STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDUCATION PRACTICES COMMISSION, ) DEPARTMENT OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-943

)

JAMES L. PARKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer. R. L. Caleen, Jr., conducted a formal hearing in this case on July 28, 1981, in Miami, Florida.

APPEARANCES

For Petitioner: Craig Wilson, Esquire

The Law Building, Suite 204

315 Third Street

West Palm Beach, Florida 33401

For Respondent: William Du Fresne, Esquire

1782 One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

ISSUE PRESENTED

Whether respondent's teaching certificate should be suspended or revoked on grounds that he violated Sections 231.09 and 231.28, Florida Statutes (1979), by knowingly obtaining and filing a fraudulent university transcript with the Florida Department of Education for the purpose of being certified in the additional field of elementary education.

BACKGROUND

By Administrative Complaint dated February 17, 1981, Ralph D. Turlington, as Commissioner of Education ("Commissioner"), charged the Respondent, James L. Parker ("Respondent"), with committing acts of fraud and gross immorality justifying suspension or revocation of his teaching certificate. Specifically, the complaint charges that Respondent, for personal monetary gain, knowingly filed a false transcript with the Florida Department of Education's Division of Teacher Certification.

By answer dated March 4, 1981, the Respondent contested the charges and requested a formal hearing.

Shortly thereafter, this case was transferred to the Division of Administrative Hearings. By notice dated May 7, 1981, final hearing was set for July 28, 1981.

At hearing, the Commissioner called the following witnesses: Karen Jacobson, investigator with the Dade County State Attorney's Office; Eugene McAllister, investigator with the Dade County School Board; and Desmond Patrick Gray, Jr., Executive Director, Division of Personnel Control for the Dade County School Board. The Commissioner also presented the depositions of Dale E. Croy, investigator with the State Attorney's Office, Second Judicial Circuit; Roland Haynes Gaines, Supervisor of Records and Registration for Florida A & M University; and Dr. Garfield Wilson, Director of Teacher Education Certification and Staff Development with the Florida Department of Education. Petitioner's Exhibit 1/ Nos. 1 through 9 were offered and received into evidence.

Respondent testified on his own behalf and offered into evidence the deposition of Eugene Sutton ("Sutton"). The Commissioner objected on grounds that Sutton had terminated the deposition without affording him the opportunity for cross-examination. However, this inability to cross-examine was caused by the Commissioner's own actions; furthermore, there was no showing that the Commissioner subsequently sought to depose Sutton or compel him to testify at final hearing. The objection was, therefore, overruled and the deposition of Sutton was received into evidence. 2/

At the conclusion of hearing, counsel for the parties were allowed 15 days from the date of receipt of the transcript of hearing in which to file their proposed findings of fact and conclusions of law. The transcript of hearing was filed on September 4, 1981; proposed findings of fact were received by September 23, 1981.

Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT

I.

The Respondent: Background

l. Respondent, a 44-year-old school teacher, has taught at Dade County elementary schools since 1966. He obtained a bachelor of science degree at Southern University in 1962. Later, he completed several postgraduate elementary education courses at Miami-Dade Community College and the University of Miami; in 1977, he earned a master's degree from Nova University. In his postgraduate courses, he earned almost straight "A's," with an occasional "B." (Testimony of Parker; P-6.)

1. From 1966-1977, Respondent held a rank III (graduate) teaching certificate issued by the Florida Department of Education. After obtaining his master's degree in 1977, he was issued a rank II (post graduate) teaching certificate; however, although qualified in other areas, he was not certified to teach in the field of elementary education. (Testimony of Parker; P-6.)

   
   

2. From 1974-1979, Respondent taught at Biscayne Elementary School in Dade County; since he was not certified in elementary education, he taught "out of his field." Teachers, such as Respondent, who taught out of their certified fields were required to complete at least six credit hours per year toward

   obtaining certification in the field in which they were teaching. Between 1977 and 1979, the Dade County School Board ("School Board") reminded its teachers of this requirement, that if they did not take the necessary ongoing course work, they would be required to return to their certified field of instruction. (Testimony of Gray.)

   
   

3. Earlier, Respondent had hoped that, by obtaining his master's degree, he would complete enough courses to qualify for certification in the field of elementary education. However, his 1977 postgraduate teaching certificate did not certify him in elementary education. Sometime in early 1978, he calculated that 18 additional postgraduate credit hours would entitle him to be certified in elementary education, the area in which he preferred to teach. (Testimony of Parker.)

