STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK O'NEIL, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5430

)

DOUG JAMERSON, as ) COMMISSIONER OF EDUCATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Fort Lauderdale, Florida on January 11, 1995, before Suzanne F. Hood, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Frank O'Neil, Pro Se

Post Office Box 661

Hollywood, Florida 33022-0661

For Respondent: Thomas Abrams, Esquire

1377 97th Street

Miami, Florida 33154 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner's application for a teaching certificate should be approved.

PRELIMINARY STATEMENT

On or about July 12, 1994, Respondent Doug Jamerson, Commissioner of Education (Respondent), served Petitioner Frank O'Neil (Petitioner) with a Notice of Reasons for denying Petitioner's application for a teaching certificate. Petitioner requested a formal hearing by letter dated September 11, 1994. Respondent referred the case to the Division of Administrative Hearings by letter dated September 22, 1994.

On January 11, 1995, Suzanne F. Hood held a formal hearing in Fort Lauderdale, Florida. Petitioner testified on his own behalf and offered eleven

1. exhibits into evidence. Respondent did not present any witnesses but offered six (6) exhibits into evidence. On or about January 17, 1995, the undersigned received Petitioner's late-filed composite exhibit.

   
   

   A transcript of the hearing was filed with the Division of Administrative Hearings on February 17, 1995. Petitioner filed a proposed recommended order on January 20, 1995. Respondent filed a proposed recommended order on February 27,

   1995. The undersigned has considered the parties' proposed findings of facts and used them in preparation of this Recommended Order, except where they are irrelevant, immaterial, cumulative, or subordinate. The Appendix attached to this Recommended Order contains specific on the parties' respective proposed findings of fact.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner attended the University of Dayton in Dayton, Ohio, for five semesters beginning in 1966 and ending in 1969.

      
      

   2. In the first term of the 1967-1968 school year, Petitioner registered for five academic subjects. He received two failing grades and was officially withdrawn from a third class:

      
      

      COURSE	DESCRIPTION	GRADE	CR	PTS
      PSY 201	INTRO PSYCHOLOGY	C	3	6
      HST 270	ECONOMIC HST OF U.S.	D	3	3
      ENG 205	MAJOR WORLD WRITERS	F	3	0
      MIL 201	SECOND YEAR BASIC	F	1	0
      POL 201	AMER. GOVT-NATL.	W	3	0

      
      

      HRS 10.0 PTS 9.0 AVE 0.9000 ACADEMIC DISMISSAL

      
      

   3. In the first term of the 1968-1969 school year, Petitioner registered for six academic subjects. He received two failing grades and was officially withdrawn from a third class:

      
      

      COURSE DESCRIPTION GRADE CR PTS

      
      

      ENG 201 POETRY & THE NOVEL	C	3	6
      FRN 202 INTERM FRENCH II	C	3	6
      MIL 201 SECOND YEAR BASIC	W	1	0
      PHL 306 EPISTEMOLOGY	F	3	0
      POL 303 STATE AND LOCAL GOV	F	3	0
      POL 306 INTERNATIONAL LAW	C	3	6

      
      

      HRS 15.0 PTS 18.0 AVE 1.2000 ACADEMIC DISMISSAL

      
      

   4. Petitioner testified that these unsatisfactory grades were not the true evaluation of his academic performance. He claims that they were awarded by professors who refused to follow policies relating to unlimited cuts, attendance, withdrawal, and nonpayment/financial aid adopted by the university in the late 1960s.

      
      

   5. The record contains copies of the applicable university policies. However, there is no record evidence that the University of Dayton ever corrected Petitioner's transcript to reflect his alleged true academic standing.

      
      

   6. In 1992, Petitioner began attending Saint Thomas University in Miami, Florida, to complete his education and prepare for a teaching career.

