STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
EVELYN D. RIVERA, )
)
Petitioner, )
)
vs. ) Case No. 99-5124
)
TOM GALLAGHER, as )
Commissioner of Education, )
)
Respondent. )
)
RECOMMENDED ORDER
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Tampa, Florida, on April 3-5, 2000.
APPEARANCES
For Petitioner: B. Edwin Johnson
Attorney at Law
1433 South Fort Harrison Avenue Suite C
Clearwater, Florida 33756
For Respondent: J. David Holder
Law Offices of J. David Holder, P.A. Post Office Box 489
DeFuniak Springs, Florida 32435 STATEMENT OF THE ISSUE
The issue is whether Petitioner is entitled to a permanent Florida Educator's Certificate.
PRELIMINARY STATEMENT
By Amended Notice of Reasons dated November 8, 1999, Respondent advised Petitioner that it was denying her request for a Florida Educator's Certificate for two reasons.
First, while employed in July 1998 as a residential counselor at a summer institute for migrant students sponsored by the Hillsborough County School District, Petitioner allegedly engaged in inappropriate behavior with a minor male student by taking him out of class on numerous occasions without administrative approval and by kissing the student in a dormitory stairwell on more than one occasion.
Second, on her application for employment with the Pinellas County School District dated September 14, 1998, Applicant allegedly failed to disclose her termination from the Hillsborough summer migrant institute, resulting in the termination of her Pinellas employment on June 4, 1999.
Petitioner requested a formal hearing on the charges. Originally, this case was consolidated with Pinellas County
School Board v. Evelyn Rivera, DOAH Case No. 99-2615. On the third day of the hearing, Respondent dismissed her request for a hearing in DOAH Case No. 99-2615. The Administrative Law Judge consequently closed the file in that case. (This recommended order designates Ms. Rivera as the petitioner, as she is in DOAH Case No. 99-5124, even though several references in the record to
Ms. Rivera refer to her as the respondent, as she was in DOAH Case No. 99-2615.)
At the hearing, Petitioner called five witnesses and offered into evidence 16 exhibits. Respondent called seven witnesses and offered into evidence 12 exhibits. All exhibits were admitted except Petitioner Exhibit 9. Petitioner withdrew Petitioner Exhibits 15 and 16. Respondent withdrew Respondent Exhibit 12.
Respondent Exhibit 1 was admitted, but not for the truth of its contents.
The court reporter filed the Transcript on April 21, 2000.
FINDINGS OF FACT
Petitioner was born on May 25, 1976. She was educated predominantly in the Tampa Bay area, having attended two years of elementary school, all of middle school, and all of high school in Largo. Petitioner is Hispanic and conversant in Spanish, which is the first language that she learned at home, but her primary language is now English, which she speaks fluently and without accent.
Petitioner attended the University of South Florida (USF), from which she graduated on July 1, 1998, with a bachelor of science degree and a 3.3 grade point average. She majored in English education and completed the state-approved teacher education program for English certification for grades 6-12.
While attending USF, Petitioner participated in an internship under the supervision of a reading teacher with 11
years' teaching experience. During the internship, which ran from January to April 1998, Petitioner taught language arts and drama to Hillsborough County middle-school students who were predominantly Hispanic.
Petitioner's supervising teacher gave her two employment references: the first to the Hillsborough County School District and the second to the Pinellas County School District.
In the first reference, which is dated April 5, 1998, the supervising teacher evaluated Petitioner as "excellent" in all categories. The categories are "appearance," "English usage," "cooperation and dependability," "emotional stability," "mature judgment," "leadership," "ability to get along with others," and "ability to work with children in a friendly and understanding way." In her remarks, the teacher stated: "We will be lucky to have her." The teacher enthusiastically recommended that Petitioner be employed as a substitute.
In the second reference, which is dated September 18, 1998, the supervising teacher assigned Petitioner the highest score in all categories except "ability to discipline," "professional attitude & growth," and "sympathetic understanding and treatment of students," for which the teacher assigned Petitioner the second highest rating. In response to a question if she know why Petitioner should not work with students, the supervising teacher responded, "Absolutely not." In response to a question if she would employ Petitioner, the supervising
teacher stated that she would. Under additional comments, the supervising teacher added: "[Petitioner] motivated students on every level. She has the management skills of a ten year teacher."
This case arises out of Petitioner's employment during the summer of 1998 as a residential counselor with the Summer Migrant Institute at the University of South Florida (Migrant Institute). This was Petitioner's first job after college. Her prior employment consisted of working at Walgreens pharmacy, escorting USF teachers and students to ensure their safety while walking the USF campus at night, working in the USF Marriott cafeteria, and serving as a substitute teacher in Hillsborough and Pinellas counties. Her present employment is in customer service at the Home Shopping Network.