   
   

   II.

   
   

   Sutton Helps Respondent Enroll and Take Courses at Florida A & M University

   
   

4. At all times material to this case, Eugene Sutton was employed by Florida A & M University ("Florida A & M") in Tallahassee, Florida, as its supervisor of intern teachers. In this capacity, Sutton would travel around the State, visiting interns and talking to supervising teachers. If problems were encountered, he would offer assistance. (P-4.)

   
   

5. Sutton had been introduced to Respondent by Rosalyn Bethel, another faculty member at Biscayne Elementary School. In early 1978, Sutton--who had visited the school numerous times--walked into Respondent's classroom and asked him where he had attended school. When the conversation turned to various universities, Sutton stated that Florida A & M offered courses that could be taken by working people; he volunteered to help Respondent take such courses:

   
   

   [H]e [Sutton] said that he was able to reg- ister me, give me my work, and take it back to the instructors or the University, and I would get credit. (Tr. 76.)

   
   

   (Testimony of Parker; P-3.)

   
   

6. Respondent accepted Sutton's offer. Shortly thereafter, he gave Sutton the registration fees (required by the university catalog) for nine credit hours. As promised, Sutton registered Respondent for elementary education courses at Florida A & M for the Spring Quarter of 1978. Respondent received a receipt from the university indicating his enrollment. During the ensuing months, Sutton would frequently exchange course materials with Respondent: Sutton would give course assignments to Respondent; Respondent would give Sutton completed course work for delivery to the various university instructors. (Testimony of Parker.)

   
   

7. Respondent reasonably believed that he was properly completing course work assigned by his university instructors. The course work bore course titles and names of various instructors. Sutton was a faculty member at the university, a person in authority with important responsibilities. Respondent had no reason to distrust him or suspect him of wrongdoing. (Testimony of Parker, Gaines.)

8. After finishing the Spring Quarter, Respondent enrolled at Florida A & M again, (through Sutton) for nine more credit hours (three courses) in elementary education during the Summer Quarter of 1978. The procedure was the same: He paid Sutton the required registration fees and received a receipt from the university. Sutton then brought course assignments (with textbooks) to Respondent, who, after completing them, gave them to Sutton for delivery to the various university instructors. Respondent never attended the university's Tallahassee campus or spoke directly with his instructors. (Testimony of Parker.)

   
   

9. The elementary education courses which Respondent took at Florida A & M during 1978 were not directed individual study courses--courses which can be completed without attendance at the university's campus. However, Respondent-- at the time he selected these courses--did not know that they required attendance at the university. Sutton helped him select the courses from the university's course catalog, and he relied on Sutton as a university faculty member. (Testimony of Parker.)

   
   

10. Respondent was unable to produce tuition receipts or work assignments associated with his course work because his house had been vandalized (and his records damaged) when he was hospitalized in September, 1979. 3/ (Testimony of Parker.)

    
    

    III.

    
    

    Respondent Receives a University Transcript

    
    

11. At the conclusion of the Spring and Summer Quarters of 1978, Respondent received a copy of a course transcript from Florida A & M. The transcript--the original of which is part of the official records of the university--indicated that Respondent took six courses (18 credit hours) during the two quarters but successfully completed only three of them; that he earned only nine credit hours because of two "I's" (incompletes) and one "F" (failure). His grade-point average for the two quarters was 2.25. (Testimony of Parker; P- 3, P-4, P-8.)

    
    

12. Although the transcript appeared to be valid and authentic, Respondent was surprised at the two "I's" and the "F." He had completed all his course assignments and had given them to Sutton; he did not expect an "F" when he was accustomed to earning A's and B's in postgraduate courses. 4/ Respondent then confronted Sutton. (Testimony of Parker.)

    
    

13. Sutton explained that he (Sutton) had been late in delivering Respondent's course work to the university, and that Respondent would receive the correct grades. Shortly thereafter, Respondent received a corrected transcript indicating that he successfully completed (with B's) the three courses which had earlier been "I's" and an "F." He believed the corrected transcript was valid and authentic; however, he did not understand how the "F" could be corrected to a "B" when Sutton's explanation attributed the incorrect grades to the late submittal of course work. 5/ (Testimony of Parker.)

