Findings Of Fact On or about September 13, 1976, Petitioner Alvin Leonard Pondexter, was convicted in Leon County, Florida, of attempted petty larceny, a misdemeanor, on the charges of attempting on May 26, 1976 to steal two bicycles from students on the campus of Florida State University. At the hearing in this cause, Petitioner maintained that he only admitted to, and was convicted of, attempting to steal one bicycle. On June 12, 1976, while the charges contained in the preceding paragraph were pending and Petitioner was awaiting sentencing, Petitioner was arrested in Leon County, Florida, as he attempted to steal a ham from a Tallahassee food market. In an effort to free himself from restraint by the store security guard, Petitioner bit the tip of one finger off the guard's hand and bit the guard on the inside of a thigh. On December 20, 1976, Petitioner was convicted of battery on the guard and shoplifting, both misdemeanors, and was sentenced to one year in the Leon County jail. On or about September 9, 1979, Petitioner was arrested in Dade County, Florida, for lewd and lascivious behavior after police officers observed him performing oral sex with a 15-year-old male while in a parked car which was located in a beach parking lot off Collins Avenue. Bruce Munster, one of the officers who observed the Petitioner's conduct at the time of his arrest, noticed that the Petitioner became irate and caused Munster to pull his gun to effect the arrest. Petitioner refused to discuss the case at the hearing because the criminal charges against him in connection with this matter were dropped. Petitioner did not offer any rebuttal evidence at the hearing on this charge and in his deposition, he admitted that at the time of the arrest that his companion in the car was sitting in the front seat with his pants down. In 1980, Petitioner applied for a teacher's certificate. On October 21, 1980, his application was denied for the same reasons set out in the foregoing paragraphs. Petitioner failed to appeal or in any way contest the denial of his application. Dr. Patrick Gray, Executive Director, Division of Personnel Control, Dade County, testified as an expert in the areas of education and personnel administration in Dade County and the State of Florida, and as an expert with respect to the Code of Ethics and the Principals of Professional Conduct regulating teachers. The Petitioner's conduct amounts to immorality and moral turpitude, and lessens Petitioner's effectiveness as a public educator in the public school system. In addition, as stated by Dr. Gray the Dade County School system would not hire the Petitioner even if he were granted a certificate.
Recommendation Accordingly, based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered denying Petitioner's application for a Florida Teacher's Certificate. DONE and ENTERED this 23rd day of March, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1984. COPIES FURNISHED: Alvin Leonard Pondexter 17120 Northwest 27th Street Miami, Florida 33056 Wilson Jerry Foster, Esquire 616 Lewis State Bank Building Tallahassee, Florida 32301 Donald L. Griesheimer, Director Education Practices Commission Knott Building Tallahassee, Florida 32301
The Issue Whether or not Donald Eugene McKinney was arrested by vice squad officers H.R. Hall and J.N. Henry of the Jacksonville Sheriff's Office, Duval County, Florida, at the St. Johns Marina men's room, and was charged with exposure of sexual organs on September 24, 1976 and entered a plea of guilty on October 12, 1976 to the offense of lewd and lascivious behavior as set out in Section 798.02, Florida Statutes, and due to the above alleged misconduct, has failed to perform his duties as an educator as described in Section 231.09(2), Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes. Whether or not Donald Eugene McKinney was arrested by vice squad officers H.R. Hall and H.N. Henry of the Jacksonville Sheriff's Office, Duval County, Florida, at the St. Johns Marina men's room, and was charged with exposure of sexual organs on September 24, 1976 and entered a plea of guilty on October 12, 1976 to the offense of lewd and lascivious behavior as set out in Section 798.02, Florida Statutes, and through these acts has violated the substantive provisions of Section 231.28, Florida Statutes and subjected himself to the penalties contained in that section. Whether or not on September 24, 1976, Donald Eugene McKinney solicited sex with an undercover officer, H.R. Hall, and through the above alleged misconduct, has failed to perform his duties as an educator as described in Section 231.09(2), Florida Statutes, thereby subjecting himself to the penalties found in Section 231.28, Florida Statutes. Whether or not on September 24, 1976, Donald Eugene McKinney solicited sex with an undercover officer, H.R. Hall, and through the above alleged misconduct, has violated the substantive provisions of Section 231.28, Florida Statutes and subjected himself to the penalties contained in that section.