      
      

   7. Petitioner discussed his prior academic history with a friend, Jeanette Gendron. Ms. Gendron was very concerned that the failing grades from

      the University of Dayton would adversely impact Petitioner's career in general and his application for a teaching certificate in particular. Petitioner was aware of Ms. Gendron's concerns as they discussed them over the years.

      
      

   8. Petitioner graduated from Saint Thomas University, Miami, Florida, in May of 1993 with a B.A. degree.

      
      

   9. On or about June 29, 1993, Petitioner filled out and executed an application for a Florida teaching certificate in the field of Social Science, grades six (6) through twelve (12). On said application, Petitioner signed the following sworn statement:

      
      

      I hereby certify that I subscribe to and will uphold the principles incorporated in the Constitutions of the United States of America and the State of Florida. I understand the Florida Statutes provide for the revocation of an Educator's Certificate if evidence and proof are established that the certificate has been obtained by fraudulent means. I

      further certify that all information pertaining

      to the application is true, correct, and complete.

      
      

      Petitioner was residing in Hollywood, Broward County, Florida, at the time he signed this statement. Petitioner filed this application with Respondent on or about June 19, 1993.

      
      

   10. In November of 1993, Petitioner was attending graduate school in Connecticut. In order to expedite the processing of his application, Petitioner asked his friend, Ms. Gendron, to search his personal records in Florida for a copy of his grade transcript from the University of Dayton.

       
       

   11. Ms. Gendron found the transcript and made a copy with the following alterations: (1) She changed the unsatisfactory grades to Bs and Cs; (2) She made corresponding changes in credit hours, quality points and grade point averages for two terms; (3) She eliminated the words "Academic Dismissal" for three terms; and (4) She eliminated the words "Readmitted to College of Arts and Sciences, Jan. 1968." After making these alterations on or about November 25, 1993, Ms. Gendron sent the transcript from Florida to Connecticut to Petitioner so he could send it to Respondent.

       
       

   12. There is no evidence that Petitioner asked Ms. Gendron to alter the transcript. However, Petitioner's testimony that he did not know about the alterations is not persuasive. He knew how Ms. Gendron felt about the bad grades and, according to Ms. Gendron's affidavit, he had the opportunity to review the transcript before he sent it to Respondent. Respondent even testified that:

       
       

       She (Ms. Gendron) told me she was doing it because she didn't like the look of them. She didn't like the grades. She thought that I would be doing better than that. And, we discussed this previously. I did discuss it over the years. About two years ago I discussed it with her, that what had happened, especially before May of 1993, I discussed it.

   13. The record copy of this first altered transcript appears to bear the seal of a Notary Public from Connecticut and the date "Nov. 30, 1993" typed in the lower left corner. Respondent received this transcript on or about December 7, 1993.

       
       

   14. On December 27, 1993, Ms. Gendron altered another copy of Petitioner's grade transcript from the University of Dayton. Using liquid paper and a stamp, she attempted to match the second transcript to the one she sent to Petitioner on November 25, 1993. However, there are obvious differences in the two altered transcripts. The second time she changed the words "Academic Dismissal" to "Academic Evaluation" for three terms. She also did not eliminate the words "Readmitted to College of Arts and Sciences, Jan. 1968." Ms. Gendron used a stamp to make it appear that the corrected transcript was officially approved and initialed by the University of Dayton Registrar.

       
       

   15. Ms. Gendron's affidavit states that she sent the second altered transcript directly to Respondent on December 31, 1993, and that Respondent should have received it in the first week of January, 1994. However, the alleged stamp and initial of the Registrar is dated January 5, 1994. The transcript also has the date "Jan. 5, 1994" typed in the lower left corner.

       
       

   16. Upon receipt of the second altered transcript, Respondent notified Petitioner of the differences in the documents. Petitioner asked the University of Dayton to send an official transcript directly to Respondent.

       
       

   17. On or about February 1, 1994, Respondent received an official transcript from the University of Dayton showing the failing grades for the first term of the 1967-1968 school year and the first term of the 1968-1969 school year along with the correct number of credit hours earned, quality points accumulated, and grade point average.

