This case was heard by video teleconference on September 23, 2008, between sites in Lauderdale Lakes and
Tallahassee, Florida, before Administrative Law Judge Eleanor M. Hunter of the Division of Administrative Hearings.
Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
For Respondent: Charles T. Whitelock, Esquire
Whitelock & Associates, P.A.
The issue is whether the Petitioner is entitled to receive a Florida Educator's Certificate, or whether he should be denied
a certificate based on the allegations in the Amended Notice of Reasons dated January 30, 2006.
According to the letter of transmittal sent to the Division of Administrative Hearings (DOAH) on July 9, 2008, this case came before the Education Practices Commission (EPC) on
January 17, 2006, and was initially referred to DOAH on January 30, 2006. A formal hearing was not held at that time and the file was closed on April 20, 2006, after the parties
entered into a settlement agreement. The agreement was rejected by the EPC and, on July 2, 2008, the case was again referred to DOAH for a formal hearing that was held on September 23, 2008.
At the hearing, Petitioner testified in his own behalf.
Respondent presented the testimony of Maryanne Lambeth and, by deposition filed on October 15, 2008, that of Bart Zabin.
Respondent's Exhibits 1 through 7 were received into evidence.
The transcript of the hearing was filed on October 28, 2008. On November 17, 2008, the parties filed Proposed Recommended Orders that have been considered in the preparation of this Recommended Order.
Petitioner, Allen Dubois, (Petitioner or Mr. Dubois) received his bachelor's degree in physical sciences and chemistry, with a minor in mathematics in 1972. From 1972 to
1992, he worked for the United States Postal Service and as a tennis instructor.
In 1992, Mr. Dubois received his master's degree in health education and nutrition, and began teaching in New York City high schools.
Mr. Dubois was licensed to teach in New York with a certificate of qualification (CQ), the equivalent of a provisional or temporary teaching certificate. In New York, the CQ differs from other types of temporary teaching certificates only because it allows someone who may not be teaching full-time to have additional time to meet the requirements to secure a permanent teaching certificate.
In April 1994, Mr. Dubois filed an application with New York State Education Department for a permanent certificate to teach biology and general sciences in grades 7-12.
In March 1994, a sixteen-year old female student alleged Petitioner had engaged her in an inappropriate relationship and forced her to have sexual intercourse with him. Mr. Dubois was placed on paid leave through the end of the school year, June 1994.
Mr. Dubois denied the allegations, and continues to maintain the allegations are false. He does admit to having had several conversations with the student that made him feel "uncomfortable," that included information about her mother's
boyfriend and her showing him pictures of her baby. He concedes that, on a Friday evening following a sports event at the school, she walked with him some distance from the school to his parked car and that he offered her a ride. Mr. Dubois said that as she was getting in the car, "[w]e saw the bus coming and then she decided to take the bus." Mr. Dubois admitted calling the girl's house a day or two after he offered her a ride, but stated that she was not there and he talked to her grandmother. After that, Mr. Dubois continued to have conversations with a member of the girl’s family.
The allegations were investigated and presented to a grand jury that, in October or November 1994, failed to indict Mr. Dubois. After he was fired from his job as a teacher by the Board of Education of New York City, Mr. Dubois apparently did not pursue the matter at a hearing, as he could have, but instead moved to Florida in December 1994, where he has lived since then.
When he first came to Florida, Mr. Dubois was employed with the State Department of Labor and Employment Security. Among other duties, Mr. Dubois provided seminars and workshops on how individuals could file applications for employment with the State of Florida. Since that time, he has gone on to work for another state agency and, at some time, also taught at a community college in St. Lucie County.
On July 22, 2003, Mr. Dubois filed an application for a Florida Educator's Certificate. On the application, he listed his teaching experience in New York City. Question #29 on the application is titled "Revocation" and requires a yes or no response to the following question:
"Have you ever had a teaching certificate revoked, suspended or denied by any state, or is there any action pending against your certificate or application? If YES, you must give the state, reason, and year in which your certificate was revoked, suspended, denied, or in which action is pending against your certification or application."
Petitioner answered "no" to the question.
A letter, dated October 3, 1995, from New York City investigators to the New York State Commissioner of Education indicated that Mr. Dubois was “. . . currently suspended from service.” There is no evidence that the City had the authority to suspend his certificate. In fact, the letter was intended to give notice to the State so that it could take disciplinary action against the certificate.
On June 12, 1996, the Commissioner of Education of the State of New York filed a Notice of Substantial Question as to Moral Character, charging Mr. Dubois with having sexual intercourse with the sixteen-year old female student on or about March 25, 1994. The Notice offered an opportunity for a hearing, if requested within 30 days. Mr. Dubois received the
Notice, but testified that he did not recall responding to it. He did recognize a letter, in his hand writing, that he must have written on or about September 26, 1996, ". . . acknowledging that New York is questioning my moral character" and asking the New York authorities to contact the attorney who handled the criminal charges against him.
