STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK BROGAN, as )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. )

) Case No. 96-0288

KAREN LEE ROBERTS, )

)

Respondent. )

)

RECOMMENDED ORDER

A FORMAL HEARING was conducted before the Division of Administrative Hearings by Administrative Law Judge, Daniel

1. Kilbride, on February 13, 1997, in Tallahassee, Florida. The following appearances were entered:

   
   

   APPEARANCES

   
   

   For Petitioner: Carl J. Zahner,II, Esquire

   Office of the General Counsel Department of Education

   The Capitol, Suite 1701 Tallahassee, Florida 32399-1700

   
   

   For Respondent: Lorene C. Powell, Esquire

   118 North Monroe Street Tallahassee, Florida 32399-1700

   
   

   STATEMENT OF THE ISSUES

   
   

   Whether the Respondent's teaching certificate should be disciplined for alleged acts of misconduct as set forth in the Administrative Complaint, dated November 7, 1995, in violation of Section 231.28, Florida Statutes, and the Florida Code of Ethics of the Education Profession, Rule 6B 1.006, Florida Administrative Code.

   
   

   PRELIMINARY STATEMENT

   The Petitioner, Frank Brogan, as Commissioner of Education, filed an Administrative Complaint against Respondent, Karen Lee Roberts, dated November 7, 1995, with the Education Practices Commission. Respondent denied these allegations and elected a formal hearing, and this matter was referred to the Division of Administrative Hearings for adjudication. The formal hearing in this matter was abated at the request of the parties. Subsequently the formal hearing was rescheduled, the parties were duly notified and the hearing followed. Counsel for the parties appeared in Tallahassee and Respondent was offered the opportunity to participate by telephone.

   
   

   On the date and time set for hearing, counsel for each party was present in the hearing room and was ready to proceed. Respondent was notified of the hearing and was afforded the opportunity to participate by telephone conference call. However, Respondent refused to come to the telephone or otherwise participate in the hearing. The hearing proceeded. The Petitioner did not present the testimony of any witnesses but introduced into evidence two composite exhibits. The Respondent presented no evidence in this matter.

   
   

   At the conclusion of the proceedings, the parties were advised of their right to submit proposed findings of fact and conclusions of law. The transcript was not prepared.

   Neither party submitted proposed findings of fact or conclusions of law in this matter.

   
   

   Based upon the evidence, the following findings of fact are determined:

   
   

   FINDINGS OF FACT

   
   

   1. Respondent holds Florida Educators Certificate 614756, covering the areas of Early Childhood Education, Elementary Education, Specific Learning Disabilities, and Emotionally Handicapped. The certificate is valid through June 30, 2000.

      
      

   2. At all times relevant, the Respondent was employed as a Specific Learning Disabilities resource teacher at Merritt Island High School in the Brevard County School District.

      
      

   3. Beginning in 1992 and continuing through March,

      1994, Respondent engaged in a series of sexual relationships with C.M., R.B., D.L., and J.C., four minor male students at Merritt Island High School. The sexual activity involved masturbation and oral sex which took place during and after school, at various locations on the school campus, including Respondent's classroom at Merritt Island High School. Sexual activity also took place in Respondent's vehicle while at the beach. In exchange for the sexual favors, Respondent gave the students money, clothing, food, and other items.

      
      

   4. When Respondent's relationships with these students became public knowledge, she requested a personal leave of absence from school beginning April 4, 1994 through June 6, 1994. During the 1994 1995 school year, Respondent was placed in a nonstudent contact position.

      
      

   5. On or about August 24, 1994, Respondent was arrested and charged on 40 counts of Sexual Battery on a Minor by a Person in Custodial Authority. Eventually, additional charges were added for a total of 101 counts in four separate cases. Respondent pled Not Guilty to all counts in the Circuit Court for Brevard County, Florida. Thereafter, all four cases were tried together before a jury.

      
      

   6. On or about August 26, 1995, following the jury trial in the circuit court, Respondent was found guilty on

      64 of the 101 Counts in the four cases, as follows:

      
      

      1. In Case Number 94A: 23 of 37 counts of Sexual Activity with a Minor by a Person in Custodial Authority:

         
         

      2. In Case Number 94 A: 34 of 47 counts of Sexual Activity with a Minor by a Person in Custodial Authority;

         
         

      3. In Case Number 94A: 2 of 2 counts of Sexual Activity with a Minor by a Person in Custodial Authority: and

         
         

      4. In Case Number 65A: 4 of 10 counts of Sexual Activity with a Minor by a Person in Custodial Authority and 1 of 1 counts of Lewd and Lascivious Act upon a Minor.

      
      

   7. Following the convictions on the 64 counts by the jury, the Court revoked Respondent's bail and she was remanded to the custody of the Brevard County Sheriff

      pending sentencing.

      
      

   8. Following her conviction, Respondent was placed in a no pay status, as absent without leave, with the school district for the 1995-1996 school year. Respondent was subsequently terminated from her employment with the school district.

