STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-072

)

DONALD D. JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on April 30, 1982, in Tallahassee, Florida.

APPEARANCES

For Petitioner: J. David Holder, Esquire

Post Office Box 1694 Tallahassee, Florida 32302

For Respondent: No appearance

This action was instituted by an Administrative Complaint filed December 10, 1981, by the Petitioner against the Respondent, wherein it is alleged that the Respondent pled guilty to a charge of petit larceny with adjudication of guilt withheld, on or about March 13, 1977, and entered a plea of guilty to the charge of driving with an unlawful blood alcohol level, and was adjudicated guilty, on or about September 5, 1979. It is alleged that on November 15, 1979, the Respondent swore on his application for a Florida teacher's certificate that he had not been convicted of a crime. The application was received December 10, 1979, and the resulting certificate was issued on December 20, 1979. The Petitioner thus alleges that the Respondent has violated Section 231.28, Florida Statutes, in that he received his teacher's certificate by fraudulent means and is guilty of gross immorality. Further, the Petitioner alleges that the Respondent has violated Section 231.09, Florida Statutes, in that he failed to set a proper example for students. The Petitioner, thus, seeks to revoke or suspend the Respondent's certificate or to impose other administrative sanctions, pursuant to Sections 120.60, 231.261, 231.36(2) and 231.546(2), Florida Statutes.

No election of rights or other form of request for a formal proceeding has ever been received by the Petitioner or the undersigned from the Respondent.

Thus, the pleadings filed in this cause do not reflect a dispute of the material facts alleged in the petition. Pursuant, however, to Rule 6B-11.03(3), Florida Administrative Code, the Petitioner is required to go to formal hearing and present a prima facie case, even in a default situation such as this where service is obtained by publication after diligent search and inquiry failed to

reveal the whereabouts of the Respondent and all attempts to serve the Respondent by mail were returned undeliverable, unclaimed and unforwardable. Thus, pursuant to this rule, as well as Section 231.262(5), Florida Statutes (1980 Supp.), and Rule 22I-2.23, Florida Administrative Code, Petitioner proceeded to present its witnesses and five (5) exhibits by way of complying with its burden of proving a prima facie case.

Although the Petitioner apparently ordered a transcript of the proceedings, the transcript was not filed with the undersigned and the Petitioner elected not to file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. The Respondent, Donald D. Johnson, holds Florida teaching certificate No. 468965, which is valid through June 30, 1984.

   
   

2. On November 15, 1979, the Respondent filed his application for Florida teacher's certificate, upon which he swore that he had not been convicted of a crime. That application was received by the Petitioner on December 10, 1979, and after processing, his teaching certificate was issued to him on December 20, 1979. The Respondent pled guilty to a charge of petit larceny, and adjudication of guilt was withheld on or about March 13, 1977. The Respondent also pled guilty to a charge of driving with an unlawful blood alcohol level and was adjudicated guilty thereof on or about September 5, 1979. The Petitioner established that the Respondent failed to disclose these altercations with the criminal justice system on his application for his Florida teacher's certificate. In fact, he affirmatively swore that he had not been convicted of a crime.

   
   

3. The Petitioner, in at least seventeen (17) recent cases, has followed a policy of imposing at least a one-year suspension and sometimes a one-year revocation in cases such as this. The Petitioner also established that its historical policy has been to grant licensure when an applicant has disclosed such criminal violations on his application, but it has consistently revoked, and has been upheld in revoking, certificates for affirmative misrepresentations by applicants on their applications for certificates to the effect that they have had no criminal convictions when such is not the case. There is no question that the Respondent falsified his application and falsely maintained that he had no criminal convictions. There is also no question that his certificate to teach in the State of Florida was initially issued to him by the Petitioner in reliance upon that misrepresentation, which reliance has been proven to be misplaced.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

   
   

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

   
   

   It can be shown that such person obtained a 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), Florida Statutes (1979)

   
   

   Section 231.09, Florida Statutes (1979) provides at Subsection (2) that:

   
   

   EXAMPLE FOR PUPILS - Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty and patriotism and the practice of every Christian virtue.