       
       

   18. In February of 1994, Petitioner filled out and executed a second application for a Florida teaching certificate in the field of Political Science, grades six (6) through twelve (12). On February 11, 1994, Petitioner signed the second application containing a sworn statement identical to the one set forth above in paragraph nine (9). Respondent received this application on February 15, 1994.

       
       

   19. By letter dated March 7, 1994, Respondent notified Petitioner that Professional Practices Service would review the official transcript from the university which differed from the original official transcript submitted on Petitioner's behalf. Respondent advised Petitioner that further processing of his application was pending clearance from Professional Practices Service.

       
       

   20. By letter dated June 24, 1994, Respondent informed Petitioner that his application for certification in Political Science (filed on February 15, 1994) was void and that Respondent would refund the $54 application fee. Respondent advised Petitioner that it was unnecessary to apply for certification in Political Science because that subject area was included in the broader field of Social Science.

       
       

   21. Respondent refunded the fee for the voided application by state warrant dated June 30, 1994.

       
       

   22. By Notice of Reasons dated July 12, 1994, Respondent informed Petitioner that his application for a Florida teaching certificate in the field of Social Science was denied.

   1. Petitioner worked as substitute teacher in Broward and Dade public schools in 1994 and earned good evaluations from his supervisors. He also taught Sunday School at St. Matthew Catholic Church where he serves as catechist. After receiving his B.A., Petitioner immediately began working towards a M.S. in guidance and counseling at Saint Thomas University. The record contains references from his professors emphasizing his potential as a teacher.

      
      

   2. Petitioner has completed all academic requirements to be qualified as a Social Science teacher. He has passed all required state teacher certification examinations. His application appears to be complete.

      
      

   3. Despite being otherwise qualified to hold a Florida teaching certificate, record evidence indicates that Petitioner knew the first two University of Dayton transcripts sent to Respondent incorrectly reflected his academic standing.

      
      

      CONCLUSIONS OF LAW

      
      

   4. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

      
      

   5. The Petitioner has the initial burden of proving he is qualified to hold a Florida teaching certificate by a preponderance of the evidence. Osborne Stern & Company v. Department of Banking and Finance,19 Fla. L. Weekly D2428, D2429 (Fla. 1st DCA Nov. 18, 1994). If the Petitioner meets this burden, Respondent must prove that Petitioner committed the offenses alleged in the Notice of Reasons by clear and convincing evidence. Id. at D2429.

      
      

   6. Section 231.17, Florida Statutes, sets forth the requirements for the issuance of a teaching certificate. Respondent appears to have met all of these requirements with one exception. Section 231.17(1)(e), Florida Statutes, provides in pertinent part:

      
      

      1. REQUIREMENTS. . . . An applicant shall be permitted to submit official transcripts from institutions of higher education as part of the application. Each applicant for certi- fication shall:

         * * *

         (e) Be of good moral character.

         
         

   7. The Florida Supreme Court defined "good moral character" as follows:

      
      

      In our view, a finding of a lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of acts and conduct which would cause a reasonable

      man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and the nation. (citation omitted).

      Florida Board of Bar Examiners Re: G.W.L., 364 So. 2d 454, 458 (Fla. 1978).

      
      

   8. Petitioner has not met his burden of proving by the preponderance of the evidence that he is of good moral character. His testimony that he had no knowledge of the alterations to his University of Dayton transcripts on two separate occasions is not credible. Petitioner's knowing submission of transcripts which misrepresent his academic performance is sufficient to cause substantial doubts about Petitioner's character for honesty.

      
      

   9. Additionally, the record contains clear and convincing evidence that Petitioner violated Sections 231.28(1)(c) and 231.28(1)(i), Florida Statutes, and Rules 6B-1.006(5)(a), 6B-1.006(5)(g), and 6B-1.006(5)(h), Florida Administrative Code.

