vs.
Respondent.
Case No. 14-0638PL
On April 28, 2014, a hearing was conducted pursuant to section 120.57(1), Florida Statutes (2013), by means of video teleconference with sites in Tallahassee and Daytona Beach, Florida, before Administrative Law Judge Lisa Shearer Nelson of the Division of Administrative Hearings.
The issue to be determined is whether Respondent violated section 1012.795(1)(d), (g), and (j), Florida Statutes (2012),
and Florida Administrative Code Rule 6A-10.081(4)(c) and (5)(a), and if so, what penalty should be imposed?
On December 5, 2013, Pam Stewart, as Commissioner of Education, filed an Amended Administrative Complaint against Respondent, Nichole Barry, charging her with violating section 1012.795(1)(d), (g), and (j), and rule 6A-10.081(4)(c) and (5)(a). The factual allegations in the Administrative Complaint to support the charges are that Respondent took from her principal’s office door approximately $28 that had been collected by students for the March of Dimes Foundation.
Respondent disputed the allegations in the Administrative Complaint and requested a hearing. On February 13, 2014, the case was referred to the Division of Administrative Hearings for the assignment of an administrative law judge.
The hearing commenced as scheduled on April 28, 2014.
Petitioner presented the testimony of Nichole Barry, Nichole Gaw, Racheal Welch Luebbert, and Officer Myriam Godwin, and Petitioner’s Exhibits 1-5 were admitted into evidence.
Respondent testified on her own behalf and Respondent’s Exhibits 1, 2, 4, and 5 were admitted.
The one-volume Transcript of the proceedings was filed with the Division on May 14, 2014. Respondent filed a Proposed Recommended Order on May 22, 2014. Petitioner filed a Proposed
Recommended Order on May 27, 2014. Both submissions were timely filed and have been carefully considered in the preparation of this Recommended Order.
At all times material to the Administrative Complaint, Respondent was employed as a second-grade teacher at Boston Avenue Charter School (Boston Avenue) in the Volusia County School District. Respondent holds Florida Educator’s Certificate number 1170778, which covers the areas of elementary education, English for speakers of other languages, reading, and exceptional student education, and is valid through June 30, 2016.
During the 2011-2012 school year, Nichole Gaw was the principal at Boston Avenue. Racheal Welch Luebbert was also a teacher employed at Boston Avenue, but at the time of this incident worked as an intervention teacher and did not have her own classroom.
Students at Boston Avenue normally wore uniforms.
During the spring of 2012, the school was participating in a fundraiser called Blue Jeans for Babies, in order to benefit the March of Dimes. Money for the fundraiser was raised by students paying for the privilege of wearing clothes other than their uniforms on Wednesdays. Students contributed 50 cents to participate.
Teachers were given manila envelopes to hold the collected money, but those envelopes were not always used. At the end of the day, the money collected by each class was given to Ms. Gaw.
On April 25, 2012, there was a staff meeting scheduled.
Before the staff meeting, Ms. Gaw was standing in front of the door of her office near the school reception area. While Ms. Gaw was standing at her door, Ms. Luebbert walked up to her and handed her a clear sandwich bag containing the money that had been collected in the classroom where she was working and given to her by the classroom teacher. Ms. Luebbert asked Ms. Gaw what Ms. Gaw wanted her to do with the money, and Ms. Gaw told her to put it in Ms. Gaw’s box. Because Ms. Gaw’s door was already locked, Ms. Luebbert handed Ms. Gaw the baggie and Ms. Gaw placed it in the mail holder on the outside of Ms. Gaw’s door.
Immediately past Ms. Gaw’s door is an area with faculty mailboxes, a copier, and restrooms. Prior to the scheduled staff meeting, several people, including Respondent, passed through the area. Respondent walked past Ms. Gaw and spoke with Ms. Gaw briefly before entering the area where the mailboxes, copier, and restrooms were located. While Respondent was still in that area, Ms. Gaw and other personnel present left the area to attend the staff meeting.
