Respondent sat down while they waited for Dr. Pratt to arrive. Somewhere between half an hour and 45 minutes after Respondent arrived at Mr. Ice's office, Dr. Platt arrived at the school.
In the interim, Mr. Ice asked Respondent if he was taking something or if he was on something. Respondent took a metal pill box and opened it up and showed its contents to Mr. Ice. Mr. Ice observed about half a dozen different kinds
of pills in the box. Mr. Ice remembers the Respondent telling him that one pill was Ritalin and one was Phenergan, both items that had been prescribed for Respondent. Respondent did not specify among the pills that he showed Mr. Ice which pills he was taking. While waiting for Dr. Pratt to arrive Respondent began to get really sleepy. He would lean back.
He would talk to the principal with his eyes closed and his speech became slower and sometimes slurred.
Dr. Pratt arrived at the school around 10:30. After Dr. Pratt arrived Mr. Ice went with her to a separate room from Respondent to discuss the situation.
Upon returning to the room where Respondent was, Dr. Pratt heard Respondent talking about his medication and about his alarm clocks. She observed his speech as very slow and deliberate, giving the appearance that Respondent was having difficulty concentrating and focusing on what he was saying. Dr. Pratt observed the pills laid out by Respondent. Dr. Pratt asked Respondent if he was seeing more than one physician, given the number of drugs that she observed. She wanted to know whether Respondent's physicians were aware of
the drugs being prescribed by the other physician. Respondent was able to respond appropriately to questions asked but he interjected things that were irrelevant to the conversation.
Dr. Pratt decided that she would call for a drug test of Respondent to determine his condition. She contacted a facility in Ocala, Florida, that was affiliated with the school district to have that group send someone over to administer a drug test to Respondent.
Respondent had expressed the desire to go back to his classroom but Dr. Pratt and Mr. Ice did not feel that that was an appropriate choice. Respondent wanted to get his belongings. He left to accomplish that task. That moment was when the decision was made to have Respondent drug tested.
The basis which Dr. Pratt had for having the test performed was her concern about his capability to teach that day based upon his slurred speech and difficulty concentrating. She believed that something he was taking had impaired his functioning.
When the subject of the drug test was brought up with Respondent, at first he said that he would not take the test and that he would rather resign his position at the school. He was allowed to talk to the union representative outside the presence of the school administrators on the subject of the drug test. After that conversation he indicated his willingness to take the test. Eventually he refused, stating that to take the test was against his principles.
The person to perform the drug test did not arrive until around 1 p.m. to 1:30 p.m. Before the arrival Respondent appeared very sleepy and put his head down on the desk in the principal's office where he had returned. While Mr. Ice and Dr. Pratt continued to talk, Respondent would involve himself in the conversation by discussing matters that were not relevant to the conversation.
Believing that Respondent was uncomfortable sitting in the principal's office, Mr. Ice asked the Respondent if he would rather go to Ms. Yon's classroom. Ms. Yon has a small classroom and a private office adjacent to the classroom. Respondent agreed to go to Ms. Yon's room. He was escorted to that room.
Respondent left Ms. Yon's office and went to the classroom of Mary Kay Warner, a third grade teacher.
Ms. Warner has taught elementary education at Chiefland Elementary for about 18 years. Ms. Warner encountered Respondent in the hall around 12:30 p.m. After a few casual remarks Ms. Warner invited Respondent to come to her room and watch a science demonstration. While in the hall Ms. Warner describes Respondent's demeanor as being "rather sad." She assumed that he was "down in the dumps."
Once in Ms. Warner's room Respondent sat down at a table and the science demonstration commenced with the
students. Respondent began to say things and ask questions and to participate in the demonstration. Respondent encouraged Ms. Warner to call on a particular student and then asked some questions about some of the statements Ms. Warner made during the demonstration. Respondent commented that it was hot in the room. Respondent asked some questions about a mistake Ms. Warner made concerning telephone wires as contrasted with electrical wires. Ms. Warner had not anticipated Respondent being part of the science demonstration. When Respondent would interrupt the presentation Ms. Warner tried to go along with what he interjected to make the lesson appear normal for the children. It was not normal. At some point Ms. Warner began to notice that Respondent "was not himself." She was concerned that Respondent might be embarrassed in front of the students and she did not wish the children to know that Respondent was experiencing problems.
