STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MIAMI-DADE COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. )
)
SHANEEN SINGLETON, )
)
Respondent. )
Case No. 07-0559
)
RECOMMENDED ORDER
This case came before Administrative Law Judge John G. Van Laningham for final hearing on March 29, 2007, in Miami, Florida.
APPEARANCES
For Petitioner: Janeen L. Richard, Esquire
Miami-Dade County School Board Attorney's Office
1450 Northeast Second Avenue, Suite 400
Miami, Florida 33132
For Respondent: Mark Herdman, Esquire
Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
Clearwater, Florida 33761 STATEMENT OF THE ISSUE
The issue in this case is whether a convicted felon should be dismissed from her position as a public school teacher for having committed a criminal act.
PRELIMINARY STATEMENT
At its regular meeting on January 17, 2007, Petitioner Miami-Dade County School Board suspended Respondent Shaneen Singleton, without pay, pending her dismissal from the district's instructional staff. The School Board took this action because, some months earlier, Respondent had pleaded guilty in federal court to one count of criminal conversion and, more recently, had been convicted of, and sentenced for, the crime.
Ms. Singleton timely requested a formal hearing, and on January 31, 2007, the matter was referred to the Division of Administrative Hearings for further proceedings. The final hearing was scheduled for, and conducted on, March 29, 2007.
At the final hearing, the School Board called the following witnesses: Veronica Swindell-Wesley, principal; Lucy Iturrey, administrator; and Ms. Singleton. In addition, Petitioner's Exhibits 6A, 6B, 6C, 6D, 7, 8, 10, 23, 24, 25, 27, 28, and 29
were offered and received into evidence.
Ms. Singleton testified on her own behalf. Also testifying for Ms. Singleton was Tashimba Andrews, an assistant principal. Besides that, Ms. Singleton introduced Respondent's Composite Exhibits 1 and 2, which were admitted into evidence.
The final hearing transcript was filed on May 17, 2007. Each party timely filed a Proposed Recommended Order by the established deadline, which was May 29, 2007.
Unless otherwise indicated, citations to the Florida Statutes refer to the 2006 Florida Statutes.
FINDINGS OF FACT
The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System.
When this proceeding began, Respondent Shaneen Singleton ("Singleton") was a fifth-year teacher in Miami, where she taught second grade. From 2002 until she was suspended in January 2007, Singleton was assigned to Edison Park Elementary, which is a public school within the School Board's jurisdiction.
Singleton was born in 1974, the second oldest of ten siblings. She grew up near downtown Miami in Overtown, a dangerous inner-city neighborhood plagued by poverty and crime. In Singleton's words: "Of course . . . you have the fighting, the shootings, a lot of things going on [in Overtown]."
As a child, Singleton met Tashimba Andrews, who has been a lifelong friend. When they were teenagers, Ms. Andrews and Singleton participated in a government program for children whose parents were receiving public assistance. Through this
program, Ms. Andrews and Singleton were employed, for several summers, as day care providers, giving them an opportunity to do "teacher like things" with children. From this experience, the two developed a love for teaching.
After high school graduation, Singleton and Ms. Andrews went to college together. Soon, however, their paths diverged. Singleton became pregnant, dropped out of college, and had a baby. Ms. Andrews continued with her education, eventually earning a bachelor's degree in elementary education, a master's degree in exceptional student education, and a specialist's degree in educational leadership. She would become, in time, a teacher in the Miami-Dade County Public School System. As of the final hearing, Ms. Andrew was in her second year as an assistant principal at Miami Edison Senior High School.
After quitting college, Singleton returned to Overtown and landed a part-time job. Needing a place of her own, Singleton applied for public housing assistance. She was accepted to receive aid under the "Section 8" program, which subsidizes the costs of housing for low-income families. And so, as of 1995, Singleton, age 19, was a single mother living in Section 8 housing in Overtown, having no formal education beyond high school.
During the next several years, Ms. Andrews (Singleton's childhood friend) goaded Singleton into pursuing a college
degree. At some point, Ms. Andrews even assumed substantial responsibility for rearing Singleton's son, whom she took into her own home, so that Singleton could concentrate on her studies. Singleton eventually earned a two-year degree from the local community college. With that, she was able to work as a paraprofessional and substitute teacher.
Ms. Andrews continued to push Singleton, urging her to get a bachelor's degree. Singleton rose to the challenge, attending, first, Florida International University and, later, Nova Southeastern University, which latter institution awarded her a bachelor's degree in 2002. Thereafter, she attended graduate school and received a master's degree in reading education. At the time of the hearing, Singleton expected to graduate in July 2007 with a specialist's degree in math.
Sometime before graduating from Nova and taking her first full-time teaching position in the Miami-Dade County Public Schools, which events took place in 2002, Singleton gave birth to her second child, got married, and moved out of her subsidized apartment, to live with her husband. Before vacating her apartment, however, Singleton allowed her unemployed younger sister——who had no place else to go——to move in with her. When Singleton left, the sister stayed.
The sister remained in the Section 8 apartment for at least the next couple of years, during which time Singleton
signed the lease for "her" apartment——as if she were still a tenant——even though, in fact, she no longer lived there. As a result, the federal government paid a rental subsidy to Singleton's former landlord, which actually benefited Singleton's sister, rather than Singleton.
Singleton testified at hearing that, in signing the lease which allowed her sister to benefit from the Section 8 rental subsidy meant for Singleton, she did not intend to commit a crime. Ms. Andrews corroborated this testimony, asserting her belief, as a confidant of Singleton's, that Singleton had not intended to defraud the government. Elaborating, Ms. Andrews testified: "[Singleton's] family depends on her a lot, and I think that many times she's put in circumstances that could —— that I just —— morally, she was asked to do something to help a family member, and it inadvertently affected her."
The undersigned accepts the foregoing evidence——which was not rebutted——and finds that, more likely than not, Singleton's action(s) in furtherance of securing a Section 8 rental subsidy for her sister's benefit were not the product of a criminal or fraudulent intent. Rather, Singleton——who did not stand to gain personally——was motivated by the desire or need to provide her sister with someplace to live.1
That said, the undersigned does not find that Singleton had no idea that what she did was wrong. To the
contrary, she must have known that obtaining a rental subsidy, in her own name, for an apartment that she no longer occupied—— even for the good purpose of providing shelter for her sister—— was improper. Singleton had no legal excuse or justification for her misdeed, which involved conduct that was contrary to societal expectations regarding socially acceptable behavior, as such are expressed through positive law.
In June 2006, Singleton was arrested pursuant to a federal indictment that charged her with 46 counts of violating Title 18, U.S. Code, Section 641.2 This crime, which entails theft or conversion of public property, is defined as follows:
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—
Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of
$1,000, he shall be fined under this title or imprisoned not more than one year, or both.
The word "value" means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.
18 U.S.C. § 641 (emphasis added)(hereafter, "Criminal Conversion").3 Singleton immediately informed her principal, Veronica Swindell-Wesley, that she had been arrested, although she did not provide Ms. Swindell-Wesley with details regarding the nature of the charges.
In July 2006, Singleton entered into a Plea Agreement with the United States whereby she agreed to plead guilty to a single count of the indictment in exchange for the government's promise to seek dismissal of the remaining 45 counts.
In August 2006, Singleton returned to the classroom after the summer break. Ms. Swindell-Wesley allowed Singleton to continue teaching, despite the pendency of the criminal case, and even assigned her new duties, naming her the reading instructor.