      
      

   9. On or about October 5, 1995, the Circuit Court adjudicated the Respondent guilty of the 64 felony counts and sentenced her to serve 10 years in custody, followed by

      15 years of supervised probation. Following the first twelve months after her release from prison, Respondent is to pay the cost of her supervision. Special conditions of Respondent's probation include the following:

      
      

      1. Undergo psychiatric treatment/mental heath counseling for sex offenders and such other psychiatric treatment/mental health counseling as directed.

      2. Have no contact with the victims or their families.

         
         

      3. Have no contact with any male child under the age of 18 years without the child's parent or guardian being present; and

         
         

      4. Not engage in any employment or volunteer activities, paid or unpaid, which place her in a position of supervision or authority over children under the age of

      18 years.

      
      

   10. Respondent is presently serving her sentence in the custody of the Florida Department of Corrections.

       
       

   11. Respondent is guilty of gross immorality and conduct involving moral turpitude.

       
       

   12. Respondent's misconduct seriously reduces her effectiveness as a teacher.

       
       

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Sections 120.57(1) and 231.262(5), Florida Statutes.

       
       

   14. This proceeding involves disciplinary action against Respondent's teaching certificate. Therefore the burden of proof to establish the facts upon which the Petitioner seeks to discipline Respondent's teaching certificate is on the Petitioner. Balino v. Dept. of Health and Rehabilitative Services, 348 So. 2d 349 (Flat 1st DCA 1977). The charges must be proved by the Petitioner through the introduction of clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

       
       

   15. Section 231.28(1), Florida Statues, authorizes the Department of Education, Education Practices Commission, to revoke or otherwise penalize a teaching certificate provided it can be shown that the holder of the certificate:

       
       

       (c) Has been guilty of gross immorality or an act involving moral turpitude;

       1. Has been convicted of a . . . felony . . .

          
          

       2. Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness an employee of the school district.

       (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules....

       
       

   16. In the Administrative Complaint filed against Respondent, it has been alleged that she has committed the acts prohibited by the provisions of Section 231.28(1)(c), (e), (f) and (i), Florida Statutes. Further that she violated Rules 6B1.006(3)(a), (e), (g), and (h), and Rules 6B1.006(4)(c) and (e), Florida Administrative Code.

       
       

   17. Rule 6B4.009, Florida Administrative Code, provides:

       
       

       (2) 'Immorality' is defined as conduct that is inconsistent with the standard 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.

       
       

   18. The term "moral turpitude" is defined in Rule 6B 4.009(6), Florida Administrative Code, as follows:

       
       

       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 statutes fixes the moral turpitude.

       
       

   19. Moral turpitude has also been defined by the Supreme Court of Florida as follows:

       
       

       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 . .

       .

       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.

       
       

       State ex ref. Tullidqe v. Hollingsworth, 108 Fla. 607, 146 So. 660,661 (1933).

   20. Section 231.28(2), Florida Statutes, provides, in pertinent part:

       . . . the decision of guilty by any court . . . shall be prima facie proof of grounds for revocation of the certificate as listed in subsection (1) . . .

       
       

   21. In a license revocation proceeding, Respondent cannot relitigate the question of her guilt following a conviction in circuit court. McGraw v. Department of State, Division of Licensing, 491 So. 2d 1193 (Fla. 1st DCA 1986).

       
       

   22. In view of the foregoing, the evidence is clear and convincing that Respondent is guilty of gross immorality; that Respondent has been convicted of multiple counts of a felony; and, that this misconduct seriously reduces her effectiveness as a teacher.

       
       

   23. The appropriate penalty in this case is that Respondent's teaching certificate should be permanently revoked. This sanction is appropriate in view of the nature of the crimes committed by Respondent and the terms of probation imposed by the circuit court. Two of the conditions of probation specifically forbid Respondent to have any contact with a male child under the age of 18 without a parent or guardian being present and further prohibits Respondent from engaging in any employment which would place her in a position of supervision or authority over children.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that a Final Order be issued finding that Respondent did violate the provisions of Sections 231.28(1)(c), (e), (f), and (i), Florida Statutes, and

Rules 6B1.006(3)(a), (e), (g), (h), and (4)(c) Florida Administrative Code. It is further

RECOMMENDED that a Final Order be issued permanently revoking Respondent's teaching certificate for the above violations.

DONE AND ENTERED this 18th day of March, 1997, in Tallahassee, Leon County, Florida.

_

DANIEL M. KILBRIDE

Administrative Law Judge Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings

this 18th day of March, 1997.

COPIES FURNISHED:

Carl J. Zahner,II, Esquire Office of the General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-1700

Lorene C. Powell, Esquire

118 North Monroe Street Tallahassee, Florida 32399-1700

Karen B. Wilde, Executive Director Education Practices Commission

The Florida Education Center, Room 224B

325 West Gaines Street Tallahassee, Florida 32399

Michael H. Olenick, General Counsel Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399

Kathleen M. Richards, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-000288

Orders for Case No: 96-000288