The Migrant Institute is a six-week program sponsored jointly by USF and the Hillsborough County School District. Each summer, eligible middle- and high-school students from throughout Florida live in USF dormitories and attend remedial academic instruction in USF classrooms.
The Migrant Institute employs teachers and residential counselors, among other staff. During the summer of 1998, the teachers, residential counselors, and three administrators in charge of the program all resided in the dormitories with the students.
The residential counselors performed a variety of supportive roles, such as serving as liaisons with the parents, advisors to the students, and assistants to the teachers. The administrators assigned female residential counselors to female students and male residential counselors to male students, at about a 1:10 ratio. Residential counselors, but not teachers, were required to eat their meals with the students in the cafeteria.
There is some dispute, even among the administrators, as to what the administrators told the residential counselors they could and could not do with the students. The record suggests that the assistant director, in particular, was somewhat ambitious in his description of the guidelines and prohibitions that the administrators gave the residential counselors.
Of course, nothing in the record suggests that Petitioner lacked the common sense to recognize that she could not voluntarily have sexual contact with a 13-year-old male student. The record is less developed as to what the Migrant Institute rules required Petitioner to do if a 13-year-old male student kissed her, once or even twice. However, the evidence does not support, and even contradicts, the assertions of the administrators that the rules of the Migrant Institute prohibited any contact whatsoever between staff and students of the opposite sex.
The student involved in this case is A. M., who was born on August 21, 1984. He had failed most of his classes during the prior school year. He attended the Migrant Institute at the suggestion of his school counselor, who hoped that he could acquire sufficient skills to earn a promotion to the next grade. A. M. took five or six classes during the six-week summer program and earned grades of Bs, Cs, and Ds in his courses.
A. M.'s first four weeks at the Migrant Institute passed without incident. In the fourth week, A. M. met Petitioner. Although she was not his residential counselor, A.
M. approached Petitioner one afternoon while walking to the dormitories from his last class. During this initial conversation, Petitioner and A. M. spoke only about baseball.
However, later in the fourth week, Petitioner and A. M. spoke about other matters, such as his grades and personal problems that he was having that interfered with his academic performance. A. M. missed his father, who was working in Mexico.
During the fourth week, Petitioner asked A. M.'s teacher to release him from class, so that Petitioner and A. M. could talk about his problems and academic performance.
One day, during the fourth week, after Petitioner and
A. M. had spoken three or four times, Petitioner and A. M. happened to encounter each other in a stairwell in the dormitory. It was late in the afternoon after the recreation period, just before the students were to prepare to eat supper. Someone had
directed Petitioner to find another boy. After she had found him, Petitioner was climbing the stairs to return to her room when she met A. M. walking down the stairs.
Petitioner and A. M. spoke for about a minute on the stairs. Then, without warning, A. M. kissed Petitioner briefly on the lips.
Completely surprised by A. M.'s behavior, Petitioner pushed him hard, saying, "What the fuck are you doing?" Obviously unhurt by the push and unoffended by the language, A.
M. replied that Petitioner had nice lips.
She ignored A. M.'s impertinent comment and warned him never again to misbehave in this manner. A. M. apologized and said that he knew he should not do that. Petitioner added that she did not want to get into trouble or be fired from the program, and A. M. said that he understood.
Due to her concerns that she would get into trouble for getting kissed and pushing and swearing at a student, Petitioner decided not to report the incident to the administrators.
The next time Petitioner saw A. M. neither of them said anything about the incident, and their relationship returned to how it had been prior to the incident. On one other occasion, Petitioner removed A. M. from class to talk to him. On one occasion, Petitioner sat next to A. M. in the cafeteria and ate lunch with him.
Two or three days after the stairwell kissing incident, Petitioner encountered A. M., again late in the afternoon. After having walked her students back to their dormitory following class, Petitioner returned to the classroom building to tutor some boys in a study hall. Knowing Petitioner's teaching background, someone had asked her to tutor the boys because, the prior day, one of the boys' tutors had left the program to return to Mexico.
A. M. was among the boys in the study hall. For about
45 minutes, Petitioner tutored the boys, but A. M. was disruptive for the entire time, slamming books and throwing paper. Petitioner told him to stop being disruptive and do his work, but he ignored her. Unable to summon assistance, because she would be leaving the study hall unsupervised, Petitioner tried to deal as best she could with A. M., who was a reasonably large, well developed boy.