On September 15, 2006, the federal court accepted the Singleton's plea, adjudicated her guilty of one act of Criminal Conversion, and dismissed all of the remaining charges. (Parenthetically, none of the allegations made against Singleton in the 45 counts that were dismissed was ever proved——and mere allegations, which could not support a criminal conviction, obviously cannot support an adverse employment decision based on a criminal conviction. It is a point worth emphasizing,
therefore, that Singleton was convicted only for one isolated bad act, not the continuing series of bad acts which the government originally charged Singleton with perpetrating but ultimately never proved. Indeed, for the purposes of this case, Singleton is presumed innocent of the crimes alleged in the dismissed counts, just as any person accused of a crime would be deemed innocent unless and until guilt were established by proof beyond a reasonable doubt.)
Singleton was sentenced to one year of probation, ordered to make restitution to the government in the amount of
$1,036, and fined $15,000.4 Singleton paid the restitution immediately, and the court terminated her probation. As of the hearing, she was paying the fine at the rate of $50 per month.
Following Singleton's conviction, the school district's investigative and disciplinary personnel took immediate action. In short order, a conference-for-the-record ("CFR") was scheduled to discuss Singleton's future as a teacher.
The CFR was held on October 26, 2006. Before the meeting, Ms. Swindell-Wesley wrote a letter of support for Singleton. Dated October 26, 2006, the letter provides as follows:
To Whom it May Concern:
This is a letter of support for Shaneen Singleton, Teacher at Edison Park Elementary School. I have supervised Ms. Singleton for the past two and [a] half years, and I must admit that I am impressed with her commitment, professionalism, and abilities to do her job. Ms. Singleton is currently working as a Reading Teacher at Edison Park Elementary. She is an enthusiastic employee who is always encouraging, nurturing of all students and supportive of staff here at our school. Ms. Singleton is also very astute where students are concerned and demonstrates sharp leadership skills. She is also proactive and takes responsibility for the work of the school. She has always demonstrated high morals and character while at work. Ms. Singleton regularly confers with the Leadership Team about the curriculum in our school to assist the Administration with compliance of district trends and initiatives.
Ms. Singleton consistently exhibits her dedication to the Edison Park family by participating on several school-wide committees. These committees include, Honor Roll, Black History, Spanish Heritage, Safety Patrol, Haitian Flag, Leadership Team, Teacher of the Year, Grade Level Chair and Literacy Team.
She is an excellent employee and is an asset to the enhancement of student achievement in Miami-Dade County Schools.
Singleton submitted Ms. Swindell-Wesley's letter, together with four other such letters of recommendation, into the record at the CFR (according to the summary of the meeting, which is in evidence).5
After the CFR, it was Ms. Swindell-Wesley's duty to make a recommendation concerning the disciplinary action to be taken, if any, against Singleton. In a memorandum dated October 26, 2006, Ms. Swindell-Wesley urged that Singleton be fired, writing:
Based on Records Check #L-26145, Ms. Shaneen Singleton confirmed that she was arrested and pleaded guilty for Theft of Public Monies. Although Ms. Singleton has exhibited excellent teaching qualities, this does not excuse the commission and conviction of a crime involving moral turpitude. Based on the information presented at the Conference for the Record, a review of the record, and the United States District Court Southern District of Florida Indictment, it is my recommendation that Ms. Singleton be dismissed from employment with Miami-Dade County Public Schools.
At the time she prepared this memorandum, Ms. Swindell-Wesley believed she had no choice but to recommend Singleton's dismissal, based on the nature of the crime she had committed.6
In due course, the recommendation was made to the School Board that Singleton's employment be terminated. At its regular meeting on January 17, 2007, the School Board voted in favor of suspending Singleton without pay pending termination of employment.
The facts and circumstances surrounding Singleton's arrest and conviction were not publicized in the media nor discussed by the staff or students at Edison Park Elementary.
Indeed, there is no evidence that the facts concerning her offense were known beyond the small circle of people directly and immediately involved. There is likewise no evidence of any parental complaints stemming from Singleton's conviction. Nor is there any evidence, one way or the other, as to whether the knowing conversion of a housing voucher is considered a very serious and morally wrong offense in the community where Singleton was teaching.
There is, however, persuasive, credible evidence——and it is found——that Singleton's job performance did not suffer at all, either after her arrest or subsequent conviction. Singleton, in fact, retained her effectiveness as a teacher, despite the criminal act that caused her to be prosecuted and punished.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 1012.33, 120.569, and 120.57(1), Florida Statutes.
A district school board employee against whom a dismissal proceeding has been initiated must be given written notice of the specific charges prior to the hearing. Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the [statute,] rule, [regulation, policy, or collective
bargaining provision] the [school board] alleges has been violated and the conduct which occasioned [said] violation." Jacker v. School Board of Dade County, 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J. concurring).
Once the district school board, in its notice of specific charges or, as in this case, Amended Notice of Specific Charges, has delineated the offenses alleged to justify termination, those are the only grounds upon which dismissal may be predicated. See Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill
v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Department of Business and Professional
Regulation, 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993); Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992); Willner v. Department of Professional Regulation, Board of Medicine, 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev.
denied, 576 So. 2d 295 (Fla. 1991).
In an administrative proceeding to suspend or dismiss an employee, the district school board, as the charging party, bears the burden of proving, by a preponderance of the evidence, each element of the charged offense(s). See McNeill v. Pinellas
County School Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County School Bd., 664 So. 2d 1178, 1179 (Fla.
5th DCA 1995); MacMillan v. Nassau County School Bd., 629 So. 2d
226 (Fla. 1st DCA 1993).
The guilt or innocence of the accused employee is a question of ultimate fact to be decided in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995).
Pursuant to Section 1012.33(6)(a), Florida Statutes, the School Board is authorized to suspend or dismiss
[a]ny member of the instructional staff
. . . at any time during the term of [his teaching] contract for just cause . . . .
The district school board must notify the employee in writing whenever charges are made against the employee and may suspend such person without pay; but, if the charges are not sustained, the employee shall be immediately reinstated, and his or her back salary shall be paid.
(Emphasis added.) The term "just cause" includes, but is not limited to, the
following instances, as defined by rule of
the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.
§ 1012.33(1)(a), Fla. Stat.
In its Amended Notice of Specific Charges filed on March 13, 2007, the School Board advanced four theories for dismissing Singleton: Immorality (Count I); Conviction of a Crime Involving Moral Turpitude (Count II); Unseemly Conduct in
Violation of School Board Policy (Count III); and Unethical Conduct in Violation of School Board Policy (Count IV). The School Board withdrew Count I at the outset of the hearing.
Crime Involving Moral Turpitude
As the statutory definition of "just cause" makes clear, a criminal conviction warrants termination of employment only if the employee were convicted of a crime involving moral turpitude ("CIMT"). That Singleton was convicted of a crime was never in dispute. The dispute concerns whether the crime of which Singleton was convicted is a CIMT.
The term "moral turpitude" is defined in Florida Administrative Code Rule 6B-4.009, which prescribes the "criteria for suspension and dismissal of instructional personnel" and provides, in pertinent part, as follows:
(6) 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 statute fixes the moral turpitude.
This definition of a CIMT follows the common law definition, which has existed for many years. See, e.g., State
ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (Fla. 1933). It comprises four fundamental components, which are:
act of baseness, vileness or depravity
private and social duties
accepted standards of the time
the doing of the act itself fixes the moral turpitude——not the fact of its prohibition by statute
The School Board offered no evidence (other than the undisputed fact of Singleton's conviction) bearing on any of these elements. The School Board thus necessarily, albeit implicitly, urges that the question of "moral turpitude" be decided as a matter of law.
The problem with this, however, is that Rule 6B- 4.009(6) does not prescribe neutral principles from which a judge or other decision-maker, employing legal reasoning, can reach a conclusion according to the rule of law. The Rule lays down a moral test, not a legal one, as becomes apparent when attempting to apply it.
