The Issue The issue presented is whether Petitioner's application for a Florida Teacher's Certificate should be granted.
Findings Of Fact Petitioner is 45 years of age and is employed by the Dade County Public Schools as a fourth-grade teacher, in the position of substitute teacher. On March 28, 1983, Petitioner was arrested for solicitation of prostitution, a misdemeanor. The following morning Petitioner pled nolo contendere to that misdemeanor and paid a fine. Adjudication was withheld. In 1990 Petitioner's attorney filed a Motion to Seal and Expunge Records in that case. On February 19, 1990, the County Judge entered an Order Expunging and Sealing Criminal Records, granting that Motion. That Order contains specific findings that Petitioner was never adjudicated guilty of the charge for which he was arrested, that Petitioner had not secured a prior records expunction or sealing, and that Petitioner had never previously been adjudicated guilty of a criminal offense or comparable violation. That Order provided for the expungement of Petitioner's criminal history records and restored him to the status occupied before his arrest. Lastly, that Order specifically provided that Petitioner could thereafter . . . lawfully deny or fail to acknowledge the events covered by the expunged or sealed records, except in the following circumstances: When the Defendant is a candidate for employment with a criminal justice agency; When the Defendant is a Defendant in a criminal prosecution; When the Defendant subsequently petitions for release under Florida Statute 943.058; or When the Defendant is a candidate for admission to the Florida Bar. After that Order was entered, Petitioner's attorney told him the contents of that Order, told him to write down the four situations in which Petitioner would have to admit that he had been arrested, and advised Petitioner that other than those four situations, Petitioner was to proceed as though the arrest had never happened. Effective July 1, 1992, the Legislature amended the statute regulating the sealing and expunging of criminal history records by specifying two additional situations in which a criminal history must be disclosed even though the record remained expunged. One of the two additional situations requires disclosure when the person whose criminal record has been expunged. Is seeking to be employed or licensed by the Office of Teacher Education, Certification, Staff Development, and Professional Practices of the Department of Education, any district school board, or any local governmental entity which licenses child care facilities. No one told Petitioner that the statute had been expanded to cover situations involving employment by a School Board and licensure by the Department of Education. In February of 1993 Petitioner was still unaware that the statute had been so amended. In February of 1993 Petitioner completed and filed with the Department of Education his Application for Florida Educator's Certificate. That application form contained the following question: Have you ever been convicted, found guilty, or entered a plea of nolo contendere (no contest) to a crime other than a traffic violation? 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 if you need more space. Petitioner answered "No" to that question. In February of 1993 Petitioner completed and filed with the Dade County Public Schools his Application for Teaching Position. That application form contained the following question: 4. Have you ever been convicted, fined, imprisoned, or placed on probation in a criminal proceeding? Include any and all offenses for which you have been convicted, not limited to those outlined in School Board Rule 6Gx13-4C-1.021 and including offenses for any type of drugs, including marijuana, and court-martial while in military service. (Include those convictions where the court records are sealed or expunged.) Petitioner answered "No" to that question. At the time that Petitioner completed, swore to, and submitted both of those applications, Petitioner believed that he was legally entitled to deny his 1983 misdemeanor arrest except in the four situations enumerated in the Order Expunging and Sealing Criminal Records. Moreover, Petitioner believed that he, like all other persons and agencies, was actually under a court order not to disclose his arrest other than in those four situations. At the time that Petitioner completed, swore to, and submitted those applications, he believed that he was providing legally correct information. Petitioner did not intend to provide incorrect, false, or fraudulent information when he answered the questions pertaining to his criminal record in the negative. Other than the 1983 misdemeanor arrest, Petitioner has never been arrested for any criminal activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner's application for issuance of a Florida Teacher's Certificate. DONE and ENTERED this 3rd day of June, 1994, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6529 Petitioner's proposed findings of fact numbered 1-3 and 5-11 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 4 has been rejected as not constituting a finding of fact. Respondent's proposed findings of fact numbered 1-10 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: William Du Fresne, Esquire