Findings Of Fact The Respondent, Donald Eugene McKinney, is the holder of Florida Teacher's Certificate Number 178946, Special Postgraduate Rank 1A, and was employed with the Duval County Florida Public School System on September 24, 1976, and prior to that date. This cause has been brought for consideration based upon a recommendation by the State of Florida, Department of Education, Professional Practices Council, Executive Committee, dated November 15, 1976, addressed to the Commissioner of Education. Upon examination of the recommendation, the Commissioner of Education found probable cause for revocation of the Respondent's teacher's certificate within the meaning of Section 231.28, Florida Statutes, and in accordance with Rule 6A-4.37, Florida Administrative Code. This determination by the Commissioner was made on January 27, 1977. Subsequently, a petition for revocation of the teacher's certificate was filed on March 7, 1977, and amended on July 12, 1977. The Respondent answered the original petition by denying the allegations, and stood mute on the allegations found in the amendment to the petition. The allegations contained in the original petition and the amendment to the petition are identified in the section of this recommended order entitled ISSUES. The hearing has been referred to the Division of Administrative Hearings pursuant to the action of April 19, 1977, in which the Professional Practice Council relinquished jurisdiction over the hearing process and requested the hearing to be conducted by the Division of Administrative Hearings. On September 24, 1976, officer H.R. Hall of the Jacksonville Sheriff's Office vice squad was on duty at the St. Johns Marina, which is located in Jacksonville, Florida. This marina is part of an overall public park known as Friendship Park. The purpose of officer Hall being on duty was to investigate cases of alleged homosexual activity, which were occurring in the men's restroom at the marina. This restroom is available for public use. A rough description of the inside of the restroom is seen in Respondent's Exhibit No. 1 admitted into evidence. This exhibit describes the location of the sinks, urinals and toilets found in the facility. The room is approximately 18 feet long and 10 feet wide. At around 3:30 p.m. on the aforementioned date, officer Hall entered the restroom and took a position against the far wall which faces the two toilets. These toilets are located in stalls, and there are partition walls separating the toilets and the toilet near the door from the two urinals. There were no doors on the toilets on the day in question. Officer Hall observed a male seated on the first toilet fondling his penis, to the extent that the man had achieved an erection. At this point the Respondent had also entered the restroom and was standing by the area of the sinks. McKinney had observed officer Hall watching the man in the first toilet stall and was of the opinion that the man and officer intended to commit some form of sexual activity. Because of this opinion, McKinney made some comment that it was alright for Hall and the other unidentified male to do so and he, McKinney, would wait. Prior to this brief conversation with officer Hall, McKinney had been in the restroom and observed that the two toilets were being used and observed officer Hall standing in the restroom. He had left the restroom and come back and that was the point at which he engaged officer Hall in the conversation. The purpose that McKinney had for coming to the restroom was twofold. He felt that he needed to use the facilities for the intended purpose, but also indicated that he understood that homosexual activity occurred in that location and he expected that he might be able to engage in that activity with someone once he entered the facility. There is some difference in testimony as to the time that McKinney came to the location, his estimate being approximately 3:45 p.m. and officer Hall's estimate being between 3:30 p.m. and 3:45 p.m. By either account, McKinney had come to the location after completing the assigned duties of his employment for that day. (On September 24, 1976, McKinney was actively employed as and administrative assistant to the principal of Windy Hill Elementary School, Duval County, Florida). After McKinney spoke to Hall, officer Hall followed the unidentified male out of the restroom. While officer Hall was outside the restroom, McKinney entered one of the toilets and seated himself. Again, there is a difference in testimony between McKinney and Hall as to exactly which of the two toilets he sat on, McKinney and Hall as to exactly which of the two toilets he sat one, McKinney saying that he was in stall number two identified on the diagram and Hall saying that he was located in number one. Regardless of the true location, officer Hall stood and observed McKinney masturbating while McKinney was seated on the toilet, with his penis exposed. At that point of observation McKinney had an erection. McKinney then stood up and moved to the location of the urinals. He did not expose his sexual organs while moving from the location of the toilets to the location of the urinals. Once he was standing at the urinal, McKinney removed his penis from his pants and masturbated. This was observed by officer Hall. During the course of McKinney's activity at the toilet and at the urinal, other persons were coming in and out of the restroom. After Hall watched