vs.
Respondent.
Case No. 13-1347PL
This case was heard on September 24, 2013, in Tallahassee, Florida, before E. Gary Early, a designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: J. David Holder, Esquire
For Respondent: Ronald G. Stowers, Esquire
Whether there are sufficient grounds for the imposition of disciplinary sanctions against Respondent‟s teaching certificate, and if so, the nature of the sanctions.
On November 30, 2012, the Commissioner of Education executed an Administrative Complaint against Respondent which alleged that from September 29, 2007 to July 6, 2012, Respondent engaged in a series of unlawful acts for which she was convicted, found guilty, had adjudication withheld, committed to a pretrial diversion program, or pled guilty or nolo contendere; that such acts violated provisions of section 1012.795, Florida Statutes; and that Respondent failed to self-report the judicial disposition of such acts in violation of the Principles of Professional Conduct for the Education Profession in Florida.
On December 14, 2012, Respondent timely filed an election of rights by which she requested a formal hearing. The matter was referred to the Division of Administrative Hearings for an evidentiary hearing.
The evidentiary hearing was noticed for June 27 and 28, 2013. On May 28, 2013, Petitioner filed a Motion for Continuance of the hearing based on a conflict with a meeting of the Education Practices Commission scheduled to take place on June 27, 2013. The Motion for Continuance was granted, and the hearing was rescheduled for August 6 and 7, 2013.
On July 31, 2013, the parties filed their pre-hearing stipulation in which they presented their witness and exhibit lists, and stipulated to certain facts.
On the morning of August 6, 2013, counsel for Respondent filed an Emergency Motion for Continuance due to Respondent‟s hospitalization the night before. The hearing was convened and, upon confirmation of Respondent‟s medical condition, the motion was granted without objection.
The hearing was rescheduled for September 24, 2013. On August 7, 2013, the case was re-assigned to the undersigned. Thereafter, the hearing was held as scheduled.
The parties stipulated that, as to a charge of Driving While License Suspended or Revoked that resulted from a January 2, 2010, traffic citation, Respondent pled to a lesser charge of operating a motor vehicle without a valid driver‟s license. Petitioner made an ore tenus motion to conform the pleadings to the evidence. Since the underlying facts were the same, with the only change being the reduction in the charge, the motion was granted.
At the final hearing, Petitioner presented the testimony of Doug Clark, a patrol officer with the Tallahassee Police Department; William Hurlbut, who at the time pertinent to his testimony was a field training officer with the Tallahassee Police Department; Frederick Paul Teslo, a sergeant with the Florida Highway Patrol; Sterling Hollingsworth, who at the time pertinent to his testimony was an investigator with the Tallahassee Police Department; Shaun Marshall, a fraud
investigator with the Department of Economic Opportunity; and Reginald Cecil James, Superintendent of Gadsden County Schools. Petitioner‟s Exhibits 1-18 were received into evidence.
Petitioner‟s Exhibit 1 consisted of a discovery deposition of Respondent, which is admissible pursuant to Florida Rule of Civil Procedure 1.330(a)(2).
By agreement of the parties, Respondent testified on her own behalf by deposition, which was filed on October 21, 2013. The deposition transcript is received in evidence as Respondent‟s Exhibit 3, and considered as though Respondent testified in person. Respondent‟s Exhibit 2 was also received in evidence.
By agreement of the parties, Dr. Pink Hightower, Director of Human Resources for Gadsden County Schools, testified by deposition, which was filed on October 28, 2013. The deposition transcript is received in evidence as Petitioner‟s Exhibit 19 and considered as though Dr. Hightower testified in person.
During the hearing, it was agreed that those pages of Respondent‟s personnel file deemed to be pertinent to the issues would be identified in Dr. Hightower‟s deposition, and would thereupon be received in evidence. Based thereon, Respondent‟s Composite Exhibit 1, which consists of numbered pages 51, 92-96, 156, 183-191, 207, and 216-223, is received in evidence.
The filing of Dr. Hightower‟s deposition transcript closed the evidentiary portion of the proceeding.
