STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THOMAS FILIPPI, | ) | |||
) | ||||
Petitioner, | ) | |||
) | ||||
vs. | ) ) | Case | No. | 07-4628 |
ERIC J. SMITH, AS COMMISSIONER | ) | |||
OF EDUCATION, | ) | |||
) | ||||
Respondent. | ) | |||
| ) |
RECOMMENDED ORDER
This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on February 15, March 24, and April 4, 2008, at sites in Tallahassee, Miami, and Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Timothy P. Atkinson, Esquire
Gavin D. Burgess, Esquire Oertel, Fernandez, Cole & Bryant Post Office Box 1110 Tallahassee, Florida 32302-1110
For Respondent: Charles T. Whitelock, Esquire
Whitelock & Associates, P.A.
300 Southeast 13th Street
Fort Lauderdale, Florida 33316-1924 STATEMENT OF THE ISSUE
The issue in this case is whether the Education Practices Commission should deny Petitioner's application for a teaching certificate on the grounds that Petitioner lacks the requisite
good moral character and that he has committed an act or acts for which such a certificate could be revoked.
PRELIMINARY STATEMENT
By a Notice of Reasons dated May 30, 2006, John L. Winn,1 as Commissioner of Education, notified Petitioner Thomas R. Filippi that the Department of Education intended to deny his application for a teaching certificate pursuant to Section 1012.56(10), Florida Statutes. As grounds for the denial, the Commissioner asserted that Filippi lacks the good moral character required to be eligible for a teaching certificate and that he had committed acts which would authorize the Education Practices Commission to revoke a teaching certificate. Filippi disputed the factual allegations and timely requested a review by the Education Practices Commission. On October 9, 2007, the Education Practices Commission referred the matter, for a formal hearing, to the Division of Administrative Hearings, where it was docketed as Case No. 07-4628.
Meantime, on October 19, 2007, Mr. Filippi filed a petition with the Division of Administrative Hearings seeking to nullify certain provisions of the forms on which he had applied for licensure, either as constituting an invalid exercise of delegated legislative authority (which he alleged in relation to the form on which he first applied) or as part of an unadopted rule (which he claimed was the legal status of the form on which he made his
second, third, and fourth applications). This rule challenge, brought against the Department and the State Board of Education, was docketed as Case No. 07-4783RU. On November 30, 2007, at the parties' joint request, the undersigned consolidated the two cases for all purposes, including final hearing.
In the run-up to the final hearing, each side sought, and was granted, leave to amend its pleading. Consequently, Case No. 07- 4628 proceeded to hearing on the charges brought in the Commissioner's Third Amended Notice of Reasons. In Case No. 07- 4783RU, the issues were framed in Mr. Filippi's Amended Petition for Determination of Invalidity of Adopted and Unadopted Rules.
At the final hearing of the consolidated cases, which was held over the course of several days, on February 15; March 24; and April 4, 2008, Mr. Filippi called the following witnesses (in addition to himself): Father Enrique Estrada (whose video deposition was received in lieu of a live appearance); Dr. Maria Chelala; and Kevin S. Trim. In addition, Petitioner's Exhibits 1- 8, 9(a)-(9d), 10(a)-10(e), 11(a)-11(d), 12, 15, 17, 18, 19(k), 20,
21(b)-21(h), 22(a), 23-27, 31(b), 31(k), 31(l), 44, 49, 58, 62,
and 71 were admitted into evidence.
Respondents presented the following witnesses: Beverly W. Gregory, Ana Rasco, Heather Deskins, Marian Lambeth, and Ronald G. Stowers. Respondents' Exhibits 5-9, 13, 15 18, 18(b), 19, and 23 were received also, as were two depositions of Mr. Filippi, whose
prior testimony was admitted in addition to his extensive hearing testimony.
The undersigned took official recognition of numerous documents, as memorialized in the file.
The transcript of the final hearing, comprising five volumes (one of which is unnumbered), was filed seriatim, over time, with the final tranche arriving on May 14, 2008. By Order dated
May 22, 2008, the undersigned severed Case Nos. 07-4268 and 07- 4783RU, for disposition. Thereafter, each party timely submitted a Proposed Recommended Order (in Case No. 07-4268) before the deadline of May 27, 2008; their papers were duly considered.
Unless otherwise indicated, citations to the Florida Statutes refer to the 2007 Florida Statutes.
FINDINGS OF FACT
Petitioner Thomas Filippi ("Filippi") desires to be issued an Educator's Certificate authorizing him to teach in the public schools in the State of Florida. The Commissioner of Education ("Commissioner"), as head of the Department of Education ("Department"), decided that Filippi should not be permitted to teach in Florida. The Commissioner, therefore, notified Filippi that he intends to deny Filippi's application for a teaching certificate. This preliminary decision, which is adverse to Filippi's substantial interests, gave rise to the instant administrative proceeding.
The Commissioner's principal concerns about Filippi's fitness fall into two categories. The first is Filippi's criminal record. He has two convictions, one relatively minor and long-ago, the other rather serious and much more recent——and for which he spent about four years in federal prison. The second is Filippi's honesty (or lack thereof) in his dealings with the Department. Specifically, the Commissioner alleges that Filippi willfully failed to disclose, in his applications for a teaching certificate, (a) one of his criminal convictions (the less serious of the two) and (b) the adverse actions that had been taken, respectively, against his applications for licensure as a teacher in the states of West Virginia and Pennsylvania.
Filippi concedes the criminal convictions but maintains that he has since been rehabilitated and is presently of good moral character. Filippi disputes the charges impugning his veracity, insisting that, contrary to the Commissioner's allegations, his applications contained truthful information and were not misleading, except in failing to disclose a criminal conviction, but this omission was an innocent oversight because Filippi hadn't known that the unfortunate incident which occurred while he was in college was a crime to which he had pleaded guilty.
Below are the relevant historical facts concerning the specific incidents upon which the preliminary denial of Filippi's application was based.
The Dormitory Incident
In the early morning hours of December 13, 1986, during his freshman year at West Virginia University, Filippi participated in some hooliganism that took place in his residence hall and resulted in a dorm room's door being set on fire. Based on the evidence presented in this case, it is not entirely clear to the undersigned precisely what happened, but the upshot is that Filippi and a friend of his (who was also a student) were arrested and charged with destruction of property, a misdemeanor offense. Filippi pleaded guilty, was convicted, and ended up paying a small fine and costs.
In his present testimony about this incident, Filippi downplays his role in the affair, to the point that, as he tells the story, his wrongdoing essentially consisted of little more than failing to prevent the other student from starting the fire. Filippi admits, however, that when he was first interviewed by the police regarding the fire (after being Mirandized and waiving his right to have counsel present), he deliberately gave false information, denying his (and his friend's) culpability. Filippi explains that he lied to protect his friend who had started the
fire. Within a couple of days, Filippi and the other student confessed.
As mentioned, Filippi claims now not to have known then, in 1986, or for years afterward (until 2006), that this collegiate misconduct had resulted in a criminal conviction. In corroboration of this disclaimer, Filippi focuses on the informality of the proceedings, explaining that all of his dealings with the police took place in a trailer on campus, and that he never made an appearance in court before a judge. He attempts to deflect attention from the records of his arrest, which include such clues that a criminal investigation was afoot as the Miranda warning Filippi was given and his written waiver of the right to counsel, by asserting that he paid little attention to the legal papers and simply followed his father's advice to sign whatever documents the police presented.
Despite grounds for skepticism, if the foregoing comprised all of the relevant facts, the undersigned would be inclined to take Filippi at his word and find that he was not aware, until recently, that this youthful misbehavior had left him with a criminal record. A later development, however, persuades the undersigned that by November 1997, if not earlier, Filippi knew that he had been convicted of a crime in 1986.