McKinney at the urinal for a brief period of time, he motioned by a gesture of his head, that McKinney should follow him outside. McKinney's testimony was that he thought that the officer might wish to perform some homosexual activity with him, specifically oral sex, and he followed Hall outside. McKinney recalls that the officer suggested that he go to the officer's car. To which McKinney recalls responding that he felt that it was too dangerous and that he had better go home. Officer Hall does not recall that conversation. Officer Hall and McKinney do agree that at some point after they arrived outside the restroom, McKinney said "I'm not looking to suck, I want to be sucked." At this point in time, officer Hall identified himself as a police officer and arrested the Respondent for exposure of his sexual organs. Subsequent to the arrest, within approximately a week, the Respondent resigned his position with the Duval County School System. He then took a job with the School System in Mecklenburg County, North Carolina. There was no testimony that the incident in the restroom was ever revealed to the public in general or to the members of the faculty at the Windy Hill Elementary School, children, or parents of those children. The only persons that were informed of the incident were those persons in administration who were working directly in the personnel and security department, and the principal of Windy Hill Elementary School. Buford Galloway, Director of Evaluation, Duval County School Board, Duval County, Florida, offered testimony in the hearing. He indicated that he had investigated approximately 30 cases of homosexual activity by personnel of the school system in Duval County, to include six or eight cases of lewd and lascivious conduct. Mr. Galloway indicated that in those instances where the homosexual activity became a matter of public knowledge, the effectiveness of the teacher was reduced. Potentially he felt that effectiveness of a teacher would be reduced in a situation such as the Respondent's should it become a matter of public knowledge. As stated before, the incident involving the Respondent has not become a matter of public knowledge, in either Duval County, Florida or Mecklenburg County, North Carolina. Continuing an examination of the question of reduced effectiveness, there was not testimony offered which competently spoke to the quality of McKinney's performance in his duties after the events of September 26, 1976. His stay in Duval County was only for a short period of time before resigning, and not sufficient enough to allow a competent opinion on his performance there. For the remainder of the 1976-77 academic year, following his resignation in the Duval County School System, the Respondent served as an elementary teacher in the Mecklenburg County School System. No officials from Mecklenburg County testified about his effectiveness in their system. After his arrest, the Respondent was charged with engaging in lewd and lascivious behavior in violation of Section 798.02, Florida Statutes. He entered a plea of guilty in absentia and paid a $25.00 fine in response to the charges. The subject plea was entered on October 12, 1976. On May 18, 1977, an order of expungment was issued in accordance with Section 901.33, Florida Statutes, a copy of this order of expungment may be found as Respondent's Exhibit No. 2 admitted into evidence. Based upon these facts the Petitioner, has made a series of charges. The initial contention by the Petitioner is that the Respondent has violated Section 231.09(2), Florida Statutes, based upon the arrest of September 24, 1976, for the incident previously reported in these facts, and the plea of guilty on October 12, 1976 to the offense of lewd and lascivious behavior, a violation of Section 798.02, Florida Statutes. (The Petitioner is limited specifically in this contention, to any violation which might be shown under Section 231.09(2), Florida Statutes. This limitation is established by the answer to Interrogatory No. 8, propounded by the Respondent to the Petitioner. This answer to the Interrogatory serves as a bill of particulars and identifies Section 231.09(2), Florida Statues, as the basis of the claim in paragraph 3., of the original petition. Therefore any consideration of other subsections of Section 231.09, Florida Statutes, other than Section 231.09(2), Florida Statutes, is barred). The particular subsection, i.e., Section 231.09(2), Florida Statutes states the following: "EXAMPLES FOR PUPILS. - Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate by precept and example, the principals of truth, honesty and patriotism and the practice of every Christian virtue." In the case of Meltzer v. Board of Public Instruction of Orange County, Florida, etc., et al., 548 F.2d 559 (5th Circuit Court of Appeals), that Court held Section 231.09(2), Florida Statutes to be unconstitutional. However, on petition for rehearing and petition for rehearing en banc reported, at 553 F. 2d 1008, the Unites States Fifth Circuit Court of Appeals granted rehearing with the right for oral argument and the opportunity to submit supplemental briefs, with the date of the oral argument to be announced in the future. The rehearing has not been held at the time of this recommended order. Consequently, the undersigned will report whether the evidential facts ad demonstrated, establish a violation under the language of Section 231.09(2), Florida