After the others had left, Respondent came from the mailbox area, past Ms. Gaw’s door into the reception area. She was carrying a paper or folder of some sort. As Respondent passed through the hall, she looked down the hallway. She paused, turned around, and appeared to be looking around as if to see if anyone else was present. Respondent walked over to
Ms. Gaw’s door, took something out of the mail holder on the door with her right hand, and placed the object on top of the paperwork in her left hand. She then slid the object from the top of the paperwork to her left hand, and with her left hand placed it in her pocket. The object taken from Ms. Gaw’s door appears to be the sandwich bag containing the Blue Jeans for Babies collection.
After the staff meeting, Ms. Gaw went to her office door to retrieve the sandwich bag, only to find that it was not there. Boston Avenue had video surveillance cameras that provided surveillance video for the general area near Ms. Gaw’s door. While part of the door itself is visible in the video footage, the mail holder on the door is not visible. Ms. Gaw retrieved the video footage for the office area and viewed it with management for Boston Avenue.
Based upon her observation of the video footage, Ms. Gaw believed that Respondent took the sandwich bag containing the money. In accordance with management instructions, she called
the police to report the theft, and on April 26, 2012, Officer Myriam Godwin of the Deland Police Department came to the school.
Ms. Gaw spoke with Officer Godwin, told her that a teacher had stolen some money, and advised her that there was video surveillance footage of the incident. Officer Godwin viewed the video, which in her view appeared to show the theft of the money in the sandwich bag. She then spoke to Ms. Barry.
Ms. Barry was summoned from her classroom to speak to Officer Godwin. Officer Godwin introduced herself, read
Ms. Barry her rights, and explained the reason for questioning Ms. Barry. Ms. Barry immediately denied the theft. However, she eventually admitted taking the money and said she had done so because of financial problems. Officer Godwin did not place
Ms. Barry under arrest at the time of the interview because the crime at issue is a misdemeanor. Instead, she completed an arrest affidavit charging Ms. Barry with petit theft.
Ms. Barry’s employment with Boston Avenue was terminated on April 30, 2012.
The theft of the money was reported in the news media, including television, newspaper, and the internet.
On April 12, 2013, in the case of State of Florida v.
Nicole S. Torres, Case No. 2012 008933 MMAWS (Volusia County Court), Respondent pleaded nolo contendere to petit theft, and
adjudication was withheld. She was required to pay restitution in the amount of $28.55, and to pay court costs.
Ms. Barry claims that she did not take the money, and that she would never take anything that did not belong to her. She does not recall what she placed in her pocket that day, but insists it was not the baggie with money.
Ms. Barry also claims that she only told Officer Godwin that she took the money because she felt she was being harassed and threatened by Officer Godwin, and was afraid she would lose her daughter. In her view, admitting to the theft and telling Officer Godwin “what she wanted to hear” was the easiest course of action.
Officer Godwin denied pressuring Ms. Barry, and said she did not threaten her in any way. She did not threaten to take Ms. Barry’s child, and certainly would not do so over a $28 theft. She also denied saying that if Ms. Barry did not cooperate, she would do what she had to do.
Officer Godwin’s testimony is credited. Even assuming that she made the statement Ms. Barry attributed to her, which the undersigned does not find, the statement is not particularly threatening. It is simply a statement indicating that the officer would investigate and follow up without Ms. Barry’s cooperation, something she would be required to do in any event.
After multiple viewings of the video tape and review of the evidence received, it is found that Respondent took the baggie from the envelope slot on Ms. Gaw’s door. Given Respondent’s participation in the March of Dimes fundraiser, the only reasonable inference that can be drawn is that Respondent knew the money in the baggie was from the March of Dimes fundraiser.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1), Florida Statutes.
This is a proceeding to discipline Respondent's educator certificate. Because disciplinary proceedings are considered penal in nature, Petitioner is required to prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern &
Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d
292 (Fla. 1987).
Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano,
696 So. 2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court, the standard:
entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994)(quoting, with
approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005).
“Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 986, 989
(Fla. 1st DCA 1991).
Petitioner alleged that Respondent violated section 1012.795(1)(d), (g), and (j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(4)(c) and(5)(a). Section 1012.795 provides in relevant part:
The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3)
for up to 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for up to 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon an order of the court or notice by the Department of Revenue relating to the payment of child support; or may impose any other penalty provided by law, if the person:
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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.