The Federal Crimes
Hands down, the biggest barrier to Filippi's being licensed as a teacher is the fact that, in July 1997, a jury sitting in the U.S. District Court for the Southern District of West Virginia returned a guilty verdict against him on 66 counts of mail fraud, six counts of money laundering, and one count of obstruction of justice. On November 26, 1997, the federal court sentenced Filippi to a term of 57 months' imprisonment, to be followed by three years of probation; fined him $3,800.00; and ordered Filippi to make restitution in the amount of $200,001.00. Filippi ultimately served about four years in a federal penitentiary, being incarcerated from December 1997 through January 2002. He was released from probation in January 2005.
It is not necessary to make detailed findings regarding the conduct that gave rise to Filippi's convictions. A brief summary for contextual purposes will suffice. In early 1994, Filippi, who had recently graduated from West Virginia University with Master's Degrees in Rehabilitation Counseling and Education, formed a company whose primary business activity was providing vocational rehabilitation services to recipients of workers' compensation. Filippi (or his corporation) entered into a contract with the state to provide these services, for which he billed the state.
The state soon began to suspect that Filippi was intentionally overcharging the workers' compensation program by overstating, in his bills, the number of hours he was actually working. This led, in early 1995, to an investigation into possible billing fraud. Eventually, a grand jury was convened, and Filippi was indicted. When the federal court sentenced Filippi, it accepted the findings set forth in the Presentence Investigation Report ("PSI"), which included an estimate of the revenue that Filippi fraudulently had obtained between 1994 and 1995: nearly $300 thousand.
As for the money laundering charges, these stemmed from Filippi's disposition of fraudulently obtained funds, which he withdrew periodically from his corporation's checking account and used for such personal purposes as buying a sports car, remodeling his house, and financial investments. The obstruction of justice conviction resulted from Filippi's creation of fake corporate records to satisfy a grand jury subpoena directing him to produce the corporation's minutes, resolutions, tax returns, and the like.
In Filippi's account of the conduct that caused his collapse, a confluence of inexperience, overwork, and bad judgment (but not criminal intent or characterological flaws) drove him to make billing errors that he was unable to correct on his own—— serious, but fundamentally honest, mistakes. Filippi denies having ever intended to defraud the state, and he highlights his
refusal to accept a plea bargain that would have kept him out of prison as evidence of his consistent belief in his innocence.
While Filippi readily "accepts responsibility" for his actions, and there is no dispute that he did his time manfully and without complaint, the conclusion is inescapable that, at least with regard to the charges of mail fraud, Filippi feels he was wrongfully convicted (though he did not use that phrase).
Filippi similarly denies that he intentionally engaged in money laundering or obstruction of justice; however, Filippi seems to accept these convictions with a measure of equanimity that is missing from his attitude toward the mail fraud charges. Regarding the money laundering, he admits having used corporate funds, but defends the expenditures as predominately business related. Explaining the obstruction conviction, Filippi claims that he did not manufacture false corporate records as cover for actions previously taken; rather, on the advice of legal counsel, he re-created documents that had been prepared earlier but were later lost when a computer disk became corrupted.
Reference was made above to the PSI that a U.S. Probation Officer prepared, in or around November 1997, for purposes of assisting the court in determining Filippi's sentence. In the PSI, facts pertaining to Filippi and his crimes are related, as relevant to the factors prescribed in the U.S. Sentencing Guidelines. Part B of the PSI concerns "The
Defendant's Criminal History." In this section of the report, on page 14, Filippi's adult criminal conviction for Destruction of Property is noted, showing the date of arrest ("12/16/86"), jurisdiction ("Magistrate Court, Morgantown, WV"), case number, disposition ("[p]lead guilty"), and sentence ("paid fine and court costs").
Filippi's prior conviction gave him a criminal history score of 1. Under the Guidelines, therefore, he fell into criminal history category I, which is the lowest such category (and where he would have been placed even without a criminal record). Having a total offense level of 24 and a criminal history category of I, Filippi faced a prison sentence in the range of 51 to 63 months, according to the Guidelines. The court split the difference.
There is no evidence in this case establishing that Filippi's criminal history score affected his sentence, and perhaps it didn't. It could have, however: the defendant's criminal history is without question a material consideration under the Guidelines. Obviously, Filippi could not have known in advance whether his criminal history would or would not cause him to receive a harsher sentence that he otherwise would have gotten. Yet Filippi claims that, in 1997 when he was awaiting sentencing, he was not provided with (and thus never saw) the particular pages of the PSI concerning his criminal history, though he was given
other pages from the document to review. If he had seen the entire PSI before going to prison, his denial of awareness (until 2006) that the 1986 incident had resulted in a criminal conviction would, of course, be difficult to accept.
The undersigned has given this particular point careful consideration. At the time of its preparation, the PSI would have been of considerable importance to Filippi, who is well educated, obviously intelligent, and clearly was capable of appreciating the profound effect that the U.S. Probation Officer's findings and conclusions could have on his life. Because the report comprises only 21 pages (excluding the parties' objections) and can be read in a relatively short amount of time, it defies common sense to suppose that Filippi would have received some pages of the PSI (as he admits) but not all of them. Indeed, his purported incuriosity about so important a document seems unreasonable, to the point of being unbelievable. The more natural assumption, in accord with the reasonable expectation that a convicted felon in Filippi's situation (and having his intellectual abilities) would be anxious to know about anything that might influence the term of his imprisonment, is that Filippi read the entire PSI——probably more than once, and probably with great care and close attention to the details. And even if he did not do that, it is highly likely that Filippi's attorneys (who certainly scrutinized the PSI) would have asked him about the prior conviction; at a minimum, they surely
would have discussed with Filippi the impact that his criminal history could have on the length of his prison sentence.
Ultimately, given the gravity of a defendant's criminal history as a factor in determining his sentence under the federal Guidelines, the undersigned simply cannot believe that Filippi was not fully informed, while he was waiting to be sentenced in 1997, that he had been convicted of a crime, albeit a relatively minor one, in 1986. Filippi's testimony to the contrary is rejected as being likely untrue.
Post-Incarceration Employment
In February 2002, shortly after being released from prison, Filippi began working for Morgantown Beauty College, a private school in West Virginia that offers courses in cosmetology and related fields, where he taught classes in anatomy and physiology. Filippi was employed at the Beauty College continuously until just before his move to Florida in or around June 2005. At times, Filippi also worked as a tutor for Sylvan Learning Centers. Filippi performed well, and without adverse incident, in these positions.
In the summer of 2005, Filippi was hired by St. Joseph's Catholic School, which is a private parochial school located in Miami Beach, Florida, to teach math at the middle school level. Filippi started teaching at St. Joseph's in August 2005, and, as of the final hearing in this case, he remained on the school's
instructional staff, having (at that time) taught there for nearly three school years.
Filippi excelled at St. Joseph's. His superiors, colleagues, and students held him in high regard. After his first year of teaching, Filippi was promoted to Dean of Academics. The principal of St. Joseph's, Dr. Chelala, gave compelling and credible testimony concerning Filippi's teaching abilities, which she considers to be outstanding, and his many positive contributions to the school. The undersigned credits Dr. Chelala's testimony in this regard and finds that Filippi is a talented teacher who is capable of effective performance in the educational system. Moreover, as of the final hearing, the administration at St. Joseph's strongly desired that Filippi continue teaching at the school.2
To remain in the employ of St. Joseph's, however, Filippi must obtain a Florida teaching certificate, not as a matter of state law, but as a function of the accreditation requirements to which St. Joseph's is subject.
The West Virginia Application
In 1994, Filippi obtained a certificate authorizing him to teach in West Virginia. He never actually worked as a teacher under that license, however, and it lapsed, unused, several years later.