A one-volume Transcript of the proceedings was filed on October 8, 2013. Motions for Extension of Time to File Proposed Recommended Orders were filed by both of the parties and granted by the undersigned. Both parties thereafter timely filed Proposed Recommended Orders which have been duly considered by the undersigned in the preparation of this Recommended Order.
The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796. § 1012.79(7), Fla. Stat.
Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct.
§ 1012.796(6), Fla. Stat.
Respondent holds a teaching certificate issued by the Florida Department of Education, No. 608837, covering the areas of pre-kindergarten and primary education.
Respondent‟s current teaching certificate was issued as a result of the entry of a September 18, 2007, Settlement
Agreement that resolved an initial denial of the teaching certificate for a series of pleas or convictions for financial crimes, including Public Assistance Fraud. The Settlement Agreement authorized the issuance of Respondent‟s teaching certificate subject to a letter of reprimand and a two-year period of probation. The Settlement Agreement was adopted by the Education Practices Commission by Final Order entered on January 25, 2008.
Respondent was employed by the Gadsden County School Board in various positions since 2005, most of them being as a teacher at the elementary school and kindergarten level.
Respondent received instructional employee evaluation ratings of “very effective” for the 2006-2007 school year, and of “effective” for the 2007-2008, 2008-2009, and 2009-2010 school years.
Respondent was suspended from teaching by the Gadsden County School Board on January 3, 2011 for issues relating to her December 21, 2010, arrest for drug-related offenses. The suspension was upheld at a meeting of the Gadsden County School Board on January 25, 2011.
Respondent was rehired as a Gadsden County substitute teacher in February, 2011, and worked in that capacity at two schools until December 2012. The decision to rehire was made to
accommodate Respondent with lawful employment so as to meet the terms of her probation.
Administrative Complaint
On November 30, 2012, Petitioner issued the Administrative Complaint that forms the basis for this proceeding. The Administrative Complaint identified the offenses that underlie the five specified counts.
Resisting an Officer - September 29, 2007
On September 29, 2007, Officer Clark was in the process of effectuating an arrest of Respondent‟s son at a convenience store located near Respondent‟s home. According to Officer Clark, Respondent‟s son was resisting efforts to place him in handcuffs.
While Officer Clark was attempting to take Respondent‟s son into custody, Respondent appeared on the scene and attempted to intervene in the incident. The nature of the intervention is disputed. When a back-up officer arrived, Officer Clark instructed him to take Respondent into custody.
The only evidence of the disposition of the charge of resisting an officer was a printout of the case docket from the website of the Leon County, Florida Clerk of Court. The printout is hearsay, and comes within no exception to the hearsay rule set forth in section 90.803, Florida Statutes.
Disposition of the charge of resisting an officer was not supported by competent, substantial, and non-hearsay evidence. Thus, no finding can be made to substantiate that charge.
Driving Without a Valid License - January 2, 2010
On January 2, 2010, Respondent was driving her vehicle in Tallahassee. She was stopped by Officer Hurlbut for a traffic infraction. Respondent presented Officer Hurlbut with a Florida driver‟s license. When Officer Hurlbut ran the driver‟s license through his onboard computer, he discovered that the driver‟s license produced by Respondent was not current, and that Respondent‟s driver‟s license had been suspended.
Officer Hurlbut issued a citation and notice to appear to Respondent, and seized her expired driver‟s license and her automobile tag.
On April 14, 2010, Respondent entered a plea of no contest to a charge of operating a motor vehicle without a valid driver‟s license, a second-degree misdemeanor, was adjudged guilty, and was placed on probation for a period of six months.
Driving Without a Valid License/Violation of Probation - September 26, 2010
On September 26, 2010, Respondent was stopped by Highway Patrol Sergeant Teslo for driving without a seatbelt. Respondent had no identification.
Sergeant Teslo asked Respondent to write her name and date of birth on a sheet of paper so that he could run it through his onboard computer. The name and birthdate provided by Respondent were not those of Respondent.