At the time of the events alleged in the Administrative Complaint, the Principles of Professional Conduct for the Education Profession in Florida were contained in Florida Administrative Code Rule 6B-1.006. The rule was transferred to the current rule, rule 6A-10.081. The relevant text, however, is the same. Rule 6A-10.081 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 other penalties as provided by law.
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Obligation to the public requires that the individual:
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(c) Shall not use institutional privileges for personal gain or advantage.
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Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
Section 1012.796(7) provides, in pertinent part, that:
1012.796 Complaints against teachers and administrators; procedure:
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A panel of the commission shall enter a final order either dismissing the complaint or imposing one or more of the following penalties:
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.
Revocation or suspension of a certificate.
Imposition of an administrative fine not to exceed $2000 for each count or separate offense.
Placement of the teacher, administrator, or supervisor on probation for a period of time and subject to such conditions as the commission may specify, including requiring the certified teacher, administrator, or supervisor to complete additional appropriate college courses or work with another certified educator, with the administrative costs of monitoring the probation assessed to the educator placed on probation. An educator who has been placed on probation shall, at a minimum:
Immediately notify the investigative office in the Department of Education upon termination of employment in the state in any public or private position requiring an educator's certificate.
Have his or her immediate supervisor submit annual performance reports to the investigative office in the Department of Education.
Pay to the commission within the first 6 months of each probation year the administrative costs of monitoring probation assessed to the educator.
Violate no law and shall fully comply with all district school board policies, school rules, and State Board of Education rules.
Satisfactorily perform his or her assigned duties in a competent, professional manner.
Bear all costs of complying with the terms of a final order entered by the commission.
Restriction of the authorized scope of practice of the teacher, administrator, or supervisor.
Reprimand of the teacher, administrator, or supervisor in writing, with a copy to be placed in the certification file of such person.
Imposition of an administrative sanction, upon a person whose teaching certificate has expired, for an act or acts committed while that person possessed a teaching certificate or an expired certificate subject to late renewal, which sanction bars that person from applying for a new certificate for a period of 10 years or less, or permanently.
Refer the teacher, administrator, or supervisor to the recovery network program provided in s. 1012.798 under such terms and conditions as the commission may specify.
Section 1012.795 is considered a penal statute and as such, it must be strictly construed, with any ambiguity construed against the agency. Elmariah v. Dep’t of Prof’l Reg., 574 So. 2d
164 (Fla. 1st DCA 1990); Taylor v. Dep’t of Prof’l Reg., 534 So.
2d 782, 784 (Fla. 1st DCA 1988). Disciplinary statutes must be construed in terms of their literal meaning, and words used by the Legislature may not be expanded to broaden their application. Latham v. Fla. Comm’n on Ethics, 694 So. 2d 83 (Fla. 1st DCA
1997); see also Beckett v. Dep’t of Fin. Svcs., 982 So. 2d 94,
100 (Fla. 1st DCA 2008); Dyer v. Dep’t of Ins. & Treas., 585
So. 2d 1009, 1013 (Fla. 1st DCA 1991).
Count 1 of the Administrative Complaint alleged that Respondent violated section 1012.795(1)(d), “in that Respondent has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education.”
(emphasis added).
The Ethics in Education Act, chapter 2008-108, section 32, Laws of Florida, amended section 1012.795(1)(d) to add the phrase “as defined by rule of the State Board of Education,” creating the statute as it appears at present.
