STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM J. PASCHETTE, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2926

)

DEPARTMENT OF EDUCATION )

(Education Practices Commission), )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in Miami, Florida, on January 23, 1984, on the issue whether the Education Practices Commission (EPC) should grant William Joseph Paschette (Paschette) a temporary one year teacher's certificate for which he applied on or about June 4, 1983. Specifically, the issue is whether the certificate should be granted despite the facts and circumstances resulting in Paschette's July 7, 1982, felony conviction for possession of methaqualone (Quaaludes), a Schedule II controlled substance, with intent to distribute.

There is no dispute as to the fact that Paschette meets the age, education and experience requirements for certification.

APPEARANCES

For Petitioner: Edward J. O'Donnell, Esquire

Coral Gables, Florida

For Respondent: Wilson Jerry Foster, Esquire

Tallahassee, Florida FINDINGS OF FACT

1. Except to the extent consistent with the following findings of fact, all proposed findings of fact are rejected as either not supported by competent substantial evidence, contrary to the greater weight of the evidence, or irrelevant.

   
   

2. Paschette was graduated from Monsignor Edward Pace High School in Opa- Locka, Florida, in 1977. In May, 1981, he was graduated from Beloit College in Wisconsin. Paschette applied for and received a temporary teacher's certificate and taught sixth and seventh grade English and science at Blessed Trinity Elementary School in Miami Springs for seven months during the 1981-82 school year.

   
   

3. In March or April, 1982, Paschette, then 23 years old, was approached by a 35- to 48-year-old friend of the Paschette family whom Paschette had known since childhood, but had not seen in years. The individual, Robert Meyer, asked if Paschette knew anyone who could arrange to sell Meyer's out-of-state friends 100,000 Quaaludes. Paschette responded that be did not. But, a week or two

   later, Paschette had a chance meeting with Douglas Reeder, a friend from high school, and the subject of Meyer's request was discussed. Reeder told Paschette that money could be made on such a deal and said he might know some people who could arrange to sell that many Quaaludes to Meyer's friends.

   
   

4. Paschette put Reeder in contact with Meyer and allowed them to use his apartment as a neutral meeting place. After more meetings between the principals, Reeder's friends agreed to sell 100,000 Quaalude tablets for 85 cents each. It was arranged that Paschette would get $5,000 for his part in bringing the principals together. Later, the amount of Quaaludes was increased to 200,000, and Paschette anticipated that he might have gotten more than $5,000 if the final deal had been concluded. But Meyer's friends turned out to be undercover federal narcotics agents. And when Paschette arrived at the time and place arranged for completion of the transaction on April 30, 1982, his codefendants (Meyer, Reeder and others) already had been arrested. Paschette was arrested when he arrived.

   
   

5. Paschette was indicted on three counts: (1) conspiracy to possess Quaaludes with intent to distribute; (2) possession with intent to distribute;

   (3) and using the telephone to facilitate possession with intent to distribute. At the suggestion of his employer, Paschette resigned from his position at Blessed Trinity. On July 7, 1982, be pleaded guilty to possession with intent to distribute. On July 27, 1982, Paschette was sentenced, based exclusively on his pre-sentence investigative report, to five years' probation.

   
   

6. Since then, Paschette has complied with the terms of his probation. He also applied for a teaching position at Our Lady Queen of Martyrs in Fort Lauderdale, fully disclosing the facts and circumstances of his felony conviction, and was hired for the school year 1982-83. While teaching seventh and eighth grade social studies, Paschette also volunteered to coach boys' basketball and baseball. He has performed all of those duties, functions and responsibilities competently and capably. His effectiveness as a teacher has not been seriously reduced.

   
   

7. As a matter of general policy, Dade County Public Schools would not hire someone who had been convicted of any felony, including possession of 100,000 Quaaludes with intent to distribute. This policy is based on Dade County's view that the effectiveness of such a person as a teacher generally is reduced or impaired because of the public nature of such an offense, its inherent offensiveness to community standards and its impugnment of the standards of care and trust required of someone who cares for and teaches children. So far, Dade County has made no exception to this policy. But the particular facts and circumstances of an offense and the nature of the judicial system's penal measures against, and handling of, the offender could affect Dade County' reaction to a particular applicant. And there was no evidence that Paschette's effectiveness as a school board employee would be seriously reduced as a result of his personal conduct.

   
   

8. In addition, since his conviction, Paschette has completed two graduate courses at Florida International University in order to become recertified and toward completion of his master's degree program.

   
   

9. Finally, Paschette's personal conduct demonstrates a weakness in his character--he succumbed to the temptation of being able to make an easy $5,000. But Paschette's remorse is sincere, and his promise never again to become involved in a criminal offense is believable. He wants to make a positive contribution to the education system by continuing to work as a teacher.

   CONCLUSIONS OF LAW

   
   

10. DOE's counsel has suggested that this proceeding is simply an appellate review to determine whether, under Section 231.17(6)(a), the DOE would be authorized to deny the application. It is not.