When Sergeant Teslo determined that the name and birthdate were not those of Respondent, he returned to her car, whereupon Respondent provided him with her real name and birthdate.
When Sergeant Teslo ran Respondent‟s name and birthdate, he discovered that Respondent was operating her vehicle while her driver‟s license was suspended. He issued a traffic citation, and waited for a licensed driver to come and pick up Respondent. As a matter of discretion, Sergeant Teslo did not charge Respondent with providing false information.
On September 30, 2010, an affidavit of probation violation was executed which alleged that Respondent violated her April 14, 2010, sentence of probation by driving with a suspended license. A warrant was issued, and Respondent was taken into custody.
Respondent entered a plea of no contest to a reduced charge of operating a motor vehicle without a valid driver‟s license. Adjudication was withheld.
Drug Offenses - December 9, 2010
On December 9, 2010, after a period of investigation and surveillance of Respondent‟s home, the Tallahassee Police Department executed a search warrant for the home. Respondent was not at the home when the search was conducted.
Respondent arrived at her home while the search warrant was being executed. There were numerous police cars around the house. Respondent asked a neighbor to watch the house and retrieve the keys when the search was done while she took her pit bulldog, which had been Tasered during the execution of the warrant, to the veterinarian. The neighbor later called Respondent to advise her that drugs were found during the search. Thus, the search and its results were openly known in the area.
During the execution of the search warrant, two of Respondent‟s sons were taken into custody. The search of the home uncovered a significant quantity of powdered and crack cocaine, cannabis, and various articles of paraphernalia located in rooms throughout the home, including the kitchen and Respondent‟s bedroom.
On December 21, 2010, Respondent was arrested for a number of drug-related offenses.
On February 11, 2011, an Information was filed charging Respondent with trafficking in controlled substances, a
felony of the first degree; sale or possession of controlled substances with intent to sell within 1000 feet of a convenience store, a felony of the first degree; sale or possession of controlled substances with intent to sell within 1000 feet of a convenience store, a felony of the second degree; and possession of paraphernalia, a misdemeanor of the first degree.
On November 15, 2011, Respondent entered into a deferred prosecution agreement for the charged offenses subject to Respondent‟s compliance with various terms of the agreement.
Public Assistance Fraud - July 25, 2012
On July 6, 2012, an affidavit was executed by Department of Economic Opportunity Investigator Marshall, in which it was alleged that Respondent made false statements that she was unemployed and not receiving wages or benefits from June 19, 2010 through February 26, 2011, so as to qualify for reemployment assistance benefits for which she was otherwise not eligible.
Respondent asserted that she was, in fact, unemployed during the summer of 2010, since her annual contract expired at the conclusion of the 2009-2010 school year, and was not renewed until the commencement of the 2010-2011 school year. She further asserted that she was suspended without pay commencing on January 26, 2011. However, the evidence is undisputed that
Respondent was employed and receiving wages for, at a minimum, the start of the 2010-2011 school year1/ until January 26, 2011.
On July 25, 2012, an Information was filed charging Respondent with Unemployment Compensation Fraud, a felony of the third degree, for making false statements to obtain or increase benefits under Florida unemployment compensation laws.
On November 2, 2012, Respondent entered a plea of nolo contendere to the felony charge of unemployment compensation fraud, was adjudicated guilty, was placed on probation for a period of five years, and was ordered to pay restitution to the Florida Reemployment Compensation Trust Fund in the amount of
$7,972.00 and to pay an additional $750 in court costs.
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to sections 120.569 and 120.57(1), Florida Statutes (2013).
Standards
Section 1012.795(1), which establishes the violations that subject a holder of an educator certificate to disciplinary sanctions, provides, in pertinent part, that:
The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or
(3) for up to 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for up to 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon an order of the court or notice by the Department of Revenue relating to the payment of child support; or may impose any other penalty provided by law, if the person:
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(d) Has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education.
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Has been convicted or found guilty of, or entered a plea of guilty to, regardless of adjudication of guilt, a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation.
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Upon investigation, has been found guilty of personal conduct that seriously reduces that person‟s effectiveness as an employee of the district school board.