At the end of the study hall, Petitioner dismissed the other students for dinner, but told A. M. to remain so she could speak to him. Petitioner told A. M. that she did not appreciate his behavior and that other students had a right to learn.
Petitioner and A. M. were both sitting, facing each other. Suddenly, A. M. leaned over and kissed Petitioner briefly again. Petitioner was upset, although not angry. She said that they had spoken about this before, and he needed to consider the position in which his behavior left both of them. A. M. again
agreed not to attempt this behavior. Again, Petitioner did not report the incident due to concerns that she would get into trouble.
It is difficult to describe Petitioner's characterization of these two incidents. At the hearing, Petitioner seemed somewhat shy and even intimidated. In her dealing with the authority represented by the persons at the hearing, Petitioner seemed a very young 24 years old and presumably was an even younger 23 years old during the summer of 1998, as she credibly claims to have felt uncomfortable with the three administrators.
On balance, the most compelling view of all of the evidence is that Petitioner felt that A. M.'s behavior was a relatively minor annoyance--a product of an otherwise-harmless crush that he had on her and, if revealed, a potential source of trouble for her with her supervisors. Regardless of her handling of A. M.'s advances, Petitioner unwisely did not discourage his flirting, as she admits even to have engaged in some undescribed flirting herself with A. M., "explaining" that he had told her that he was 16 years old.
On Sunday, July 19, the director of the Migrant Institute summoned Petitioner to his room to discuss with him, the assistant director, and the residential counselor supervisor reports that they had heard that Petitioner had an improper relationship with A. M.
The director, Patrick Doone, was a USF employee. For the most part, he delegated responsibility for the residential counselors to the assistant director, Sundy Chazares, an assistant principal of a high school within the Hillsborough County School District, and the residential counselor supervisor, Rosie Mendez, also a USF employee, who had been a residential counselor for the preceding seven years before becoming the residential supervisor in the summer of 1998.
The meeting consisted of two parts. In the first part, which lasted 15 minutes, Mr. Doone began by asking Petitioner if there was "anything going on" between her and a student, possibly naming A. M. Petitioner said that there was not. Mr. Chazares then took over, saying that he knew that A. M. and Petitioner had kissed. Petitioner admitted that she and A. M. had kissed, but added, "it's not the way you think it is." The meeting quickly became confrontational, with Mr. Chazares and Ms. Mendez loudly making accusations, rather than asking questions and giving Petitioner a chance to explain. Illustrative of the level of discourse was Ms. Mendez's rhetorical question, "So you like 14- year-old boys?" Petitioner began to cry and did not say anything else. Mr. Doone then told Petitioner to return to her room, which she did.
After a brief discussion among the three administrators, they decided to terminate Petitioner from the Migrant Institute program that night. Mr. Doone summoned
Petitioner from her room and told her, "Pack up your bags and leave the premises as soon as possible." After packing her clothes and saying goodbye to the girls whom she had supervised, Petitioner left the USF campus that evening and did not return, nor did she have further contact with A. M.
As a result of her termination from the Migrant Institute program, Petitioner lost the job that she had been given to start teaching fulltime in the Hillsborough County School District in the fall of 1998.
On September 14, 1998, Petitioner completed an application for a teaching position with the Pinellas County School District. Submitted the next day, the application discloses the employment with the Migrant Institute. Petitioner answered "no" to the question, "Have you ever been suspended without pay, or dismissed from employment or resigned while an investigation was in progress for possible disciplinary action?"
The declaration above Petitioner's signature states in part: "I declare that the answers given by me to the foregoing questions and statements are true and correct without pertinent omissions."
At the time that she responded to this question, Petitioner was represented by counsel concerning the incidents of the summer of 1998. However, the Administrative Law Judge excluded evidence of reliance upon advice of counsel. Petitioner testified that she felt that a confidentiality directive issued
by a Hillsborough County School District investigator precluded the disclosure of her termination, but this explanation is inadequate.
If Petitioner had developed evidence of reliance upon advice of counsel, the evidence might have been mitigative, but not entirely exculpatory because such reliance must be justifiable. The application squarely asked whether the applicant had ever been terminated, and Petitioner failed to answer the question. No legal advice can overcome these simple facts.
The incidents during the summer of 1998 do not constitute gross immorality or moral turpitude. These incidents do not constitute personal conduct that seriously reduces Petitioner's effectiveness as an employee of the school board. These incidents do not constitute a violation of any of the rules cited in the proposed recommended order of Respondent.