In Cappi Arroyo v. Dr. Eric J. Smith, as Commissioner of Education, Case No. 11-2799, ¶ 109 (Fla. DOAH May 31, 2012;
Fla. EPC Nov. 13, 2012), Judge F. Scott Boyd analyzed the effect of the 2008 legislative amendment of section 1012.795(1)(d) as
follows:
The Ethics in Education Act, Chapter 2008- 108, Laws of Florida, added the phrase "as defined by rule of the State Board of
Education" to what now appears as section 1012.795(1)(d). It is unclear whether this new language modifies only "an act involving moral turpitude" or if it instead modifies the entire phrase "gross immorality or an act involving moral turpitude." The absence of a comma after the word "immorality" suggests that it modifies the entire phrase. In any event, when construing penal statutes, any statutory ambiguity should be resolved in favor of Petitioner. Cilento v. State, 377 So. 2d 663, 668 (Fla. 1979)(where criminal statute is ambiguous, construction most favorable to accused should be adopted). See also § 775.021, Fla. Stat. ("The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused."). This portion of the statute is thus only violated if an educator is guilty of gross immorality as defined by rule of the State Board of Education. (emphasis added).
The Final Order in Arroyo v. Smith accepted Judge
Boyd’s Recommended Order, and it was “adopted in full and becomes the Final Order of the Education Practices Commission.” That Final Order, and the conclusions of the Recommended Order adopted thereby, will therefore be applied in this case.
Judge Boyd correctly noted that “[t]he State Board of Education has not defined the term ‘gross immorality’ by rule.” Arroyo v. Smith at ¶ 110. Although the Final Order in Arroyo was
issued in November 2012, the State Board of Education has not adopted a rule defining the term “gross immorality.” Without a definition of the term, Respondent cannot be found to have
violated it. Compare Arias v. Dep’t of Bus. & Prof’l Reg., 710
So. 2d 655, 658 (Fla. 3d DCA 1998)(suspension reversed where agency failed to comply with statutory requirement to adopt disciplinary guideline for violation charged).
Petitioner suggests that “gross immorality” should be applied in accordance with administrative cases construing the term that were decided prior to the legislative mandate that the term be defined by rule. Given the 2008 amendment of the statute, those cases are inapplicable to the current standard established by the legislature.
Petitioner asserts that the Commission has defined the terms “immorality” and “moral turpitude” in rule 6A-4.009. Rule 6A-4.009 was transferred to rule 6A-5.056. All of the acts upon which this proceeding is based occurred prior to a substantial rewording of rule 6A-5.056 on July 8, 2012. Thus, whether such acts constituted ones involving moral turpitude must be gauged against the standard in effect at the time the acts giving rise to this proceeding occurred, i.e., that version of the rule as it existed prior to its 2012 amendment. Childers v. Dep't of Envtl.
Prot., 696 So. 2d 962, 964 (Fla. 1st DCA 1997)(“The version of a statute in effect at the time grounds for disciplinary action arise controls.”).
While rule 6A-5.056 defines “immorality,” it does not define “gross immorality” as required by section 1012.795. Prior
to its 2012 amendment, rule 6A-5.056(6) defined “moral turpitude” as “a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.” Moral turpitude has been defined by the Supreme Court as:
involv[ing] the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society . . . . It has also been defined as anything done contrary to justice, honesty, principle or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated. (citations omitted).
State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 611 (1933).
“By virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community.” Adams v. Fla. Prof’l Practices Council, 406 So. 2d 1170, 1172 (Fla. 1st DCA 1981). As a group placed in the position of safeguarding and teaching children, educators are in a position of the highest trust. Here, Respondent pled nolo contendere to petit theft. That, standing alone, may present a close question as to whether the crime involved is one of moral turpitude.
However, the evidence at hearing demonstrated that the theft Respondent committed was a theft of funds raised by children to benefit a charity dedicated to helping infants and children. It is reprehensible that anyone would steal funds collected by children and meant for a charitable fundraiser. For the funds to be stolen by someone that children should be able to trust is unthinkable.
In sum, with respect to Count 1, Petitioner failed to prove that Respondent was “guilty of gross immorality . . . as defined by rule of the State Board of Education.” However, Petitioner proved that Respondent committed a crime of moral turpitude by clear and convincing evidence.
Count 2 charged Respondent with violating section 1012.795(1)(g), by being found guilty of personal conduct that seriously reduces her effectiveness as an employee of the school board. Section 1012.795(1)(g) is not couched in terms of its applicability to persons “employed by a district school board or public school” as are other provisions of section 1012.795. Rather, by applying only to “an employee of the district school board,” the standard has been narrowed. In this case, Respondent was an employee of a charter school. There was no evidence presented to establish whether, as a charter school employee, she was considered to be a school board employee.2/ Without establishing that she was a school board employee, there can be
no finding that her effectiveness as a district school board employee was compromised. Petitioner failed to prove Count 2 by clear and convincing evidence.