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(j) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
Florida Administrative Code Rule 6A-10.081(5)(m), (previously numbered as rule 6B-1.006(5)(m)) provides that:
Obligation to the profession of education requires that the individual:
(m) Shall self-report within forty-eight
(48) hours to appropriate authorities (as determined by district) any arrests/charges involving the abuse of a child or the sale and/or possession of a controlled substance. Such notice shall not be considered an admission of guilt nor shall such notice be admissible for any purpose in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. In addition, shall self- report any conviction, finding of guilt, withholding of adjudication, commitment to a pretrial diversion program, or entering of a plea of guilty or Nolo Contendre for any criminal offense other than a minor traffic violation within forty-eight (48) hours after the final judgment. When handling sealed and expunged records disclosed under this rule, school districts shall comply with the confidentiality provisions of Sections 943.0585(4)(c) and 943.059(4)(c), F.S.
Section 1012.796(7) provides, in pertinent part, that:
1012.796 Complaints against teachers and administrators; procedure:
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A panel of the commission shall enter a final order either dismissing the complaint
or imposing one or more of the following penalties:
Denial of an application for a teaching certificate or for an administrative or supervisory endorsement on a teaching certificate. The denial may provide that the applicant may not reapply for certification, and that the department may refuse to consider that applicant‟s application, for a specified period of time or permanently.
Revocation or suspension of a certificate.
Imposition of an administrative fine not to exceed $2000 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. An educator who has been placed on probation shall, at a minimum:
Immediately notify the investigative office in the Department of Education upon termination of employment in the state in any public or private position requiring an educator's certificate.
Have his or her immediate supervisor submit annual performance reports to the investigative office in the Department of Education.
Pay to the commission within the first 6 months of each probation year the
administrative costs of monitoring probation assessed to the educator.
Violate no law and shall fully comply with all district school board policies, school rules, and State Board of Education rules.
Satisfactorily perform his or her assigned duties in a competent, professional manner.
Bear all costs of complying with the terms of a final order entered by the commission.
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.
Imposition of an administrative sanction, upon a person whose teaching certificate has expired, for an act or acts committed while that person possessed a teaching certificate or an expired certificate subject to late renewal, which sanction bars that person from applying for a new certificate for a period of 10 years or less, or permanently.
Refer the teacher, administrator, or supervisor to the recovery network program provided in s. 1012.798 under such terms and conditions as the commission may specify.
The Burden and Standard of Proof.
The Petitioner bears the burden of proving the specific allegations of wrongdoing that support the charges alleged in the Administrative Complaint by clear and convincing
evidence before disciplinary action may be taken against the professional license of a teacher. Tenbroeck v. Castor, 640 So. 2d 164, 167 (Fla. 1st DCA 1994); § 120.57(1)(j), Fla. Stat.; see
also Dep‟t of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v.
Turlington, 510 So. 2d 292 (Fla. 1987); Pou v. Dep‟t of Ins. and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998).
Clear and convincing evidence “requires more proof than a „preponderance of the evidence‟ but less than „beyond and to the exclusion of a reasonable doubt.‟” In re Graziano,
696 So. 2d 744, 753 (Fla. 1997). The clear and convincing evidence level of proof
entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994) (quoting, with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005). "Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler Bros., Inc., 590 So. 2d 986, 989 (Fla. 1st DCA 1991).
Section 1012.795 is penal in nature, and must be strictly construed, with any ambiguity construed against the Petitioner. Penal statutes must be construed in terms of their literal meaning, and words used by the Legislature may not be expanded to broaden the application of such statutes. Latham v.
Fla. Comm‟n on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997); see also Beckett v. Dep‟t of Fin. Svcs., 982 So. 2d 94, 100 (Fla. 1st DCA 2008); Dyer v. Dep‟t of Ins. & Treas., 585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).
Count 1 - Section 1012.795(1)(d)
Count 1 of the Administrative Complaint alleged that:
The Respondent is in violation of Section 1012.795(1)(d), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education.
