Judges: ARNOLD H. POLLOCK
Agency: Department of Education
Latest Update: Oct. 18, 1983
Summary: Teacher who had gun in purse may be disciplined on grounds of reduced effectiveness even though she works for private college. Decision is from the Education Practices Commission.
83-0501.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, ) and RALPH D. TURLINGTON, )
Commissioner of Education, )
)
Petitioners, )
)
vs. ) CASE NO. 83-501
)
BEVERLY J. McNAIR, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held in this case before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings, on July 11, 1983, in Jacksonville, Florida. The issue was whether Respondent's Florida teaching certificate should be suspended, revoked, or otherwise disciplined because of the allegations contained in the Administrative Complaint.
APPEARANCES
For Petitioner: J. David Holder, Esquire
Berg & Holder
Post Office Box 1694 Tallahassee, Florida 32302
For Respondent: Marvin I. Edwards, Esquire
Edwards, Willis & Marinucci 3300 Independent Square
Jacksonville, Florida 32202 BACKGROUND
By Administrative Complaint dated January 17, 1983, Petitioners have alleged that Respondent has violated Section 231.28, Florida Statutes (1981), and Rule 6B-1.01(3), Florida Administrative Code. Specifically, Petitioners allege that Respondent's plea of guilty on March 5, 1982, to the charges of carrying a concealed handgun and knife on December 16, 1981, seriously reduces the effectiveness as an employee in her local school system and violates the teachers' Code of Ethics. On January 19, 1983, Petitioners, by letter, notified Respondent of their intention to take action against her teacher's certificate. Respondent thereafter responded, requesting a hearing on the issue of her effectiveness being reduced.
FINDINGS OF FACT
Respondent was issued Florida Teacher's Certificate No. 482561 on April 23, 1981, which certified her as authorized to teach elementary education and
act as an elementary and secondary school counsellor until June 30, 1985. This certificate is valid now and was valid at all times pertinent to this hearing.
On December 16, 1981, at the time of the incidents alleged, Respondent was working for a telephone answering service in Fort Lauderdale, Florida. She was in the process of moving to Jacksonville and had hired an individual named James Dallas to move her possessions for her. Since the day prior to the day in question, she had seen Dallas and his friend going through her luggage, she became convinced he was planning to rob her. As a result, she removed certain items from her luggage to her purse, which items included the handgun and the "knife" in question.
Respondent admits to having the gun in her possession concealed in her purse. She contends, however, she had purchased it legally and was of the opinion it was properly registered. Whether it was or not is immaterial, as the ultimate fact is it was concealed in her purse and she did not have a license to carry a concealed gun. As to the "knife," she contends it was not a knife, but part of a manicuring set. The probable cause affidavit executed by the police officer who arrested her, however, indicated that he found a 4 1/2 inch black- handled steak knife in her purse along with the handgun. At no time did Respondent draw or threaten with either weapon, although at the time of her arrest she was involved in a disturbance with Dallas. I find, therefore, that the "knife" in question was in fact a knife.
On March 5, 1982, Respondent pleaded guilty in the Circuit Court for Broward County, Florida, to carrying a concealed firearm and carrying a concealed weapon (misdemeanor) She was placed on probation for three years for carrying the gun and for one year, to run concurrently with the three, for carrying the knife, and adjudication of guilt was withheld with a provision for expungement of the record upon successful completion of probation. She immediately moved to Jacksonville.
She initially intended to apply for employment in the Duval County school system, but found that she needed to attach a copy of her teaching certificate, which had, in fact, been stolen from her luggage. Therefore, on April 2, 1982, she submitted an application for a duplicate certificate on which she listed her arrest for and the disposition of her offense. It was on the basis of her application for a duplicate license that this action to discipline her was initiated. In January, 1983, almost a year later, there was no showing of any report by the courts to Petitioner or any complaint or report by any other agency.
Respondent is currently working at Edward Waters College in Jacksonville as Recruitment and Admissions Counsellor and has been so employed since December, 1982. Her supervisor, the Dean of Student Affairs, finds her to possess high skills and creative abilities and to have much to offer the field of education, even though he is aware of her plea of guilty and the offenses to which it relates.
Her probation officer, who has observed her since she arrived in Jacksonville, relates a glowing picture of her probation and indicates she has been very satisfactory and absolutely no problem. She follows and lives up to all standards of her probation. In fact, she has been so good, he intends to recommend early termination of her probation as soon as she has completed half the term, which is the earliest he can do so.
The Director of Personnel Systems and Records for the Duval County school system does not know Respondent, knows nothing of her professional record or competence, and has not reviewed any application from her to teach in the Duval County schools. However, he is of the opinion that by virtue of her involvement with the law alone, and regardless that upon completion of her probation her record would be expunged, her effectiveness in an educational situation would be lessened because of the knowledge by others within the system of her offenses. Under the teachers' Code of Ethics, a teacher should set an example for the students. A teacher is responsible to not only the students, but also to the faculty and parents, and a teacher's off-campus conduct can and does have an effect on the teacher's performance.
Respondent does not feel her effectiveness as a teacher has been reduced. In fact, she feels that because of what she has learned from this situation she has become more aware of her responsibilities to society and to the educational system. This, she feels, enhances her effectiveness.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
Petitioners seek to discipline Respondent's teaching certificate for a violation of Section 231.28, Florida Statutes (1981), because her plea of guilty seriously reduces her effectiveness as an employee in her local school system.
