vs.
Respondent.
) Case No. 06-3527PL
A formal hearing was held in this case before Daniel M. Kilbride, an Administrative Law Judge of the Division of Administrative Hearings, on November 14, 2006, in Bradenton, Florida.
For Petitioner: Bruce P. Taylor, Esquire
St. Petersburg, Florida 33731-0131
For Respondent: D. Robert Hoyle, Esquire
Law Firm of D. Robert Hoyle, P.A. 1001 3rd Avenue West, Suite 260
Whether Respondent's educator's certification should be sanctioned for alleged acts involving moral turpitude, in violation of Subsection 1012.795(1) (c), Florida Statutes (2003).1
Whether Respondent's educator's certification should be sanctioned for being convicted of a misdemeanor, felony, or other criminal charge, in violation of Subsection 1012.795(1)(e), Florida Statutes.
Whether Respondent's educator's certification should be sanctioned for violation of the Principles of Professional Conduct for the Education Profession, in violation of Subsection 1012.795(1)(i), Florida Statutes.
Whether Respondent's educator's certification should be sanctioned for a plea guilty or a decision of guilt in any court, in violation of Subsection 1012.795(2), Florida Statutes.
Whether Respondent's educator's certification should be sanctioned for failure to maintain honesty in all professional dealings, in violation of Florida Administrative Code Rule 6B- 1.006(5)(a).
Whether Respondent's educator's certification should be sanctioned for submitting fraudulent information on a document in connection with professional activities, in violation of Florida Administrative Code Rule 6B-1.006(5)(h).
Following an investigation by the Department of Education, Petitioner filed an Administrative Complaint against Respondent on December 29, 2005. Respondent denied the allegations and filed an Election of Rights, seeking a formal hearing. This matter was referred to the Division of Administrative Hearings on September 15, 2006. Discovery ensued. Counsel filed a motion seeking authorization for Respondent to appear by telephone at the final hearing. Said motion was granted. The final hearing was held on November 14, 2006, with Respondent appearing by telephone and being represented at the hearing by counsel.
The Administrative Complaint alleged four statutory violation counts and two rule violation counts. At the hearing, Petitioner called two witnesses. Respondent testified in her own defense. Eight of Petitioner's exhibits were admitted, consisting of certified court documents, trial transcript, and Respondent's teaching certificate.
A Transcript of the hearing was filed on December 4, 2006. Petitioner filed his Proposed Recommended Order on December 13, 2006. Respondent has not filed her proposals as of the date of this Recommended Order.
Respondent, Carolyn Stewart, holds Florida Educator Certificate 747243, covering the area of Guidance and Counseling, which was valid through June 30, 2005.
Respondent was employed as a guidance counselor at Sea Breeze Elementary School, in the Manatee County School District, during the 2003/2004 school year, until she resigned sometime in the fall of 2003.
On or after October 1, 2003, Respondent was arrested and charged with two counts of fraudulent use of a credit card. Respondent entered a plea of guilty to those charges, both third degree felonies, in the Circuit Court for Manatee County, Florida, Case Nos. 2003-CF-3150 and 2003-CF-4094, on May 18, 2004. Adjudication was withheld, and Respondent was sentenced to credit for time served in the county jail, court costs, and facility fee.
On or about March 18, 2004, following the issuance of an Information, Respondent was arrested and charged with the felony offense of filing fraudulent insurance claims, between October 1, 1999, and September 12, 2003, with her employer, the Manatee County School Board. Respondent entered a plea of nolo contendre to the charge of filing fraudulent insurance claims for less that $20,000, a third degree felony, in the Circuit Court for Manatee County, in Case No. 2004-CF-1067, on May 24,