Mr. Dubois testified that he had a telephone conversation, in 1998, with an attorney for the New York State Department of Education, who indicated that he had been unable to contact the criminal attorney who previously represented Mr. Dubois. Mr. Dubois testified that, ". . . it was not my intention to pursue a teaching license in New York. At that point in 1998 I was not inclined to want to become a public school teacher."
As a result of the telephone discussion, Mr. Dubois entered into an agreement with the New York State Education Department that provides as follows:
This is written confirmation of the fact that the parties have agreed to settle this matter and not proceed to a hearing under the provisions of Part 83 of the regulations of the Commissioner of Education.
The Education Department will withdraw the Part 83 charges now pending against Allen J. DuBois in return for the surrender of his certificate of qualification of a teacher of biology and general science 7-12 and the withdrawal of his pending application for permanent certificate in the same areas.
Allen J. DuBois, by this agreement,
neither admits nor denies the allegations in the Notice of Substantial Question dated June 12, 1996, but acknowledges that he is unable to defend against them at this time.
Upon surrender, the Department will notify all licensing and credentialing agencies and jurisdictions who participate in the National Association of State Directors of Teacher Education and Certification (NASDTEC) and advise them of the surrender and withdrawal but will not otherwise disclose nor make public the contents of this agreement or the charges contained in the Notice unless required by law or upon an order of a court of competent jurisdiction.
Allen J. DuBois reserves his right in the future to apply to the Education Department for certification as a teacher in biology and general science 7-12 or any other area and will be held harmless from any changes in the educational requirements subsequent to the date of this agreement. However, in the event he makes application for certification in the future, the Education Department reserves its rights under Part 83 of the Regulations including the right to hold a hearing on the issues raise in the Notice.
In furtherance of this agreement,
Mr. DuBois, shall forward the original certification document to the education department within thirty (30) days or, if said document cannot be located, then he will provide a written statement to that effect.
As provided in the agreement, the State of New York filed a form with NASDTEC, reporting that the nature of its action on the CQ was a denial. There is no evidence that
Mr. Dubois received a copy of the document. Concerning the agreement, Mr. Dubois said, in his deposition, that he felt “railroaded” into signing it without legal advice, and that
(although explicit in the agreement) he did not know that there would be a report to some national network that might keep him from ever getting a teaching job any place in the United States. The NASDTEC document that appeared to contradict the information on his application was received by Respondent, prompting a further investigation of his Florida application.
Mr. Dubois testified that he answered "no" to Question 29 on the application because he never had a permanent teaching certificate in New York. He denied that he thought his "provisional status" constituted a certificate. He claimed not to ". . . know that New York City passed something on to New York State," although the agreement he signed was with state authorities. In any event, based on the fact that the CQ was surrendered and the application for a permanent teaching certificate was withdrawn, Mr. Dubois maintains that he did not have to respond affirmatively to the question that was so narrowly worded as to only ask about certificates that were "revoked, suspended or denied" and suggested that "[m]aybe the State of Florida . . . needs to reword the questions on the application. "
In an Amended Notice of Reasons dated January 30, 2006, Respondent notified Mr. Dubois that the Department of Education intended to deny his application for a Florida Educator's Certificate. The Amended Notice of Reasons cited six
statutory violations and four rule violations as grounds for the denial:
Statute Violations
Count 1: The Applicant is in violation of Section 1012.56 (2) (e), Florida Statutes, which requires that the holder of a Florida Educator's Certificate be of good moral character.
Count 2: The Applicant is in violation of Section 1012.56(12)(a), Florida Statutes, which provides that 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.
Count 3: The Applicant is in violation of Section 1012.795 (1)(a), Florida Statutes, in that he obtained or attempted to obtain an educator's certificate by fraudulent means.
Count 4: The Applicant is in violation of Section 1012.795 (1)(c), Florida Statutes, in that he has been guilty of gross immorality or an act involving moral turpitude.
Count 5: The Applicant is in violation of Section 1012.795(1)(f), Florida Statutes, in that he has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board.
Count 6: The Applicant is in violation of Section 1012.795 (1)(I) [sic], Florida Statutes, in that he has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
Rule Violations
Count 7: The allegations of misconduct
set forth herein are in violation of Rule 6B-1.006(3)(a), Florida Administrative Code, in that Applicant has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety.
Count 8: The allegations of misconduct set forth herein are in violation of Rule
6B-1.006(3)(e), Florida Administrative Code, in that Applicant has intentionally exposed a student to unnecessary embarrassment or disparagement.
Count 9: The allegations of misconduct set forth herein are in violation of Florida Administrative Code Rule 6B-1.006(3)(h), in that Applicant has harassed or discriminated against a student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment of discrimination.
Count 10: The allegations of misconduct set forth herein are in violation of Rule
6B-1.006(3)(h), Florida Administrative Code, in that Applicant has exploited a relationship with a student for personal gain or advantage.
Respondent offered no competent evidence that
Mr. Dubois engaged, as alleged by New York authorities, in any inappropriate relationship with a student and forced her to have sexual intercourse with him. One of Respondent's witnesses testified that she believed the alleged victim has been located and would be available to testify, if needed, but that was not done.