In June 2003, Filippi submitted an application to the West Virginia Department of Education ("WVDE"), seeking the renewal of his previously issued, but no longer active, certificate. This application met with immediate disapproval. By letter dated July 14, 2003, WVDE informed Filippi of its decision, as follows:
Due to the circumstances surrounding your felony charge, you do not meet current statutory requirements for licensure. Your application for certificate renewal has been recommended for denial for cause. This denial will be reported to the National Association for State Directors of Teacher Education Clearinghouse.
Pursuant to [law], you have thirty (30) days to request an appeal hearing and such written request should justify why the appeal should be granted. All West Virginia State Board policies can be accessed on line at [this URL].
If no such appeal request is timely received, your application for licensure will be denied for cause and reported as indicated above.
Filippi timely requested an administrative appeal before the State Superintendent of Schools, initiating Thomas R. Filippi v. West Virginia Department of Education, File No. 03-82.
Following West Virginia law, Filippi's appeal was referred to the West Virginia Commission for Professional Teaching Standards (the "Hearing Panel"), whose function is to conduct a hearing and enter a Recommended Decision. At the
hearing, the burden is on WVDE to prove that the "appellant's" application should be denied. The Hearing Panel's recommendation, consisting of findings of facts and conclusions of law, is then presented to the State Superintendent of Schools, who has the responsibility of issuing the final order.
After appealing from the intended denial of his application, Filippi managed to postpone the hearing for nearly two years, requesting a number of continuances, which were routinely granted. The Hearing Panel finally heard his case on April 27, 2005. At the conclusion of the evidentiary phase of the hearing, the Hearing Panel retired to deliberate in "executive session." After a brief recess, the hearing resumed, and the Hearing Panel announced on the record its decision to deny Filippi's appeal. Filippi told the Hearing Panel that he had no questions about its decision. Filippi was informed that the Hearing Panel would prepare a Recommended Decision for the superintendent, whose final order would likely be issued in 30 to 45 days.
The Recommended Decision was soon released, and after that the superintendent issued his final order, on June 15, 2005. The superintendent approved, and incorporated in the final order, the Hearing Panel's Recommended Decision, with the result that Filippi's application was denied for cause.3 The next day, these papers were sent to Filippi at his home address.
Filippi, however, claims not to have received written notice of, or even to have inquired about, the superintendent's decision until December 2005——some two months after submitting his fourth and final application for a Florida teaching certificate.
The Florida Applications
On or about March 1, 2005, shortly after completing his probation, Filippi filled out and signed an Application for Florida Educator's Certificate. Through this application, Filippi sought to become certified to teach Chemistry (Grades 6-
12) in the Florida public schools. At the time, he was living in West Virginia and working at Morgantown Beauty College; the administrative appeal that Filippi had taken from WVDE's intended denial of his application for a teaching license had been pending for more than a year and a half, with no hearing in view. Filippi mailed his application to the Department, where it was received on March 7, 2005.
Two questions on the application are of interest.
Question No. 21, on the subject of criminal records, asked the following:
Have you ever been convicted, found guilty, had adjudication withheld, entered a pretrial diversion program, or pled guilty or nolo contendere (no contest) to a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation)? Failure to answer this question accurately could cause denial of a certificate.
A YES or NO answer is required by Florida Law. If you check the YES box, you must give the information requested for each charge. Please attach a separate sheet with your name and social security number if you need more space.
Report any record other than SEALED or EXPUNGED records in this section.
Below the question was a table with five columns and three rows. In the first row appeared the columns' respective tiles: "City Where Arrested," "State," "Date of Arrest," "Charge(s)," and "Disposition." The two lower rows were blank, leaving spaces (empty cells) for the applicant whose answer to the question would be "yes" to provide the requested information.
In response to Question No. 21, Filippi disclosed his federal convictions. He did not, however, disclose his 1986 conviction for destruction of property.
Question No. 22, on the subject of professional sanctions, comprised four subparts, and asked the following:
Have you ever had any professional license (a driver's license is not a professional license) or professional certificate, including a teaching certificate, sanctioned by the issuing agency in this or any state? Sanction is defined to include: suspension; revocation; discipline, such as issuance of a reprimand or fine; or otherwise conditioned, such as placed on any restriction or probation. [2] Have you ever resigned, surrendered, or otherwise relinquished a professional license or certificate in this or any state?
[3] Is there any action pending in this or any state against a professional license or
certificate that you hold or held? [4] Is there any action pending in this or any state against an application for a professional license or certificate that you have on file? (A determination of academic ineligibility is not considered denial of a license or certificate.)
(Bracketed numbers added.) Beneath these questions, for the applicant whose answer would be "yes," were lines on which to identify, with respect to any sanction(s) prompting the affirmative response, the "State," "Year," "License or Certificate," "Issuing Agency," and "Reason."
Filippi answered Question No. 22 "no." In the margin, he wrote: "*Certificate pending review for renewal in West Virginia."
Over the next seven months, on April 12, 2005; May 16, 2005; and October 11, 2005, Filippi filed three additional applications for licensure with the Department, each one seeking certification in a different subject or subjects. Filippi's second, third, and fourth applications (collectively, the "Online Applications"), unlike his first, were completed and submitted electronically via the internet.
The Online Applications were identical to each other in form, but differed somewhat from Filippi's first application. This was because, in December 2004, the State Board of Education had adopted an updated version of the application form. Due to an oversight, however, the Department had failed to revise the
online application to reflect the most recent changes to this form. Consequently, Filippi's first application was made on the then-current form; his Online Applications, despite having been submitted later in time, were made on an older version of the
form.
Filippi was asked, in the Online Applications, about
his criminal record, and on each he disclosed the federal convictions, but not the 1986 misdemeanor conviction. He was asked, as well, about professional sanctions; in the Online Applications, however, the inquiry contained only three subparts rather than four, as had Question No. 22 of the first application he had submitted. The following shows the differences between the Online Applications (which the Department inadvertently had neglected to update), on the one hand, and Filippi's first application (which used the then- current form), on the other, by underlining the language that was not in the Online Applications (but should have been), and striking through a word ("denial") that was in the Online Applications (but should not have been):
Have you ever had any professional license (a driver's license is not a professional license) or professional certificate, including a teaching certificate, sanctioned by the issuing agency in this or any state? Sanction is defined to include: denial; suspension; revocation; discipline, such as issuance of a reprimand or fine; or otherwise
conditioned, such as placed on any restriction or probation. [2] Have you ever resigned, surrendered, or otherwise relinquished a professional license or certificate in this or any state? Is there any action pending in this or any state against a professional license or certificate that you hold or held? [3] Is there any action pending in this or any state against an application for a professional license or certificate that you have on file? (A determination of academic ineligibility is not considered denial of a license or certificate.)
A YES or NO answer is required by Florida Law. If YES, you must give the information requested for each sanction.
(Bracketed numbers added.) Filippi's answer was "no" to these questions on each of the Online Applications.
Were Filippi's Answers Fraudulent or Dishonest?
The Commissioner maintains that Filippi's failure to disclose his 1986 conviction for destruction of property, as well as his failure to disclose (in the Online Applications) or truthfully to describe (in his first application) the status of his West Virginia application, amounted to fraudulent or dishonest behavior.4 This type of allegation tends to raise difficult issues of fact, which can be unpleasant to decide, and this case is no exception.
The question whether Filippi willfully withheld the fact of his 1986 misdemeanor conviction is the less complicated one. As found above (for reasons discussed), Filippi knew, at
least as of November 1997, that he had been convicted of a crime in 1986. It is possible, but unlikely the undersigned finds, that Filippi forgot about the conviction between November 1997 and March 2005. (Filippi has not taken the position that he forgot about the misdemeanor conviction; his testimony, recall, was that he didn't know he had one.)