2005. Respondent was adjudicated guilty and sentenced to five years probation.
On April 15, 2004, Respondent was charged, by Information, with the offense of Poisoning Food or Water of Michael Skoyec, which occurred between August 31, 2003, and/or September 1, 2003. Respondent pled not guilty to the charge, a first degree felony, and the matter proceeded to a jury trial before the Circuit Court for Manatee County, Case No. 2004-CF- 1787. Prior to the trial, the State Attorney amended the Information by adding a second count, charging Respondent with Attempted Second Degree Murder, a second degree felony. Following the trial which concluded on February 11, 2005, the jury returned a verdict of guilty on the first count, Poisoning Food and Water, and a verdict of guilty on the lesser count included offense of Battery (a first degree misdemeanor), as to the second Count. At the sentencing hearing on April 19, 2005, Respondent was adjudicated guilty and sentenced to 15 years in the custody of the Department of Corrections, and costs, followed by five years' probation.
Respondent was committed to the custody of the Department of Corrections on April 19, 2005, and is at present serving her sentence in the Gadsden Correctional Institution.
Following her conviction and sentence, Respondent appealed her convictions to the Second District Court of Appeal.
The conviction was affirmed on March 3, 2006, and the Mandate issued on May 18, 2006.
In each of the criminal cases in which she entered a plea of guilty or no contest, Respondent, through her attorney, stipulated that there was a factual basis for the charge, or the facts were stated on the record for the court to determine the factual basis.
Following these incidents, Respondent resigned her position with the Manatee School District in the fall of 2003. There was adverse publicity in the newspaper about the charges against Respondent, including the poisoning charge. There was no dispute that as a result of these incidents Respondent's effectiveness as a teacher was seriously, if not totally, reduced.
The honesty of educators is relied upon by administrators. Respondent's actions, including her fraudulent acts, prevented administrators from relying on her honesty. Fellow employees rely on an educator's honesty, and Respondent's actions similarly prevent that reliance in the future.
On October 18, 2004, Respondent was charged by Information, with one felony count of falsifying records, on September 22, 2003, of the Department of Children and Family Services (DCFS). She entered a plea of no contest, was
adjudicated guilty, and placed on five years' probation for that offense on May 24, 2005.
Although the avenue of direct appeal of her conviction has been exhausted, Respondent has retained legal counsel to explore the possibility of filing post-conviction relief in the courts in regard to those charges, where she has been adjudicated guilty by the court.
Although Respondent acknowledged that grounds existed to revoke her teaching certificate, she testified that she was very good at what she did as a guidance counselor and desired the opportunity to seek reinstatement of her teaching certificate in the future. Respondent offered no evidence to support this assertion.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. §§ 120.569, 1012.795, and 120.57(1), Fla. Stat.
This proceeding involves disciplinary action against Respondent's teaching certificate and therefore is penal in nature. State ex rel Vining v. Florida Real Estate Commission,
281 So. 2d 487 (Fla. 1973). The burden of proof to establish the facts upon which Petitioner seeks to discipline Respondent's teaching certificate is on Petitioner. Balino v. Dept. of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA
1977). The standard of proof required in this matter is that the charges must be proved by Petitioner through the introduction of clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). Petitioner has the burden of proving by clear and convincing evidence each of the allegations in the Amended Administrative Complaint. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
In the six-count Administrative Complaint filed against Respondent, it has been alleged that she has committed the acts prohibited by the provisions of Subsections 1012.795(1)(c), (e) and (i), and 1012.795(2), Florida Statutes and further that she violated Florida Administrative Code Rule 6B-1.006(5)(a), and (h).
Section 1012.795(1), Florida Statutes, authorizes the Education Practices Commission to suspend, revoke, or otherwise penalize a teaching certificate, provided it can be shown that the holder of the certificate, inter allia:
(c) Has been guilty of gross immorality or an act involving moral turpitude.
* * *
(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 the State Board of Education rules.
Florida Administrative Code Rule 6B-1.006 reads in pertinent part:
6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.
* * *
Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
* * *
(h) Shall not submit fraudulent information on any document in connection with professional activities.
