STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDUCATION PRACTICES COMMISSION, ) DEPARTMENT OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1140

)

EVELYN L. COBB, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on August 10, 1981, in Jacksonville, Florida.

APPEARANCES

For Petitioner: L. Haldane Taylor, Esquire

1902 Independent Square

Jacksonville, Florida 32202

For Respondent: W. Benjamin Kyle, Esquire

1248 Edgewood Avenue

Jacksonville, Florida 32205 ISSUE PRESENTED

Whether respondent's teaching certificate should be revoked or suspended on grounds that she committed acts of gross immorality, secured her certificate by fraudulent means, and engaged in conduct which seriously reduced her effectiveness.

BACKGROUND

By administrative complaint dated December 3, 1980, Ralph D. Turlington, as Commissioner of Education ("Commissioner"), charged Evelyn L. Cobb ("Respondent") with having "committed acts of gross immorality, secured her teaching certificate by fraudulent means and engaged in conduct which seriously reduces her effectiveness" in violation of Section 231.28(1), Florida Statutes (1979). Specifically, the Commissioner charged: (1) that Respondent, in filing an application for a teaching certificate, falsely swore that she had not been arrested or involved in a criminal offense; and (2) that, after applying for a teaching certificate, she committed an unemployment compensation fraud by falsely stating that she had not been employed or earned funds during a specified period. Based on these allegations, the Commissioner seeks to revoke or suspend Respondent's teaching certificate.

On December 3, 1980, Respondent disputed the allegations and requested a formal hearing; on April 13, 1981, she filed an answer to the complaint.

Shortly thereafter, the Education Practices Commission forwarded this case to the Division of Administrative Hearings for the purpose of conducting the requested hearing. Thereafter, hearing was set for August 10, 1981.

At hearing, the Commissioner called Leonard Lee, Helen Meyer, and Dalton D. Epting as witnesses; Petitioner's Exhibit Nos. 1/ 1 through 6 were received into evidence.

The Respondent testified in her own behalf and called Judith Poppell, Norvell T. Hughes, and Odessa Cooper as her witnesses; Respondent's Exhibit Nos. 1/ 1 and 2 were received into evidence.

At the close of hearing, the parties were allowed to file proposed findings of fact within 21 days after the filing of the hearing transcript. They agreed that the 30 day time period for submittal of the recommended order would run from the filing of their proposed findings. The Commissioner subsequently filed proposed findings which were received on September 29, 1981; the Respondent did not file proposed findings.

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

FINDINGS OF FACT

1. Respondent holds Florida Teacher's Certificate No. 422775 (graduate, rank 3), which expires on June 30, 1984. She is certified to teach biology and health education at the secondary (grades 7-12) school level. She is now employed by the Duval County School Board as a teacher at Douglas Anderson Middle School. (Testimony of Cobb; Prehearing Stipulation; P-4.)

   
   

2. In January, 1974, Respondent pleaded guilty to a misdemeanor crime: the obtaining of public assistance by fraud in violation of Section 409.325, Florida Statutes. On January 28, 1974, the County Court of Duval County adjudged her guilty and placed her on probation. (P-1.)

   
   

3. On November 23, 1976, the State Attorney of Duval County filed a criminal Information charging Respondent with petit larceny. Essentially, he alleged that, on November 21, 1976, she took merchandise belonging to Winn-Dixie Stores, Inc., without paying for it. On November 30, 1976, she entered a plea of nolo contendere to the petit larceny charge; she was adjudged guilty by the County Court of Duval County and sentenced to pay a $50 fine and court costs.

   (P-2.)

   
   

4. In July, 1978, Respondent applied for a Florida teaching certificate. Section V of the application asked: "Have you ever been arrested or involved in a criminal offense other than a minor traffic violation"? By marking the appropriate space, she answered "No". (P-3.)

   
   

5. She executed the application before a notary public on July 14, 1978; she expressly certified that:

   
   

   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 fraudulent

   means. (Section 231.28 F.S.) I further certify that all information pertaining to this application is true and correct.

   
   

6. Pursuant to her application, and in reliance upon the representation that she had never been arrested or involved in a crime, the Florida Department of Education issued her the teacher's certificate which she now holds. (Testimony of Lee;

   P-4.)

   
   

7. At the time she completed her application, Respondent was aware of her criminal record and knew that she had been involved in at least one criminal offense--the 1976 offense of petit larceny. At hearing, she could not explain why she denied any past involvement in a criminal offense:

   
   

   Q.: [Counsel for Commissioner] : So, you knew [when you applied for a teacher's

   certificate] that you had been involved in a criminal history or had had an involvement with the law?

   A.: [Respondent]: In '76, yes.

   Q.: Okay, why didn't you put, "yes"? A.: I just didn't.

   Q.: But you . . . you knew you had been involved in a criminal offense.

   A.: In '76, yes.

   1. : So then why didn't you put, "yes"? A.: I just didn't. (Tr. 126.)

      
      

      It must be concluded that Respondent knowingly falsely represented to the Department of Education that she had no prior involvement in any criminal offense; that she misrepresented her criminal record in order to obtain a Florida teacher's certificate. (Testimony of Cobb; P-1, P-2, P-3.)

      
      

8. Whether an applicant has ever been arrested or involved in a criminal offense is a material factor in the Department's evaluation of an application. An application may be denied if the applicant has committed acts which would justify suspension or revocation of a teaching certificate; it is likely-- although not certain--that, if the Department was aware of Respondent's past criminal record, her application would have been denied. (Testimony of Lee.)

   
   

9. When Respondent submitted an application for employment with the Duval County School Board on July 24, 1978, she falsely answered "No" to the question: "Have you ever been arrested for any other offense other than minor traffic violations"? (Tr. 49.) She knew her answer was false 2/ . Had her criminal record been revealed, she would not have been recommended for employment. (Testimony of Epting, Cobb.)