To begin, the Rule tells that a CIMT must be malum in se, that is, inherently wicked, rather than malum prohibitum, or wrong because it is prohibited. See Jenkins v. Beary, 241 So. 2d 866, 868 (Fla. 1st DCA 1970)(only malum in se offenses fit definition of "moral turpitude"). It further instructs that an inherently wicked offense in one "that is evidenced by an act of baseness, vileness or depravity." These words express strong moral condemnation, calling to mind conduct that is grossly,
utterly, even disgustingly bad. The Rule thus calls upon the decision-maker to render a moral judgment concerning the intrinsic evilness of the employee's criminal act.
But the Rule's presupposition that decision-makers will recognize and follow a higher, moral law is at least dated and arguably invalid. Many people in contemporary America, maybe a majority, hold that there are no absolute moral truths. The normative vacuum that is our culture, where "right" and "wrong" are relative, has little or no room for "moral turpitude." Rule 6B-4.009(6) seems judgmental, intolerant——and hopelessly anachronistic.
Yet the Rule must be followed. The dilemma is that, in the absence of evidence concerning the applicable transcendent norms (assuming moral precepts are provable as fact), the undersigned is bereft of standards to apply in judging the baseness, vileness, or depravity of the act in question. As a public servant in a secular government, the undersigned cannot, in making the necessary decision, turn to the Bible or other sacred text in search of moral truth. The moral relativism that permeates the popular culture makes it impossible for the undersigned——or any contemporary decision- maker——to draw with confidence upon a shared understanding of objective truth. Reliance on judicial precedent to label an offense a CIMT——which gives the appearance of legal reasoning—— in effect merely shifts the responsibility of discerning moral truth to someone else, whose moral authority, as a fellow creature, is no greater than our own. Consequently, while ordinarily it would be inappropriate to decide an ultimate issue based on personal beliefs about good and right behavior, in this instance, where the ultimate issue involves a moral judgment, there might be no alternative.
In this regard, the undersigned considers the dissenting opinion of Justice Jackson in Jordan v. De George, 341 U.S. 223, 71 S. Ct. 703, 95 L. Ed. 886 (1951), wherein he criticized the term "moral turpitude" as an "undefined and
undefinable standard," id. at 235, 71 S. Ct. at 710, to be right on target. The following observations deserve particular attention:
We should not forget that criminality is one thing——a matter of law——and that morality, ethics and religious teachings are another. Their relations have puzzled the best of men. Assassination, for example, whose criminality no one doubts, has been the subject of serious debate as to its morality. This does not make crime less criminal, but it shows on what treacherous grounds we tread when we undertake to translate ethical concepts into legal ones, case by case. We usually end up by condemning all that we personally disapprove and for no better reason than that we disapprove it. In fact, what better reason is there? Uniformity and equal protection of the law can come only from a statutory definition of fairly stable and confined bounds.
Id. at 241-42, 71 S. Ct. at 713 (Jackson, J., dissenting)(footnote omitted; emphasis added).
Making similar points in his special concurrence in Nelson v. Department of Bus. and Prof'l Regulation, 707 So. 2d 378, 380 (Fla. 5th DCA 1998), Judge Sharp wrote:
I submit that our population has become sufficiently diverse that the term "moral turpitude" no longer carries a sufficient warning to indicate what activities are proscribed. Further, what is contrary to morals has changed over time, and can vary from community to community. In my view, the Legislature should spell out which
categories of crimes warrant imposition of sanctions against a broker or salesperson.
The undersigned largely agrees with this as well.8
The bottom line is that the Rule, as written, vests considerable discretion in the decision-maker to distinguish between, on the one hand, acts that are "merely" contrary to good morals (practically speaking, most criminal acts) and acts that are morally repugnant (a subset of all criminal acts), on the other. The Rule trusts that decision-makers will, on balance, reach just conclusions on a case-by-case basis, albeit at some expense to consistency.
In deciding the ultimate moral issue, the undersigned will attempt to apply the "self-evident truths" that inform an objective "public" morality (as opposed to a sacred or revealed morality), as he perceives and understands such precepts. This will be, unavoidably, a more subjective enterprise than is typical or desirable in deciding a dispute; it is certainly——and admittedly——not an ordinary judicial or quasi-judicial function. Mindful of that problem, which is irreducible given the nature of the conclusion that must be reached (i.e. whether Singleton committed an act of baseness, vileness, or depravity), the undersigned will attempt to make his rationale as transparent as possible, identifying the controlling principles where such can be expressed as objective rules.
Turning to the merits of Singleton's case, an important threshold consideration, given Singleton's defense, which focuses on her good intentions, is whether the determination of moral turpitude must be made based solely on an examination of the statutory elements of the crime, or whether the underlying factual circumstances regarding the employee's particular act may be considered. The answer is that, under Florida law, it is permissible to take the facts into account, as the following cases demonstrate.
In Pearl v. Fla. Bd. of Real Estate, 394 So. 2d 189,
192 (Fla. 3d DCA 1981), the court held that possession of a controlled substance was not a CIMT justifying suspension of a real estate salesperson's license. The court reached this conclusion based in part on the strength of other courts' decisions, many from other jurisdictions, which it found constituted persuasive authority for the proposition that "mere possession of a controlled substance is not a" CIMT. Id. But the court also relied substantially upon the underlying facts, taking care to explain that:
Furthermore, the totality of circumstances and the findings of treatment and rehabilitation entered by the hearing examiner and approved by the Board reflect that appellant's situation should be dealt with in a manner similar to the disposition in Yakov v. Board of Medical Examiners, 68 Cal.2d 67, 435 P.2d 553, 64 Cal.Rptr. 785
(1968) and State ex rel. Schiewitz v.
Wisconsin Real Estate Brokers' Board, 188 Wis. 632, 206 N.W. 863 (1926). In Yakov, a
physician was convicted of furnishing amphetamines to treat excessive weight, but since his motive was treatment rather than personal gain, the court found no moral turpitude. In State ex rel. Schiewitz, permitting the use of a building for immoral purposes did not preclude the issuance of a license when subsequent events were taken into consideration.
Id. The court concluded that a two-month suspension of the salesperson's license, which the board wanted to impose, was not justified. Id.9
The issue in Florida Bar v. Davis, 361 So. 2d 159 (Fla. 1978), was whether the conduct of a lawyer who had knowingly written four bad checks——and been convicted of the crime of uttering a worthless check——involved moral turpitude. Taking account of the facts, the court found this criminal misconduct to be inexcusable but not depraved. It wrote:
It does not appear to us that writing a check with knowledge of insufficient funds constitutes, in all circumstances, a vile and depraved act. Certainly, such conduct is violative of the law and is contrary to honesty, justice and good morals. But where there is no intent to defraud, as is the case here, the act itself is not so base as to fall into the category of illegal conduct involving moral turpitude. Thus, the attendant circumstances must be considered. While respondent admits that he wrote the dishonored checks, he argues as a mitigating factor, his lack of intent to defraud either the bank or the individual payee.
Respondent testified before the Referee that at the time he wrote the checks he intended
to make sufficient deposits to cover his withdrawals; that he was keeping track of his accounts in his head and became confused as to the balance. Respondent also points out that three of the checks involved were issued to Mrs. Bauer, an employee, and did not involve an attorney-client relationship.
* * * While we find respondent's conduct
inexcusable, we cannot say that such conduct
involves moral turpitude. The circumstances surrounding respondent's actions do not indicate otherwise.
Id. at 161. The court suspended the attorney for 12 months and ordered that he pay restitution. Id.
Although not directly on point, the case of State ex rel. Florida Bar v. Evans, 94 So. 2d 730 (Fla. 1957), is nevertheless instructive. There, an attorney had been convicted in federal court of the crime of filing false and fraudulent tax returns for two consecutive calendar years. Id. at 732. As a result, the Bar had brought ethics charges against him, which led to a recommendation by the Board of Governors that the attorney be disbarred for having been convicted of an "infamous crime." Id. at 732. It was this recommendation that was before the court.