Du Fresne and Bradley, P.A. Suite One 2929 Southwest Third Avenue Miami, Florida 33129 Robert J. Boyd, Esquire Bond & Boyd, P.A. 411 East College Avenue Post Office Box 26 Tallahassee, Florida 32302 Karen B. Wilde, Executive Director Education Practices Commission The Florida Education Center 325 West Gaines Street, Room 301 Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Barbara J. Staros Department of Education General Counsel The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact Thomas Pelley, the Respondent, holds Florida Teaching Certificate No. 318598, Standard, Rank III, valid through June 30, 1982, covering the area of furniture repair. The Respondent was employed during the 1978-79 school year in the public schools of Orange County at the Westside Adult Center in Winter Garden, Florida, as an instructor in furniture upholstery. The then Florida Professional Practices Council received a report from officials of the Orange County School System indicating that the Respondent had allegedly misappropriated school funds to his personal use. Pursuant to Rule 6A-4.37, Florida Administrative Code, an inquiry was conducted into the matter and a report made to the Professional Practices Council which culminated in the Commissioner of Education finding probable cause to file a proceeding against the Respondent, which probable cause finding was entered on November 5, 1979. The Respondent and his students typically engaged in the repair and re- upholstery of furniture brought in by members of the public at a reduced price as part of the training program in the occupation of re-upholstery. The procedure for payment for this re-upholstery work was that the customers wrote a check after Mr. Pelley wrote a "training order" and then Mr. Pelley was to submit the customer's money to the school bookkeeper in order to requisition material for the re-upholstery work involved. At the conclusion of the job the customer would come to the school office and pay for whatever charges were left for the labor and take custody of the furniture. Mr. Pelley did not comply with that procedure, however, with regard to customers Vicki Teal, Carol Johnson, and Winifred Good. In these instances involving work done for these customers, the Respondent was paid by the customers directly. The Respondent was fully informed of the proper procedure for payment by the customers for upholstery work. Customer Vicki Teal complained on one occasion that a sofa she had left to be re-upholstered had the wrong material installed on it and that Mr. Pelley had refused to replace the materials with those that she had actually ordered. Ms. Good and Ms. Johnson similarly complained about the workmanship on the furniture they had left to be repaired. With all three of these customers, the office personnel at the school discovered that they had no record that the customers had ever ordered work to be done by the Respondent and his students, nor that they had purchased anything, until they came forward with their cancel led checks for the same. Each of the checks was endorsed by Mr. Pelley. The subject checks from these three customers totaled $515.29, the funds represented which were received by the Respondent and never turned over to officials of the school, the bookkeeper of the school nor anyone employed by the Orange County School Board for proper accounting and use. Rather, the Respondent converted all of the monies collected to his own personal use. Witness House, who worked with the Respondent at the same school and who was his superior, has had long experience in the education profession and in teaching and dealing with students. He established that such conduct is not a proper example to students and is sufficiently notorious to bring the Respondent and the education profession into public disgrace and disrespect, especially in view of the several members of the public directly involved and victimized by the Respondent's misdeeds. It should be pointed out that at the times pertinent hereto, the Respondent was in severe financial straits due to medical expenses incurred by his wife being stricken with cancer.
Recommendation Having considered the foregoing findings of fact, conclusions of law, and pleadings and arguments of counsel for the Petitioner, it is, therefore, RECOMMENDED: That Respondent be found guilty of wrongfully converting monies to his own use that rightfully belonged to the Orange County School Board, which conduct constitutes gross immorality or an act involving moral turpitude and seriously reduces the Respondent's effectiveness as an employee of the School Board; and that the Respondent's Teaching Certificate be revoked for one (1) year. DONE and ENTERED this 19th day of March, 1982, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of th Division of Administrative Hearing this 19th day of March, 1982. COPIES FURNISHED: J. David Holder, Esquire BERG AND HOLDER Post Office Box 1694 Tallahassee, Florida 32302 Mr. Thomas Pelley 149 Silver Star Road Ocoee, Florida 32761 Donald L. Griesheimer Executive Director Education Practices Commission Department of Education 125 Knott Building Tallahassee, Florida 32301
The Issue The issue is whether Respondent properly considered prior teaching experience when calculating an appropriate salary for Petitioners.