More likely than not, Filippi did not disclose the 1986 conviction because he (understandably) did not want the Department to know about it, and because he (reasonably) believed the Department might not discover it. The undersigned infers the latter based on the facts that (a) in his 2003 West Virginia application, Filippi answered "no" to the question whether he had ever been convicted of a misdemeanor and (b) WVDE never found out about the 1986 incident.
The undersigned determines, therefore, that Filippi's failure to disclose his 1986 conviction in the Florida applications was done with the intent to deceive the Department into believing that the 1997 federal convictions constituted the entirety of his criminal record, which Filippi knew was not the truth.
The question whether Filippi's responses concerning the West Virginia application were false or fraudulent is much more involved. As if determining Filippi's subjective intention were not difficult enough, several variables further complicate
the matter, including: (a) the inartful wording of the "professional sanctions" questions; (b) the unusual wording of Filippi's initial "disclosure," via a marginal note, of the West Virginia situation; and (c) the changing "facts on the ground" in West Virginia, as the situation there developed concurrently with Filippi's multiple Florida applications, which were submitted over a period of seven months. Each of these warrants some discussion.
The "Professional Sanctions" Questions.
Filippi advances a number of arguments in support of his contention that the "professional sanctions" questions——and particularly the one which asked about "any action pending . . . against an application" (the "Troubled Application Question")—— were vague, ambiguous, and confusing. It is not necessary here to examine in detail Filippi's contentions regarding the alleged opacity of the Troubled Application Question. Suffice to say that while the question is not an example of skillful draftsmanship, neither is it incomprehensible. Filippi has a point, in other words, but he tries to make entirely too much of it.
Upon being read for the first time, the Troubled Application Question could cause a reasonable applicant who has applied previously for a certificate or has such an application pending somewhere to pause and think about what is being asked.
It is difficult to imagine, however, that a reasonable applicant ultimately would be stymied by the question. At bottom, given a fair reading, the Troubled Application Question requires an affirmative answer if any application of the applicant, owing to a potentially fatal flaw, has been culled from the batch of applications moving through the pipeline towards approval and identified as problematic. The key words are: (a) "action pending," which reasonably denotes both (i) a continuing, as yet unfinished proceeding (e.g. an administrative appeal), and (ii) an impending act (e.g. a decision expected to come soon); and
(b) "action . . . against an application," which reasonably means that the posture of the ongoing proceeding or imminent decision is unfavorable (or in opposition) to the application. (Emphasis added.) Any application which is the object of a "pending" action that is also "against" the application is, by any reasonable measure, an application in trouble. A reasonable applicant should be able to figure out, without too much difficulty, that such an application must be disclosed.
The focus of attention here, however, is not on the "reasonable applicant," but on Filippi. If, in fact, Filippi misunderstood the Troubled Application Question, then his response thereto might not have been fraudulent or dishonest, even if it was incorrect. Of course, if his professed confusion
were unreasonable, then his claim to have misunderstood the question would not be worthy of belief.
The "Disclosure."
In his first application, Filippi affirmatively "disclosed" the existence of something pending in West Virginia. The problem, however, is that it is not clear what, exactly, the "something" was. His statement ("Certificate pending review for renewal in West Virginia") was either inartfully drafted——or cleverly crafted to mislead without being plainly false.
As of March 1, 2005, when Filippi completed his first Florida application, there was a "pending review" in West Virginia——his administrative appeal of WVDE's intended denial of his application in that state. And Filippi had applied in West Virginia to renew an expired certificate (though whether that was procedurally appropriate is unclear). His representation, therefore, contained kernels of truth.
But at the same time, Filippi's representation, by giving no hint that anything adverse to his interests had occurred, suggested (perhaps inadvertently) that he currently held an active certificate, which he expected would be renewed in the ordinary course, as a routine matter. The overall impression conveyed by Filippi's statement, especially when coupled with his negative response to the "professional sanctions" questions (including the Troubled Application
Question), is that nothing was amiss in West Virginia. Such was not the case.
The Changing Circumstances.
While Filippi was filing applications in Florida, the situation in West Virginia did not remain static. Things happened, and thus Filippi's Florida applications must be viewed, respectively, in the context of contemporaneous developments in West Virginia.
At the time of Filippi's first Florida application in March 2005, his administrative appeal in West Virginia had been on hold for more than a year and a half. A series of continuances had kept the proceeding going, and the end was not yet in sight.
But by the time Filippi submitted his second Florida application on April 12, 2005, the action in West Virginia had begun to move. The letter notifying Filippi that his administrative hearing would be held on April 27, 2005, is dated April 6, 2005. Based on that, the undersigned infers that Filippi knew when he completed his second Florida application that his appeal in West Virginia was soon to be heard; the administrative hearing thus was a pressing matter then, in a way that it had not been when the first Florida application was prepared.
The situation in West Virginia changed dramatically between Filippi's second Florida application and his third, which latter is dated May 16, 2005. As Filippi knew when he submitted his third Florida application, the Hearing Panel had denied his appeal less than three weeks earlier and was in the process of writing a Recommended Decision that would urge the superintendent to deny Filippi's application. While the final word on his application had not yet been spoken, clearly as of May 16, 2005, it would have been unreasonable for Filippi to expect that the pending administrative action would be decided in his favor.
Filippi's fourth Florida application is dated October 11, 2005. By that time, the West Virginia action was over. The superintendent had issued his final order denying Filippi's application on June 15, 2005. A copy of the decision
was sent to Filippi on June 16, 2006. As noted above, he claims not to have received it.
Somewhat ironically, Filippi's negative answer to the Troubled Application Question in his fourth application was objectively true because, in fact, whether Filippi knew it or not, there was no longer any action pending in West Virginia. Filippi, however, did not just say "no" to the "professional sanctions" questions. Rather, as he testified in this case, Filippi believed that his Online Applications supplemented his
first application, so that the original marginal note about the "pending review" in West Virginia was to be considered part of all his applications.
Moreover, Filippi made the following statement in all of his Online Applications (and a substantially similar one on his first):
"I THOMAS R. FILIPPI have reviewed this application and affirm that all of the information which I have provided in this application is true, accurate, and complete."
Notably, the foregoing certification is not conditioned on the applicant's "best knowledge and belief." Rather, it imposes the more stringent burden of objective truth.5 Filippi thus was required to verify, not merely assume, the truth of his answers before submitting the application.
Even if, as he maintains, Filippi had not received the superintendent's final order as of October 11, 2005——which is both hard to believe and hard to disprove——he had good reason to suspect, nearly six months after the hearing at which the Hearing Panel had told him to expect a (probably negative) final order within two months, that the administrative action likely had run its course. From that it follows that Filippi had good reason to suspect that his representation to the Department about having a certificate "pending review for renewal in West Virginia" was no longer even arguably true. To truthfully
affirm that his previous representation——which he himself regarded as operative for all the applications——was "true, accurate, and complete," Filippi needed to find out (if he really didn't know) what had happened in West Virginia following the hearing on April 27, 2005. Consequently, it is irrelevant whether Filippi had received the final order as of October 11, 2005, or not.
Taking account of the foregoing facts, the undersigned makes the following determinations regarding the veracity of Filippi's responses to the "professional sanctions" questions on the Florida applications.
With regard to the first two Florida applications (filed on March 1 and April 12, 2005, respectively), the undersigned gives Filippi the benefit of the doubts that plausibly arise in connection with the Troubled Application Question, which was not as clearly written as it could have been, as well as Filippi's marginal note, which implied (but stopped short of actually declaring) that his application in West Virginia was on track for approval, and determines that his responses in relation to the West Virginia application, while less than candid, were not fraudulent or dishonest. It is determined that, through the first two applications, Filippi's intent concerning disclosure of the West Virginia matter was not
to deceive, but rather to divulge only what was absolutely necessary, and no more.