For reasons not relevant here, the court deemed it unnecessary to decide whether the federal felony of tax fraud was an "infamous crime," finding the guilty attorney subject to disciplinary action in any event. Id. at 734. The court
returned to the subject of moral blameworthiness, however, in its discussion of the appropriate penalty, where it explained:
Despite the fact that [the attorney] was found guilty of a serious offense, there was undisputed testimony in the record, and the Referee of this Court actually found that "respondent has a good reputation for honesty and fair dealings in the community in which he resides." If complainant had any evidence to the contrary it was not tendered by the record. The offense of which respondent was convicted did not involve a vileness or baseness of character such as perjury, bribery or embezzlement, albeit it was a serious violation of the canons of ethics governing the profession and certainly one not to be lightly regarded or condoned.
Id. at 736. (emphasis added). The court disapproved the board's recommendation for disbarment and instead ordered that the attorney be suspended for two years. Id.
The moral conclusion of the Evans court——namely that the criminal tax fraud of which the attorney had been found guilty was not an act of vileness or baseness, under the circumstances——practically compels the determination that such a crime would not always be a CIMT under Rule 6B-4.009(6). The undersigned concludes, based on the foregoing authorities, that if tax fraud and writing hot checks are not necessarily CIMTs, depending on the totality of the circumstances, then neither is the Criminal Conversion of which Singleton was convicted necessarily a CIMT.
That is not to say, however, that Singleton's crime involved no taint of immorality. The undersigned submits that honesty and truth-telling are transcendent principles of good behavior——precepts of public morality——which are violated by deceptive behavior. Being in conflict with widely accepted moral principles, deceptive conduct is immoral conduct. But not all conduct that is contrary to good morals falls into the abyss of moral turpitude. E.g., Davis, 361 So. 2d at 161. The particular facts must be examined.
Looking at the circumstances underlying Singleton's conviction, the one fact of potential moral significance that jumps out at the undersigned is that Singleton committed the crime, not for personal enrichment, but to benefit another. If, in contrast to the actual facts, Singleton had knowingly converted a housing voucher in order to receive a subsidy for which she knew she was not eligible, for the purpose of having more disposable income, then, in the undersigned's judgment, the act would have been morally worse than that which got her in trouble with the law.
The reason for drawing this moral distinction is that Singleton was motivated not by selfish greed, but by altruism. Altruism——an unselfish regard for others——is a traditional virtue. The undersigned believes, with a relatively high degree of confidence, that altruism is a transcendent norm that forms a
part of the objective public morality. It thus seems to the undersigned that, as Singleton has argued in her defense, a criminal act motivated by altruism might, for that reason, not constitute the sort of pure evil or inherent wickedness that "moral turpitude" contemplates.
The undersigned pauses here to point out that, of course, good intentions do not render innocent otherwise criminal behavior. Singleton's altruism was not a defense to her crime, for which she was rightfully convicted, on a plea of guilt, and punished. But this is not the criminal prosecution. The question at hand, lest it be forgotten, is whether Singleton was convicted of a CIMT, as the School Board charges. Singleton's altruism might be a defense to that charge.
The case of Yakov v. Board of Medical Examiners, 68 Cal.2d 67, 435 P.2d 553, 64 Cal.Rptr. 785 (1968), which the Third District Court of Appeal cited approvingly in Pearl, supra, presents a striking example of good intentions successfully being raised as a defense to the charge of moral turpitude. In Yakov, the state medical board revoked a doctor's license after he had been convicted of, essentially, drug trafficking, which the board deemed a CIMT. 435 P.2d at 554. (Specifically, the doctor had sold large quantities of amphetamines, without prescriptions, to several undercover agents.) The doctor challenged the board's decision in a state
trial court and won, the court finding that the evidence failed to prove moral turpitude. Id. The board appealed to the Supreme Court of California.
The supreme court affirmed. Its analysis of the issues (which the Third DCA approved) merits close attention. Homing in on the altruism behind the doctor's criminal misconduct, the court reasoned as follows:
The record supports the trial court's conclusion that Dr. Yakov did not prescribe the drugs for a personal profit motive; that his personal motivation was benign rather than evil. The motivation of the doctor crucially affects any finding of his moral turpitude. Thus in [a prior case], this court held that whether "activities involve moral turpitude is dependant upon the . . . motivation of the violator." We shall point out in more detail the elements of Dr.
Yakov's motivation.
Both Dr. Yakov and his patients testified to the fact that he sought to assist them through the practice of selling pills at amounts substantially below the drugstore price. The board failed to introduce any evidence that the doctor enjoyed an inordinate, or indeed any, profit from his sales at the lower price. The board did not prove, or attempt to show, that the doctor's motive was evil.
Dr. Yakov's testimony reveals that, although he recognized potential danger from any drug used incorrectly, he considered amphetamine no more dangerous or habit- forming than coffee or Coca Cola. Even assuming a lack of sound medical judgment in Dr. Yakov's appraisal of the physical consequences of the pills, we find no evidence of subjective intent other than to
serve the best interests of his patients. He testified, as did many of his patients, that the pills successfully brought about weight reduction.
Dr. Yakov's sale of the pills to [an undercover agent] for her friends without examining the possible recipients, as well as his sale to [another agent] of several months' supply at weekly intervals, could sufficiently support a finding of unprofessional conduct under [the applicable statute]. Viewing the facts . . . in support of the trial court, however, we hold as a matter of law that the doctor's conduct did not exhibit such "baseness, vileness and depravity" as to constitute moral turpitude.
In summary, the doctor's furnishing of amphetamine drugs, motivated not to garner a personal profit but rather to treat patients for excessive weight, hardly reached the sinister sphere of moral turpitude.
435 P.2d at 558-59 (footnote omitted).
Thus, notwithstanding that the doctor was a convicted drug dealer, the supreme court found, based largely on the doctor's testimony concerning his benevolent motives, that he had committed an "altruistic crime" (the undersigned's term, not the court's) as opposed to a CIMT. Yakov thus establishes that altruism can be a defense to the charge of conviction of a CIMT.
The concept of an altruistic crime——that is, a crime that provides the perpetrator little or no benefit but is committed for the good of another person or for some other perceived good——is not novel. The nineteenth-century sociologist Emile Durkheim distinguished between "altruistic
criminals" who are motivated by a sense of duty to improve society and "common criminals" who lack a social conscience and reject laws and discipline. See Vito, Maahs, Holmes, Criminology: Theory, Research and Policy at 145 (2d ed. 2007). Durkheim identified Socrates as exemplary of the altruistic criminal, observing:
According to Athenian law, Socrates was a criminal, and his condemnation was no more than just. However, his crime, namely, the independence of his thought, rendered a service not only to humanity but to his country. It served to prepare a new morality and faith which the Athenians needed, since the traditions by which they had lived until then were no longer in harmony with the current conditions of life.
Durkheim 1895, Rules of the Sociological Method, excerpts at
<http://www.md§ac.uk/www/study/xDur.htm>. Modern readers might place Dr. Martin Luther King, Jr. (criminal contempt10), Nelson Mandela (sabotage), or even Jack Kevorkian (murder) in the category of altruistic criminals. These examples convince the undersigned that, as a matter of public morality, people do make moral distinctions between criminal acts based on the perpetrator's good intentions.
Looking again at Florida law, it is discovered that an altruistic crime was the basis for taking disciplinary action against a real estate broker in Nelson v. Department of Bus. and
Prof'l Regulation, 707 So. 2d 378 (Fla. 5th DCA 1998). There,
the broker had been convicted on charges of battery and criminal mischief after having set off a smoke bomb at the offices of the St. John's Water Management District as a political protest.