Findings Of Fact All Petitioners were employed by the Board as full-time Florida certified public school teachers under a series of successive annual contracts. The Board operates under a Collective Bargaining Agreement known as the "Master Contract." The Master Contract includes, among other things, a salary schedule that is the result of negotiations with the Escambia Educational Association (EEA), the collective bargaining agent that represents teachers. A negotiated salary schedule is then recommended by the superintendent of Escambia County Schools pursuant to Subsection 1012.27(2), Florida Statutes (2007), to the Board for approval and adoption. The salary schedule adopted by the Board governs the compensation payable to instructional personnel. The salary schedule includes "steps" with corresponding "salary." Placement on the salary schedule step depends, in part, upon prior teaching experience. Generally, more prior teaching experience credited for placement on the schedule results in a higher level of compensation. All Petitioners received an annual instructional contract under the authority of Subsection 231.36(3), Florida Statutes, or later, Subsection 1012.33(3), Florida Statutes. Petitioners' annual instructional contracts set forth the contract salary on an annual basis payable through 12 monthly installments. The contracts specify the number of days to be worked and the daily rate of compensation. The Board's standard form contract provides that "[t]his annual contract shall be deemed amended to comply with all laws, all lawful rules of the State Board of Education, all lawful rules and actions of the School Board and all terms of an applicable ratified collective-bargaining agreement." All Petitioners performed the agreed-upon instructional services and, individually, were paid the agreed-upon contractual amount, as provided in the "Master Contract 1999-2002" or "Master Contract 2004-2007," as appropriate. This included the amount paid for years of service or "steps" as provided in the Master Contracts. Petitioners Davis, Elleard, Lanier, Malone, Outzen, and Taylor, however, protested the steps they were assigned. As shall be addressed below, the Master Contract allowance for steps was less than that required by Florida law subsequent to July 1, 2001. Petitioners' annual instructional contracts specify the salary paid through 12 monthly installments with a daily rate of compensation identified. The amount of compensation can be further broken down into an hourly rate based upon 7.5 hours per day, and provides for annual leave and sick leave. As is customary, if the employee takes leave and has no accrued leave balance, her pay will be reduced to compensate for the hours of leave without pay taken. The Board maintains ledgers with all the compensation information for its employees, including Petitioners. Petitioner Margaret Benson has been employed by the Board as a full-time public school teacher since August of 2002. Prior to her employment with the Board, Ms. Benson was a full-time public school teacher in New Jersey and Tennessee for 17 years. For each of those 17 years, Ms. Benson received satisfactory performance evaluations. Upon being hired by the Board, Ms. Benson was given credit for 15 of the 17 years of her prior teaching experience. Ms. Benson has requested that the Board recognize each of her 17 years of teaching service. In March or April 2007, the Board recognized one additional year of Ms. Benson's experience effective June 1, 2006. The Board has denied the request for the period of August 2002 through May 31, 2006. There is no evidence in the record as to whether Ms. Benson requested recognition of her entire teaching service, prior to the filing of this lawsuit. Petitioner Reba Davis was employed by the Board as a full-time public school teacher for the 2003-2004 and 2004-2005 school years. Prior to her employment with the Board, Ms. Davis was a full-time public school teacher in Florida, Oklahoma, Alabama, and Kentucky for 25 years. For each of those 25 years as a full-time public school teacher, Ms. Davis received satisfactory performance evaluations. Upon being hired by the Board, Ms. Davis was given credit for all but five years of her prior teaching experience. Ms. Davis has requested that the Board recognize each of her 25 years of teaching service. The Board has denied the request for the period of 2003-2005 school years. Ms. Davis retired from teaching in 2005, but is not using