The undersigned is unable, however, to make the same determinations with regard to Filippi's third Florida application, which was filed shortly after his appeal in West Virginia had been heard, at the conclusion of which it had been made clear to Filippi that WVDE was probably going to deny his application for licensure. With that information fresh in his mind, Filippi could not reasonably have doubted that the Troubled Application Question fairly called upon him to disclose the pending action in West Virginia. Further, given his knowledge that WVDE was (in all likelihood) about to deny his application, Filippi could not reasonably have thought that his previous representation about having a certificate "pending review for renewal in West Virginia" continued to be "true, accurate, and complete." Filippi's negative answer to the Troubled Application Question in the third Florida application was knowingly false and was intended to deceive the Department into believing that no state had ever hesitated to grant Filippi a teaching certificate, which was indisputably untrue as of May 16, 2005.
Filippi's negative answer to the Troubled Application Question in the fourth Florida application, though objectively true, was nevertheless intended to perpetuate the misimpression,
which he hoped had been created, that nothing adverse to his interests was happening in West Virginia (or anywhere else). Because Filippi, in his three earlier applications, had not forthrightly told the Department about the administrative appeal in West Virginia, through which action WVDE had sought to deny Filippi's application for licensure, but rather had deliberately sought to give the Department the false impression that there were no problems in West Virginia, his duty to provide true, accurate, and complete information in the application required that he reveal the status of his West Virginia application, which he (but not the Department) had good reason to believe had been (or soon would be) denied. Filippi's failure to clarify and correct his previous responses——especially the affirmative statement of March 1, 2005, regarding the "pending review" in West Virginia——constituted a fraudulent omission.
Ultimate Factual Determinations
The evidence fails to establish that, more likely than not, Filippi possesses the good moral character required of a teacher to whom the custody of children is entrusted. For that reason, Filippi is not eligible for certification. See § 1012.56(2)(e), Fla. Stat.
Filippi was convicted on dozens of counts of serious federal crimes (all felonies), for which he served four years in a federal prison and, after release, three years of probation.
He also has a misdemeanor conviction. For these reasons, which would be grounds for revocation of a teaching certificate, the Department may deny Filippi's application for licensure. See §§ 1012.56(11)(a) and 1012.795(1)(e), Fla. Stat.
There is, further, ample proof that Filippi attempted to obtain a teaching certificate using fraudulent means. Such dishonesty would warrant the revocation of a teaching certificate and thus authorizes the denial of Filippi's application for licensure. See §§ 1012.56(11)(a) and 1012.795(1)(a), Fla. Stat.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Section 1012.56, Florida Statutes, sets forth the requirements that an applicant must meet to be found eligible for, and the procedure for obtaining, a teaching certificate. In pertinent part, this statute provides as follows:
(2) ELIGIBILITY CRITERIA.--To be eligible to seek certification, a person must:
* * *
(e) Be of good moral character.
* * *
(11) DENIAL OF CERTIFICATE.--
The Department of Education may deny an applicant a certificate if the department 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.
The decision of the department is subject to review by the Education Practices Commission upon the filing of a written request from the applicant within 20 days after receipt of the notice of denial.
Section 1012.795, Florida Statutes, prescribes the grounds upon which the Education Practices Commission ("EPC") is authorized to revoke a teaching certificate. As relevant to this case, Section 1012.795(1) authorizes the EPC to take disciplinary action, including the revocation of a guilty teacher's certificate, against a certified teacher who:
(a) Obtained or attempted to obtain an educator certificate by fraudulent means.
* * *
(c) Has been guilty of gross immorality or an act involving moral turpitude.
* * *
(e) Has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation.
* * *
(i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
Section 1012.795(2), Florida Statutes, provides as follows:
(2) The plea of guilty in any court, [or] the decision of guilty by any court, . . . shall be prima facie proof of grounds for revocation of the certificate as listed in subsection (1) in the absence of proof by the certificateholder that the plea of guilty, forfeiture of bond, or admission of guilt was caused by threats, coercion, or fraudulent means.
The Principles of Professional Conduct for the Education Profession in Florida are contained in Rule 6B-1.006, Florida Administrative Code, which provides in pertinent part:
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.
* * *
Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
* * *
(h) Shall not submit fraudulent information on any document in connection with professional activities.
The foregoing statutory and rule provisions are penal in nature and must be strictly construed, with ambiguities being resolved in favor of the licensee. Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).
In this application dispute proceeding, the burden of producing evidence shifted between the parties according to the issue at hand. Initially, Filippi needed to introduce evidence of his eligibility for certification. Then, the Commissioner6 bore the burden of bringing forth evidence demonstrating that Filippi had committed an act or acts for which the EPC would be authorized to revoke a teaching certificate.7 At all times, however, the burden of ultimate persuasion remained on Filippi, the applicant, to prove his entitlement to certification by a preponderance of evidence. See Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932, 934 (Fla. 1996).
If the applicant fails to meet his burden of proving entitlement to certification, then the EPC
shall enter a final order either dismissing the complaint or imposing one or more of the following penalties:
(a) Denial of an application for a teaching certificate or for an administrative or supervisory endorsement on a teaching certificate. The denial may provide that the applicant may not reapply for certification, and that the department may
refuse to consider that applicant's application, for a specified period of time or permanently.
§ 1012.796(7).8
In his Third Amended Notice of Reasons, the Commissioner asserted that Filippi lacks the good moral character required for certification as a teacher, and he accused Filippi of having engaged in conduct that would authorize revocation of a teaching certificate. The following table summarizes the nine counts of disqualifying characteristics and conduct with which Filippi was charged in the Third Amended Notice of Reasons:
Count | Statute/Rule | Pertinent Language |
1 | 1012.56(2)(e) | (2) ELIGIBILITY CRITERIA.--To be eligible to seek certification, a person must: (e) Be of good moral character. |
2 | 1012.56(11)(a) | (a) The Department of Education may deny an applicant a certificate if the department 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. |
3 | 1012.795(1)(a) | The Education Practices Commission may . . . revoke the educator certificate of any person . . . provided it can be shown that the person: (a) Obtained or attempted to obtain an educator certificate by fraudulent means. |
4 | 1012.795(1)(c) | (c) Has been guilty of gross immorality or an act involving moral turpitude. |
5 | 1012.795(1)(e) | (e) Has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation. |
6 | 1012.795(1)(i) | (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. |
7 | 1012.795(2) | (2) The plea of guilty in any court, [or] the decision of guilty by any court, . . . shall be prima facie proof of grounds for revocation of the certificate as listed in subsection (1) in the absence of proof by the certificateholder that the plea of guilty, forfeiture of bond, or admission of guilt was caused by threats, coercion, or fraudulent means. |
8 | 6B-1.006(5)(a) | Obligation to the profession of education requires that the individual: (a) Shall maintain honesty in all professional dealings. |
9 | 6B-1.006(5)(h) | (h) Shall not submit fraudulent information on any document in connection with professional activities. |
Whether Filippi possesses the requisite good moral character, and whether he has committed an act or acts for which
a teaching certificate could be revoked, are questions of ultimate fact. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla.
1st DCA 1995).
As set forth in the Findings of Fact above, the trier has determined as matter of ultimate fact that Filippi failed to establish his good moral character by a preponderance of evidence; that Filippi's criminal background would authorize the revocation of his teaching certificate, if he had one; and that Filippi sought to obtain a certificate through the use of fraudulent means, committing acts that, of themselves, would justify the revocation of such a certificate.
These factual findings, however, were necessarily informed by the administrative law judge's application of the law. A brief discussion of the pertinent legal principles, therefore, will illuminate the dispositive findings of ultimate fact.
Good Moral Character.
