STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDUCATION PRACTICES COMMISSION, ) DEPARTMENT OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1011

) NATHANIEL CARSTARPHEN, JR., )

)

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 30, 1981, in Miami, Florida.

APPEARANCES

For Petitioner: Craig R. 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 revoked on the grounds that he fraudulently obtained a higher ranking teaching certificate and thereby committed an act of gross immorality and moral turpitude.

BACKGROUND

By administrative complaint dated February 17, 1981, Ralph D. Turlington, as Commissioner of Education ("Commissioner") charged Nathaniel Carstarphen, Jr. ("Respondent") with acts of fraud, gross immorality, and moral turpitude, justifying suspension or revocation of his teaching certificate. Specifically, the complaint charged that the Respondent obtained a teaching certificate (post graduate) by fraudulent means and that he then filed the certificate with his employer, the Dade County School Board ("School Board"), in order to obtain a salary increase.

On March 6, 1981, Respondent requested a hearing and filed an answer denying the charges. However, on June 3, 1981, he filed an amended answer admitting the substantive charges but contending that they constitute grounds for suspension, not revocation of his teaching certificate. Hence, the issue

here is whether his wrongful acts warrant suspension or revocation of his certificate.

At final hearing, the Commissioner called three witnesses: Eugene McAllister, investigator with the Dade County public schools; Karen Jacobson, investigator with the Dade County State Attorney's Office; Desmond Patrick Gray, Jr., Executive Director, Division of Personnel Control for the Dade County School Board. The Commissioner also presented, by deposition, the testimony of Dale E. Croy, investigator with the Leon County State Attorney's Office; the testimony of Roland Haynes Gaines, Supervisor of Records and Registration for Florida A & M University; and the testimony of Dr. Garfield Wilson, Director of Teacher Education, Certification, and Staff Development, Florida Department of Education. The Commissioner offered into evidence Petitioner's Exhibit 1/

Nos. 1 through 9, each of which was received.

Respondent testified in his own behalf and called Walter E. Oden as his only witness.

At the close of hearing, the parties were allowed 15 days from the filing of the transcript in which to submit proposed findings of fact and conclusions of law.

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

FINDINGS OF FACT

I.

Respondent's Wrongdoing

1. Respondent, age 33, taught school in Dade County for over six years. From 1969-1972, he taught physical education at South Miami Junior High School; he then resigned and did not return to teaching until 1978, when he became a substitute teacher at Brownsville Junior High School. Shortly thereafter, he was hired in a full-time position at Brownsville Junior High, where he remained until he resigned in July, 1980. His principal at Brownsville considered him a "very good teacher," (Tr. 55) as "one of the teachers who gave his very best." (Tr. 56.) (Testimony of Carstarphen, Oden; P-4.)

   
   

2. Respondent attended high school and junior college in Pensacola. From 1966-1969, he attended Bethune Cookman College in Daytona Beach and earned a bachelor of science degree. His postgraduate training consists of one course he took at Nova University to secure a science certificate. (Testimony of Carstarphen; P-4.)

   
   

3. During 1978, Respondent met Eugene Sutton ("Sutton"), an employee of Florida A & M University ("Florida A & M") located in Tallahassee, Florida. One month after their initial meeting, Respondent agreed to pay Sutton approximately

   $2,800 for a false transcript from Florida A & M purporting to award him a master's degree in elementary education. During the ensuing months, each party performed his part of the agreement: Respondent paid Sutton the $2,800, and Sutton furnished him a false transcript. The transcript, dated April 6, 1979, indicated that he had successfully completed various postgraduate courses at Florida A & M from 1976-1978 and had been awarded a master of education degree; the transcript was a forgery. He never attended Florida A & M University. (Testimony of Carstarphen; P-4.)

4. Since 1969, Respondent had held a rank III (graduate) teaching certificate issued by the Florida Department of Education. A postgraduate degree qualifies a teacher for a higher ranking (rank II, post graduate) teaching certificate. So, in early 1979, Respondent filed an application for the higher ranking certificate; he attached to the application a copy of the fake master's degree transcript from Florida A & M and signed, under oath, the following notarization:

   
   

   I understand that Florida Statutes provide for revocation of a teacher's certificate if evidence and proof is established that the certificate has been obtained by fraud- ulent means. (Section 231.28 F.S.) I fur-

   ther certify that all information pertaining to this application is true and correct.

   
   

   (Testimony of Carstarphen; P-4.)

   
   

5. On June 28, 1979, the Department of Education--relying on the false transcript--approved his application and issued him a rank II, postgraduate teaching certificate, No. 257364. He then applied to his employer, the School Board, for a salary increase based on his postgraduate teaching certificate.