Count 3 charges a violation of section 1012.795(1)(j), which requires a violation of rule 6A-10.081. Count 3 does not constitute an independent violation, but rather is dependent upon a corresponding violation of the rules constituting the Principles of Professional Conduct, which is charged in Counts 4 and 5.
Count 4 charges a violation of rule 6A-10.081(4)(c), by using institutional privileges for personal gain or advantage. The Administrative Complaint did not specify what privilege was exploited. Petitioner’s Proposed Recommended Order asserts that she used her position as a teacher to steal from students. However, the evidence did not establish that her status as a teacher enhanced her ability to take the money. There was no evidence presented to indicate that the office area of Boston Avenue was closed to the public. The principal’s office was adjacent to the reception area, and the money was in a clear baggie in a mail slot on the outside of Ms. Gaw’s door. Stealing the money was a crime of opportunity, and the opportunity would be available to anyone walking through the reception area.3/
Finally, Count 5 charges Respondent with violating rule 6A-10.081(5)(a), by failing to maintain honesty in all
professional dealings. Stealing money meant for a charity drive is clearly a violation of the rule.
In sum, Petitioner established a violation of the charge in Count 1, in that Respondent committed a crime of moral turpitude. Petitioner did not establish the violations charged in Counts 2 and 4. Petitioner proved the violation charged in Count 5, and by necessity established a violation as charged in Count 3.
The Education Practices Commission has adopted disciplinary guidelines to establish ranges of penalties for violations of section 1012.795 and the Principles of Professional Conduct for the Education Profession in Florida. For a violation of section 1012.795(1)(d), when a school activity is involved, the range of penalties is from suspension to revocation.
Fla. Admin. Code R. 6B-11.007(c)(i)2. For failing to maintain honesty in all professional dealings, as charged in Count 5, the penalty is from probation to revocation.
While the amount of money in this case is insignificant, the principle involved is foundational. The facts do not lend themselves to a downward deviation in penalty. However, it is hoped that Respondent could take responsibility for her actions and learn from the experience.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent guilty of the charges in Counts 1, 3, and 5 of the Administrative Complaint, and not guilty of the charges in Counts 2 and 4. It is further recommended that Respondent be reprimanded; that she pay an administrative fine of $1,000; that her teaching certificate be suspended for a period of two years, followed by a period of probation for five years; and that prior to returning to the classroom, she take a three-hour college level course in ethics.
DONE AND ENTERED this 11th day of June, 2014, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 2014.
1/ The Administrative Complaint against Respondent refers to her former surname, Nichole Torres. At the commencement of the hearing, Respondent informed the undersigned that she had married, and now goes by the name Nichole Barry as opposed to Nichole Torres. At her request, the style of the case has been changed to reflect Ms. Barry’s change of name, and she is identified as Ms. Barry throughout the order.
2/ A charter school is a public school. § 1012.33(1), Florida Statutes. Although section 1012.33 establishes that a district school board may be a “sponsor” of a public charter school with non-exclusive duties with regard to the approval or denial of an application for charter status, monitoring of school functions, and non-renewal or termination of charters, nothing in that section suggests that charter school employees are employees of the district school board. Given that section 1012.33 “is comprehensive in its treatment of all aspects of the creation, operation, and termination of charter schools,” such an employer/employee relationship cannot be inferred. See Sch. Bd. of Palm Beach Cnty. v. Survivors Charter Schools, Inc., 3 So. 3d 1220, 1229 (Fla. 2009).
3/ If the evidence had established that Respondent was entrusted with the money as the teacher who collected it for her classroom, a different conclusion would be reached. Here, however, Respondent took the opportunity presented to her when the money was easily retrievable and unsupervised. That same opportunity would be available to anyone walking through the building during the staff meeting.
Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244
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.