Statutes, with the caveat that this section may not withstand the final order of the court in Meltzer, supra. Should Section 231.09(2), Florida Statutes, be upheld, the act of being arrested and pleading guilty to a violation of Section 798.02, Florida Statutes, would not violate Section 231.09(2), Florida Statutes. A violation would not be established because the order of expungment of May 18, 1977, entered in accordance with Section 901.33, Florida Statutes, would not allow punishment on the basis of the entry of the plea, because the order places the Respondent in the same position he would be in had the crime never occurred. This expungment would not prohibit the assessment of a penalty under the terms of Section 231.28, Florida Statutes, based upon the underlying evidential facts in the incident that led to the arrest and subsequent plea herein. These facts establish that the Respondent failed to labor faithfully and earnestly for the advancement of the pupils in their deportment and morals, in accordance with Section 231.09(2), Florida Statutes, assuming this latter section is constitutional. The evidential facts spoken of are those pertaining to the Respondent's motivation in coming to the Marina and what he did while in the restroom. No other violation of Section 231.09(2), Florida Statutes, under this contention, has been proven. Another contention found in the petition is that the matters pertaining to the arrest on September 24, 1976, and subsequent plea of guilty on October 12, 1976, as established above, constitute a substantive violation of Section 231.28, Florida Statutes, and would lead to action against the license on that basis. In pertinent part, Section 231.28(1), Florida Statutes, and would lead to action against the license on that basis. In pertinent part, Section 231.28(1), Florida Statutes, states that the license can be suspended or revoked provided: "It can be shown that such person obtained a teaching certificate by fraudulent means, has proved to be incompetent to teach or to perform his duties as an employee of the public school system, or to teach or to operate a private school, or has been guilty of gross immorality or an act involving moral turpitude, or has had his certificate revoked in another state, or has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation, or upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, or has otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate, or has refused to comply with the regulations of the state board of education or the school board of the district in which he is employed." For reasons stated above, the order of expungment of May 18, 1977, together with the fact that the Respondent was never convicted of Section 798.02, Florida Statutes, would prohibit the revocation of his certificate on that basis alone. Nonetheless, based on the evidential facts set forth in the preceding paragraph, the Respondent, " . . . has been guilty of gross immorality or an act involving moral turpitude . . .," Section 231.28(1), Florida Statutes. These evidential facts do not show that the Respondent is guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, according to the terms and conditions of Section 231.28(1), Florida Statutes, and no other substantive provisions of Section 231.28(1), Florida Statutes, have application. Moreover, although Section 231.28(3), Florida Statutes, states that a plea of guilty in any court, to one of the offenses listed in Section 231.28(1), Florida Statutes, constitutes a prima facie proof of grounds for revocation of the certificate, this is effectively rebutted by the expungment of May 18, 1977. The third overall claim against the Respondent was that he solicited sex with officer Hall which is contended as a violation of Section 231.09(2), Florida Statutes. In addressing this contention, the discussion of the constitutionality of Section 231.09(2), Florida Statutes, entered into before would have application in considering this third point. Therefore, assuming that the section is held to be constitutional, the Respondent solicited sex with the undercover officer and by doing so has failed to labor faithfully and earnestly for the advancement of the pupils and their deportment and morals, in violation of Section 231.09(2), Florida Statutes. This solicitation is established by the Respondent's conduct with the officer in the restroom and by his activities outside the restroom in stating that "I'm not looking to suck, I want to be sucked." Petitioner has failed to establish a violation of any other substantive element of Section 231.09(2), Florida Statutes. Finally, Petitioner has claimed through petition that the Respondent violated the conditions of Section 231.28, Florida Statutes, by soliciting sex with the undercover officer, Hall. In considering the particular language of Section 231.28(1), Florida Statutes, the conduct of the Respondent discussed in the above paragraph, constituted an act of gross immorality and an act involving moral turpitude, as stated in Section 231.28(1), Florida Statutes. These evidential facts do not show that the Respondent is guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board according to the terms and conditions of Section 231.28(1), Florida Statutes. There has been no showing of any further violation of Section 231.28(1), Florida Statutes, by the act of soliciting sex with the undercover officer, as described in the preceding paragraph.
