The Issue Whether Respondent's educator's certification should be sanctioned for alleged acts involving moral turpitude, in violation of Subsection 1012.795(1) (c), Florida Statutes (2003).1 Whether Respondent's educator's certification should be sanctioned for being convicted of a misdemeanor, felony, or other criminal charge, in violation of Subsection 1012.795(1)(e), Florida Statutes. Whether Respondent's educator's certification should be sanctioned for violation of the Principles of Professional Conduct for the Education Profession, in violation of Subsection 1012.795(1)(i), Florida Statutes. Whether Respondent's educator's certification should be sanctioned for a plea guilty or a decision of guilt in any court, in violation of Subsection 1012.795(2), Florida Statutes. Whether Respondent's educator's certification should be sanctioned for failure to maintain honesty in all professional dealings, in violation of Florida Administrative Code Rule 6B- 1.006(5)(a). Whether Respondent's educator's certification should be sanctioned for submitting fraudulent information on a document in connection with professional activities, in violation of Florida Administrative Code Rule 6B-1.006(5)(h).
Findings Of Fact Respondent, Carolyn Stewart, holds Florida Educator Certificate 747243, covering the area of Guidance and Counseling, which was valid through June 30, 2005. Respondent was employed as a guidance counselor at Sea Breeze Elementary School, in the Manatee County School District, during the 2003/2004 school year, until she resigned sometime in the fall of 2003. On or after October 1, 2003, Respondent was arrested and charged with two counts of fraudulent use of a credit card. Respondent entered a plea of guilty to those charges, both third degree felonies, in the Circuit Court for Manatee County, Florida, Case Nos. 2003-CF-3150 and 2003-CF-4094, on May 18, 2004. Adjudication was withheld, and Respondent was sentenced to credit for time served in the county jail, court costs, and facility fee. On or about March 18, 2004, following the issuance of an Information, Respondent was arrested and charged with the felony offense of filing fraudulent insurance claims, between October 1, 1999, and September 12, 2003, with her employer, the Manatee County School Board. Respondent entered a plea of nolo contendre to the charge of filing fraudulent insurance claims for less that $20,000, a third degree felony, in the Circuit Court for Manatee County, in Case No. 2004-CF-1067, on May 24, 2005. Respondent was adjudicated guilty and sentenced to five years probation. On April 15, 2004, Respondent was charged, by Information, with the offense of Poisoning Food or Water of Michael Skoyec, which occurred between August 31, 2003, and/or September 1, 2003. Respondent pled not guilty to the charge, a first degree felony, and the matter proceeded to a jury trial before the Circuit Court for Manatee County, Case No. 2004-CF- 1787. Prior to the trial, the State Attorney amended the Information by adding a second count, charging Respondent with Attempted Second Degree Murder, a second degree felony. Following the trial which concluded on February 11, 2005, the jury returned a verdict of guilty on the first count, Poisoning Food and Water, and a verdict of guilty on the lesser count included offense of Battery (a first degree misdemeanor), as to the second Count. At the sentencing hearing on April 19, 2005, Respondent was adjudicated guilty and sentenced to 15 years in the custody of the Department of Corrections, and costs, followed by five years' probation. Respondent was committed to the custody of the Department of Corrections on April 19, 2005, and is at present serving her sentence in the Gadsden Correctional Institution. Following her conviction and sentence, Respondent appealed her convictions to the Second District Court of Appeal. The conviction was affirmed on March 3, 2006, and the Mandate issued on May 18, 2006. In each of the criminal cases in which she entered a plea of guilty or no contest, Respondent, through her attorney, stipulated that there was a factual basis for the charge, or the facts were stated on the record for the court to determine the factual basis. Following these incidents, Respondent resigned her position with the Manatee School District in the fall of 2003. There was adverse publicity in the newspaper about the charges against Respondent, including the poisoning charge. There was no dispute that as a result of these incidents Respondent's effectiveness as a teacher was seriously, if not totally, reduced. The honesty of educators is relied upon by administrators. Respondent's actions, including her fraudulent acts, prevented administrators from relying on her honesty. Fellow employees rely on an educator's honesty, and Respondent's actions similarly prevent that reliance in the future. On October 18, 2004, Respondent was charged by Information, with one felony count of falsifying records, on September 22, 2003, of the Department of Children and Family Services (DCFS). She entered a plea of no contest, was adjudicated guilty, and placed on five years' probation for that offense on May 24, 2005. Although the avenue of direct appeal of her conviction has been exhausted, Respondent has retained legal counsel to explore the possibility of filing post-conviction relief in the courts in regard to those charges, where she has been adjudicated guilty by the court. Although Respondent acknowledged that grounds existed to revoke her teaching certificate, she testified that she was very good at what she did as a guidance counselor and desired the opportunity to seek reinstatement of her teaching certificate in the future. Respondent offered no evidence to support this assertion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as follows: A final order be issued finding that Respondent did violate the provisions of Subsections 1012.795(1) (c), (e) and (i), Florida Statutes, and Florida Administrative Code Rule 6b- 1.006(5) (a), and (h). Count 4 of the Administrative Complaint should be dismissed. If is further RECOMMENDED: That the Education Practices Commission enter a final order permanently revoking Respondent's teaching certificate. DONE AND ORDERED this 24th day of January, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 24th day of January, 2007.