Id. at 378. Following the broker's conviction, the Department of Business and Professional Regulation found the broker guilty of the commission of a CIMT. Id. The court reversed the department's order, holding that the broker's offenses were not CIMTs. Id. at 379.
The court did not explain why it felt the crimes at issue did not show baseness or depravity, prompting Judge Sharp to write the concurring opinion from which the undersigned previously quoted. See id. ("[W]e cannot define what kinds of acts in this context constitute moral turpitude. In another case, we may 'know it' when we see it, and still be unable to articulate the rationale.")(Sharp, J., concurring; footnote omitted). Still, while the reasoning behind the court's decision cannot be known, it is logical to conclude that crimes committed in furtherance of political protest are typically altruistic crimes. Possibly the court was influenced, at some level, by the broker's good intentions.
It is concluded that altruism is a defense to the charge of moral turpitude. Yakov supports this general proposition, as does Nelson, albeit to a much lesser extent. Neither case, though, is of much help beyond that, for the
courts did not attempt to develop a comprehensive doctrine respecting altruistic crime, leaving the boundaries of the defense unmapped. This is unfortunate because, unless one is prepared to accept the idea that good intentions always remove the sting of moral turpitude from criminal conduct, which is nonsense in the undersigned's view, some objective limits to the defense are necessary. Unless neutral principles are in place to circumscribe the altruism defense, then the risk is present that the decision-maker will explain away evil (as might have happened, one could argue, in Yakov).
The undersigned is acutely aware of this danger.
Singleton is in many ways a sympathetic figure, and thus the temptation is to "make an exception in favor of unfortunate guilt."11 The undersigned nevertheless believes that the conclusion can be reached, consistent with public morality, that Singleton's crime, which just barely reached the felony level, did not descend to the sinister depth of moral turpitude. To simply state such a conclusion, however, might give the appearance of having succumbed to temptation and turned a blind eye to wickedness, granting mercy and the expense of justice, which the undersigned believes he has not done, for reasons he can articulate. Therefore, the undersigned will next explicate the factors he has considered in evaluating the strength of Singleton's altruism defense, identifying the objective
principles that were applied as restraints on the undersigned's discretion.
Reasonable unselfish motive.
The undersigned believes that, for an altruism defense to succeed, it is necessary, but insufficient, for the perpetrator to claim to have acted out of regard for others. The claim must, additionally, be tested against reality. It must be found, in short, that crime was motivated by an objectively reasonable need or desire to help another person or benefit society.
Here, Singleton claimed to have acted for the benefit of her sister who, she testified, had an acute need for housing. Singleton's testimony in this regard was not rebutted, and neither was the corroborative testimony given by Ms. Andrews. Singleton's altruistic motive, it is found, was objectively reasonable under the circumstances.
No personal benefit.
It was important to the court in Yakov that the doctor had not made much, if any, profit on the drug sales for which he was convicted. The undersigned agrees that if the perpetrator enjoyed some material benefit in consequence of the crime, then the claim of altruism would be undermined. It is concluded, therefore, that the altruism defense has merit only if the crime
did not enrich the perpetrator herself or otherwise redound to her material benefit.
In this case, there is no evidence that Singleton herself profited in any material way from her crime. The absence of benefit is consistent with her claim of altruism.12
Proportionate response.
If the broker in Nelson had burned down the Water Management District's office as a political protest, the undersigned suspects the court would have been less willing to hold that his crime did not involve moral turpitude. If Singleton had somehow connived to secrete her sister in a suite at a luxury hotel, using stolen credit cards to pay for the expensive room, a post-conviction claim of altruism would be hollow.
The reason for doubting the altruism of the criminal acts in the foregoing hypothetical situations is that each seems wildly disproportionate to the perceived problem. For altruism to remove enough of the moral sting from the perpetrator's criminal act to take it outside the set of CIMTs, the act must have been reasonably calibrated to accomplish the desired good without excessive or frivolous criminality. It is concluded that, for the altruism defense to work, the perpetrator must establish that the crime was proportionate to the perceived problem.
The evidence in this case shows that Singleton converted a housing subsidy, for her sister's benefit, that could only have been used to pay the rent on an apartment in Overtown, which is a dangerous, inner-city neighborhood. Public housing in this location is not a luxury. There is, at any rate, no evidence (and no reasonable basis for inferring) that the lifestyle of Singleton's sister was enhanced, as a result of Singleton's one criminal act, beyond the obvious benefits that shelter would have provided——and the shelter provided was no more than a spartan solution to the perceived problem.
Absence of harm to a person.
The undersigned believes that the inalienable rights of each person to life, liberty and the pursuit of happiness are, as the Declaration proclaimed, self-evident——and hence firmly within the canon of transcendent public norms. The moral turpitude that stains crimes which transgress these fundamental rights cannot, in the undersigned's opinion, be washed away by good intentions. It is concluded, therefore, that crimes involving cruelty, violence, nonconsensual sexual activity, the infliction of physical or emotional injury on another, or any act that actually placed——or reasonably appeared to place—— another person in danger of physical or emotional harm cannot constitute altruistic crimes for purposes of establishing a defense to the charge of moral turpitude.
In this instance, Singleton did not violate another person's human rights, as would be true for crimes involving cruelty, violence, nonconsensual sexual activity, and the like. Hers was a crime against property——serious and inexcusable, to be sure, but not as odious as a crime against the person of another.
In sum, it is the undersigned's opinion that Singleton's misconduct was contrary to good morals. Nevertheless, after carefully evaluating the totality of the circumstances surrounding the sole criminal offense that Singleton committed, the undersigned has determined, for the reasons set forth above, that Singleton was not convicted in consequence of an act exhibiting such vileness, baseness, or depravity as to constitute a CIMT.13 It is determined as a matter of ultimate fact that she is not guilty of this charge.
Exclusion From Employment
The School Board next argues that Singleton should be dismissed for just cause because she was convicted of a "disqualifying offense"——that is, one of the crimes enumerated in Chapter 435, Florida Statutes——for which exclusion from employment is mandated. See § 434.06, Fla. Stat. A person who has been convicted of a disqualifying offense cannot hold certain public positions unless he or she obtains an exemption
from disqualification pursuant to Section 435.07, Florida Statutes.
The parties dispute whether teachers are "covered employees" subject to exclusion from employment under Chapter
435. The School Board obviously takes the position that they are. In this it relies principally, if not exclusively, on Palm Beach County Sch. Bd. v. Lawrence, DOAH Case No. 01-2850, 2002 Fla. Div. Adm. Hear. LEXIS 168 (Fla.Div.Admin.Hrgs. Feb. 21, 2002), which was written by the undersigned. Lawrence, however, is distinguishable, as the undersigned will explain.
In Lawrence, the undersigned recommended that a teacher's aide be disciplined (but not terminated) in consequence of having pleaded guilty——pursuant to a deferred prosecution agreement——to a felony shoplifting charge, which was to be dismissed once all the conditions of the agreement were met. One of the undersigned's conclusions held that the teacher's aide was a covered employee under Chapter 435. Id. at
*14. Although this conclusion might have been correct under the then-operative statutes, which have since been substantially revised, it was unnecessary and improvident. In hindsight, the undersigned should not have included this particular dictum.
The reason that the employee's status under Chapter
435 was irrelevant is that her employer had adopted a rule which provided in pertinent part as follows:
A prospective or current employee may be disqualified or may be terminated from continued employment if the prospective or current employee has been convicted of a crime classified as a felony or first degree misdemeanor directly related to the position of employment sought or convicted of a crime involving moral turpitude or any of the offenses enumerated in Chapter 435, Florida Statutes.
Palm Beach Co. Sch. Bd. Rule 6Gx50-3.12 (emphasis added)(the "Conviction Policy"). The employee in Lawrence therefore would have been subject to dismissal under the Conviction Policy if she had been convicted of a disqualifying offense, which in fact she had not been, regardless of whether she were a covered employee under Chapter 435.