   
   

10. From October 7, 1978, to November 11, 1978, Respondent obtained unemployment compensation even though she was employed by the City of Jacksonville. She obtained the unemployment compensation by falsely indicating she was not employed. Consequently, a criminal Information was filed on April 29, 1980, by the State Attorney of Duval County charging her with unemployment compensation fraud. On June 4, 1980, she pleaded guilty to the charge; however, the Circuit Court of Duval County withheld adjudication, placed her on probation for one year, sentenced her to three weekends in county jail, and directed that she make complete restitution of the funds wrongfully collected. (P-6.)

11. Respondent acknowledges that she knew her action was wrong, that she knew she was not entitled to the unemployment compensation funds. She explains that she was in financial need and behind on her house payment; she feels her actions were justified, under the circumstances, because Jacksonville (her employer) had promised that she would continue to be employed. Instead--after she had incurred long-term financial commitments--Jacksonville terminated her employment. She has now made full restitution for the wrongfully taken funds. (Testimony of Cobb.)

    
    

12. Respondent has been an effective and satisfactory teacher during the 1980-1981 school year. Her ratings have been the highest possible; she has shown initiative and established rapport with her students. Her principal recently promoted her to chairman of the science/health department and recommended that she be reemployed for the 1981-1982 school term. (Testimony of Poppell; R-1.)

    
    

13. Teachers in Duval County are held to a high standard of character and conduct. A teacher's involvement in crime would tend to violate those standards; parents would be unwilling to entrust the education of their children to such an individual. (Testimony of Poppell.)

    
    

14. The Commissioner's proposed findings of fact 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

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. s120.57(1), Fla. Stat. (1979).

    
    

16. 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;...s231.28(1), Fla. Stat. (1979).

    
    

    A plea of guilty to a criminal charge, other than a minor traffic violation, constitutes prima facie proof of these enumerated grounds for revocation. s231.28(2), Fla. Stat. (1979); Kiner v. State Board of Education, 344 So.2d 656 (Fla. 1st DCA 1977).

    
    

17. "Immorality" encompasses conduct which offends the morals of the community and is inconsistent with moral rectitude. See, Negrich v. Dade County Board of Public Instruction, 143 So.2d 498, 501 (Fla. 3rd DCA 1962).

    
    

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

    Moral turpitude involved the idea of inherent 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 unintentionally committed through error of judgment when wrong was not contemplated. Id.

    
    

19. "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).

    
    

20. Section 231.28, Florida Statutes (1979)--the statute under which this disciplinary proceeding is instituted--is a penal provision; consequently, it must be strictly construed and strictly followed. See, Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). Its violation is:

    
    

    [N]ot to be found on loose interpretations and problematic evidence, but the violation must in all its implications be shown by

    evidence which weighs as "substantially" on a scale suitable for evidence as the penalty does on the scale of penalties. In other

    words, in a world ensnared by false assumptions and hasty judgments, let the prosecutor's

    proof be as serious-minded as the intended penalty is serious.

    
    

21. Applying the above standards to the evidence presented in this case, it is concluded that Respondent violated Section 231.28 (1) by obtaining her teaching certificate by fraudulent means. On her application, she knowingly and falsely represented that she had never been arrested or involved in a criminal offense. In reliance upon that false representation, the Department of Education issued her a teaching certificate.

    
    

22. Respondent is also accused of "gross immorality" or acts involving "moral turpitude." These charges are insufficient to the extent they are based on acts committed by Respondent prior to her receiving a teaching certificate 3/

    . A teaching certificate may not be revoked for wrongdoing which occurs before a certificate is awarded. Cf., Laney v. Holbrook, 8 So.2d 465, 468 (Fla. 1942). A similar rule applies to removal of public officers. State ex rel. Turner v. Earle, 295 So.2d 609 (Fla. 1974). The only exception to this general rule is when fraud is perpetrated in the license applications process. See, s231.28(1), Fla. Stat. (1979); Negrich v. Dade County Board of Public Instruction, 143 So.2d 498 (Fla. 3rd DCA 1962).

    
    

23. Moreover, the Commissioner has not shown that Respondent's wrongdoing prior to her obtaining a teaching certificate has seriously reduced her effectiveness as a teacher. See, Boyette v. State Professional Practices Council, 346 So.2d 598 (Fla. 1st DCA 1977).

24. The Education Practices Commission has a broad range of permissible penalties which it may impose for violation of Section 231.28. While it may permanently revoke a license, it is questionable whether it may preclude a person from ever reapplying for certification. Fischler v. Askew, 394 So.2d 227, 229 (Fla. 4th DCA 1977).

    
    

25. In the past, the Commission has 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. s120.68(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 or a deviation from the norm; neither has she shown that permanent revocation would be unduly harsh 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 Teacher's Certificate, No. 422775.

DONE AND RECOMMENDED this 3rd day of November, 1981, in Tallahassee, Florida.

1. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 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/ Respondent's explanation that she did not understand the term "arrest" is rejected as unworthy of belief.

3/ For example, the following misconduct occurred prior to her obtaining a teacher's certificate on February 14, 1979: (1) the 1974 crime of obtaining public assistance by fraud; (2) the 1976 crime of petit larceny; (3) the 1978 crime of unemployment compensation fraud (plea of guilty entered in 1980); and

(4) the 1978 misrepresentation of her prior criminal record on her employment application.

COPIES FURNISHED:

L. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202

W. Benjamin Kyle, Esquire 1248 Edgewood Avenue Jacksonville, Florida 32205

Donald Griesheimer, Director Education Practices Commission

125 Knott Building Tallahassee, Florida 32301

Docket for Case No: 81-001140

Orders for Case No: 81-001140