The Issue At issue in this proceeding is whether respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be imposed.
Findings Of Fact Respondent, Donald W. Del Bello, currently holds Florida teaching certificate number 402600, covering the area of music, which is valid through June 30, 1996. Respondent is currently employed by the Dade County Public School System to teach music at the elementary school level, and was so employed at all times pertinent to these proceedings. In these proceedings, the sole issue for determination was whether, on or about July 23, 1991, at Tropical Park, Dade County, Florida, the respondent exposed his sexual organs in a vulgar or indecent manner. The proof in this case was not, however, sufficiently compelling to satisfactorily resolve the issue raised. To support its case, petitioner offered the testimony of Sergeant James Julian, a police officer with the Metropolitan Dade County Police Department, who testified that on July 23, 1991, while operating undercover at Tropical Park, a public place, in Miami, Dade County, Florida, he observed respondent expose his sexual organs. According to Sergeant Julian, he observed the respondent, dressed in a white shirt, tie and green pants, and another man, dressed in running attire (tennis shoes, blue shorts and top), standing approximately 20 yards apart, and that, while watching each other they rubbed their crotches, removed their penises from their pants, and masturbated. According to Sergeant Julian, he was approximately 10 yards from the respondent and approximately 30 yards from the man in running attire when these events occurred, and that upon observing such activity he placed both men under arrest. Juxtaposed with the proof offered on behalf of petitioner, respondent testified that while he was in the park on the day in question, he was not dressed in a white shirt, tie and green pants but, rather, was wearing running attire (white running shoes, blue shorts and a white tee shirt), that he observed another male dressed in a white shirt, tie and green pants who was masturbating, and that he did not take his penis from his pants, expose himself or masturbate. Respondent's attire on the day in question was reasonably corroborated by two credible witnesses, and his testimony at hearing was consistent with his recitation of what had occurred to his attorney, within an hour of being released from police custody. Here, the proof offered by each of the parties appeared worthy of belief, and it cannot be concluded, based on the record in this case, which version reflects what actually transpired on the day in question. Therefore, considering the fact that the burden of proof in these proceedings rested on petitioner as discussed infra, it must be concluded that the proof fails to support the conclusion that respondent committed the offense as alleged in the administrative complaint.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of February 1993. WILLIAM J. KENDRICK 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 16th day of February 1993.
The Issue The issue for determination is whether Petitioner's expulsion of Respondent from school is appropriate pursuant to provisions of Union County School Board Rule 5.37 and Section 230.23(6), Florida Statutes.