Petitioner did not kiss A. M., but was kissed by him. Petitioner mishandled the misbehavior of A. M. by not reporting it to one of the administrators, at least by the second occasion, although it appears likely that Petitioner justifiably feared that she might lose her job, even if she had reported the misbehavior after the first incident. In any event, Petitioner clearly did not enter into a sexual relationship with a 13-year-old student.
The omission of the termination from the Pinellas County School District application was material and dishonest.
By answering the question in the negative, Petitioner made a fraudulent nondisclosure of information that is crucial to the hiring decision that any school district must make. Lying on this application denied Petitioner's prospective employer of the right that it has to learn of material facts concerning job applicants, weigh this information, and then arrive at an informed employment decision.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)
As an applicant for a Florida Educator's Certificate, Petitioner has the burden of proof. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Section 231.17(10)(a) authorizes the Education Practices Commission to deny a teaching certificate of the applicant has committed an act for which revocation is authorized.
Section 231.28(1)(c), (f), and (i) provide that the Education Practices Commission may revoke a certificate for "gross immorality or an act involving moral turpitude," "personal conduct which seriously reduces that person's effectiveness as an employee of the school board," and a violation of the Principles of Professional Conduct for the Education Profession.
Rule 6B-1.006(5)(a) requires educators to "maintain honesty in all professional dealings." Rules 6B-1.006(5)(h) and
(i) prohibit submitting "fraudulent information on any document in connection with professional activities" and making "any fraudulent statement" or failing "to disclose a material fact in one's own or another's application for a professional position."
The evidence does not support the denial of Petitioner's application for the incidents of the summer of 1998.
However, the evidence supports adverse action on Petitioner's application for her fraudulent nondisclosure of her termination from the Migrant Institute during the summer of 1998.
In his proposed recommended order, Respondent seeks a denial with a prohibition against reapplying for five years. Of course, this relief assumed that the evidence would support adverse action on the application for the incidents of the summer of 1998.
Rule 6B-11.007(2)(a)1 recommends probation to suspension for a teacher who obtains a Florida Educator's Certificate or employment by fraud. This rule provides guidance for handling Petitioner's application for a certificate.
In mitigation, the substantive offense to which the termination pertained did not involve professionally culpable, as distinguished from imprudent, behavior on Petitioner's part.
At this point, Petitioner has been denied a teaching certificate for two years and has, thus, been unable to teach
during the 1998-99 and 1999-2000 school years. This two-year denial is sufficient penalty for Petitioner's fraudulent nondisclosure and, if Petitioner has met all other requirements, the Education Practices Commission should issue her certificate at this time.
It is
RECOMMENDED that the Education Practices Commission enter a final order granting Petitioner a Florida Educator's Certificate.
DONE AND ENTERED this 26th day of June, 2000, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2000.
COPIES FURNISHED:
Kathleen M. Richards, Executive Director Education Practices Commission Department of Education
325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400
Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education
325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400
Michael H. Olenick, General Counsel Department of Education
The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
B. Edwin Johnson Attorney at Law
1433 South Fort Harrison Avenue Suite C
Clearwater, Florida 33756
J. David Holder
Law Offices of J. David Holder, P.A. Post Office Box 489
DeFuniak Springs, Florida 32435
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 must be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Nov. 06, 2000 | Motion for Attorneys Fees (DOAH Case No. 00-4542F established) filed via facsimile. |
| Sep. 21, 2000 | Final Order filed. |
| Jun. 26, 2000 | Recommended Order sent out. CASE CLOSED. Hearing held April 3-5, 2000. |
| May 30, 2000 | (Petitioner) Proposed Final Order (For Judge Signature) w/cover letter filed. |