In addition to commenting about its being hot in the
room and asking Ms. Warner if she thought it was hot in the room, Respondent sat in her chair and rolled the chair across the room.
Having become concerned about Respondent's conduct, Ms. Warner left the room and contacted a teacher next door. She asked that teacher to have an administrator intervene in a
manner that would not involve Ms. Warner asking Respondent to leave the room and be overheard by the students. Ms. Warner made this arrangement out of concern that she did not know how Respondent would act if she asked him to leave the room.
Ms. Warner took the children to the playground, telling them they were going to recess. It was not the normal time for recess. Although this departed from the normal routine the children did not seem to realize that there was a problem with Respondent.
Respondent left Ms. Warner's class after the children had departed. Later in the day Respondent spoke to Ms. Warner and said, "Did you narc on me? Somebody narced on me."
Mr. Ice is the administrator that went to
Ms. Warner's classroom to escort Respondent from the room. He observed Respondent sitting at Ms. Warner's desk looking very tired, his eyes opening and closing. Mr. Ice told Respondent that they needed to go back to the principal's office and they did.
When Mr. Ice and Respondent returned to the principal's office, Mr. Ice expressed the opinion that Respondent would not be capable of teaching his classes at that juncture. That opinion is accepted. As a consequence
another portion of Respondent's class schedule for the day was cancelled.
After returning to the office the person to administer the drug test arrived. In that context Dr. Pratt explained the school district's policy that if Respondent did not take the blood test to detect drugs, his refusal would be considered as an indication of a positive result in the test.
Ultimately when Respondent declined the drug test, Mr. Ice told Respondent that given his condition Respondent was going to have to leave the school campus. Arrangements were made with Ms. Yon to take Respondent home. Respondent initially agreed to leave the campus with Ms. Yon. Respondent went to the door of the principal's office after Ms. Yon left to go to her car. Respondent bumped into a metal folding chair at the door, sat down in it and said that leaving was against his principles and he was not going to leave. He repeated those remarks. He was kind of slow-moving at that point in time and a little bit defiant. Respondent kept drinking water as he had been and commented that his throat was very, very dry. He had taken off his shoes as he was sitting there. He moved from the metal chair back to a small table in the principal's office and sat down at that location. Others pleaded with Respondent to leave, to just go home with
Linda, referring to Ms. Yon. Respondent kept saying "No," it was against his principles.
Having refused to take the drug test, having refused to go home with Ms. Yon, Mr. Ice told Respondent that he was going to have to call the city police and have the police remove Respondent from the campus. Dr. Pratt agreed with this choice. Respondent still would not cooperate. Mr. Ice called the Chiefland Police Department and Officer Russ Hamm was dispatched to the school.
A conversation ensued between Mr. Ice and Officer Hamm in which it was agreed that Officer Hamm would try to persuade Respondent to leave. Officer Hamm made a considerable effort to persuade Respondent to leave the campus. There was a concern that Respondent be gone from the campus before the school ended to avoid students seeing Respondent in his state. Finally when it was decided that Respondent would have to be physically removed, he did not cooperate with that choice either. Officer Hamm told the Respondent that he was under arrest and that he was going to be placed in handcuffs. Respondent said no, that he did not have to comply. While Officer Hamm was putting the handcuffs on Respondent, the Respondent did not cooperate and had to be wrestled to the ground. In effect one handcuff was placed on Respondent and Officer Hamm had to wrestle the other arm
around and get the second arm handcuffed. This took place over a minute or two. Officer Hamm had spent 10 to 15 minutes trying to persuade Respondent to leave before making the arrest for trespassing. Once outside, Respondent refused to get into the patrol car. This prompted Officer Hamm to use a taser gun which gained Respondent's cooperation.
Officer Hamm tried for several minutes to persuade Respondent to get into the patrol car before using the taser gun. In that time Officer Hamm told Respondent that school was about to let out and there was no reason to excite everyone and have
all the kids seeing Respondent in handcuffs given that he was a teacher. Respondent was then taken from the campus in the police car. He departed around 2:00 p.m.