Respondent offered no competent evidence that
Mr. Dubois' answer to Question 29 was an intentional fraudulent misrepresentation. Mr. Dubois was not credible when he asserted, in a 2006 deposition, (1) that he thought his CQ was not a teaching certificate, (2) that he did not expect New York City to pass information to New York State (although he signed the agreement with the State), or (3) that he was not aware that a report would be sent to a national network. He is correct, however, that the CQ was surrendered and the application was withdrawn, in exchange for not having an action against him proceed to hearing. Because he has no current certificate of application, there is also no action pending against either of these. Without having to answer yes to Question 29, Mr. Dubois did not have to give information concerning the matters that could be the subject of a hearing only if he ever again applies to teach in New York.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. See § 120.57(1), Fla. Stat. (2008).
The Respondent, Commissioner of Education, as head of the Department of Education, has the responsibility to determine eligibility for teaching certificates in Florida. §§ 20.15 and 1012.795(b), Fla. Stat. (2008).
As the party seeking the certification, Petitioner has the burden of proving by a preponderance of the evidence that he satisfies the statutory requirements for a teaching certificate. Dept. of Banking and Finance, Div. of Securities and Investor
Protection v. Osborne Stern &. Co., 670 So. 2d 932 (Fla. 1996).
Respondent has the burden of establishing, by a preponderance of the evidence, the statutory violations alleged in the Amended Notice of Reasons and that they are sufficient to warrant denial of the application. Osborne Stern &. Co., 670 So. 2d at 934.
The reasons for the denial of a teaching certificate must have been specifically alleged in the Amended Notice of Reasons or otherwise adequately charged. See, e.g., Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); and Werner v. Department of Insurance, 689 So. 2d 1211 (Fla. 1st DCA 1997).
Pursuant to Subsection 1012.56(2)(e), Florida Statutes (2008), an applicant for an educator's certificate must have good moral character.
Section 1012.56(12)(a), Florida Statutes (2008), also provides that:
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.
Pursuant to Subsection 1012.795(1), Florida Statutes (2008), the Education Practices Commission may revoke an educator's certificate where it can be shown that the person:
(a) Obtained or attempted to obtain an educator certificate by fraudulent means.
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(d) Has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education.
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(g) Upon investigation, has been found guilty of personal conduct that seriously reduces that person's effectiveness as an employee of the district school board.
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(j) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
The Rules Petitioner is accused of violating are the following:
6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.
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 student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/ or physical health and/or safety.
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(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
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Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.
Shall not exploit a relationship with a student for personal gain or advantage.
Respondent has not met its burden to prove Petitioner violated Subsection 1012.795(1)(a), Florida Statutes (2008), that allows the denial of an educator's certificate obtained by fraudulent means. Given the wording of Question 29 on the application, there is insufficient evidence to support a conclusion that Petitioner engaged in an intentional act of concealment, as required by law. See Walker v. Florida Dept. of Business and Professional Regulation, 705 So. 2d 652 (Fla. 5th DCA 1998); Munch v. Dept. of Business and Professional
Regulation, 592 So. 2d 1136 (Fla. 1st DCA 1992); and Gallagher v. Parka, DOAH Case No. 00-2158PL (R.O. 6/26/01, P.O. 9/18/01).
Respondent has not presented any credible evidence to support conclusions, as alleged in the Amended Notice of Reasons based solely on the allegations by New York authorities, that Petitioner has been guilty of gross immorality or an act involving moral turpitude; has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board; or has violated the Principles of Professionals for the Education Profession prescribed by the State Board of Education rules. Therefore, Counts 2, 3, 4, 5, and 6 of the Amended Notice of Reasons are not proven.
Respondent has not met its burden to prove the allegations of the Amended Notice of Reasons, that Petitioner failed to make reasonable effort to protect students from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety; that Petitioner intentionally exposed a student to unnecessary embarrassment or disparagement; that Petitioner harassed or discriminated against a student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background; or that Petitioner exploited a relationship with a
student for personal gain or advantage. Therefore, Counts 7, 8, 9, and 10 of the Amended Notice of Reasons are not proven.
While Petitioner made statements during the hearing and during his deposition that strained credulity, it is impossible to say that he has not established his good moral character and entitlement to a Florida Educator's Certificate. To conclude otherwise would place Petitioner, due to his protestations of innocence, in the kind of "Catch-22" that was rejected as a basis for the denial of a license by the Florida Supreme Court in Florida Board of Bar Examiners Re; M.C.A., 650 So. 2d 34 (Fla. 1995).
Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that Petitioner be issued a Florida Educator's Certificate.
DONE AND ENTERED this 19th day of December, 2008, in Tallahassee, Leon County, Florida.
ELEANOR M. HUNTER
Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2008.
Mark Herdman, Esquire Herdman & Sakellarides, P.A.
29605 U.S. Highway 19 North, Suite 110
Kathleen M. Richards, Executive Director Education Practices Commission Department of Education
Charles T. Whitelock, Esquire Whitelock & Associates, P.A.
Deborah K. Kearney, General Counsel Department of Education
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.