At the outset, the distinction should be clearly drawn between, on the one hand, the requirement that an applicant be of "good moral character" to be eligible for certification pursuant to Section 1012.56(2)(e), Florida Statutes, and, on the other hand, the disciplinable offense of committing an act involving "gross immorality or . . . moral turpitude," which
conduct is proscribed in Section 1012.795(1)(c), Florida Statutes. The former sets a standard of decency that an applicant must meet to be allowed to enter the teaching profession; the latter is a species of misconduct warranting the punishment of the certificate holder, including the removal of that person from the teaching profession.
The eligibility criterion of good moral character operates as a screen to filter out applicants who, because of established behavior or personality traits, pose a potential danger to the health, safety, or well-being of students. Importantly, at the application stage, the focus is on protecting the public and prospective students——not on safeguarding the applicant's rights; hence, the regulatory agency is afforded wide discretion in denying certification to applicants it deems unfit. See Astral Liquors, Inc. v. Department of Business Regulation, 463 So. 2d 1130, 1132 (Fla. 1985).
In contrast, in a disciplinary proceeding in which a teacher's certificate may be revoked, preventing future harm remains a goal, but great emphasis is placed on protecting the teacher's significant property rights: the agency must establish specific wrongdoing by clear and convincing evidence. For these reasons, conduct that justifies denial of an application upon a finding that the applicant lacks good moral
character might not warrant revocation of a teaching certificate in a disciplinary proceeding.
Consequently, a person seeking certification must do more, in demonstrating his or her good moral character, than merely show that he or she is not a reprobate or sociopath. Rather, the burden is on the applicant to establish affirmatively that, as an honest, decent, law-abiding citizen, the applicant consistently conforms his or her behavior to generally accepted societal norms.
The standard of conduct to which prospective teachers are held is a high one, owing to the exceptional degree of trust and confidence that the public places in teachers. As the First District Court of Appeal wrote:
A school teacher holds a position of great trust. We entrust the custody of our children to the teacher to educate and prepare our children for their adult lives. To fulfill this trust, the teacher must be of good moral character; to require less would jeopardize the future lives of our children.
Tomerlin v. Dade County School Board, 318 So. 2d 159, 160 (Fla. 1st DCA 1975).
In Zemour, Inc., v. State Division of Beverage, 347 So. 2d 1102, 1105 (Fla. 1st DCA 1977), the court described the term "good moral character" as follows:
Moral character, as used in this statute [which prescribes eligibility requirements
for obtaining a liquor license], means not only the ability to distinguish between right and wrong, but the character to observe the difference; and the observance of the rules of the right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence. An isolated unlawful act or acts of indiscretion wherever committed do not necessarily establish bad moral character. But as shown by the evidence here, repeated acts in violation of law wherever committed and generally condemned by law abiding people, over a long period of time, evinces the sort of mind and establishes the sort of character that the legislature, as Judge Rawls said in [White v.] Beary, [237 So. 2d 263, 265 (Fla. 1st DCA 1970], "in its infinite wisdom," has determined should not be entrusted with a liquor license.
The trust and confidence placed in public school teachers being at least as great as that reposited in holders of alcoholic beverages licenses, the foregoing analysis holds true in the present context.
Likewise, in Florida Board of Bar Examiners v. G.W.L.,
364 So. 2d 454, 458, (Fla. 1978), the Florida Supreme Court stated:
In our view, a finding of a lack of "good moral character" should not be restricted to those acts which reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of acts and conduct which should 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 nation. . . . .
[T]he practice of law provides the unscrupulous attorney with frequent opportunities to defraud the client or obstruct the judicial process. It is our constitutional responsibility to protect the public by taking necessary action to ensure that the individuals who are admitted to practice law will be honest and fair and will not thwart the administration of justice. In our view, a definition of good moral character which limits an adverse finding to those acts which constitute an offense evincing moral turpitude is inadequate because, as we have held in bar disciplinary matters, it would not sufficiently protect the public interest.
. . . . The inquiry into good moral character which emphasizes honesty, fairness, and respect for the rights of others and for the laws of this state and nation is a proper and suitable standard for those who desire to be an integral part of the administration of justice in the courts of this state. We recognize . . . that the standard of conduct required of an applicant for admission to the bar must have a rational connection to the applicant's fitness to practice law, and the standard must be applied with that limitation in mind or the term "good moral character" could become "a dangerous instrument for arbitrary and discriminatory denial of the right to practice law." . . . .
(Citations omitted). The Supreme Court's observations about the nature of the practice of law are equally applicable to the teaching profession. Just as an unscrupulous attorney has frequent opportunities to defraud clients or obstruct the judicial process, so too does a teacher whose inability to observe generally accepted standards of socially acceptable behavior have frequent opportunities, as an authority figure
acting in loco parentis, to corrupt the schoolchildren in his charge.
In this case, the facts bearing on Filippi's moral character cut both ways. On the one hand, Filippi's exemplary performance, without adverse incident, as a teacher for the past several years demonstrates clearly and persuasively that, notwithstanding his criminal convictions, he has the ability to restore his reputation and usefulness to society as a law- abiding citizen. (Filippi argues, naturally, that he not only has the potential to be rehabilitated, but that, in fact, he is rehabilitated.)
On the other hand, however, there are facts which cast doubt on the proposition that Filippi is completely rehabilitated. In applying for a Florida teaching certificate, Filippi dishonestly, even fraudulently, attempted to conceal potentially negative information about himself, namely the 1986 conviction and the adverse action on his application in West Virginia, to improve his chances of being approved. Making matters worse, when these nondisclosures came to light, Filippi tried to cover up the deceptions with new ones, e.g. that he hadn't known he had a misdemeanor conviction, and that he hadn't understood the Troubled Application Question to call upon him to provide an accurate account of the West Virginia proceeding.
The Commissioner all but calls Filippi a pathological liar, which overstates the case, in the undersigned's opinion. When one considers the barriers that a convicted felon such as Filippi must face in trying to reenter the professional workforce, it takes little empathy to understand the reasoning behind Filippi's deceptions, even if such behavior cannot be excused or condoned, and to recognize that his conduct was not necessarily the product of an inherent propensity for dishonesty in all affairs. But nevertheless, neither sympathy nor sorrow can change the reality that honesty and truth-telling are transcendent principles of good behavior which are violated by deceptive behavior. No matter how much one would like to see Filippi succeed as a teacher, it can hardly be denied that deceptive conduct, undertaken with the intent to induce detrimental reliance in another, contravenes widely accepted moral principles and is, at bottom, immoral conduct.
Filippi knowingly provided false information to the Department in his applications, with the intent to deceive, as found above. The cumulative effect of such purposeful dishonesty, when coupled with the fact of his serious federal convictions, has persuaded the undersigned to find that Filippi does not yet meet the standard of good moral character required for licensure as a teacher in the State of Florida.
Use of Fraudulent Means and Lack of Honesty.
Counts 3, 8, and 9 (and 6, which is the predicate for Counts 3 and 8) of the Third Amended Notice of Reasons all rest on the allegations concerning Filippi's deceptive responses to questions on the applications about criminal records and professional sanctions. Clearly, if Filippi tried to defraud the Department, grounds for revocation of a teaching certificate would exist.
In the context of a civil suit, the essential elements of a fraud claim are: (1) a false statement concerning a material fact, including a nondisclosure when under a duty to disclose; (2) made with knowledge that the representation (or omission) is false and with the intention of inducing another's reliance thereon; and (3) consequent injury to the other party acting in reliance on the false representation. See, e.g., Cohen v. Kravit Estate Buyers, Inc., 843 So. 2d 989, 991 (Fla. 4th DCA 2003). In an administrative proceeding such as this, where an applicant is alleged to have used fraudulent means in an attempt to obtain a license, it is not necessary for the agency to prove actual injury (as that is what the agency is trying to prevent), but the rest of the common law definition of fraudulent conduct is relevant and applicable in evaluating the charge.