Had Respondent cooperated with the officer, he would have been placed in the patrol car and driven from the campus before the bell rang concluding the school day. The consequence of Respondent's acts, not cooperating in the attempt by Officer Hamm and the school administrators to escort him out the back door before the school day ended and into the police car, and away from the school, was that the students were able to see Respondent being placed in the police car.
Mr. Ice observed that Respondent was able to comprehend the nature of the discussions on the date in question concerning the questions and answers related to Respondent's state. To that extent Respondent was coherent.
Mr. Ice expressed the opinion that Respondent, based upon his observation, was unable to perform his functions as a School Board employee on that day and that he was incapacitated to the extent of being incapable of doing his job and should not have been in the presence of children. That opinion is accepted.
Mr. Ice received questions from teachers and staff members about the incident but not from parents. The record does not reveal that the questions related to Respondent's future effectiveness as a teacher.
Mr. Ice expressed the opinion that Respondent's behavior created a condition that would be harmful to the students' learning at Chiefland Elementary. Specifically,
Mr. Ice expressed the opinion that a teacher under the influence of something in front of children undermines what is trying to be accomplished in their education. That opinion is accepted.
Dr. Pratt did not have any contact from parents concerning the incident nor from teachers or staff. Persons at the school district office were aware of the incident.
Dr. Pratt expressed the opinion that Respondent lost his effectiveness as a teacher, given that the community in which Respondent taught was small in size. Dr. Pratt points out that several teachers were involved in this incident and the kids were being dismissed from the school at the time that Respondent was being placed in the police car.
Mr. Ice when asked whether Respondent would be an effective teacher after the incident on January 18, 2001, testified "I don't know. I don't know if he could." By contrast Mr. Ice executed a form involving prospective employment provided by the School Board of Alachua County dated April 18, 2001, speaking of Respondent's excellence as a teacher. Respondent was no longer employed at Chiefland Elementary following the January 18, 2001 incident. In explaining the reference provided to Alachua County, Mr. Ice indicated that he did not want to see Respondent's life ruined and considered the items in the personal reference form to be related to Respondent's abilities in the classroom. Mr. Ice would not wish to have Respondent return to Chiefland Elementary, given the assumed knowledge of the community about the events of January 18, 2001. Mr. Ice is not certain if the conduct displayed by Respondent on January 18, 2001, would happen again. Generally speaking, Mr. Ice has expressed the opinion that if the circumstances evidenced on the date in
question could be addressed, Mr. Ice feels that Respondent could be an effective teacher elsewhere.
Respondent admits that he had taken prescribed medication the same day he drank alcohol. That date was January 17, 2001. He took medication the next morning. He did not specify the medication by name that he took on those dates.
Respondent's claim that he "blacked out" and that he is not certain what happened after the principal visited his classroom is not believed. The facts that Respondent does remember and testified about beyond the encounter early in the morning in his classroom with Mr. Ice belie that claim. In particular, Respondent's rather detailed explanation of what transpired in Ms. Warner's classroom in which he acknowledges participating in the lesson, raising his hand, rolling in the chair across the classroom, telling Ms. Warner to call upon a certain student and the students being removed from the classroom confirm his awareness of later events in the day.
The remarks attributable to Dr. Godbey in his sworn statement concerning the adverse effect which the medication prescribed would have on Respondent in combination with alcohol, particularly their influence on Respondent's conduct are matters of conjecture. He made assumptions about the combination of drugs and when they were taken through an
hypothesis, that is not precisely grounded on facts established in the record. Even if one accepts that the medications and alcohol led Respondent to act in the manner found in the facts, it does not excuse his conduct.
Respondent determined to take the medications in a combination that is not clear from the record and to mix them with alcohol, when he had been specifically warned by Dr. Godbey that he should not drink alcohol, which when mixed with the anti-depressant drugs prescribed creates a problem.
Dr. Godbey goes so far in his treatment summary as to explain the January 18, 2001 incident by report to the doctor from another source (presumably the North Florida Regional Medical Center) as a psychotic episode. At the same time Dr. Godbey acknowledges that the exact cause of the psychotic episode has remained uncertain.
Nothing in the diagnosis within the treatment summary by Dr. Godbey or other remarks attributable to the doctor reveals that Respondent's illness is such that it compelled him to act in the manner evidenced on January 18, 2001.