The Ethics in Education Act, chapter 2008-108, § 32, Laws of Florida, amended section 1012.795(1)(d) to add the
phrase “as defined by rule of the State Board of Education,” creating the statute as it appears at present.
Gross Immorality
In Cappi Arroyo v. Dr. Eric J. Smith, as Commissioner of Education, Case No. 11-2799, ¶ 109 (Fla. DOAH May 31, 2012; Fla. EPC Nov. 13, 2012), Judge F. Scott Boyd analyzed the effect of the 2008 legislative amendment of section 1012.795(1)(d) as follows:
The Ethics in Education Act, Chapter 2008- 108, Laws of Florida, added the phrase "as defined by rule of the State Board of Education" to what now appears as section 1012.795(1)(d). It is unclear whether this new language modifies only "an act involving moral turpitude" or if it instead modifies the entire phrase "gross immorality or an act involving moral turpitude." The absence of a comma after the word "immorality" suggests that it modifies the entire phrase. In any event, when construing penal statutes, any statutory ambiguity should be resolved in favor of Petitioner. Cilento v. State, 377 So. 2d 663, 668 (Fla. 1979)(where criminal statute is ambiguous, construction most favorable to accused should be adopted). See also § 775.021, Fla. Stat. ("The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused."). This portion of the statute is thus only violated if an educator is guilty of gross immorality as defined by rule of the State Board of Education. (emphasis added).
The Final Order in Arroyo v. Smith accepted Judge Boyd‟s Recommended Order, and it was “adopted in full and
becomes the Final Order of the Education Practices Commission.” That Final Order, and the conclusions of the Recommended Order adopted thereby, will therefore be applied in this case.
Judge Boyd correctly noted that “[t]he State Board of Education has not defined the term „gross immorality‟ by rule.” Arroyo v. Smith at ¶110. The undersigned, having reviewed the relevant rules promulgated by the State Board of Education, concurs with Judge Boyd and finds that the State Board of Education has not defined “gross immorality” by rule.
Petitioner suggests that “gross immorality” should be applied in accordance with administrative cases construing the term that were decided prior to the legislative mandate that the term be defined by rule. Given the 2008 amendment of the statute, those cases are inapplicable to the current standard established by the legislature.
Based on the foregoing, Respondent failed to prove that Petitioner was “guilty of gross immorality . . . as defined by rule of the State Board of Education.”
Moral Turpitude
The State Board of Education has defined the term “moral turpitude” by rule. The term previously appeared as rule 6B-4.009. Having been transferred, the rule now appears in the Florida Administrative Code as rule 6A-5.056.
All of the acts upon which this proceeding is based, including the conduct that formed the basis for the conviction for unemployment compensation fraud, occurred prior to a substantial rewording of rule 6A-5.056 on July 8, 2012. Thus, whether such acts constituted ones involving moral turpitude must be gauged against the standard in effect at the time the acts giving rise to this proceeding occurred, i.e. that version of the rule as it existed prior to its 2012 amendment. Childers
v. Dep't of Envtl. Prot., 696 So. 2d 962, 964 (Fla. 1st DCA 1997)(“The version of a statute in effect at the time grounds for disciplinary action arise controls.”).
Prior to its 2012 amendment, rule 6A-5.056(6) defined “moral turpitude” as “a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.” Furthermore, moral turpitude has been defined by the Supreme Court as:
involv[ing] 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. (citations omitted)
State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 611 (Fla. 1933).
The standard to be upheld must be viewed in the context of the profession at issue. As leaders and role models in the community, teachers are held to a high moral standard. Adams v. Prof‟l Practices Council, 406 So. 2d 1170, 1172 (Fla. 1st DCA 1981).
Based on the findings of fact established herein, Petitioner has proven, by clear and convincing evidence, that Respondent has been guilty of acts involving moral turpitude as defined by rule of the State Board of Education, and has thus proven that Respondent violated section 1012.795(1)(d).