Findings Of Fact Respondent is R.S.V. He was a senior year student at Union County High School in October, 1994. Donald Leech was the principal of Union County High School in October, 1994, when he was apprised that there was a possibility of sale and possession of marijuana at the school. Leech contacted the school resource officer, Union County Sheriff's Deputy Charles Townsend, Jr., and an investigation was launched. Efforts of Townsend and Leech failed to yield any evidence of contraband substances on the school campus that could be linked to any individual or tested for purposes of subsequent prosecution. They had, however, obtained information about an event involving the alleged use of marijuana which had occurred on the school campus and allegedly involved Respondent. As a result, their investigation focused on Respondent. Townsend was apprised by his superior at the sheriff's department that a criminal prosecution could not be maintained due to the lack of admissible evidence or a "corpus delicti." Still, Leech and Townsend determined to question Respondent. On October 11, 1994, Leech and Townsend interrogated Respondent regarding his participation in the possession of a marijuana "joint" on school property on October 6, 1994. Townsend first apprised Respondent of his right against self- incrimination through the reading to Respondent of "Miranda" warnings regarding incriminating statements. The questioning then began. In response to questions, Respondent denied any knowledge of the October 6, 1994, incident. Leech failed to gain an admission from Respondent even though Leech advised Respondent that suspension for 10 days for being in an improper area (the school parking lot) was the only likely penalty. Leech then left the room. Respondent asked to telephone his mother. Townsend agreed. Respondent called his mother and explained the situation to her. She asked to speak with Townsend. Townsend told her that sufficient evidence existed to criminally prosecute Respondent. Respondent's mother told Townsend to cease questioning her son until Respondent's father arrived. Townsend complied and left Respondent alone in the room. Respondent's father soon arrived. He did not speak with Respondent. He, likewise, was informed by Townsend that sufficient evidence for prosecution existed, but that co- operation by Respondent would go a long way with authorities and have an impact on the likelihood of prosecution. Then, with the assent of Leech and Townsend, Respondent's father spoke privately with two other youths who were alleged to be involved in the incident. As a result of his conversation with the two youths, Respondent's father learned that his son had been present at a incident on school property where an alleged marijuana cigarette had been smoked but that his son had refused to participate in smoking the "joint." Respondent's father then spoke with Leech and Townsend. In addition to the earlier advice by Townsend of leniency if his son co-operated with the investigation, Respondent's father was now informed by Leech that only a 10 day suspension from school was contemplated because of Respondent's presence during the incident which had occurred in the school parking lot, an "improper area." Without any discussion with his son or legal counsel and solely in reliance upon the representations made to him by Leech and Townsend, Respondent's father then confronted his son and told Respondent to provide a written statement to Leech and Townsend. Respondent's statement reads as follows: On October 6, 1994. Myself, people 1 and people 2 walked out to the parking lot. People 1 lit up a marijuana joint and smoked it then passed it to people 2. After that, people 2 passed it to me. The 2 peoples walked off and I put it out and left it in the parking lot. After school I picked it up and kept it. Respondent later admitted to his father that he subsequently destroyed the remains of the cigarette after leaving school property. While Respondent's written statement references a "marijuana joint", no evidence was presented at the final hearing which is dispositive of whether the substance was, in actuality, cannabis. On the basis of Respondent's written statement, Leech instituted an immediate 10 day suspension of Respondent. On October 13, 1994, two days later, Leech formally recommended to the Union County School Superintendent, Eugene Dukes, that Respondent be expelled for the remainder of the school year. At final hearing, Leech rationalized that his expulsion recommendation was based upon Respondent's actual possession of the alleged contraband, as opposed to merely being present at the incident. By notice dated October 12, 1994, one day before the formal notification to him from Leech, Respondent's mother was informed by Superintendent Dukes that he would recommend the expulsion of Respondent for the remainder of the school year. The notice set forth no specific factual basis for the expulsion recommendation, but recited that the action was taken on the basis of misconduct charges set forth in Section 230.33 and Section 232.26, Florida Statutes, as well as Union County School Board Rules Section 5.37. Dukes also recommended the expulsion of the other students who admitted to actually smoking the alleged marijuana cigarette in question. The proposed expulsion of Respondent prevented his return to Union County High School and resulted in his completion of his senior year of high school in the school district of Columbia County, Florida.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Union County School Board imposing a 10 day suspension upon Respondent for violation of school restrictions regarding his presence in an improper location. FURTHER RECOMMENDED that such final order direct the destruction or sealing of school records that document the expulsion of Respondent for possession of a controlled substance due to the absence of credible evidence to sustain such charge. DONE and ENTERED this 8th day of May, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 8th day of May, 1996. APPENDIX The following constitutes my ruling pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1. Accepted. 2.-11. Rejected, subordinate to HO findings. 12.-13. Rejected, legal conclusions, relevancy. 14. Rejected as to first preparatory phrase of the paragraph as unsupported by weight of the evidence. Remainder rejected as unnecessary to result reached. 15.-16. Rejected, subordinate to HO findings. 17.-18. Incorporated by reference. 19.-20. Rejected, subordinate. 21. Rejected, legal conclusion. Respondent's Proposed Findings 1.-10. Accepted, but not verbatim. Incorporated by reference. Accepted. COPIES FURNISHED: Ronald G. Meyer, Esquire Robert J. Sniffen, Esquire Meyer and Brooks Post Office Box 1547 Tallahassee, Florida 32302 Stephen N. Bernstein, Esquire Post Office Box 1642 Gainesville, Florida 32602 Eugene Dukes, Superintendent Union County School Board 55 West Sixth Street Lake Butler, Florida 32054 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Petitioner, Lee County School Board (School Board or Petitioner), has just cause to dismiss Respondent, Maria Burns, from her employment as a school teacher for immorality and misconduct in office.