the five years of teaching credit toward her retirement benefit, which was earned outside the State of Florida. At the time she began her service with the Board Ms. Davis made inquiry with Mary Helen Fryman of the Board's Human Resources Office as to why she was not given credit for all of her prior experience. She was informed by Ms. Fryman that the matter was, "Still under negotiation and that she knew I would be given . . . my experience for my years in Florida." She made additional inquiries of the teachers union and the Board and was told that, "They were still in the bargaining stages and they were still not clear." Petitioner Deborah Elleard has been employed by the Board as a full-time public school teacher since August 2003. Prior to her employment with the Board, Ms. Elleard was a full-time public school teacher in Alabama for 29 years. For each of those 29 years as a full-time public school teacher, Ms. Elleard received satisfactory performance evaluations. Ms. Elleard retired from the State of Alabama and when hired by the Board, Ms. Elleard was not given credit for her 29 years of prior teaching experience. Ms. Elleard has requested that the Board recognize each of her 29 years of teaching service. In March or April 2007, the Board recognized her 29 years of experience effective June 1, 2006. The Board has denied the request for the period of August 2003 through May 31, 2006. When Ms. Elleard was hired she made inquiry as to why she was not receiving credit for her 29 years of teaching service. She was informed then and several times thereafter that the Board was working on the matter and that it would be resolved. Petitioner Deborah Gregory was employed by the Board as a full-time public school teacher beginning August 2002 until her resignation following the conclusion of the 2005-2006 school year. Prior to her employment with the Board during the relevant time, Ms. Gregory was a full-time public school teacher in Alabama, Escambia County, and Orange County for 16 years. For each of those 16 years as a full-time public school teacher, Ms. Gregory received satisfactory performance evaluations. Upon being hired by the Board in 2002, Ms. Gregory was given credit for 15 of her 16 years of prior teaching experience. Ms. Gregory has requested that the Board recognize each of her 16 years of teaching service. The Board has denied the request for the period of August 2002 through May 31, 2006. There is no evidence in the record as to when or if Ms. Gregory requested recognition of her entire teaching service. Petitioner Ida Lanier has been employed by the Board as a full-time public school teacher since August 2001. Prior to her employment with the Board, Ms. Lanier was a full-time public school teacher in Alabama for 25 years. For each of those 25 years as a full-time public school teacher, Ms. Lanier received satisfactory performance evaluations. Ms. Lanier retired from the State of Alabama, and upon being hired by the Board, Ms. Lanier was denied credit for her 25 years of prior teaching experience. Ms. Lanier has requested that the Board recognize each of her 25 years of teaching service. In March or April 2007, the Board recognized Ms. Lanier's 25 years of experience effective June 1, 2006. The Board has denied the request for the period of August 2002 through May 31, 2006. When she was hired, Ms. Lanier inquired as to why she did not get credit for prior service and she was told it was because she was retired from another state. She was informed that the collective bargaining agreement prevented the credit but that the situation might change. She continued over time to make inquiry to both her union and the Board. Petitioner Phyllis Malone has been employed by the Board as a full-time public school teacher since August 2003. Prior to her employment with the Board, Ms. Malone was a full-time public school teacher in Alabama for 25 years. For each of those 25 years, Ms. Malone received satisfactory performance evaluations. Ms. Malone retired from the State of Alabama and upon being hired by the Board, Ms. Malone was given credit for 15 of her 25 years of prior teaching experience. Ms. Malone requested that the Board recognize each of her 25 years of teaching service. In August 2006, the Board recognized each of her 25 years of experience effective June 1, 2006. The Board has denied the request for the period of August 2002 through May 31, 2006. Ms. Malone had conversations with the Board's Human Resources Office