As guidance in the interpretation of Section 1012.795(1)(c), Florida Statutes, two definitions from Florida Administrative Code and one case citation are provided.
Florida Administrative Code Rule 6B-4.009 provides:
(2) "Immorality" is defined 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 individual’s service in the community.
The term "moral turpitude" is defined in Florida Administrative Code Rule 6B-4.009(6) as follows:
Moral turpitude is 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 fellow man or to society in general, and the doing of the act itself and not its prohibition by statutes fixes the moral turpitude.
Moral turpitude has also been defined by the Supreme Court of Florida as follows:
Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.
State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933).
Section 1012.796, Florida Statutes, reads in pertinent part:
(7) A panel of the [Education Practices]
commission shall enter a final order either dismissing the complaint or imposing one or more of the following penalties:
* * *
Revocation or suspension of a certificate.
Imposition of an administrative fine not to exceed $2,000 for each count or separate offense.
Placement of the teacher, administrator, or supervisor on probation for a period of time and subject to such conditions as the commission may specify, including requiring the certified teacher, administrator, or supervisor to complete additional appropriate college courses or work with another certified educator, with the administrative costs of monitoring the probation assessed to the educator placed on probation.
Restriction of the authorized scope of practice of the teacher, administrator, or supervisor.
Reprimand of the teacher, administrator, or supervisor in writing, with a copy to be placed in the certification file of such person.
Subsection 120.569(2)(g), Florida Statutes (2006), relating to the Florida Administrative Procedures Act, provides:
Irrelevant, immaterial or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida.
Subsection 120.57(1)(c), Florida Statutes (2006), provides:
Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.
Although Petitioner argues that a plea of guilty in a criminal case is an admission of the essential facts of the charge, and is admissible as an admission against interest in a civil proceeding against the party entering the plea, citing Chimerakis v. State, 221 So. 2d 735 (Fla. 1969), that is not the current status of the law. The First District held in the case of Williams v. Betty Castor, as Commissioner of Education, 613 So. 2d 97, 99 (Fla. 1st DCA 1993) that "[t]he law [is] well established that a judgment of conviction of a criminal offense, whether based on a plea of guilty or nolo contendre, is not admissible in a subsequent civil proceeding as proof of the facts on which it is based [citations omitted]." Ehrhardt, Florida Evidence § 803.22a (2005 Edition). Thus, Respondent cannot be deemed to have admitted the underlying facts of the two charges of fraudulent use of a credit card by pleading guilty to those charges, or to the charge of fraudulent submission of insurance claims to her employer, nor to the charge of fraudulent submission of reports to DCFS.
A plea of guilty or the decision of guilty by any
court, is prima facie proof of grounds for the revocation of a
teaching certificate. § 1012.795(2) Fla. Stat. This provision is a rebuttable presumption under the Florida Evidence Code, Sections 90.302 and 90.303. This presumption was not rebutted by Respondent. However, this section of the Education Code
(§ 1012.795(2), Fla. Stat.) is a legal presumption, it is not grounds for a separate count in the Administrative Complaint.
Petitioner submitted the trial transcript (Petitioner's Exhibit 6) in the matter of State of Florida v. Carolyn Stewart, which relates to the charges of poisoning food or water and battery, in order to prove the underlying facts relating to paragraph five of the Administrative Complaint. It is determined that at the time the testimony was offered against her, Respondent was represented by counsel at the criminal trial and had an opportunity and similar motive to develop the testimony of each witness by direct, cross or redirect examination. The testimony would, therefore, be considered reliable and admissible before this tribunal. However, the First District in Grabau v. Department of Health, Board of
Psychology, 816 So. 2d. 701 (Fla. 1st DCA 2002) declared this section of the Florida Evidence Code unconstitutional. This case has not been reversed or overruled. Therefore, the transcript can not be relied upon to prove the underlying facts in the poisoning case.