In this case, there is no rule in operation comparable to the Conviction Policy. Thus, it is concluded that Lawrence
is inapposite.
Lawrence aside, the question remains whether Singleton may be terminated for just cause in a dismissal proceeding arising under Section 1012.33, Florida Statutes, on the ground that she must be excluded from employment pursuant to Section
435.06. The undersigned holds that she cannot, for two reasons.
The first reason is that, by mentioning "conviction of a crime involving moral turpitude" in the nonexclusive list of firing offenses, the statutory warrant for dismissing a teacher effectively excludes all other criminal convictions from the
ambit of "just cause." See § 1012.33(1)(a), Fla. Stat. This is because the statutory language that allows teachers to be dismissed for grounds not specified——which is, "[j]ust cause includes, but is not limited to, the following instances"——must be construed, under the longstanding rule of ejusdem generis, to embrace only instances of the same kind or class as the specific examples provided. See generally Green v. State, 604 So. 2d 471, 473 (Fla. 1992)("Under the doctrine of ejusdem generis, where an enumeration of specific things is followed by some more general word, the general word will usually be construed to refer to things of the same kind or species as those specifically enumerated."); see also Robbie v. Robbie, 788 So.
2d 290, 293 n.7 (Fla. 4th DCA 2000)(When, in implementing a non- exhaustive statutory listing, the use of an unenumerated criterion is indicated, "that ad hoc factor will have to bear a close affinity with those enumerated in the statute——i.e., the factor employed must be ejusdem generis with the enumerated ones.") Crimes involving moral turpitude are in a completely different class than disqualifying offenses.14
The categories in question are substantially distinct because they reflect markedly different conceptual approaches to identifying those particular criminal convictions that justify the ultimate punishment in this context, namely dismissal. Consider that, when the legislature or other policy-making body
lists disqualifying crimes, as was done in Chapter 435 and in the Conviction Policy, the resulting law completely removes considerations of morality from the decision to terminate an employee who has been convicted of a crime on the list. What is left is a matter of law, a ministerial decision whose outcome is fixed upon the ascertainment of a few relevant facts; discretion is not part of the equation. Ultimately, the employee must be dismissed if she committed a particular act that is malum
prohibitum.
In contrast, when the law authorizes termination for conviction of a CIMT without naming any particular crimes, as Section 1012.33(1)(a) does, then considerations of morality are not only required, they are dispositive. The decision to terminate based on the employee's conviction of a CIMT is much less a matter of law than a moral judgment requiring a dollop of discretion; it is anything but ministerial. Ultimately, the employee must be dismissed if she committed any act found to be malum in se.
Once it is recognized that the nature of the decision to terminate is of a wholly different character depending on whether the category of firing offenses is defined via an enumeration, on the one hand, or by reference to moral turpitude, on the other, it becomes clear that Section 1012.33(1)(a) cannot permissibly be construed as authorizing
termination for conviction of a disqualifying offense under Chapter 435.15 Such a "construction" would be, in effect, a rewrite, an act of legislation. The undersigned is content to leave policymaking in the hands of the legislature, where it belongs.
The second reason for holding that Singleton may not be terminated for just cause based on the premise that she must be "excluded" from employment is that Section 435.06 prescribes the procedure that applies when reasonable cause arises to believe that an employee has been convicted of a disqualifying offense——and it is clearly not the process prescribed in Section 1012.33(6) for dismissing a teacher for just cause. The relevant statutory language respecting "exclusion" proceedings provides as follows:
When an employer or licensing agency has reasonable cause to believe that grounds exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record which indicates noncompliance with the standards in this section. It shall be the responsibility of the affected employee to contest his or her disqualification or to request exemption from disqualification.
The only basis for contesting the disqualification shall be proof of mistaken identity.
§ 435.06(1), Fla. Stat. In a Section 435.06 proceeding, then, only two ultimate issues are potentially at play: (1) Should
the employee be granted an exemption from disqualification? (2) Is the employer mistaken as to the identity of the perpetrator? Neither issue was raised in this case.
This proceeding arose under Section 1012.33(6)(a), Florida Statutes, which provides as follows:
Any member of the instructional staff . . . may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (1)(a). The district school board must notify the employee in writing whenever charges are made against the employee and may suspend such person without pay; but, if the charges are not sustained, the employee shall be immediately reinstated, and his or her back salary shall be paid. If the employee wishes to contest the charges, the employee must, within 15 days after receipt of the written notice, submit a written request for a hearing. Such hearing shall be conducted at the district school board's election in accordance with one of the following procedures:
A direct hearing conducted by the district school board within 60 days after receipt of the written appeal. The hearing shall be conducted in accordance with the provisions of §§ 120.569 and 120.57. A majority vote of the membership of the district school board shall be required to sustain the district school superintendent's recommendation. The determination of the district school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment; or
A hearing conducted by an administrative law judge assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within 60 days after receipt of
the written appeal in accordance with chapter 120. The recommendation of the administrative law judge shall be made to the district school board. A majority vote of the membership of the district school board shall be required to sustain or change the administrative law judge's recommendation. The determination of the district school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment.
Any such decision adverse to the employee may be appealed by the employee pursuant to
§ 120.68, provided such appeal is filed within 30 days after the decision of the district school board.
Note that the issues for determination in a termination proceeding do not include either of the two issues that may be decided in an exclusion proceeding.
The upshot is that if the School Board believes Singleton must be excluded from employment, then it should initiate a Section 435 proceeding by giving Singleton a clear point of entry into such process, which it has yet to do. Were that to occur, Singleton would have several options at her disposal for challenging the School Board's jurisdiction to conduct an exclusion proceeding. The question of whether Singleton is a covered employee under Chapter 435 is best left for determination in the forum of Singleton's choice, should she find herself in the position of litigating the issue. The undersigned declines to weigh in with an unnecessary opinion on the matter, having made that mistake once before, in Lawrence.
It is concluded that the School Board cannot dismiss Singleton in this proceeding on the ground that her conviction was for a disqualifying offense requiring exclusion from employment under Chapter 435.
3. Misconduct in Office
Counts IV and V charge Singleton with violations of School Board rules. One of these rules proscribes unseemly conduct, while the other prescribes ethical norms. Neither offense is specifically mentioned in Section 1012.33(1)(a), Florida Statutes, as an example of "just cause," although the statutory list of such instances, as we have seen, is not intended to be exclusive. Yet, the doctrine of ejusdem generis, which was discussed above, requires that for "just cause" to be found based upon an unexemplary instance, the unexemplary instance must bear a close affinity to one of the exemplary instances. The undersigned repeatedly has held, and concludes again here, that violations of school board rules, to warrant termination of employment, must rise to the level of misconduct in office, which is an exemplary instance of just cause. See
Miami-Dade County School Bd. v. Brenes, DOAH Case No. 06-1758, 2007 Fla. Div. Adm. Hear. LEXIS 122, at *33-*34 (Fla.Div.Admin.Hrgs. Feb. 27, 2007), in toto, April 18, 2007; Miami-Dade County School Bd. v. Depalo, DOAH Case No. 03-3242, 2004 Fla. Div. Adm. Hear. LEXIS 1684, at *27-*28
(Fla.Div.Admin.Hrgs. Apr. 29, 2004), adopted in toto, July 14, 2004; Miami-Dade County School Bd. v. Wallace, DOAH Case No. 00- 4392, 2001 WL 335989, *12 (Fla.Div.Admin.Hrgs. Apr. 4, 2001),
adopted in toto, May 16, 2001.
Florida Administrative Code Rule 6B-4.009 defines "misconduct in office" as follows:
(3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.