"[F]raudulent intent usually must be proved by circumstantial evidence and such circumstances may, by their number and joint consideration, be sufficient to constitute proof." Nally v. Olsson, 134 So. 2d 265, 267 (Fla. 2d DCA 1961). Therefore, as proof of fraud, "one may show 'a series of distinct acts, each of which may be a badge of fraud and when taken together as a whole, constitute fraud.'" Department of Revenue v. Rudd, 545 So. 2d 369, 372 (Fla. 1st DCA 1989), quoting Allen v. Tatham, 56 So. 2d 337, 339 (Fla. 1952). Further, "[s]cienter, or guilty knowledge, [which] is an element of intentional misconduct [such as fraud], . . . can be established by showing actual knowledge, or that the defendant was reckless or careless as to the truth of the matter asserted." Ocean Bank of Miami v. INV-UNI Inv. Corp., 599 So. 2d 694, 697 (Fla. 3d DCA 1992).
As found above, Filippi provided information to the Department that he knew was not true, and he did so with the intention of deceiving the Department about his criminal records and the status of his West Virginia application. The direct and circumstantial evidence has persuaded the undersigned that, at least when preparing the third and fourth Florida applications, Filippi possessed the requisite "guilty knowledge" that distinguishes fraudulent means from other, less serious breaches of the moral mandate to tell the truth.
In attempting to obtain a teaching certificate through the use of fraudulent means, Filippi committed an act
for which such a certificate could be revoked. See § 1012.795(1)(a), Fla. Stat. The same fraudulent responses simultaneously violated the Principles of Professional Conduct for the Education Profession. See Fla. Admin. Code R. 6B- 1.006(5)(a)(teacher must "maintain honesty in all professional dealings"); Fla. Admin. Code R. 6B-1.006(5)(h)(teacher shall not "submit fraudulent information on any document" relating to professional activities). These violations constitute separate and independent grounds for revocation of a teaching certificate. See § 1012.795(1)(i), Fla. Stat.
Criminal Convictions.
As Section 1012.795, Florida Statutes, makes clear, any criminal conviction, even a misdemeanor, provides a basis for the EPC, at its discretion, to revoke a teacher's certificate. The applicable disciplinary guidelines, which are set forth in Florida Administrative Code Rule 6B-11.007, place some fetters on the EPC's discretion, but they are not too tight, leaving lots of room to move. For a misdemeanor conviction, the penalty range is "Reprimand – Suspension"; for a felony conviction, "Suspension – Revocation." See Fla. Admin. Code R. 6B- 11.007(2)(e). The guidelines, unfortunately, provide no guidance for determining the appropriate penalty within the prescribed range.
Filippi makes three interrelated arguments for leniency in his case. First, he stresses that he is rehabilitated. Second, he urges that consideration of "mitigating factors" militates against the harshest penalty. Finally, he points out that, in other cases, the EPC has approved the issuance of teaching certificates to convicted felons, some with criminal records at least arguably as serious as Filippi's. These contentions will be taken up, one at a time, below.
As for the first, the undersigned has not been able to find that Filippi is rehabilitated. Rather, it is the undersigned's determination that Filippi is substantially rehabilitated and is making progress towards full rehabilitation. The undersigned's principal concern in this regard is the pattern of deception evident in Filippi's efforts to become certified. As stated above, the undersigned does not believe that Filippi is inherently dishonest. But the use of fraudulent means in an attempt to obtain a teaching certificate, even if the applicant would not use such means for any other purpose, is still a very serious business. If the integrity of the application process is to be maintained, the Department can ill afford to overlook or excuse fraudulent responses by potential teachers. Mindful of that, the undersigned simply cannot, in the exercise of good judgment, conclude that
Filippi's responses were consistent with complete rehabilitation.
In reference to mitigating circumstances, Filippi relies upon Rule 6B-11.007(3), which provides as follows:
Based upon consideration of aggravating and mitigating factors present in an individual case, the Commission may deviate from the penalties recommended in subsection (2). The Commission may consider the following as aggravating or mitigating factors:
The severity of the offense;
The danger to the public;
The number of repetitions of offenses;
The length of time since the violation;
The number of times the educator has been previously disciplined by the Commission;
The length of time the educator has practiced and the contribution as an educator;
The actual damage, physical or otherwise, caused by the violation;
The deterrent effect of the penalty imposed;
The effect of the penalty upon the educator’s livelihood;
Any effort of rehabilitation by the educator;
The actual knowledge of the educator pertaining to the violation;
Employment status;
Attempts by the educator to correct or stop the violation or refusal by the educator to correct or stop the violation;
Related violations against the educator in another state including findings of guilt or innocence, penalties imposed and penalties served;
Actual negligence of the educator pertaining to any violation;
Penalties imposed for related offenses under subsection (2) above;
Pecuniary benefit or self-gain enuring to the educator;
Degree of physical and mental harm to a student or a child;
Present status of physical and/or mental condition contributing to the violation including recovery from addiction;
Any other relevant mitigating or aggravating factors under the circumstances.
It should be noted that the stated purpose of Rule 6B- 11.007(3) is to delineate the factors that might warrant a deviation, either upward or downward, from the penalty otherwise prescribed for an offense; these factors thus are not relevant (if the Rule is read literally) to the determination of an appropriate penalty within the prescribed range (for such involves no deviation). In the case of Filippi's felony convictions, the specified penalty range is "Suspension – Revocation." Filippi urges that he not be penalized at all, but he is "willing to accept a condition on his license that would preclude him from handling money" in connection with his teaching duties, which is a less severe penalty than suspension. Filippi is arguing, therefore, for a downward departure.
In reviewing the 20 aggravating or mitigating factors, the undersigned does not find substantial support for a downward departure. At best, consideration of the factors results in a wash. Subparts (b), (f), (i), (j), and (l) can be considered mitigating factors here, but then subparts (a), (c), (g), (k), and (m) can as readily be viewed as aggravating factors; the
latter group cancels any benefit provided by the former. Subparts (d), (e), (h), (n), (o), (p), (r), and (s) are either not applicable or neutral (pointing neither one way nor the other). As for the catch-all provision, subpart (t), the undersigned is not aware of other factors that would push the balance decisively in favor of leniency.
All in all, the undersigned is not persuaded that Filippi's situation cries out for special treatment in the form of a downward departure. Going a step further, if Filippi were currently a certificateholder and the task at hand were to decide how to discipline him for his criminal convictions, it is the undersigned's conclusion that the appropriate penalty would fall within the stated range, which includes revocation.
Finally, Filippi contends that his application should be approved, perhaps with a condition (the restriction on money handling mentioned above), because in past cases the EPC has approved the issuance of licenses, with conditions (such as probation), to convicted felons. The factual premise of this argument——that felons have been conditionally licensed as teachers——is true. In cases arising from application denials (like this one), the EPC in fact has entered final orders approving (and ordering compliance with) settlement agreements on which the Commissioner had signed off, with the result that convicted felons have been allowed to teach in the Florida
public schools, usually subject to some restrictions or conditions.
While this might sound shocking, what it shows is that the Commissioner sometimes exercises his specific statutory authority to "make decisions regarding an applicant's certification under extenuating circumstances not otherwise provided for in statute or by rule." See § 1012.56(15), Fla. Stat. If he so chooses, in other words, the Commissioner can bend the rules and grant an application that otherwise would be denied.
Less clear is whether the EPC has the authority to order the issuance of a certificate "under extenuating circumstances not otherwise provided for in statute or by rule" where, as here, the Commissioner has not agreed that such a result would be appropriate. The Commissioner here argues that the EPC lacks such authority and ultimately must order that Filippi's application either be granted unconditionally or denied.