    
    

11. This is a de novo proceeding under Section 231.17(6)(b), Florida Statutes (1983), to determine the issue whether Paschette should be granted a temporary teacher's certificate. See Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). The view suggested by DOE's counsel would effectively deny Paschette a meaningful 120.57(1) hearing. It also-would run counter to the view reflected in the procedures of the EPC and the DOE.

    
    

12. Section 231.17(6)(a), Florida Statutes (1983) authorizes DOE to deny an application because the applicant is not of the necessary good moral character or if it possesses evidence satisfactory to it that the applicant has committed an act or acts or that a situation exists for which the EPC would be authorized to revoke a teaching certificate. Section 231.17(6)(b) states that the "decision" of the DOE is subject to "review" by the EPC. The statute, on its face, is not clear whether the DOT "decision" or the EPC decision on "review" is the final agency action. Nor is it clear from the statute whether an applicant's statutory right to a 120.57(1) hearing precedes the DOE's "decision" or the EPC's decision on "review." Although apparently inconsistent with Model Rule 28-5.601, Florida Administrative Code, Rule 6B-11.05, Florida Administrative Code, reflects DOE's own interpretation that its "decision" is not final agency action unless no "review" by the EPC is requested. On the EPC's "review" of the DOE's "decision," final agency action is taken by the EPC. The applicant's 120.57(1) hearing right comes between the DOE's preliminary "decision" and the EPC's decision on "review." In effect, the DOE's "decision" is the end of free-form agency proceedings and the applicant's point of entry into a formal 120.57(1) proceeding, just as the DOE's administrative complaint is under Section 231.262, Florida Statutes (1983).

    
    

13. The record in this case reflects that both agencies have treated the DOE's "decision" as such. DOE reviewed the application and asked for an explanation of certain parts of the application. After receiving the explanatory information, DOE "decided" to deny the application. Paschette had no opportunity for a 120.57(1) review before the DOE "decision." But DOE's decision was accompanied by a notice to Paschette that he had a right to this 120.57(1) hearing. As stated, this hearing precedes the EPC's final order.

    
    

14. If the applicant's 120.57(1) hearing is to comply with the requirements of McDonald, supra, the EPC may not be restricted to a determination whether the DOE was "authorized" under 231.17(6)(a) to initially deny the application. Rather, the EPC must exercise full discretion to determine, based on the entire 120.57(1) record, whether Paschette should be granted the temporary certificate.

1. Legal Standards.

   
   

   1. EPC's Discretion.

      
      

      1. An applicant for teacher certification must "[b]e of good moral character." Evidence of the existence of one or more of the grounds set forth in

         Section 231.28(1)(a)-(h), Florida Statutes (1983)(some, but not all, of which pertain to moral character), authorizes, but does not require, the DOE to "decide" to deny an application for certification. If the DOE's decision is to deny the application, the PC must consider all facts relevant to the issue before it. Even if the evidence establishes the existence of one or more of the grounds set out in Section 231.28(1)(a)-(h), pertaining to moral character, the EPC must decide whether the applicant has proven that he is now nonetheless of the good moral character necessary for certification. Specifically, the EPC must exercise its power and discretion to consider an applicant's rehabilitation and other mitigating factors. Indeed, absent such power and discretion, there would be no point to this hearing, since the applicant admits his criminal conviction. Nor would there by any point in an applicant, once denied on one of the grounds set forth in Section 231.28(1)(a)-(h), ever considering reapplication.

         
         

      2. To the extent the alleged grounds set out in Section 231.28(1)(a)-(h) do not pertain to moral character, it is the EPC's duty to determine whether the applicant has disproved the existence of the ground or has proven that the application should be granted under the facts. This analysis applies, for example, to Section 231.28(1)(f)

         
         

   2. Felony Conviction.

      
      

      17. Obviously, Paschette has been convicted of a felony possession of methaqualone with intent to distribute, a ground on which denial of an application is authorized under Section 231.28(1)(e), Florida Statutes (1983).

      
      

   3. Gross Immorality.

      
      

      18. Under the standards that have been applied to the teaching profession, "immorality" has been defined as "conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community." Rule 6B-4.09(2), Florida Administrative Code. See also Negrich v. Dade County Board of Public Instruction, 143 So.2d 498, 501 (Fla. 3d DCA 1962). Gross immorality is immorality involving acts which are serious rather than minor in nature and which involve a flagrant disregard of the standard of moral conduct embodied in the above rule. See Final Order, Education Practices Commission v. Knox, 3 F.A.L.R. 1373A (1981). Therefore, Paschette's conduct involved gross immorality as that term is used in Section 231.28(1)(c), Florida Statutes (1983).

      
      

   4. Moral Turpitude.

1. Rule 6B-4.09(6), Florida Administrative Code, states:

   
   

   (6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his

   or her fellow man or to society in general, and the doing of the act itself and not

   its prohibition by statute fixes the moral turpitude.