Recommendation It is recommended that the Florida Teacher's Certificate Number 178946, Special Postgraduate Rank 1A, held by the Respondent, Donald Eugene McKinney, be revoked, and that the revocation take effect, notwithstanding the eventual outcome of the consideration of Section 231.09(2), Florida Statutes, taking place in the case of Meltzer v. Board of Public Instruction of Orange County Florida, etc., et al., supra, and the Respondent's previous excellent employment record. DONE and ENTERED this 6th day of September, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1501 Tallahassee, Florida 32302 L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207
The Issue The issues in this case are presented upon the administrative complaint of Ralph D. Turlington, Commissioner of Education, filed against the named Respondent. Through this complaint, Respondent is accused of failure to disclose his involvement in a criminal offense in responding to Question V on his application for certification as a Florida teacher. The complaint also makes allegations related to the facts involved in the criminal offense. Based upon the purported non-disclosure and in view of the facts related to the criminal offense, Respondent is accused of violating Section 231.28, Florida Statutes, in that he obtained his teacher's certificate by fraudulent means; has been guilty of gross immorality or an act involving moral turpitude; and has evidenced personal conduct 1which reduces his effectiveness as an educator and employee of a school board. It is also alleged that Respondent's conduct is contrary to Subsection 231.09(2), Florida Statutes, in that he has failed to set a proper example for students.
Findings Of Fact On July 11, 1980, Respondent was arrested for grand theft and resisting arrest with violence. This arrest occurred in Jacksonville, Duval County, Florida. As a result of the arrest, a criminal information was filed against Respondent in Circuit Court, Fourth Judicial Circuit of Florida, in and for Duval County, Florida. The date of that information was August 8, 1980. The information accused Respondent of those violations for which he was arrested. On November 20, 1980, Respondent pled guilty to resisting arrest without violence, a misdemeanor, and lesser included offense to Count II of the criminal law information. In disposing of the plea, the Court withheld adjudication of guilt and placed Respondent on one-year probation. That probationary period expired on November 20, 1981. Subsequent to the arrest, filing of the information, and disposition of his plea, Respondent executed an application to be certified as a teacher in the State of Florida. A copy of this application may be found as petitioner's Exhibit No. 2 admitted into evidence. That application contains Question V. That question states: "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" Respondent's answer to this question was no. That answer was false in view of the fact of the November 20, 1980, plea to resisting arrest without violence, and the action of the Court withholding adjudication and placing Respondent on one-year probation., The non-disclosure was intentional. In the course of this proceeding, Respondent has offered no explanation for the false answer he gave in responding to Question V. The Florida Department of Education, Teacher Certification Section, received the application for teacher's certificate on March 18, 1981. After reviewing the application, and being unaware of the fraudulent answer to Question V, the State of Florida, Department of Education, issued Respondent teacher's certificate No. 467175. The certificate allows Respondent to serve as a substitute teacher. That certificate is effective from July 1, 1980, through June 30, 1985. A copy of this certificate may be found as Petitioner's Exhibit No. 1 admitted into evidence. In October, 1981, Respondent obtained a position with the Duval County, Florida School System as a substitute teacher. On this occasion, Respondent indicated that he had no prior criminal arrests. This claim was found to be false, in view of the prior arrest referred to before. When the Duval County School System ascertained the falsehood in the application for employment with their system, Respondent was dismissed on December 1, 1981. A copy of the letter of dismissal may be found as petitioner's Exhibit No. 3 admitted into evidence. Dalton Epting, Director of Certified personnel for Duval County Schools, established that Respondent would not be the type of individual who would be qualified to be a teacher in Duval County, in view of the fact that teachers are required to set examples for students on a daily basis, and individuals such as Respondent, who are dishonest, in the sense of falsifying records related to an arrest, are not acceptable teachers in the system. Mr. Epting, who is responsible for employing teaching personnel in the Duval County School System, indicated that he would not employ Respondent even if Mr. Jenkins continues to hold a valid certificate to teach in Florida. On January 5, 1982, the Circuit Court, Fourth Judicial Circuit, in and for Duval County, Florida, entered an order sealing the arrest record related to the aforementioned arrest for grand larceny and resisting arrest with violence.