Findings Of Fact Respondent holds a Florida Educator Certificate and has been a teacher at Pine Island Elementary School in Lee County since August 27, 1990. Prior to that, she taught for four years in DeSoto County. The evidence was that she has been a good and effective teacher. On May 21, 2012, Respondent resided with a female housemate in a home Respondent owned in Charlotte County. The two women had a disagreement or altercation, and the housemate threatened Respondent, who left the premises to get help from the housemate's mother. When her mother arrived, the housemate became more violent and threatening. The Charlotte County Sheriff's Office (Sheriff's Office) was called and responded to the home. The housemate barricaded herself in the house, fired shots, and stood off law enforcement for several hours. When the stand-off ended, and before Respondent returned to the house, the Sheriff's Office arrested the housemate and executed a warrant to search the premises. During the search, law enforcement found 25 to 30 small suspected marijuana plants in five flower pots in open view on chairs on the second floor balcony of the house. The plants tested positive for cannabis. It appeared to law enforcement that the plants were being tended by someone and that leaves were being harvested from the plants. A cigar-type box was found on a kitchen counter amid debris from the stand-off, during which tear gas canisters were shot through the windows of the home. The box had a hinged lid and contained suspected marijuana residue and seeds and a glass smoking pipe (drug paraphernalia). Because Respondent was the owner and a resident in the house, she was arrested and charged with marijuana possession, marijuana cultivation, and possession of drug paraphernalia. Respondent entered into a pre-trial diversion agreement, which she completed by the time of the hearing in this case. On February 25, 2013, the charges against her were dropped by nolle prosequi. No other evidence was presented from which it could be inferred that Respondent knew the marijuana plants were in her house. When found, the plants were in an open and obvious location, but there was no evidence how long they had been there prior to their discovery by law enforcement. The cushions of the chairs they were on were not designed to be left outside in the elements. There was no evidence as to where the plants were kept when not on the chairs on the balcony. Even if the plants were seen by Respondent, there was no evidence that she knew they were marijuana plants. There was no evidence that Respondent tended to the plants, harvested leaves from them, or used the leaves in any way. There also was no evidence that the drug paraphernalia belonged to Respondent, or that she knew the drug paraphernalia was in the house. No inferences are drawn simply from Respondent's decisions, made on advice of counsel based on Fifth Amendment privilege, not to appear at the final hearing and not to address certain aspects or give her explanation of the incident during the pre-determination hearing. The local media reported Respondent's arrest. The reports gave Respondent's name, age, and Charlotte County address, and included a photograph, but did not identify her as a teacher. Pine Island is a small community, and everyone at Respondent's school and in the community probably knows about her arrest and prosecution. There was no other evidence as to any adverse effect that knowledge might have on Respondent's service to the community or effectiveness as a teacher. Lee County School Board Policy 5.02 requires the School Board to "establish high standards and expectations for its professional faculty and staff, including: (1) Compliance with applicable federal and State laws, rules, codes, regulations and policies concerning professional credentials and employment; (2) Dedication to high ethical standards; [and] (3) Establishment of high standards in educational practice." It also requires employees to meet the standards and expectations established by the School Board. Lee County School Board Policy 5.04 requires criminal background checks to determine suitability for employment and provides that failure to be truthful on an employment application about prior criminal history will be grounds for ineligibility or dismissal from employment. Id. § (1)(a). It also provides that the School Board will not hire a teacher: who is "on probation or has a pending case"; with "[o]ther offenses listed in §§ 435.04 and 1012.315, Florida Statutes" (which includes, under section 435.04(2)(rr), Florida Statutes, a chapter 893 felony drug prevention and control offense, such as cultivation of marijuana); or with a misdemeanor drug and/or drug paraphernalia offense less than five years old. Id. § (7)(a)-(c). Lee County School Board Policy 5.29(1) provides that "[a]ll employees are expected to exemplify conduct that is lawful and professional " Lee County School Board Policy 5.37(2)(a) "prohibits the use, distribution, manufacture, possession, sale, cultivation, or attempt to sell illegal controlled substances at any time whether on or off duty . . . ." Violation of the prohibition subjects an employee to "disciplinary action up to and including termination." This policy is set out in the School Board's Employee Handbook. There is a Collective Bargaining Agreement between the School Board and the Teachers Association of Lee County. It prohibits possession, consumption, or being under the influence of illegal drugs on the job or in the workplace. It does not negate Lee County School Board Policy 5.37(2)(a).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: finding no just cause for dismissal on charges of immorality or misconduct in office; and reinstating Respondent with back pay from February 26, 2013, forward. DONE AND ENTERED this 19th day of April, 2013, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2013.