Section 231.28, Florida Statutes (1981), authorizes the Department of Education to suspend or revoke a teaching certificate on certain specified grounds. Among these is personal conduct which reduces her effectiveness as an employee of the school board. Section 231.28(1), however, states that such personal conduct must "seriously" reduce the effectiveness of the employee, and this is the standard against which Respondent's conduct must be measured.
It must be noted first that the statute sets out such terms as "employee of the school board," and the Administrative Complaint alleges Respondent's conduct reduces her effectiveness as an "employee in Respondent's local school system." The evidence shows that Respondent is not now, nor has she been, an employee in the Duval County school system nor any other school system in this state. She is employed by a private college, and the report of her supervisor there, who is aware of her plea of guilty, in no way indicates her effectiveness has been reduced. The testimony of Mr. Roberts, from the Duval County school system, who does not know her or her capabilities, that the plea of guilty, per se, would reduce her effectiveness even if expunged, as they will be, is not persuasive and does not follow the example of "every Christian virtue," i.e., forgiveness and charity, that is required of instructional personnel by Section 231.09(2), Florida Statutes (1981).
Since Respondent is not in any public system; since there is no showing that the publicity attendant to her offenses in any way set a bad example for her students (there are no students, and there was no publicity shown); since there was no formal complaint regarding her by students, fellow faculty members, or parents, and the Petitioners became aware of her situation only by virtue of her own reporting of it; and since she has been shown to be rehabilitated, I cannot in good conscience conclude that her effectiveness as a teacher has been seriously reduced.
Respondent is also alleged to have violated Rule 6B-1.01, Florida Administrative Code, the Code of Ethics of the Education Program in Florida. While this Code of Ethics is a worthy and appropriate guideline for educators to follow, it is, however, neither directive nor punitive in nature and provides no sanction for failure to follow it. It, therefore, cannot serve as legal basis for disciplinary action.
RECOMMENDATION
Based on the foregoing, therefore, it is RECOMMENDED:
That the Education Practices Commission dismiss the Administrative Complaint.
RECOMMENDED this 8th day of August, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK
Hearing Officer
Division of Administrative Hearings Department of Administration
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1983.
COPIES FURNISHED:
J. David Holder, Esquire Berg & Holder
Post Office Box 1694 Tallahassee, Florida 32302
Marvin I. Edwards, Esquire Edwards, Willis & Marinucci 3300 Independent Square
Jacksonville, Florida 32202
Mr. Donald L. Griesheimer Executive Director
Education Practices Commission
125 Knott Building Tallahassee, Florida 32301
The Honorable Ralph D. Turlington Commissioner of Education
The Capitol
Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA
RALPH D. TURLINGTON, as
Commissioner of Education, Petitioner,
vs. CASE NO. 83-501
BEVERLY J. MCNAIR,
Respondent.
/
FINAL ORDER
Respondent, Beverly J. McNair, holds Florida teaching certificate number 482561. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the certificate.
Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Panel pursuant to Section 120.57(1), Florida Statutes; it is attached to and made a part of this Order.
A panel of the Education Practices Commission met on September 22, 1983 in Tallahassee, Florida to take final agency action. The Petitioner was represented by J. David Holder, Esquire. The Respondent was present. The panel has reviewed the entire record in the case.
FINDINGS OF FACT
The panel adopts the Findings of Fact of the Recommended Order with these exceptions:
In paragraph 4, the second sentence is changed to delete the phrase "with provision for expungement of the record upon successful completion of probation.
In paragraph 8, the second sentence is changed from "would be expunged" to "may be expunged."
The expungement of Respondent's arrest and court documents is not a certainty, and is not established as fact.
CONCLUSIONS OF LAW
The issue of whether a teacher is guilty of conduct which seriously reduces effectiveness as an employee of the School Board and thus is in violation of
Section 231.28, Florida Statutes, is not dependent on whether the teacher is currently employed or whether a certain identifiable segment of the community was made aware of the conduct and responded adversely.
This Commission may determine that certain conduct, especially illegal conduct, has reduced the educator's effectiveness and is cause for discipline. See Woodward v. Professional Practices Council, So.2d 343 (Fla. 1 DCA 1980) and MacDonald v. Division of Banking and Finance, 346 So.2d 569 (Fla. 1 DCA 1977).
In this case the panel concludes that the Respondent's illegal conduct involved a deadly weapon, required the presence of the police to maintain order and possibly avert violence, and became a matter of public record; therefore, the following discipline is imposed: The Respondent is hereby REPRIMANDED.
DONE AND ORDERED in Tallahassee, Florida, this 30th day of September, 1983.
COPIES FURNISHED TO:
Arthur Wallberg, Esquire Attorney General's Office Carolyn Wilson, Chairwoman
Marlene Greenfield
Professional Practices Services I HEREBY CERTIFY that a copy Judith Brechner, General Counsel of the foregoing order in the
matter of RDT vs. Beverly McNair was mailed to Marvin
Herb A. Sang, Supt. I. Edwards, Esquire, 3300
Duval County Schools Independent Square, Jackson-
1701 Prudential Drive ville, Florida 32202, by Jacksonville, Florida 32207 U.S. Mail, this 4th day of
October, 1983.
Arnold H. Pollock Hearing Officer
Division of Administrative
Hearings Donald L. Griesheimer
Executive Director
Education Practice Commission
Docket for Case No: 83-000501
Orders for Case No: 83-000501
| Issue Date |
Document |
Summary |
|
Sep. 30, 1983 |
Agency Final Order
|
|
|
Aug. 08, 1983 |
Recommended Order
|
Teacher who had gun in purse may be disciplined on grounds of reduced effectiveness even though she works for private college. Decision is from the Education Practices Commission.
|