      
      

   10. Section 231.17(5)(a), Florida Statutes, provides as follows:

       
       

       (a) The Department of Education is authorized

       to deny an applicant a certificate if it possesses evidence satisfactory to it that the applicant

       has committed an act or acts or that a situation exists for which the Education Practices Commission would be authorized to revoke a teaching certificate.

       
       

   11. The Education Practices Commission can revoke a teaching certificate where the licensee is guilty of gross immorality of an act involving moral turpitude. Section 231.28(1)(c), Florida Statutes.

       
       

   12. The Florida Supreme Court has defined moral turpitude as "anything done contrary to justice, honesty, principle, or good morals . . ." State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933).

       
       

   13. In the instant case, Petitioner's knowing submission of falsified transcripts was unquestionably dishonest.

       
       

   14. The Education Practices Commission can also revoke a teaching certificate where the licensee violates "rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate." Section 231.28(1)(i), Florida Statutes.

       
       

   15. Rule 6B-1.006, Florida Administrative Code, sets forth the Principles of Professional Conduct for the Education Profession in Florida. Pursuant to Rule 6B-1.006(2), Florida Administrative Code, violation of any of those principles may result in revocation of a teaching certificate. The principles at issue here are:

       
       

       1. Obligation to the profession of education requires that the individual:

          1. Shall maintain honesty in all professional dealings.

* * *

1. Shall not misrepresent one's own professional qualifications.

2. Shall not submit fraudulent information on any document in connection with professional activities.

1. Petitioner's conduct in this case violated each of the above referenced principles.

   
   

2. Ms. Gendron altered the first transcript and sent it to Petitioner who forwarded it to the Respondent. The undersigned finds it impossible to believe that Petitioner was not aware of the changes on the transcript.

   
   

3. Ms. Gendron attempted to alter the second transcript to match the first. She also attempted to make the second transcript appear to be officially approved by the University of Dayton Registrar. At Petitioner's request, Ms. Gendron sent the second transcript to Respondent.

   
   

4. Petitioner knew his friend changed the grades on both occasions. His application must be denied because he has not carried his burden of proving his good moral character. Moreover, there is clear and convincing evidence that he committed the offenses set forth in the Notice of Reasons dated July 12, 1994.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order denying the Petitioner's application for a Florida certificate, such denial to be without prejudice to refile a future application.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of March, 1995.

SUZANNE F. HOOD, Hearing Officer Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1995.

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Petitioner's Proposed Findings of Fact

1. Rejected. More of a conclusion of law than a proposed finding of fact.

2. Reject Petitioner's assertion that he did not "willfully violate any rules and regulations of the district school board or state Board of Education." See paragraph 24.

3. Rejected. More of a conclusion of law than a proposed finding of fact.

4. Rejected. See conclusions of law.

5. Rejected. See conclusions of law.

6. Rejected. See conclusions of law.

7. Rejected. See conclusions of law.

8. Rejected. See conclusions of law.

9. Rejected. See conclusions of law.

Respondent's Proposed Findings of Fact

1. Accepted in paragraph 18 of this Recommended Order (RO)

2. Accepted in paragraphs 9 & 18 of this RO.

3. Accepted. Implicit in paragraphs 9 & 18 of this RO.

4. Accepted in paragraph 24 of this RO. However, both of the falsified transcripts were submitted prior to the filing of the application dated February 11, 1994.

5. Accepted. See paragraphs 11 & 14 of this RO.

6. Accepted. See paragraphs 11 & 14 of this RO.

7. Accepted. See paragraphs 2, 3, & 17 of this RO.

8. Accepted in paragraph 19 of this RO.

COPIES FURNISHED:

Frank O'Neil

Post Office Box 661 Hollywood, FL 33022-0061

J. David Holder, Esquire 1480 North Peidmont Way Tallahassee, FL

Thomas Abrams, Esq.

1377 97th St.

Miami, FL 33154

Karen Wilde, Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

Kathleen M. Richards, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-005430

Orders for Case No: 94-005430