| May 15, 2000 | Motion to Extend the Time to File Petitioner`s Proposed Recommended Order filed. |
| May 15, 2000 | Letter to B. Johnson from J. Holder Re: Transcript volumes IV and V filed. |
| May 05, 2000 | Respondent`s Proposed Recommended Order (For Judge Signature) filed. |
| Apr. 21, 2000 | Order Relinquishing Jurisdiction in DOAH Case No. 99-2615 Only sent out (99-2615 is closed) |
| Apr. 21, 2000 | Letter to REM from J. Dunavent Re: Proper names of the copies of the various attorneys filed. |
| Apr. 21, 2000 | (5 Volumes) Transcript filed. |
| Apr. 14, 2000 | Order Publishing Ex Parte Communications sent out. |
| Apr. 12, 2000 | Letter to REM from B. Johnson Re: Proposed FOF`s and the CC`s; Letter to J. Holder from B.Johnson Re: Trial transcript filed. |
| Apr. 03, 2000 | CASE STATUS: Hearing Held. |
| Apr. 03, 2000 | (B. Johnson) Pre-Hearing Stipulation w/cover letter filed. |
| Apr. 03, 2000 | (B. Johnson) Supplemental Response to Petitioner`s First Request for Production of Documents to the Respondent filed. |
| Mar. 31, 2000 | Letter to REM from B. Johnson Re: Documents bringing to court on April 3, 2000 (filed via facsimile). |
| Mar. 31, 2000 | Petitioner Pinellas County and Respondent Gallagher`s Objection and Motion to Strike Rivera`s March 28, 2000 Filings (filed via facsimile). |
| Mar. 29, 2000 | (B. Johnson) Pre-Hearing Stipulation w/cover letter (filed via facsimile). |
| Mar. 29, 2000 | (J. Spoto) Exhibits w/cover letter filed. |
| Mar. 27, 2000 | (J. Spoto) Proposed Pre-Hearing Stipulation filed. |
| Mar. 24, 2000 | Pre-Hearing Stipulation (Only cover page) (filed via facsimile). |
| Mar. 24, 2000 | (J. Spoto) Exhibits filed. |
| Mar. 23, 2000 | Respondent Gallagher`s Supplemental Response to Petitioner`s First Request for Production of Documents filed. |
| Mar. 22, 2000 | Respondent Gallagher`s Response to Petitioner`s First Request for Production of Documents filed. |
| Mar. 22, 2000 | Respondent Gallagher`s Notice of Service of Answers to Petitioner`s First Interrogatories filed. |
| Mar. 16, 2000 | Letter to B. Johnson from J. Spoto Re: Meeting on 5/24/99; Petitioner`s Response to Respondent`s Motion to Compel Production of Documents From Pinellas County Schools (filed via facsimile). |
| Mar. 06, 2000 | Petitioners` First Set of Interrogatories to Respondent; Notice of Filing; Amended Respondent`s Answers to Petitioner`s First Set of Interrogatories filed. |
| Mar. 03, 2000 | Amended Notice of Hearing as to Locations Only sent out. (hearing set for April 3, 4, and 5, 2000; 10:00; Tampa) 4/3/00) |
| Feb. 28, 2000 | Respondent`s Motion to Compel Production of Documents from Pinellas County School Board; (Respondent) Response to Petitioner`s First Request for Production of Documents to the Respondent W/tagged Attachments filed. |
| Feb. 25, 2000 | Petitioner`s First Request for Production of Documents; Petitioners` First Set of Interrogatories to Respondent filed. |
| Feb. 17, 2000 | Order on Motion to Compel sent out. |
| Feb. 14, 2000 | Respondent`s Answers to Petitioner`s First Set of Interrogatories filed. |
| Feb. 14, 2000 | Deposition of: Evelyn Rivera filed. |
| Feb. 10, 2000 | Petitioner`s Motion to Compel Responses to Petitioner`s First Request for Production of Documents and Petitioner`s First Set of Interrogatories filed. |
| Feb. 01, 2000 | Petitioner`s Supplemental Answers to Respondent`s Interrogatories Based on Order on Motion to Compel (filed via facsimile). |
| Jan. 18, 2000 | Order on Motion to Compel sent out. (motion is granted as to paragraph 2; denied in all other respects) |
| Jan. 04, 2000 | (B. Johnson) Notice of Taking Deposition Without Non-Party; Subpoena Duces Tecum Without Deposition (unsigned); Exhibit A filed. |
| Jan. 03, 2000 | Respondent`s Motion to Compel filed. |
| Dec. 29, 1999 | Order of Consolidation and Notice of Hearing sent out. (Consolidated cases are: 99-002615, 99-005124; hearing will be held April 3, 4, and 5, 2000; 10:00am; Tampa) |
| Dec. 20, 1999 | Joint Response to Initial Order and Request for Consolidation; Letter to J. David Holder from B. Edwin Johnson (RE: revised copy of joint response to initial order) filed. |
| Dec. 17, 1999 | Joint Response to Initial Order (unsigned); Cover Letter filed. |
| Dec. 09, 1999 | Initial Order issued. |
| Dec. 06, 1999 | Agency Referral Letter; Election of Rights; Amended Notice of Reasons filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 06, 2000 | Agency Final Order | |
| Jun. 26, 2000 | Recommended Order | Uninvited kissing of teacher by teenage boy is not gross immorality or act of moral turpitude. Her failure to disclose her consequent termination was fraudulent but justified not more than two-year denial of her application for teaching certificate. |