The Issue The issues are whether Respondent violated Sections 943.13(7), 943.1395(6), and 943.1395(7), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on February 14, 1986. Since that time, Respondent has held Correctional Certificate Number 81761. On or about May 8, 1994, Respondent was in the front yard of his residence. Police officers pulled into Respondent's driveway and requested that Respondent approach the patrol car. Respondent walked away from the police car. As he walked away, Respondent dropped an item from his pocket. The item that Respondent dropped was a bag containing white powder. The white powder was cocaine. Respondent was aware of the presence of the bag on his person. Respondent's possession of the bag containing cocaine was unlawful. One of the police officers advised Respondent that he was under arrest. The police officer instructed Respondent to put his hands behind him. Respondent refused to put his hands behind him. The police officers physically restrained Respondent. Respondent subsequently entered a plea of nolo contendere to the offenses of attempted possession of cocaine and resisting officer without violence. On July 17, 1995, Respondent was adjudicated guilty of these two offenses by the county court judge, in and for Putnam County, Florida, in Case Number 95-2767MM06. The court suspended any fine or cost which might be imposed for the conviction of resisting officer without violence. The court ordered Respondent to pay a fine of $241.50, prosecution costs of $50, and an investigation cost of $50 for the conviction of attempted possession of cocaine.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's certification as a correctional officer. DONE AND ENTERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997. COPIES FURNISHED: Amy J. Bardill, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Johnnie Holcy, Jr. Route 6, Box 300 Palatka, Florida 32177 A. Leon Lowry, II, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue The issue to be determined is whether Respondent is guilty of violating Sections 943.1395(7) and 943.13(7), Florida Statutes (2007), and Florida Administrative Code Rule 11B-27.0011, as alleged in the Administrative Complaint, and if so, what penalties should be imposed?
Findings Of Fact At all times material to these proceedings, Respondent was certified by Petitioner as a correctional officer, and issued certificate number 183026. On June 25, 2008, Respondent was a passenger in a vehicle that he owned but that was driven by his son, James Donaldson. The car was pulled over by Officer Paul King of the Starke Police Department because its brake lights were not working. Officer King explained to the driver the reason for the stop. Officer King smelled what he recognized to be burnt cannabis coming from inside the vehicle. He asked both occupants if they had any marijuana in the vehicle, and both men denied having any. Officer King asked James Donaldson to exit the vehicle. Upon searching his person, Officer King found in a pocket of James' trousers a plastic bag containing less than 20 grams of cannabis. He also seized a package of cigarette rolling papers, of a type commonly used to roll marijuana, from the seat of the car. James Donaldson identified the rolling papers as belonging to him. At that point, Officer King arrested James Donaldson, and placed him in handcuffs. Officer King then asked Respondent to exit the car, and asked him if he had anything on his person. Respondent stated that he had marijuana. A search revealed that in his right-front shorts pocket, there was a silver metal grinder with marijuana residue. In Respondent's left-front shorts pocket, Officer King found a clear plastic baggy containing a green leafy substance, less than 20 grams, along with a package of rolling papers. The metal grinder was of type commonly used to prepare cannabis for smoking, and was approximately the size of a chewing tobacco can. Officer King used a field test kit to test the specimens taken from both men. Both tested positive for cannabis. Officer King then arrested Respondent for possession of cannabis and possession of drug paraphernalia. Respondent did not deny having the marijuana or the metal grinder on his person. However, he claimed that both were hidden within a pack of cigarettes that belonged to his son, but that he had picked up the pack and put it in his shirt front pocket at his son's request. He claimed that he did not smell the marijuana because he has difficulty smelling anything. Respondent's claim is not credible. Even assuming that the metal grinder and the baggie of marijuana would fit in a cigarette package, it is not believable that Respondent would pick up a cigarette package containing such an implement and not realize the cigarette package contained something other than cigarettes. Officer King's testimony that he did not confiscate a cigarette package, on the other hand, was clear, straightforward and candid.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Commission enter a Final Order finding that Respondent has violated Section 943.13(7), Florida Statutes (2007), and revoking his certification. DONE AND ENTERED this 31st day of December, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2009. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Harry J. Donaldson Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in the case is whether the Petitioner’s request for exemption from employment disqualification should be approved.