   His application was routinely granted. During the ensuing 12 months, the School Board paid him an additional $4,047.55 because of his higher ranking postgraduate teaching certificate. (Testimony of Carstarphen Gray; P-5, P-6, P- 8.)

   
   

6. In mid-1980, Respondent's wrongdoing was discovered. On October 20, 1980, he pleaded guilty to criminal charges: forgery and grand theft-second degree (two counts). The Circuit Court of Dade County placed him on three years' probation and directed that restitution be made to the School Board. (P- 7.)

   
   

7. Respondent has complied with the terms of his probation. He is now repaying, by regular payments, the money which he wrongfully obtained from the School Board. (Testimony of Carstarphen.)

   
   

   II.

   
   

   Appropriate Penalty: Suspension or Permanent Revocation

   
   

8. The Respondent contends that his wrongful acts warrant suspension, not revocation of his teaching certificate. In support of that contention, he offered the following testimony:

   
   

   The reason I'm asking for this is that this was my chosen profession, and I think that I am good at it. I realize the fact that I made a tragic mistake that I'm sure would never happen again.

   
   

   It was a circumstance that I feel that someone would have to be involved in to really understand what actually happened. But I could only say that I'm requesting a suspension as opposed to a complete termi-

   nation so that I can pursue what I've been trained to do and, again, that I do well. (Tr. 48-49.)

   
   

9. No evidence was presented which establishes that Respondent's wrongful acts have seriously reduced his effectiveness as a classroom teacher.

   
   

10. Respondent has never before been convicted of a crime; neither has he been involved in any prior disciplinary infraction. (Testimony of Carstarphen.)

    
    

11. Respondent did not fully cooperate with law enforcement officers investigating his conduct and the fake Florida A & M transcripts. For example, he refused to divulge the name of a friend--even though he did not know whether that person was involved in the fraudulent transcript scheme. (Testimony of McAllister, Jacobson, Carstarphen.)

    
    

12. Respondent knowingly submitted the false Florida A & M transcript to the Department of Education; his motive was monetary gain. After filing the higher ranking postgraduate teaching certificate with his employer, he received increased salary payments for approximately one year. (Testimony of Carstarphen, McAllister, Jacobson, Gray.)

    
    

    III.

    
    

    Proposed Findings of Fact Submitted by the Parties

    
    

13. 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

    
    

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

    
    

15. 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.

    
    

    "Fraud" occurs when a person knowingly misrepresents a material fact to another and the other person detrimentally relies on the misrepresentation. Watson v. Jones, 25 So. 678, 681 (Fla. 1899)

    
    

16. The evidence establishes that Respondent, by obtaining and using a false university transcript to enhance his salary, committed acts of gross immorality and moral turpitude in violation of Section 231.28(1), Florida Statutes (1979). He also violated Section 231.28(1), supra, by obtaining the higher ranking postgraduate teaching certificate by fraudulent means.

    
    

17. The evidence was insufficient to establish that his fraudulent acts constitute personal conduct which seriously reduces his effectiveness as an employee of the School Board, as proscribed by Section 231.28, supra. Reduction in effectiveness is an essential element in this particular statutory infraction; it must be established by a preponderance of evidence, it will not be presumed. See, Boyette v. State, Professional Practices Council, 346 So.2d

    598 (Fla. 1st DCA 1977).

    
    

18. The Education Practices Commission and its predecessor, the Board of Education, have followed a uniform and consistent practice of permanently revoking the certificates of teachers found guilty of obtaining their certificates by fraudulent means. See, final orders dated: February 6, 1978, Board of Education v. Bernard A. Minogue, Case No. 77190; December 9, 1977, Board of Education v. Marsha D. Schumaker, Case No. 77129; April 7, 1977, Rita

E. Jones v. Paul Charles Mangiaracina, Case No. 76176; August 24, 1981, Ralph D. Turlington v. Harold Thomas Scott, Case No. 81-025-RT; and October 7, 1981, Ralph D. Turlington v. Particus B. Blackshear, Jr., Case No. 81-026-RT. Deviation from prior agency practice must be justified. Section 120.68(12)(b), Fla. Stat. (1979); see, Cenac v. Florida State Board of Accountancy, 399 So.2d 1013 (Fla. 1st DCA 1981). In this case, Respondent has not presented evidence which justifies exceptional treatment; neither has he shown that permanent revocation would be an unfair penalty or an abuse of discretion.

RECOMMENDATION

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

That the Education Practices Commission enter a final order permanently revoking Respondent's teaching certificate, No. 257364.

DONE AND RECOMMENDED this 23rd 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 23rd day of October, 1981.

ENDNOTE

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.

."

COPIES FURNISHED:

Craig R. 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: 81-001011

Orders for Case No: 81-001011