On the topic of alcohol, in receiving advise from Dr. Godbey, whether Respondent was told merely not to drink because he does not handle alcohol well, or was told not to drink in combination with medication he was taking, is not
important. What matters is that Respondent of his own volition chose to drink the alcohol and combine it with medication leading to the results that have been explained in which his conduct on January 18, 2001, was reprehensible and inexcusable.
Mr. Doyle remains in treatment by Dr. Godbey. He is presently taking psychotropic medication that does not appear to interfere with his cognitive functions, nor present an impediment to his ability to teach. As of February 17, 2003, Respondent was still being treated by Dr. Godbey through individual psychotherapy in addition to the prescription of psychotropic medications.
From another perspective Respondent was taken to the North Florida Regional Medical Center in Gainesville, Florida, following the episode in question. The impression of that facility was that the Respondent evidenced acute altered mental status with psychosis and acute polysubstance abuse. A urine toxicology screen performed during his stay at that facility revealed Respondent was positive for amphetamines, positive for benzodiazepines, positive for opiates, and positive for tricyclics.
Leaving the Scene of an Accident Without Injuries
Respondent was charged in the County Court of the Eighth Judicial Circuit for Alachua County, Florida, Case
No. 98-02397-TC-A, State of Florida vs. Troy Kevin Doyle. The offense charged was leaving the scene of an accident without injuries in violation of Section 316.061, Florida Statutes.
The offense occurred on July 4, 1998, in Alachua County, Florida. On October 1, 1998, Respondent pled nolo contendre to the offense in open court. In that plea, which the Court found to be freely, knowingly, and voluntarily entered, a stipulation was reached by the parties acknowledging damage to property other than to Respondent's vehicle. It was explained and Respondent acknowledged that the maximum sentence in the case was sixty days in jail, as well as a $500.00 fine. When the matter was concluded, Respondent did not have any questions or any statement in opposition to the plea which was arranged in his presence. Neither did his attorney. The judge found Respondent guilty and withheld the adjudication and placed Respondent on court-supervised probation for a period of six months. There was no requirement to report during the probationary period. Respondent was also ordered to pay court costs in the amount of $244.00. Respondent was required to complete 20 hours of community service and provide proof of that service.
Subsequently, Respondent completed an application for renewal of his professional Florida Educator's
Certificate. That application for renewal was made on October 19, 2000. The signature on the application was notarized. It stated a reminder to Respondent of the consequences if he did not make certain that the matters contained in the application were true, correct, and complete and the consequences if Respondent was not forthcoming in his answers to the questions within the application, wherein the application form stated, "I understand that Florida Statutes provide for revocation of an Educator's Certificate if evidence and proof are established that the certificate has been obtained by fraudulent means. I further certify that all information pertaining to this application is true, correct, and complete."
Within the application was a question which stated:
Have you ever been convicted, found guilty, had adjudication withheld, entered a pretrial diversion program, or pled guilty or nolo contendere (no contest) to a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation)? Failure to answer this question accurately could cause denial of a certificate.
A YES or NO answer is required by Florida Law. If you check the YES box, you must give the information requested for each charge. Please attach a separate sheet if you need more space.
Report any record other than SEALED or EXPUNGED records in this section.
Notwithstanding the fact that Respondent had been found guilty and had adjudication withheld following a plea of nolo contendre to the offense involving Section 316.061, Florida Statutes, he did not acknowledge the plea and provide further information. The offences related to Section 316.061, Florida Statutes, are misdemeanors of the second degree, crimes punishable as provided in Section 775.02 or 775.03, Florida Statutes.
Respondent, in his testimony, indicated that no one told him what was meant in the application to renew his teaching certificate concerning the question pertaining to criminal offenses where it exempted the reporting of minor traffic violations. It was not necessary that the application further define "minor traffic violation." It suffices that Respondent appeared in the County Court for Alachua County, Florida, in a criminal case and entered a plea of nolo contendre to an offense involving a misdemeanor of the second degree. Nothing in that process would reasonably lead Respondent to conclude anything other than the fact that the case before the court was more serious than a minor traffic violation. When Respondent answered the question in the application in the negative, he failed to answer the question candidly. He did this in a setting in which he knew or should have known that adverse consequences would pertain for
providing a negative response to the question. If Respondent was unsure what was meant by the question which refers to a minor traffic violation being exempt from disclosure, he should have inquired as to the meaning. The hearing record does not reveal that he made inquiry to clarify the meaning of that term before completing the application.