Findings Of Fact On June 21, 1991, Aaron Foreman (Petitioner) was convicted of one count of "possession of THC with intent to deliver" in the Circuit Court of Walworth County, State of Wisconsin, Case Number 90CR00080. At the time of the arrest, the Petitioner was a student at the University of Wisconsin in Whitewater. He resided with several other students in the upstairs apartment portion of a residence. On or about February 1, 1990, local Whitewater law enforcement officials, apparently investigating one of the roommates for burglary, executed a search warrant and entered into the apartment where the Petitioner was living. During the search of the apartment, law enforcement officers discovered a quantity of marijuana in the apartment and bedrooms of the residents. The Petitioner had a refrigerator in his bedroom, within which law enforcement officers discovered a large plastic bag containing 26 smaller plastic bags, each containing a quantity of marijuana. The total weight of the plastic bags of marijuana within the Petitioner's refrigerator was identified in the charging document as approximately 126 grams. In Count One of the charge, the Petitioner and three other persons (apparently the roommates) were jointly charged with possession with intent to deliver more than 500 grams of THC, an element of marijuana. In Count Four of the charge, the Petitioner was individually charged with possession with intent to deliver 91 grams of THC. The record of the hearing does not establish the reason for the difference between the weight of the marijuana allegedly discovered and the THC quantities with which the defendants were charged. According to the Petitioner's testimony at hearing, the Petitioner participated in marijuana use, and bought and sold marijuana within a "small circle of friends" and his roommates. On June 21, 1991, the Petitioner entered a plea of "no contest" to Count Four as part of an agreement to resolve the drug possession charges, and as stated previously, was convicted of felony under Wisconsin law. According to the Judgement of Conviction, Count One of the charge was dismissed. As a result of the plea agreement, the Petitioner was sentenced to nine months in jail, two years of probation, and a fine of approximately $2,700. The Petitioner served the jail sentence in a work release program, continued to attend college and obtained an undergraduate degree in sociology from the University of Wisconsin. The Petitioner paid the fine imposed by the sentence and successfully completed the probationary period as of September 19, 1993. Subsequent to completion of the sentence, the Petitioner became employed as a licensed social worker in Wisconsin. From 1993 to 1999, the Petitioner was employed by "Southeastern Youth and Family Services," as a social worker. The Petitioner's employment evaluations range from "very good" to "outstanding." In July 1999, the Petitioner underwent a background screening prompted by his application for employment by Eckerd Youth Alternatives, Inc., a program that, in part, provides services to young persons involved in the juvenile justice system and funded through contract with the Florida Department of Juvenile Justice (Department). Based on the conviction, the Department notified Eckerd Youth Alternatives, Inc., that the Petitioner was disqualified from employment. The Petitioner requested that the Department review the disqualification. The Department responded by letter dated June 19, 1999, advising that the desk review would be granted and identifying the information that the Petitioner was required to submit to facilitate the review. The Petitioner responded to the June 19 letter by supplying the requested information to the Department. The matter was apparently reviewed by a "Priscilla A. Zachary, BSU Supervisor" for the Department, who forwarded the file along with a cover memo to Perry Turner, the Department's Inspector General. As Inspector General, Mr. Turner is the person authorized by the Department to make decisions on disqualification exemption applications. Ms. Zachary's cover memo incorrectly identifies the crime for which the Petitioner was convicted and states that the Petitioner's June 21, 1991, conviction was for "Possession with Intent to Deliver" more than 500 grams of THC. According to the Judgement of Conviction, Count One of the charge, wherein the Petitioner and other persons were jointly charged with possession with intent to deliver more than 500 grams of THC, was dismissed. On August 5, 1999, Mr. Turner determined that the Petitioner's application for exemption should be denied. Mr. Turner based his decision on his belief that the Petitioner's felony conviction was for an amount of marijuana beyond that which Mr. Turner believes could be reasonably identified as being for "personal use" and which was intended for distribution. By letter dated August 5, 1999, the Petitioner was notified of the Department's decision by