If the undersigned were strongly of the opinion that Filippi should receive a conditional license, then he probably would, at a minimum, urge the Commissioner to consider agreeing to such an outcome. But he is not.9 Therefore, the undersigned does not believe it is necessary in this case to explore the
question of the EPC's authority to order the grant of a conditional teaching certificate.
Filippi was found guilty by a jury on multiple counts of several serious federal crimes. He was incarcerated for about four years in a federal prison and after that was on probation until January 2005. In addition to that, he has a misdemeanor conviction which, while old and relatively minor, is nevertheless a conviction, which makes it just a bit harder to err on the side of leniency. The undersigned concludes without hesitancy that the EPC would be authorized to revoke Filippi's teaching certificate, if he had one, on the basis of his criminal convictions; he concludes as well that it likely would revoke his certificate on these facts.
Gross Immorality or Moral Turpitude.
The Commissioner has charged Filippi with gross immorality or committing an act or acts involving moral turpitude. To reach a conclusion as to guilt or innocence on such charges creates a dilemma for the administrative law judge because the ultimate determination is not one that a judge or other decision-maker, employing legal reasoning, can reach according to the rule of law. As the undersigned wrote in another case:
The dilemma is that, in the absence of evidence concerning the applicable transcendent norms (assuming moral precepts are provable as fact), the [ALJ] is bereft of standards to apply in judging the
baseness, vileness, or depravity of the act in question. As a public servant in a secular government, the undersigned cannot, in making the necessary decision, turn to the Bible or other sacred text in search of moral truth. The moral relativism that permeates the popular culture makes it impossible for the undersigned——or any contemporary decision-maker——to draw with confidence upon a shared understanding of objective truth. Reliance on judicial precedent to label an offense [an act involving moral turpitude]——which gives the appearance of legal reasoning——in effect merely shifts the responsibility of discerning moral truth to someone else, whose moral authority, as a fellow creature, is no greater than our own. Consequently, while ordinarily it would be inappropriate to decide an ultimate issue based on personal beliefs about good and right behavior, in this instance, where the ultimate issue involves a moral judgment, there might be no alternative.
Miami-Dade County School Board v. Singleton, 2006 Fla. Div. Adm. Hear. LEXIS 614, *20 (June 21, 2007).
Because there are multiple, independent, and
sufficient grounds upon which to deny Filippi's application without reaching the troublesome question of whether his behavior was grossly immoral or tainted with moral turpitude, the undersigned declines to decide the issue, thereby avoiding the need, potentially, to inject his own, personal beliefs into the case.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order denying Filippi's application for a teaching certificate and providing that he shall not be eligible to reapply for certification for a period of five years from the date of the final order, during which time the Department of Education, in its discretion pursuant to Section 1012.796(7)(a), Florida Statutes, may refuse to consider his application, neither granting nor denying same.
DONE AND ENTERED this 20th day of June, 2008, in Tallahassee, Leon County, Florida.
JOHN G. VAN LANINGHAM
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 20th day of June, 2008.
ENDNOTES
1/ While this proceeding was pending, Eric J. Smith, Ph.D., succeeded Mr. Winn as Florida's Commissioner of Education. The style of this case has been amended to account for this change, so that Dr. Smith, in his official capacity, is now shown as the nominal Respondent.
2/ The undersigned could make more extensive findings about Filippi's exemplary performance and accomplishments at St.
Joseph's, and the high esteem with which he has been held there (none of which the undersigned means to minimize), but the bottom line is as stated in the text above.
3/ The final order includes a notice informing the parties of "their thirty (30) day right to appeal [i.e. seek judicial review] . . . pursuant to West Virginia Code §29A-5-4(b)." A knowledgeable witness (WVDE's general counsel) testified at the final hearing in this case that the time for taking an appeal from the superintendent's order to the state trial court is four months. This testimony contradicts the notice of appeal rights contained in the superintendent's order and appears to be in conflict with the applicable West Virginia statute. It is not necessary for present purposes to resolve this conflict.
4/ On June 25, 2005, (by which time Filippi should have received, during the preceding week, the final order denying his West Virginia application), Filippi mailed an Application for Private Academic School Teaching Certificate to the Pennsylvania Department of Education. In this application, Filippi denied having ever had a "certificate or license denied, revoked, suspended or surrendered in [Pennsylvania] or any other state[.]" The Commissioner asserts that Filippi's denial was false. The undersigned declines to decide whether Filippi attempted to defraud another state's education department; whether he did or did not, the outcome in this case would be the same. The Commissioner further alleges that, in his fourth Florida application, Filippi fraudulently concealed the disapproval of his Pennsylvania application. The preliminary denial of Filippi's Pennsylvania application, however, was not announced until April 14, 2006, about six months after Filippi had submitted his fourth Florida application. It is not clear that, as of October 11, 2005, Filippi knew for sure that his Pennsylvania application was in trouble. The undersigned therefore is unable to find that Filippi fraudulently withheld from the Department information concerning his Pennsylvania application.
5/ The Florida Supreme Court examined the different standards of accuracy required under a "knowledge and belief" certification of veracity, on the one hand, and an unqualified certificate of truth, on the other, in Green v. Life & Health of America, 704 So. 2d 1386 (Fla. 1998).
6/ When a disappointed applicant challenges the preliminary denial of his application for a teaching certificate, the Commissioner is responsible for prosecuting the Department's case against the applicant in the ensuing administrative proceeding. See § 1012.796, Fla. Stat.
7/ The denial of a teaching certificate is not a disciplinary sanction; it is, rather, the application of a regulatory measure. For that reason, where an intended denial of certification is based on the allegation that the applicant has committed an act or acts which would warrant revocation of a teaching certificate, the Commissioner is not required to prove the charges of wrongdoing by clear and convincing evidence; instead, the factual predicate need only be established by the greater weight of the evidence. See Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932, 934-35 (Fla. 1996).
8/ Technically speaking, the designation "penalty" is a misnomer as applied in the statute to the regulatory act of application denial. The denial of an application for a teaching certificate, unlike the revocation of such a certificate, is not penal in nature and does not——again in contrast to revocation—— implicate significant property rights. Osborne Stern, 670 So.
2d 934-35.
9/ In fairness, the undersigned should note that he is not strongly opposed, either, to seeing Filippi receive a conditional license and would not be horrified if the Commissioner decided to do that. The legislature, however, has made its desire clear that the default decision on an applicant such as Filippi, who has a problematic criminal history including multiple felony convictions and a substantial prison sentence, should be disapproval. Perhaps this is an overly punitive policy, but it is the law. In any event, unlike the undersigned, the Commissioner is positioned to see the "big picture" and decide whether, in a given case, there are sufficient extenuating circumstances to justify making an exception. That the undersigned does not see a reason to make an exception for Filippi does not mean, necessarily, that the
Commissioner also would or should see no reason. His litigating position suggests, however, that he is not inclined to grant Filippi a conditional license.
COPIES FURNISHED:
Timothy P. Atkinson, Esquire Gavin D. Burgess, Esquire Oertel, Fernandez, Cole & Bryant Post Office Box 1110 Tallahassee, Florida 32302-1110
Charles T. Whitelock, Esquire Whitelock & Associates, P.A.
300 Southeast 13th Street
Fort Lauderdale, Florida 33316-1924
Deborah K. Kearney, General Counsel Department of Education
1244 Turlington Building
Tallahassee, Florida 32399-0400
Kathleen M. Richards, Executive Director Education Practices Commission Department of Education
325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400
Dr. Eric J. Smith, Commissioner Department of Education Turlington Building, Suite 1514
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.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 09, 2008 | Agency Final Order | |
| Jun. 20, 2008 | Recommended Order | Petitioner`s application for a teaching certificate should be denied because of his problematic criminal history, and because he provided false information in his application. |
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