A teacher holding a educator's certificate can be subject to discipline by committing an act of moral turpitude or of gross immorality. § 1012.795(1)(c) Fla. Stat.
Respondent is guilty of committing several acts of gross immorality or of moral turpitude. Respondent used someone else's credit card and used it for her own benefit on two occasions. She used fraud to claim insurance benefits. She submitted false reports in connection with work she claimed to have done. She poisoned Michael Skoyec, causing him injury. These acts clearly fit the definition of gross immorality and moral turpitude. Respondent is therefore guilty of committing multiple acts of moral turpitude and/or gross immorality.
A teacher holding an educator's certificate can be subject to discipline by being convicted of a crime other than a minor traffic violation. § 1012.795(1)(e) Fla. Stat. Undisputably, Respondent was convicted of four felony offenses and one misdemeanor. Fraudulent insurance claim (2 counts), falsifying records, and poisoning, all felonies, and battery, a misdemeanor. Respondent is therefore guilty of violating Section 1012.795(1)(e), Florida Statutes.
A teacher holding an educator's certificate can be subject to discipline by failing to maintain honesty in all professional dealings. Respondent violated this provision of the Code of Professional Conduct when she stole a credit card.
Also, Respondent was not honest when she made fraudulent insurance claims.
A teacher holding an educator's certificate can be subject to discipline by submitting fraudulent information in connection with professional activities. Based on the facts set forth above in paragraph 4, she also clearly violated that rule.
Respondent's personal conduct has seriously reduced her effectiveness as an employee of the School Board. Lack of integrity and trustworthiness on the part of a teacher, as reasonably perceived by her supervisor, necessarily impairs her effectiveness to the school board.
The remaining question, then, is what sort of discipline to impose on Respondent? Petitioner recommends a permanent revocation of Respondent's teaching certificate. Respondent, not contesting that grounds exist for the imposition of serious discipline, apparently seeks a provisional or limited revocation of her certificate, hoping to teach again after her release from prison. However, there is not a provision in law to accommodate Respondent's request. Under Section 1012.795(1), Florida Statutes, a certificate may be revoked for a period of up to 10 years or permanently. There is no other type of revocation available. There is a strong likelihood that Respondent will still be incarcerated in 10 years, because convicted felons are required to serve 85 percent of their
prison sentence. See § 944.275(4)(b)(3), Fla. Stat. She has lost her direct appeal, and, at the time of the hearing, had not filed any motion for post conviction relief. At this time, it would be highly speculative to base any decision on the mere possibility that at some point in the future Respondent may receive a new trial in the poisoning case. It is even more speculative to base a decision on her claim that she did not receive effective representation of counsel in the felonies to which she entered pleas of no contest or guilty. She was adjudicated guilty of all of those felonies, and based on those felonies, she is a convicted felon. At the time of her pleas, Respondent signed forms indicating satisfaction with her legal representation.
Apart from the concern about whether consideration of a penalty of less than permanent, but more than ten years, is legally permitted, should such a penalty be considered. As indicated previously, Respondent's actions were not only extremely egregious, they were varied in nature. Respondent offered no facts that would warrant mitigation of the recommended penalty. Respondent does not deserve the opportunity to ever again hold a Florida Educator's Certificate. Respondent's certificate should be permanently revoked.
That the Education Practices Commission enter a final order permanently revoking Respondent's teaching certificate.
DONE AND ORDERED this 24th day of January, 2007, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 2007.
1/ All references to Florida Statutes are to Florida Statutes (2003), unless otherwise indicated.
Bruce P. Taylor, Esquire Post Office Box 131
St. Petersburg, Florida 33731-0131
D. Robert Hoyle, Esquire
Law Firm of D. Robert Hoyle, P.A. 1001 3rd Avenue West, Suite 260
Lynn Abbott, Agency Clerk Department of Education Turlington Building, Suite 1514
Daniel J. Woodring, General Counsel Department of Education
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.