   
   

6. There is no question, given the evidence adduced by the Petitioner, which was unrefuted due to the Respondent's failure to appear, that the standards quoted first above have been violated since the Respondent was shown by the Petitioner's evidence to have been adjudged guilty of criminal acts and that, when asked regarding his past criminal record by the pertinent question on his application for a teacher's license, the Respondent falsely answered that he had had no prior criminal convictions. The Petitioner demonstrated that to be a falsehood and demonstrated that the Petitioner, the Department of Education, caused his teaching certificate to be issued in reliance upon that false representation. The conclusion is thus inescapable that the Respondent violated the above quoted Section, 231.28(1), by obtaining his teaching certificate by fraudulent means.

   
   

7. The Petitioner has also charged the Respondent with the commission of "gross immorality"; conduct which is immoral or which involves "moral turpitude"; conduct inconsistent with good morals and the public conscience; which fails to set a proper example for students and conduct which seriously reduced his effectiveness as a professional teacher pursuant to the standards enunciated in the above quoted authority, as well as Chapter 6B-1, Florida Administrative Code. All the charges relate to conduct occurring prior to licensure since they involve the prior criminal convictions as well as the falsehood concerning them on the application for licensure, which was an act committed prior to actual licensure. These charges are insufficient to the extent that they are based on these acts committed prior to licensure of the Respondent since a teaching certificate may not be revoked for wrongdoing which occurs before a certificate is issued. cf., Laney v. Holbrook, 8 So.2d 465, 468 (Fla. 1942). A similar rule applies to the removal of public officers. State ex rel. Turner v. Earle, 295 So.2d 609 (Fla. 1974). The only exception to this general rule involves fraud being perpetrated in the license application process itself. See, Section 231.28(1), Florida Statutes (1979); Negrich v. Dade County Board of Public Instruction, 143 So.2d 498 (Fla. 3rd DCA 1962). Fraud in the application process involves a separate, specific charge under the above statutory authority and is the only charge of which it may be concluded that the Respondent herein is guilty. In a like vein, the Commissioner has not demonstrated that the Respondent's wrongdoing prior to being licensed has been the subject of any public notoriety such that it could be the basis of a poor example to the Respondent's students, nor has any evidence been propounded which demonstrates that, once licensed, the Respondent was reduced in his effectiveness as a professional teacher because of the conduct prior to licensure. See, Boyette v. State Professional Practices Council, 346 So.2d 598 (Fla. 1st DCA 1977).

8. The Education Practices Commission has the authority pursuant to Section 231.28, Florida Statutes, to impose a range of disciplinary actions. It may permanently revoke a certificate, it may revoke a certificate not to exceed ten (10) years or it may impose suspension not to exceed three (3) years.

   
   

9. In the past, as demonstrated by the Petitioner's exhibit herein, in numerous cases, the Commission has followed a uniform and consistent practice of revoking 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 number 77190; December 9, 1977, Board of Education v. Marsha D. Schumaker, case number 77129; October 7, 1981, Ralph D. Turlington v. Particus H. Blackshear, Jr., case number 81-026-RT. In this case, for obvious reasons, the Respondent has not presented evidence justifying exceptional treatment or a deviation from past, and herein proven, agency policy.

RECOMMENDATION

Having considered the foregoing findings of fact and conclusions of law, the evidence in the record and the the pleadings and arguments of counsel for the Petitioner, it is, therefore,

RECOMMENDED:

That the Education Practices Commission enter a final order revoking the Respondent's teaching certificate for a period of one (1) year.

DONE and ENTERED this 21st day of June, 1982 at Tallahassee, Florida.

P. MICHAEL RUFF 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 23rd day of June, 1982.

COPIES FURNISHED:

J. David Holder, BERG & HOLDER

P.O. Box 1694

Tallahassee, Florida 32302

Donald D. Johnson 5856 Wiltshire Drive

Jacksonville, Florida 32216

Donald L. Griesheimer, Executive Director Education Practices Commissioner Department of Education

The Knott Building Tallahassee, Florida 32301

The Honorable Ralph D. Turlington Commissioner

Department of Education The Capitol

Tallahassee, Florida 32301

Docket for Case No: 82-000072

Orders for Case No: 82-000072