and wrote a letter to Dr. Scott of the Board and talked to Judy Fung of the Board, inquiring as to why she was not receiving credit for past experience. During the time she taught, she continued to make inquiries. Petitioner Vicki Outzen has been employed by the Board as a full-time public school teacher since August 2002. Prior to her employment with the Board, Ms. Outzen was a full-time public school teacher in Alabama for 25 years. For each of those 25 years, Ms. Outzen received satisfactory performance evaluations. Ms. Outzen retired from the State of Alabama and upon being hired by the Board, Ms. Outzen was not given credit for her 25 years of prior teaching experience. Ms. Outzen has requested that the Board recognize each of her 25 years of teaching service. In March or April 2007, the Board recognized Ms. Outzen's 25 years of experience effective June 1, 2006. The Board has denied the request for the period of August 2002 through May 31, 2006. Ms. Outzen made inquiries of the Board at the time she was hired and continuously during her employment with regard to the Board's refusal to give her the requested credit. She was informed that negotiations with the union were in progress and that she should continue to "check back" with the Board. She continually checked back with Ms. Fryman, Director of Human Resources at the Board, and was told in a letter that because she was retired from another state she must start teaching at step zero. Petitioner Janet Taylor has been employed by the Board as a full-time public school teacher since September 11, 2002. Prior to her employment with the Board, Ms. Taylor was a full-time public school teacher in Alabama for 30 years. For each of those 30 years, Ms. Taylor received satisfactory performance evaluations. Ms. Taylor retired from the State of Alabama and upon being hired by the Board, Ms. Taylor was not given credit for her 30 years of prior teaching experience. Ms. Taylor has requested that the Board recognize each of her 30 years of teaching service. Respondent has failed to recognize any of Ms. Taylor's prior years of teaching experience. The Board led Ms. Taylor to believe that she would be notified by the Board when she would be eligible to receive credit for prior teaching experience. For the years Petitioners are seeking credit, those years were not earned under the Florida Retirement System (FRS) as codified in Chapter 121, Florida Statutes (2007). If the Petitioners had been paid as they assert, the Board would be required to pay Petitioners as follows: Margaret Benson for an additional step for school years 2002-2003, 2003-2004, 2004-2005, and 2005-2006. This amount totals $3,308. Reba Davis for five steps for school years 2003-2004 and 2004-2005. This amount totals $11,423. Deborah Elleard for 29 steps for school years 2003- 2004, 2004-2005, and 2005-2006. This amount totals $52,895. Deborah Gregory for one step for school years 2002- 2003, 2003-2004, 2004-2005, and 2005-2006. This amount totals $3,308. Ida Lanier for 25 steps for school years 2001-2002, 2002-2003, 2003-2004, 2004-2005, and 2005-2006. This amount totals $83,561. Phyllis Malone for 10 steps for school years 2003- 2004, 2004-2005, and 2005-2006. This amount totals $28,692. Vicki Outzen for 26 steps for school years 2002-2003, 2003-2004, 2004-2005, and 2005-2006. This amount totals $66,338. Janet Taylor for 30 steps for school years 2002-2003, 2003-2004, 2004-2005, 2005-2006, 2006-2007, and 2007-2008. This amount totals $101,427.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Escambia County School Board recalculate Petitioners' salary as of April 2, 2005, so that their salaries reflect the amount each should have earned if Petitioners had been given credit for each year of full-time public school teaching service earned in the State of Florida or outside the state, and pay them that amount. It is further recommended that Petitioners receive pay at all future times as provided by Subsection 1012.33(3)(g), Florida Statutes (2007), and this Recommended Order. It is further recommended that the Escambia County School Board remit to Petitioners a reasonable attorney's fee. DONE AND ENTERED this 21st day of August, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 21st day of August, 2008. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 H. B. Stivers, Esquire Levine & Stivers 245 East Virginia Street Tallahassee, Florida 32301 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502-5782