As shown by a careful reading of Rule 6B-4.009,16 the offense of misconduct in office consists of three elements: (1) A serious violation of a specific rule17 that (2) causes (3) an impairment of the employee's effectiveness in the school system. The second and third elements can be conflated, for ease of reference, into one component: "resulting ineffectiveness."
School Board Rule 6Gx13-4A-1.21, which Singleton is alleged to have violated, provides as follows:
All persons employed by the School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system.
Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited.
School Board Rule 6Gx13-4A-1.213, which Singleton is also alleged to have violated, provides, among many other things, that each employee "agrees and pledges" to "obey local, state and national laws, codes and regulations."
There is little point in examining whether Singleton's criminal act was "unseemly" and unethical. The undersigned concludes without further comment that Singleton violated the School Board rules at issue.
The disputed issue is whether these violations were so serious as to render Singleton ineffective as a teacher. Resulting ineffectiveness is an element of the offense of misconduct in office that the School Board must prove. See
MacMillan v. Nassau County School Bd., 629 So. 2d 226, 229-30 (Fla. 1st DCA 1993).
In this case, Singleton taught the entire first half of the 2006-07 school year after having been arrested for the criminal act that violated the School Board rules in question. This means that it was possible for the parties to gather direct evidence of Singleton's post-violation effectiveness in the school system.
The evidence presented at hearing establishes clearly
and convincingly that Singleton's effectiveness was not impaired
at all in consequence of the unseemly and unethical act she had committed. To the contrary, it was shown that her performance was quite good at all times material to this case.
The School Board argues that ineffectiveness can be inferred from Singleton's criminal act. Such an inference would be against the weight of the direct evidence of Singleton's ongoing effectiveness. The undersigned, exercising his prerogative as the trier of facts, declines to draw the inference that the School Board proposes.18 Rather, taking into consideration all of the evidence in the record, it is determined that Singleton can continue to be effective in the school system, notwithstanding that she committed an unseemly and unethical act.
It is concluded, therefore, that the School Board has failed to establish just cause for terminating Singleton's employment on the grounds that she violated School Board Rules 6Gx13-4A-1.21 and 6Gx13-4A-1.213.
Discipline
As found in Lawrence, supra, the failure to establish just cause for termination should not result, necessarily, in the employee's "get[ting off scot-free." See 2002 Fla. Div. Adm. Hear. LEXIS 168, at *19. Under the applicable collective bargaining agreement, the School Board is authorized to take such disciplinary action as "may be consistent with the concept
of progressive discipline when the Board deems it appropriate," provided "that the degree of discipline shall be reasonably related to the seriousness of the offense." See UTD Contract, art. XXI, § 1, ¶ A.1. Singleton committed a felony, which is a serious matter, and the School Board should consider whether it would be appropriate, in this instance, to take disciplinary measures besides dismissal.
Anticipating the probability that the School Board will deem it appropriate to impose some discipline, the undersigned recommends the following punishment as reasonably related to the seriousness of Singleton's offense:
Suspension without pay from January 17, 2007, until July 31, 2007. The forfeiture of more than a half-year's salary is a severe financial penalty——harsher, actually, than the fine imposed on Singleton when she was convicted of the crime.
Probation, upon reinstatement, from August 1, 2007, until July 31, 2010, conditioned as follows: (i) Immediate suspension without pay upon arrest for any reason except a traffic infraction; (ii) Termination of employment upon conviction of any crime; and (iii) Such other conditions as the School Board considers appropriate.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order
(1) finding Singleton not guilty of the charges brought against her and (2) imposing an appropriate punishment, besides dismissal, consistent with the principle of progressive discipline, in consequence of her criminal conviction.
DONE AND ENTERED this 21st day of June, 2007, in Tallahassee, Leon County, Florida.
JOHN G. VAN LANINGHAM
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 21st day of June, 2007.
ENDNOTES
1/ The undersigned has given great weight to the testimony of Ms. Andrews, who was an exceptionally credible and effective character witness on Singleton's behalf. Ms. Andrews' testimony regarding Singleton's motivation (to help her sister) and lack of fraudulent intent has had a decisive effect on the undersigned's ultimate determinations.
2/ The indictment is not in evidence.
3/ This crime is often referred to as "theft of public money,"
which is one offense under the federal statute in question. Here, however, Singleton actually did not "steal" "money." Rather, she knowingly converted a voucher (the housing subsidy) to the use of another (her sister). Therefore, while the term "theft of public money" accurately describes a federal crime and also serves as a useful shorthand for the category of offenses proscribed in 18 U.S.C. § 641, the term "criminal conversion" more precisely describes the particular crime that Singleton committed.
4/ From the amount of the restitutionary damages awarded to the government, it is reasonable to infer that the value of the property Singleton converted exceeded the felony threshold by a mere $36. Had the value of the property been less than or equal to $1,000, the crime would have been a misdemeanor. See 18
U.S.C. § 3559(a)(6).
5/ At hearing, Ms. Swindell-Wesley did not disavow her warm letter of support for Singleton, but she did claim to have written it before learning (for the first time) during the CFR that Singleton had pleaded guilty to one count of Criminal Conversion——attempting, it seemed, to put some distance between herself and the glowing evaluation. Her testimony in this regard contradicts that of Singleton (making one of the few evidential conflicts in this case), who testified that, upon returning to school in August 2006, she had "explained to [Ms. Swindell-Wesley] that [she had been] arrested, because [she had] allowed [her] sister to live in the Section 8 [apartment] once I moved out." Although the undersigned considered Ms. Swindell- Wesley to be a credible witness, her testimony on this (relatively minor) point did not ring completely true. The undersigned can scarcely believe that curiosity, concern, and professional duty would not have impelled Ms. Swindell-Wesley to press Singleton, at the beginning of the 2006-07 school year, for details. (Ms. Swindell-Wesley did not suggest that Singleton had refused to talk about the matter when questioned.) Further, the investigative report and other documents prepared by the disciplinary personnel in the run-up to the CFR would have apprised Ms. Swindell-Wesley of the nature of Singleton's offense, had she read them, which the undersigned infers she probably did; Ms. Swindell-Wesley was, after all, the principal and hence a key player in the disciplinary process. In short, the undersigned considers it unlikely that Ms. Swindell-Wesley was clueless about the underlying facts and circumstances when she went into the CFR. More likely than not, it is found, Ms.
Swindell-Wesley already knew a good deal about (though perhaps
not all the details of) Singleton's crime when she wrote the letter of support. The undersigned reasonably infers that Ms. Swindell-Wesley wrote the letter because (a) she truly believed that Singleton had been an excellent employee and (b) she genuinely wanted to help Singleton keep her job if possible.
6/ In fact, the evidence shows, it was within Ms. Swindell- Wesley's discretion to have recommended a lesser sanction, such as a written reprimand or suspension. Whether a lenient recommendation would have been acceptable to the Office of Professional Standards is another matter, about which there is no direct evidence.
7/ Note that in Rule 6B-4.009(6), it is the "private and social duties" that might differ according to the "accepted standards of the time," not the underlying truth that marks a crime as malum in se. The Rule does not suggest, in contrast, that the moral truths supporting a judgment of inherent wickedness are subject to mutation. Moreover, if the intent were that odiousness should be measured according to evolving standards of conduct, the obvious means of expressing such intent would have been to enumerate the specific crimes deserving of opprobrium, because statutes (unlike the transcendent norms behind the concept of "moral turpitude") do, in fact, change with the times.
8/ The undersigned takes exception to the idea that "what is contrary to morals has changed over time." In the undersigned's opinion, peoples' perceptions of what is contrary to morals changes over time, but what is immoral does not. Slavery, for example, was morally wrong——violating the transcendent norm that all men are created equal——even when a majority of Americans did not perceive it to be so.