letter and advised of his right to challenge the denial in an administrative hearing. During the hearing, the Petitioner testified as to the events leading to his conviction and identified his efforts at rehabilitation. At the hearing, the Petitioner testified that his initial experience with marijuana occurred in approximately 1988, when he entered the University of Wisconsin at Whitewater. The Petitioner testified that at the time of the 1990 arrest, he was an "immature" college student who recreationally used marijuana within his circle of friends and with whom he sold or exchanged marijuana. Other than the Petitioner's admission, there is no evidence that the Petitioner actually sold marijuana. There is no evidence that the Petitioner was arrested or charged with the sale of marijuana. There is no evidence that the Petitioner was a part of any continuing marijuana distribution organization. There is no evidence that, other than the arrest at issue in this proceeding, the Petitioner has ever been arrested for any other reason. Review of the charging documents suggests that the charge of "intent to deliver" was based on the quantity of the marijuana found in the apartment and the apparent candor with which the residents dealt with the law enforcement officials who executed the search warrant and investigated the situation. The Petitioner's arrest occurred approximately eleven years ago. The Petitioner's conviction was approximately ten years ago. The Petitioner completed the probationary portion of his sentence more than seven years ago. There is no evidence that there was any physical injury or harm done to any individual as a result of the Petitioner's conviction. There is no evidence that granting the Petitioner's request for exemption presents a danger to the Petitioner or to any other person. The Petitioner has continued with his education and in December 2000 received his master's degree in Criminal Justice from the University of Wisconsin in Milwaukee. The Petitioner has also sought to obtain a pardon from the Governor of Wisconsin. By letter dated August 28, 2000, the Governor's Pardon Advisory Board notified the Petitioner that it was recommending to the Governor that a pardon be granted. Although the vote by the Board was not unanimous, the majority of the members believed that the pardon should be granted "based on positive adjustment, lack of subsequent criminal justice system contacts, non-violent nature of the crime, and valid job concerns." As of the date of the hearing, the Governor of Wisconsin had not acted on the Board's recommendation to grant the Petitioner's pardon request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Juvenile Justice grant the request of Aaron Foreman for exemption from employment disqualification. DONE AND ENTERED this 26th day of February, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 26th day of February, 2001. COPIES FURNISHED: Aaron Foreman 10500 West Fountain Avenue Apartment No. 411 Milwaukee, Wisconsin 53224 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building, 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact At all times pertinent to the issues herein, the Criminal Justice Standards and Training Commission was the state agency responsible for the training and certification or law enforcement and corrections officers in Florida. Respondent was certified as a Corrections Officer under certificate No. 48891 on August 8, 1991. On June 29, 1994, Respondent was employed as a Corrections Officer I at the Hillsborough Corrections Institute in Tampa and had been so employed for approximately three and a half years. On that day, officer Ricardo Sementilli, a policeman with the Tampa Police Department's narcotics bureau, with approximately six and a half years experience in law enforcement, was targeting a house in Carver City, a Tampa housing area, for suspected unlawful narcotics activity. In the course of his investigation, Officer Sementilli was using the services of a confidential informant, Penny DuFour. Ms. DuFour, herself a former drug user, had been working as an informant for the police in general and for Officer Sementilli in particular for almost two years. On this evening, he proposed to have Ms. DuFour make a controlled purchase of illegal drugs at this particular residence. As preparation for the controlled buy, Ms. DuFour was searched by Officer Keene, also of the Tampa Police Department, to insure that she did not have any narcotics or other contraband in her possession. None was found during this search which is a normal procedure of the Tampa Police Department as a part of a controlled purchase by a confidential informant. Officer Keene was assigned to the Police Department's Tactical Division in narcotics enforcement and had worked in that division for approximately five years. She was working with Sementilli on this operation because he was well known and she was unknown in the geographic area in