Prior Performance
When classroom teacher evaluations were performed on March 17, 1998, and March 30, 1999, Respondent was found to meet proficiency or above the expected level of performance. In the school year 1999/2000, optional performance appraisal form dated May 12, 2000, Respondent had been rated as having exemplary overall performance.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in accordance with Sections 120.569 and 120.57(1), Florida Statutes.
When the Administrative Complaint in this case was brought, it charged violations of Section 231.2615(1)(c), (f), and (i), Florida Statutes, within Counts 1 through 3, respectively. The substantive provisions in those counts are now found in Section 1012.795(1)(c), (f) and (i), Florida Statutes. With this change, jurisdiction has been retained
over the allegations in the original Administrative Complaint. Solloway vs. Department of Professional Regulation, 421 So. 2d
573 (Fla. 3rd DCA 1982).
Petitioner bears the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The definition of clear and convincing evidence is found in the case Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).
The consequence of any violation of counts alleged in the Administrative Complaint is described at Section 1012.795(1), Florida Statutes, where it states that Petitioner:
1012.795 Education Practices Commission; authority to discipline.--
The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) 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); may revoke the educator 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); may revoke permanently the educator certificate of any person; . . . or to impose any other penalty provided by the law provided it can be shown that such person: . . .
Count 1 to the Administrative Complaint presently
charges Respondent of a violation of Section 1012.795(1)(c), which alleges Respondent:
Has been guilty of gross immorality or an act involving moral turpitude.
As the court has held, "by virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community." Adams vs. Professional Practices Council, 46 So. 2d 1170, 1171 (Fla. 1st DCA 1981). As a teacher, it is not necessary that Respondent ". . . be charged with or convicted of a crime in order to be subject to revocation of a certificate based on conduct reflecting gross immorality or moral turpitude. . . ." Walton v. Turlington, 444 So. 2d 1082, 1084 (Fla. 1st DCA 1984).
To understand the meaning of "gross immorality" or "moral turpitude", resort is made to provisions within Chapter 6B-4, Florida Administrative Code, defining terms for the benefit of district school systems in disciplining instructional staff.
Rule 6B.4009(2), Florida Administrative Code, defines immorality as:
[C]onduct that is inconsistent with standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the educational profession into public disgrace or disrespect and impair the individual's service in the community.
For the conduct to be considered grossly immoral, it would
need to be a form of immorality that is obvious and inexcusable.
In connection with the discipline to be imposed by the district school system for its instructional staff "moral turpitude" is defined at Rule 6B-4.009(6), Florida Administrative Code, as a:
Crime that is 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 fellowman or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
Again, it is not necessary that a crime be committed in order to demonstrate moral turpitude.
When measured against these definitions, Respondent's conduct at his school on January 18, 2001, reached the level of gross immorality. His display on that occasion was obvious and inexcusable and certainly immoral. He chose to combine the prescribed medications with the alcohol. He was sufficiently aware of his acts to be responsible for them, but his conduct was not so severe as to reflect moral turpitude. Respondent violated Section 1012.795(1)(c), Florida Statutes.
Count 2 to the Administrative Complaint charges Respondent with a violation of Section 1012.795(1)(f), Florida Statutes, in that Respondent allegedly:
Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board.
This violation has not been shown. The opinions expressed by the school principal and district director of personnel were conclusory in nature. The actual consequences of the misconduct concerning Respondent's ability to continue as an effective employee of the school district has not been established from the perspective of teachers, students, parents, guardians, or the overall community. See Braddock vs. School Board of Nassau County, 455 So. 2d 394 (Fla. 1st DCA 1984); and MacMillan vs. Nassau County School Board, 629 So. 2d 226 (Fla. 1st DCA 1993).
Count 3 to the Administrative Complaint charges Respondent with the violation of Section 1012.795(1)(i), Florida Statutes, wherein it is alleged that Respondent:
Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
For these purposes, the Principles of Professional Conduct for the Education Profession are particularly described in the remaining counts to the Administrative Complaint. Therefore, a violation of any count beyond Count 3 would also constitute a violation of Count 3.