    
    

14. Shortly thereafter--on May 31, 1979--Respondent completed an application for extension of his teaching certificate (to extend his area of certification to include elementary education) and gave it to Sutton, with the

    $5 application fee, for delivery to the Florida Department of Education. Subsequently, the Department granted him the requested extension of his teaching certificate. (Testimony of Parker, Gray; P-6.)

15. The corrected transcript was, in fact, false. Upon discovery of that fact, the School Board suspended Respondent from his employment and conducted an investigation. On November 19, 1980, the School Board reinstated Respondent to his position after learning that Respondent was not the subject of criminal prosecution. (Testimony of Gray.)

    
    

    IV.

    
    

    Findings of Fact Proposed by Parties

    
    

16. The findings of fact proposed by the parties have been considered. Those proposed findings which are not incorporated above are rejected as irrelevant to the issue presented or unsupported by the preponderance of evidence.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1979).

    
    

18. The Education Practices Commission, the agency which must render the final order in this proceeding, is empowered to suspend or revoke a teaching certificate if:

    
    

    It can be shown that such person obtained the teaching certificate by fraudulent means; . . . . has been guilty of gross immorality or an act involving moral turpitude; [or] upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board; . . . . Section 231.28(1), Fla. Stat. (1979).

    
    

    "Moral turpitude" was defined in State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (Fla. 1933):

    
    

    Moral turpitude involves the idea of inher- ent baseness or depravity in the private social relations or duties owed by man to man or man to society. (citations omitted.) 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 unintention- ally committed through error of judgment

    when wrong was not contemplated. Id. (e.s.)

19. Section 231.28(1), supra, the statutory provision under which this disciplinary proceeding was instituted, is penal in nature. In Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981), the First District Court of Appeal held that:

    
    

    [T]he violation of a penal statute is not to be found on loose interpretations and problematic evidence, but the violation must in all its implications be shown by evidence which weighs as "substantial" on a scale suitable for evidence as the pen- alty does on a scale of penalties. In other words, in a world ensnarled by false assumptions and hasty judgments, let the prosecutor's proof be as serious-minded as the intended penalty is serious. Id.

    
    

    In license revocation proceedings, the term "substantial competent evidence" takes on "vigorous implications that are not so clearly present on other occasions for agency action under the Administrative Procedure Act." Id. at 171.

    
    

20. Respondent is charged with having committed acts of fraud and gross immorality: the filing of a false transcript with the Department of Education for the purpose of extending his teaching certificate.

    
    

21. An essential element of fraud or misrepresentation is that the person making false representations knows them to be untrue. See, Watson v. Jones, 25 So. 678, 682 (Fla. 1899).

    
    

22. In the instant case, the evidence presented by the Commissioner is insufficient to establish that Respondent knew, or should have known that the corrected transcript which he filed with the Department of Education was false. The evidence does not establish intentional wrongdoing or dishonesty on his part; neither does it establish that his actions were motivated by monetary gain or that they seriously reduced his effectiveness as an employee of the School Board. At worst, Respondent's actions were caused by an error in judgment; he may have too readily believed and relied upon Eugene Sutton. However, such conduct does not constitute a violation of Section 231.28(1), supra. 6/ Consequently, it must be concluded that Respondent is not guilty of the charges.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the charges against Respondent be dismissed.

DONE AND RECOMMENDED this 22nd day of October, 1981, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Telephone: (904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1981.

ENDNOTES

1/ Petitioner's and Respondent's Exhibits will be referred to as "P- ," and "R- ," respectively. The transcript of hearing will be referred to as "Tr.

."

2/ Counsel for the parties adopted the same arguments on this evidentiary issue made in Education Practices Commission v. Harold Thomas Scott, DOAH Case No. 81- 493; the issue is disposed of similarly.

3/ This finding is based on Respondent's uncorroborated testimony; however, such testimony was not rebutted or discredited by the Commissioner.

4/ Excepting the two "I's" and one "F," Respondent earned B's in the other three Florida A & M courses.

5/ Respondent believed that Sutton's late submittal was consistent with the two "I's."

6/ Neither can it constitute a violation of Section 231.09, Florida Statutes (1979) , since that section does not provide independent grounds for revocating or suspending a teaching certificate.

COPIES FURNISHED:

Craig Wilson, Esquire

The Law Building, Suite 204

315 Third Street

West Palm Beach, Florida 33401

William Du Fresne, Esquire 1782 One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

Donald Griesheimer, Director Education Practices Commission

125 Knott Building Tallahassee, Florida 32301

Docket for Case No: 81-000943

Orders for Case No: 81-000943