Count 2 - Section 1012.795(1)(f)
Count 2 of the Administrative Complaint alleged that, as a result of the facts alleged:
The Respondent is in violation of Section 1012.795(1)(f), Florida Statutes, in that Respondent has been convicted or found guilty of, or entered a plea of guilty to, regardless of adjudication of guilt, a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation.
As to the September 29, 2007, charge of resisting an officer, there was insufficient non-hearsay evidence of the disposition of that charge to support a finding that Respondent
was found guilty of, or entered a plea of guilty to, regardless of adjudication of guilt, that charge.
As to the January 2, 2010, and September 26, 2010, citations for violations of Florida‟s motor vehicle laws, although the initial charges were more severe, the charges to which Respondent pled were for operating a motor vehicle without a valid driver‟s license. The State Board of Education has not defined the term “minor traffic violation” and, except for the admonition contained in the certification application that driving while under the influence (DUI) is not a minor traffic violation (see Thomas Filippi v. John L. Winn, as Comm'r of Educ., Case No. 07-4628, ¶30 (Fla. DOAH June 20, 2008; Fla. EPC Oct. 15, 2008)) there is no interpretive guidance regarding the application of the term. Operating a motor vehicle without a valid driver‟s license does not, of itself, expose anyone to a threat of harm or injury, so that the consequences might reasonably be understood to be more than a minor traffic violation. See Dr. Eric J. Smith, as Comm'r of Educ. v. Tina Adams, Case No. 09-5392PL (Fla. DOAH Feb. 18, 2010; Fla. EPC June 24, 2010)(reckless driving is more than a minor traffic violation); Charlie Crist, as Comm'r of Educ. v. Troy Doyle, Case No. 03-0393PL (Fla. DOAH July 16, 2003; Fla. EPC Nov. 3, 2003)(leaving the scene of an accident without injuries is more than a minor traffic violation). Since the term “minor traffic
violation” is ambiguous, and ambiguity is to be construed against Petitioner, Petitioner has failed to prove that Respondent‟s operation of a motor vehicle without a valid driver‟s license constituted a violation of section 1012.795(1)(f). Cf. Lee Co. Sch. Bd. v. William Myers, Case No. 03-4233 (Fla. DOAH June 23, 2004; Lee Co. Sch. Bd. Aug. 22,
2004).
As to the December 21, 2010, arrest on drug-related charges, Respondent entered into a Deferred Prosecution Agreement and thus was not found guilty of, and did not enter a plea of guilty to, those charges.
As to the felony charges related to unemployment compensation fraud, Respondent was adjudicated guilty of those charges. As to that element of Count 2, Petitioner has proven, by clear and convincing evidence, that Respondent has been found guilty of a felony, and has thus proven that Respondent violated section 1012.795(1)(f).
Count 3 - Section 1012.795(1)(g)
Count 3 of the Administrative Complaint alleged that, as a result of the facts alleged:
The Respondent is in violation of Section 1012.795(1)(g), Florida Statutes in that Respondent has been found guilty of personal conduct which seriously reduces her effectiveness as an employee of the Gadsden County School Board.
Section 1012.795(1)(g) is a bit confusing in that it uses the term “guilt” when describing the personal conduct that would rise to the level of a violation. The use of the term could imply that there be a conviction of a crime involving a standard of personal conduct in order for Respondent to have “been found guilty.” However, a long string of administrative orders, going back many years, has applied a broader construction of the term to mean a more general breach of standards of personal conduct that seriously reduce a Respondent‟s effectiveness as a teacher. See, e.g., Pam
Stewart, as Comm'r of Educ. v. Roy Shewchuk, Case No. 13-1086PL (Fla. DOAH July 17, 2013; Fla. EPC Oct. 10, 2013); John Winn, as
Comm'r of Educ. v. Richard Allen, Case No. 13-0140PL (Fla. DOAH June 4, 2013; Fla. EPC Sept. 12, 2013); John L. Winn, as Comm'r
of Educ. v. Michelle O‟Neill, Case No. 08-1597PL (Fla. DOAH June 30, 2008; Fla. EPC Oct. 15, 2008); John L. Winn, as Comm'r of
Educ. v. Daniel Ray Madril, Case No. 07-3498PL (Fla. DOAH Nov. 9, 2007; Fla. EPC Mar. 6, 2008); Charlie Crist, as Comm'r of Educ. v. Heather Cotton, Case No. 02-3942PL (Fla. DOAH Apr. 11, 2003; Fla. EPC June 12, 2003).