9/ The decision in Adams v. State of Florida Professional Practices Council, 406 So. 2d 1170 (Fla. 1st DCA 1981), is not necessarily contrary to Pearl, although it might appear to be at first blush. In Adams, the court affirmed an order revoking the certificates of two teachers who had been convicted for possessing marijuana, finding them guilty of gross immorality and (arguably——the opinion is ambiguous on this point) having committed a CIMT. The court distinguished Pearl on the ground that teachers are held to a higher moral standard than real estate agents, id. at 1172, which was a debatable premise because the court in Pearl had applied a definition of "moral turpitude" that was practically identical to that in Rule 6B-
4.009(6) without so much as hinting that the moral bar was lower for real estate agents than other licensees, e.g. teachers.
More important, the argument that an offense is a CIMT only because it was committed by a teacher assumes that moral truth is somehow occupation-specific. This assumption is irreconcilable with the concept of universally applicable, transcendent norms. At any rate, as a practical matter it would be difficult, if not impossible, to develop a unique moral code for each occupation——and the undersigned sees no indication in the cases that the courts have undertaken such a task. The oft repeated observation that teachers (or lawyers, or doctors, or public servants, etc.) are "held to a higher moral standard" may be meaningful in some contexts, but it is simply unworkable as a principle for determining whether a crime involved moral turpitude.
The Adams court had little need to distinguish Pearl by invoking a stricter moral law, however, given the significant emphasis that it placed on facts extrinsic to the statutory elements of the teachers' crime. The court wrote:
Further, the record contains substantial evidence that appellants' possession of marijuana received widespread newspaper publicity in the Lee County area and that many people were aware of the facts involved. The evidence indicates that possession of marijuana is considered a very serious and morally wrong offense in the Lee County Community and that appellants' involvement with marijuana had seriously impaired their abilities to remain effective teachers. The Council was justified in determining that, by being in possession of
52 marijuana plants, appellants had not fulfilled their duties of providing leadership and had lost their effectiveness as teachers. The Council did not err in revoking appellants' certificates.
Id.
At bottom, neither of the respective moral judgments of the
Pearl and Adams courts, which judgments might or might not have been inconsistent with one another, was based exclusively, or
even primarily, on the statutory elements of the crime involved; each, rather, was informed considerably by the facts and circumstances. And it was these facts that truly distinguished Adams from Pearl, not the questionable notion that the perpetrator's occupation drives the determination whether a particular crime involved moral turpitude. (The facts of the Adams case, it should be added, are obviously distinguishable from the facts at hand.)
10/ See Walker v. Birmingham, 388 U.S. 307, 87 S. Ct. 1824, 18
L. Ed. 2d 1210 (1967).
11/ Hamilton 1788, Federalist No. 74 (discussing the president's pardoning power).
12/ The undersigned has not overlooked the possibility that Singleton "benefited" by not having to take her sister into her own family's home. Legally, however, Singleton could have turned her back on her sister, leaving the sister to fend for herself. The undersigned does not see enough of a "benefit" in not doing something one is not required to do to reject the claim of altruism in this instance. That said, Singleton should have taken her sister into her own home——or found another solution to the problem——instead of committing a crime. But that will always be true whenever the altruistic crime defense is being raised. The doctor in Yakov should have written proper prescriptions based on medical need. The broker in Nelson should have written a letter to the editor or stood on the street corner outside the agency's office with a sign. Again, the question at hand is not whether Singleton's conduct was wrongful (clearly it was) or contrary to good morals (it was that, too), but whether her conduct was inherently wicked.
13/ It is therefore unnecessary to examine the "private and social duties" one owes, "according to the accepted standards of time," to particular individuals or society at large.
14/ To be clear, the undersigned is not suggesting that a disqualifying offense could not be a CIMT or vice versa; that would be obviously incorrect. The undersigned takes for granted that most CIMTs would be disqualifying offenses. And while the undersigned is less confident that most disqualifying offenses would be CIMTs, plainly some would be. That the same criminal offense could belong to both classes, however, is not determinative of whether the two classes bear a close affinity to one another.
15/ It probably should go without saying that § 1012.33 permits an employee to be terminated for conviction of a CIMT even though the crime happens to be a disqualifying offense under Chapter 435. In other words, under § 1012.33 it is simply irrelevant whether the crime of which the employee was convicted is an offense listed in Chapter 435.
16/ Florida Administrative Code Rules 6B-4.009 is penal in nature and must be strictly construed, with ambiguities being resolved in favor of the employee. See Rosario v. Burke, 605 So. 2d 523, 524 (Fla. 2d DCA 1992); Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).
17/ To elaborate on this a bit, the Rule plainly requires that a violation of both the Ethics Code and the Principles of Professional Education be shown, not merely a violation of one or the other. The precepts set forth in the Ethics Code, however, are so general and so obviously aspirational as to be of little practical use in defining normative behavior. It is one thing to say, for example, that teachers must "strive for professional growth." See Fla. Admin. Code R. 6B-1.001(2). It is quite another to define the behavior which constitutes such striving in a way that puts teachers on notice concerning what conduct is forbidden. The Principles of Professional Conduct accomplish the latter goal, enumerating specific "dos" and "don'ts." Thus, it is concluded that that while any violation of one of the Principles would also be a violation of the Code of Ethics, the converse is not true. Put another way, in order to punish a teacher for misconduct in office, it is necessary but not sufficient that a violation of a broad ideal articulated in the Ethics Code be proved, whereas it is both necessary and sufficient that a violation of a specific rule in the Principles of Professional Conduct be proved. It is the necessary and sufficient condition to which the text refers.
18/ See Greyhound Corporation v. Ford, 157 So. 2d 427, 431 (Fla. 2d DCA 1963)("An inference is regarded as a permissible deduction from the evidence before the court which the jury may accept or reject or accord such probative value as it desires, while a presumption is, characteristically, a rule of law, fixed and relatively definite in its scope and effect, which attaches to certain evidentiary facts and is productive of specific procedural consequences respecting the duty of proceeding with the evidence."); accord McDonald v. Department of Professional
Regulation, Board of Pilot Commissioners, 582 So. 2d 660, 672 (Fla. 1st DCA 1991)(Zehmer, J., specially concurring); see also State v. Rolle, 560 So. 2d 1154, 1156 (Fla. 1990).
COPIES FURNISHED:
Janeen L. Richard, Esquire Miami-Dade County School Board
Attorney's Office
1450 Northeast Second Avenue, Suite 400
Miami, Florida 33132
Mark Herdman, Esquire Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
Clearwater, Florida 33761
Dr. Rudolph F. Crew Superintendent
Miami-Dade County School Board
1450 Northeast Second Avenue, No. 912
Miami, Florida 33132-1394
Honorable Jeanine Blomberg Interim Commissioner of Education Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400
Deborah K. Kearney, General Counsel Department of Education
Turlington Building, Suite 1244
325 West Gaines Street 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 |
|---|---|---|
| Aug. 10, 2007 | Agency Final Order | |
| Jun. 21, 2007 | Recommended Order | The crime for which Respondent was convicted, though serious and inexcusable, did not involve moral turpitude; therefore, Petitioner should not terminate Respondent`s employment based on the conviction. |
MIAMI-DADE COUNTY SCHOOL BOARD vs ERIC COHEN, 07-000559TTS (2007)
INDIAN RIVER COUNTY SCHOOL BOARD vs WILLIAM HOWLE, 07-000559TTS (2007)
BROWARD COUNTY SCHOOL BOARD vs DEBORAH TERSIGNI, 07-000559TTS (2007)
BROWARD COUNTY SCHOOL BOARD vs LEROY GIBBS, 07-000559TTS (2007)
FRANK T. BROGAN, AS COMMISSIONER OF EDUCATION vs RICHARD V. POWELL, 07-000559TTS (2007)