Count 4 to the Administrative Complaint charges Respondent with a violation of Rule 6B-1.006(3)(a), Florida Administrative Code, which states his obligation to the student requires that the Respondent:
Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.
By his actions in Ms. Warner's class and outside the school while being put in the police car, Respondent violated Rule 6B-1.006(3)(a), Florida Administrative Code.
Count 5 to the Administrative Complaint charges Respondent with a violation of Rule 6B-1.006(5)(a), Florida Administrative Code, which identifies Respondent's obligation to his profession by requiring that he:
Shall maintain honesty in all professional dealings.
Count 6 to the Administrative Complaint charges Respondent with a violation of 6B-1.006(5)(h), Florida Administrative Code, which identifies his obligation to his profession by requiring that Respondent:
Shall not submit fraudulent information on any document in connection with professional activities.
In renewing his application for his educator's certificate, Respondent failed to maintain honesty in his professional dealings. He submitted false information on a
document in connection with his professional activities. Therefore he violated Rule 6B-1.006(5)(a)and (h), Florida Administrative Code. He committed the violations by his failure to disclose that in open court and under explanation he had pled nolo contendre to a violation of Section 316.061, Florida Statutes, had been found guilty, and had adjudication withheld in connection with his leaving the scene of an accident without injuries. This is a criminal offense, punishable in court as a second degree misdemeanor pursuant to Sections 775.082 and 775.083, Florida Statutes. Any reasonable reading of the question in the application for renewal of an educator's certificate pertaining to criminal history would lead one to believe that the offense of leaving the scene of an accident without injury is not a minor traffic violation subject to exemption from disclosure. No indication was made in the record that Respondent, before answering the question concerning any criminal record, inquired of those persons responsible for reviewing his application for renewal. The purpose of that inquiry would have been to ascertain whether prior precedent or policy would allow an applicant not to disclose an offense in association with Section 316.061, Florida Statutes, because it was a minor traffic violation.2/
Based upon the Findings of Fact and Conclusions of Law
reached, it is
RECOMMENDED:
That a final order be entered which finds Respondent in violation of Count 1, and Counts 3 through 6; dismisses Count 2; and revokes Respondent's educator's certificate for a period of two years.
DONE AND ENTERED this 16th day of July, 2003, in Tallahassee, Leon County, Florida.
S
CHARLES C. ADAMS
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 16th day of July, 2003.
ENDNOTES
1/ This case commenced before the State of Florida, Education Practices Commission, Case No. 001-1338-A, Charlie Crist, as Commissioner of Education, Petitioner vs. Troy Doyle, Respondent. Charlie Crist now serves as Florida Attorney General. Jim Horne is the Commissioner of Education. The style in the case was corrected to reflect those changes.
2/ The case in Betty Castor v. Rick Sapp (Fla. Div. Admin. Hrgs) Case No. 88-1653, is internally inconsistent in its discussion of whether Section 316.061, Florida Statutes, is a minor traffic violation or a criminal offense. Therefore, its value as precedent is disregarded.
COPIES FURNISHED:
Ginger L. Barry, Esquire McFarlain & Cassedy, P.A.
305 South Gadsden Street Tallahassee, Florida 32301
H. B. Stivers, Esquire Levine, Stivers, and Myers
245 East Virginia Street Tallahassee, Florida 32301
Kathleen M. Richards, Executive Director Education Practices Commission Department of Education
325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400
Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education
325 West Gaines Street, Room 224E 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.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 24, 2003 | Agency Final Order | |
| Jul. 16, 2003 | Recommended Order | Respondent acted inappropriately at school while under the influence of medications and alcohol. |
MONROE COUNTY SCHOOL BOARD vs ROBERT LALENA, 03-000393PL (2003)
RONALD JONES vs FLORIDA DEPARTMENT OF EDUCATION, 03-000393PL (2003)
JOHN L. WINN, AS COMMISSIONER OF EDUCATION vs EULALEE PATTEN, 03-000393PL (2003)
JOHN L. WINN, AS COMMISSIONER OF EDUCATION vs DAVID J. WILLIAMS, 03-000393PL (2003)
CHARLIE CRIST, AS COMMISSIONER OF EDUCATION vs MICHAEL CHANDLER, 03-000393PL (2003)