Superintendent James testified as to his belief that the conduct involved in this case, including the conviction of unemployment compensation fraud, seriously reduced Respondent‟s effectiveness as a teacher. His testimony is credited.
Dr. Hightower testified that Respondent‟s conduct, as alleged and proven herein, seriously reduced her effectiveness as a teacher due to the message that employing a teacher with a record of criminal offenses would send to students and to the community. His testimony in that regard was convincing and is credited.
For the reasons set forth herein, including the notoriety of the drug search of Respondent‟s home and the fraud that formed the basis for the unemployment compensation conviction, Petitioner has proven, by clear and convincing evidence, that Respondent is guilty of personal conduct which seriously reduces her effectiveness as an employee of the Gadsden County School Board, and has thus proven that Respondent violated section 1012.795(1)(g).
Counts 4 and 5 - Section 1012.795(1)(j) and Florida Administrative Code Rule 6A-10.081(5)(m)
Count 4 of the Administrative Complaint charged Respondent with violating section 1012.795(1)(j) by having violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education Rules. Thus, Count 4 does not constitute an independent violation, but rather is dependent upon a corresponding violation of the rules constituting the Principles of Professional Conduct.
Count 5 of the Administrative Complaint charged Respondent with violating Florida Administrative Code Rule 6B- 1.006(5)(m)(renumbered without substantive change to rule 6A- 10.081(5)(m)) by failing to self-report within 48 hours to appropriate authorities (as determined by district) any arrests or charges involving the sale and/or possession of a controlled substance, and to self-report any conviction, finding of guilt, withholding of adjudication, commitment to a pretrial diversion program, or entering of a plea of guilty or Nolo Contendere for any criminal offense other than a minor traffic violation within
48 hours after the final judgment.
The September 18, 2007, Settlement Agreement upon which Respondent‟s teaching certificate was issued required that Respondent fully comply with the Principles of Professional Conduct for the Education Profession. Thus, Respondent was on specific notice of those standards, and of her obligation to comply with them.
Given the lack of proof of the disposition of the September 29, 2007, charge of resisting an officer, and the nature of the January 2, 2010 and September 26, 2010, traffic citations, Petitioner failed to prove that Respondent‟s failure to report those incidents constituted a violation of the reporting obligations as alleged.
Respondent asserted that she made efforts to advise certain persons at her school of the drug arrest, but that she was unaware of the Principles of Professional Conduct for the Education Profession, or of any specific obligation to report. She further indicated that she did not report the filing of the information related to the drug arrest or the unemployment compensation fraud conviction.
Petitioner has proven, by clear and convincing evidence, that Respondent failed to report specified offenses within the time periods established by Florida Administrative Code Rule 6A-10.081(5)(m), and has thus proven that Respondent violated section 1012.795(1)(j).
Given the nature and severity of the charges proven in this proceeding, the most appropriate penalty is permanent revocation of Respondent‟s Educator‟s Certificate.
Upon consideration of the findings of fact and conclusions of law reached herein, it is
RECOMMENDED that Petitioner enter a final order permanently revoking Respondent‟s teaching certificate, No. 608837.
DONE AND ENTERED this 16th day of December, 2013, in Tallahassee, Leon County, Florida.
E. GARY EARLY Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2013.
1/ The undersigned, pursuant to Florida Administrative Code Rule 28-106.213 and section 90.202(11), takes official recognition of the fact that the school year in the panhandle region of Florida starts during the last two weeks of August of any given year.
J. David Holder PA
Ronald G. Stowers, Esquire Levine and Stivers, LLC
Gretchen Brantley, Executive Director Education Practices Commission Department of Education
Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244
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.