Findings Of Fact Until his suspension in August 1983, Respondent has been continuously employed by the School Board since August 1983, as a teacher, psychologist, and Assistant Principal. He holds Florida Teacher's Certificate Number 232311 and has been on continuing contract with the School Board. During Respondent's 15 years of employment with the School Board, he was evaluated as average and above average as a teacher, psychologist, and Assistant Principal. He was particularly effective as an assistant principal and in diagnosing learning and behavioral problems experienced by kindergarten and first-grade children. On August 9, 1983, Respondent entered a guilty plea and was therefore convicted in the United States District Court for the Southern District of Florida of one count of conspiracy to transfer firearms in violation of Title 18, United States Code Section 371 because the subject firearms were not registered with the Secretary of the Treasury as required by the applicable federal laws. Respondent was originally sentenced to be confined to a minimum security institution for a period of six months with a subsequent period of two years probation. This sentence was then modified to four months in a community treatment center (halfway house) with a subsequent period of three years probation. Respondent is presently serving his probation period. This conviction forms the sole factual basis for the charges herein by both the School Board and the Department. Because the Specific Notice of Charges and the Administrative Complaint are based upon allegations involving Respondent's immorality, moral turpitude and his effectiveness as a teacher, the circumstances surrounding Respondent's arrest, plea, and conviction are extremely pertinent. Respondent's first involvement with the circumstances leading to his conviction stems from conversations he had with his neighbor Jose Lopez regarding the sale of hand guns. At all times material hereto, Respondent was the holder of a Federal Firearms License. Although Lopez knew that Respondent was a licensed gun dealer, Respondent did not know that Lopez was a paid federal informant. Lopez asked Respondent if Respondent could put him in touch with anyone who would sell unregistered firearms. Respondent knew a gun dealer named Zarraga who had previously introduced Respondent to a man named Navarro who owned a gun shop. Respondent told Lopez about these men and introduced them to each other. Lopez contacted Donald R. Kimbler, a Special Agent for the Bureau of Alcohol Tobacco and Firearms of the United States Treasury Department. Lopez, acting with Kimbler's knowledge, then entered into a deal with Navarro and Zarraga wherein Lopez was to purchase seven Ingram submachine guns and eight silencers. Lopez, Navarro, and Zarraga arranged to deliver the guns and silencers to Respondent's home where they were to be picked up by Lopez. Respondent earned no money from the transaction. He was willing to help Lopez locate the guns because he was under the belief that they were to be sent to Nicaragua to aid in the fight against the Communists in that country. Respondent believed that to be a worthy cause based upon Respondent's personal flight as a young man with his family from Communist Cuba. Respondent believed that the persons offering the guns for sale (Navarro and Zarraga) were the ones who had the responsibility to register them with the federal government. The first time Respondent realized he was involved in a serious crime was when he was confronted by Agent Kimbler at Respondent's school. At that meeting, Respondent cooperated with Kimbler and gave a voluntary statement regarding the transaction under investigation. In a subsequent meeting with Kimbler, Respondent gave another statement which constituted a complete account of the events regarding the sale of guns by Navarro and Zarraga in which Respondent was involved. At the time Respondent gave his cooperation and first statement to Kimbler, he was not under arrest and no arrest of Respondent was contemplated by Kimbler. Respondent's attitude throughout the investigative proceedings was one of total and above excellent cooperation with the authorities. His cooperation was based upon his desire to be honest and do what was right rather than on a desire to "make a deal" with the government. Based upon Respondent's cooperation and subsequent testimony, the federal government was able to indict and convict Zarraga and Navarro. Contrary to Agent Kimbler's recommendation, Respondent was also indicted. Although it is common knowledge that machine guns are used to kill people and silencers are used to muffle the sounds of such a weapon, there was no direct evidence as to what use these guns and silencers were to be put. Petitioner's only witness to testify that Respondent's effectiveness as a teacher has been reduced was Patrick Gray, Jr., the Executive Director for the School Board's Division of Personnel Control. That witness further admitted that he did not recall ever having seen a newspaper article regarding Respondent's arrest or conviction. Two other employees of the School Board who are involved in the actual school setting did not believe Respondent has lost his effectiveless.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that Final Orders be entered: In Case No. 83-3017 suspending Respondent from his employment by the School Hoard without pay for a period of three years from the effective date of his suspension, and In Case No. 83-3447 suspending Respondent's Florida Teacher's Certificate for a period of three years from the effective date of his suspension by the School Board. Done and Recommended this 30th day of November 1984, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 30th day of November 1984. COPIES FURNISHED: Thomas Robertson, Esquire 3050 Biscayne Boulevard Third Floor Miami, Florida 33137 Wilson Jerry Foster, Esquire Suite 616, Lewis State Bank Building Tallahassee, Florida 32302 Harold M. Braxton, Esquire 45 SW 36 Court Miami, Florida 33135 Dr. Leonard Britton Superintendent School Board of Dade County 1410 NE Second Avenue Miami, Florida 33132 Ralph D. Turlington Commissioner Department of Education The Capitol Tallahassee, Florid 32301 ================================================================= AGENCY FINAL ORDER ================================================================= THE SCHOOL BOARD OF DADE COUNTY, FLORIDA SCHOOL BOARD OF DADE COUNTY, Petitioner. CASE NO. 83-3017 IVAN DANGER, Respondent. /