2. "Moral turpitude" also has been defined in State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (Fla. 1983):

   
   

   Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. (Citations omitted.) It has also been defined as anything done contrary to justice, honesty, principle, or coed morals, though it often involves the question of intent as when unintention- ally committed through error of judgment when wrong was not contemplated.

   
   

3. Under those standards, Paschette's conduct also constitutes a crime involving moral turpitude as that term is used in Section 231.28(1)(c), Florida Statutes (1983). See Final Order, Education Practices Commission v. Knox, supra. Cf. also Adams v. Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981), pet. rev. den., 412 So.2d 463 (Fla. 1982).

1. Rehabilitation and Mitigation.

   
   

   1. Neither Section 231.28(1)(c) nor (e), Florida Statutes (1983), mandates denial of an application on proof of the existence of the grounds set forth in those statutes.

      
      

   2. To some extent, Paschette's specific role decreases the gravity, on its face, of the crime for which he was convicted. In addition, Paschette's remorse is sincere, and he is committed to avoiding any criminal offense in the future. He is in the process of rehabilitating himself.

      
      

   3. Nonetheless, there was insufficient evidence of complete rehabilitation and good moral character at this time to overcome conduct two years ago which, in the teaching profession, is viewed as gross immorality and moral turpitude.

   
   

2. Serious Reduction in Effectiveness

25. Under Section 231.28(1)(f), an application can, and probably should, be denied if the applicant's personal conduct would seriously reduce his effectiveness as an employee of the school board. If the applicant is not employed by a school board, the question becomes whether the applicant's personal conduct would reasonably and foreseeably result in a serious reduction in his effectiveness if he were a school board employee. Based on the evidence in this case, Paschette's personal conduct would not result in a serious reduction in his effectiveness if he were a school board employee.

RECOMMENDATION

Based on the foregoing, it is recommended that the Education Practices Commission deny this application of William J. Paschette for a temporary one year teacher's certificate.

RECOMMENDED this 15th day of March, 1984, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1984.

COPIES FURNISHED:

Edward J. O'Donnell, Esquire 2915 S.W. 27th Avenue

Coral Gables, Florida 33133

Wilson Jerry Foster, Esc.

616 Lewis State Bank Building Tallahassee, Florida 32301

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

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AGENCY FINAL ORDER

=================================================================

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

WILLIAM J. PASCHETTE,

Petitioner,

vs. CASE NO. 83-2926

RALPH D. TURLINGTON, as

Commissioner of Education,

Respondent.

/

FINAL ORDER

Petitioner, William J. Paschette, applied for a Florida teacher's certificate and that application was denied.

Pursuant to Section 231.17(6)(b), Florida Statutes, Petitioner 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 May 3, 1984 in Tampa, Florida to take final agency action. The Petitioner was not present or represented. The Respondent was represented by Marlene Greenfield. The panel has reviewed the entire record in the case.

The panel adopts the Findings of Fact of the Recommended Order. The panel adopts the Conclusions of Law of the Recommended Order with the exception of Section #6 Serious Reduction in Effectiveness, which is changed to the following:

Under Section 231.28(1), F.S., an applicant can, and should be denied if the applicant's personal conduct would seriously reduce his effectiveness as an employee of the school board. We note that in the findings the hearing officer stated, on page 3, that "His effectiveness as a teacher has not been seriously reduced." This finding has little relevance to our consideration. The Petitioner has been employed in a private school, not as an employee of a school board.

Likewise the finding "And there was no evidence that Paschette's effectiveness as a school board employee would be seriously

reduced as a result of his personal conduct" is of little consequence. The burden was on Paschette to show why he is entitled to a certificate. See Model Rule 28-6.08(3), F.A.C.

The conviction of such a felony is prima facie evidence of a serious reduction in effectiveness. Rehabilitation in a moral sense may have occurred, and yet the public reaction to an act may still result in a serious reduction in effectiveness. Likewise, public reaction may have passed and rehabilitation may not have occurred.

Just as not enough time has passed to show rehabilitation and good moral character, not enough time has passed for the Petitioner to be able to show his effectiveness as an employee of the school board is not seriously reduced.

The Respondent's Exceptions are denied to the extend they are not incorporated.

The application for a certificate is DENIED.

DONE AND ORDERED in Tallahassee, Florida, this 10th day of May, 1984.

Richard Rich, Presiding Officer

I HEREBY CERTIFY that a copy of the foregoing Order in the matter of William Paschette v. RDT has been furnished to Edward J. O'Donnell, Esquire by U.S. Mail this 14th day of May, 1984.

Donald L. Griesheimer, Clerk

COPIES FURNISHED:

Marlene Greenfield, Administrator Professional Practices Services

Arthur Wallberg, Esquire Attorney General's Office

Judith Brechner, General Counsel Jerry Foster, Esquire

616 State Bank Building Tallahassee, Florida 32301

Edward J. O'Donnell, Esquire 1125 Northeast 125th Street North Miami, Florida 33133

Hon. J. Lawrence Johnston Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 83-002926

Orders for Case No: 83-002926