which the buy was to be made. Pursuant to the officers' plan, Officer Sementilli drove Ms. DuFour and Officer Keene to the intersection of Laurel and Manhattan Streets in Carver City. At this point, Keene, who had binoculars with her, hid out of sight behind a wall at Jefferson High School in a position where she could see Ms. DuFour. When Keene was in place, DuFour was sent out from the police vehicle to approach the residence in question. Keene was able to keep DuFour in sight the entire time using the binoculars. As DuFour approached the residence in question, a red compact car, occupied by Mr. Sampson and the Respondent, drove up. Both DuFour and Keene indicated Mr. Sampson was in the passenger seat and Respondent, who was dressed in a law enforcement uniform, was driving. DuFour went up to the vehicle and leaned in the passenger window. She asked Mr. Sampson if he was "straight." By this she meant to ask if he had any narcotics on his possession. In response, Sampson said he did, reached under the passenger seat of the car, and pulled out a plastic baggie in which were several pieces of what appeared to be cocaine. He placed the baggie in his lap and from it extracted a small piece of the substance which he gave to DuFour in exchange for $20.00 in U.S. currency which DuFour had been given by Officer Sementilli. All during this time, the baggie was in plain view on Sampson's lap and Respondent could see what was happening. She was either looking at Sampson or looking out the window, and Ms. DuFour was of the opinion that Respondent was fully aware of what was going on though she did not say anything. It is so found. After she received the substance from Sampson and paid him for it, DuFour left the vehicle and returned to where Officer Keene was located without either stopping or speaking with anyone on the way. When she got to Keene, she handed over the substance she had received from Sampson and was searched to insure she had not hidden any additional contraband on her person. She had not. Sementilli performed a field test of the substance at the scene. The test indicated the substance DuFour had received from Sampson in the presence of the Respondent was cocaine. This tentative identification was subsequently confirmed by a laboratory analysis conducted by the Florida Department of Law Enforcement. No issue was raised as to chain of custody of the sample in question or as to its identification as cocaine. At the time the sale took place from Sampson to DuFour, the officers obtained the license tag number on the vehicle being driven by Respondent and from which Sampson made the sale. A subsequent check with the Department of Motor Vehicles revealed that the vehicle was owned by Louis Sales, Respondent's father. Approximately one month after the sale described above, the car was discovered at the home belonging to Mr. Sampson's mother. As the officers were attempting to impound the vehicle, Respondent approached them. Keene at that time identified Respondent as the driver of the vehicle at the time of the sale in issue here and placed her under arrest. However, criminal charges were not preferred against her. At hearing, Respondent indicated that on the day of the alleged sale, she had been driven to work in her father's car by her boyfriend, Mr. Sampson, who was without his own vehicle at the time. While at work, she was interrogated by facility investigators relative to an allegation that she was introducing contraband into the corrections facility. Because this upset her, she asked for and was give permission to leave work early, approximately 5:30 PM. She then contacted Mr. Sampson who picked her up in her vehicle at approximately 7:00 PM that evening. When Sampson and Respondent left the corrections facility, they drove to Carver City because Sampson said he had to run an errand in the area. At that time Carver City, located some 45 minutes from Plant City, where Respondent lived, was known as an area of high drug activity. It was not uncommon for many drug dealers to be operating on the streets of the community. Respondent knew that Mr. Sampson was a drug dealer. He would sometime sell drugs openly in front of her. She had been present on several other occasions when DuFour had purchased cocaine from Mr. Sampson. At the time she met Mr. Sampson, in December, 1993, notwithstanding she denied it, Respondent knew he had just recently been released from prison because he told her so. He had been convicted of escape and grand theft. Nonetheless, they developed a relationship during the course of which she admittedly began to suspect he was dealing drugs. She did not ask him if this was so, however, even though she knew that her knowing association with a drug dealer could place her certification in jeopardy. When she became convinced that Sampson was dealing drugs, Respondent still did not terminate the relationship, however, claiming she was afraid to do so. When she was arrested as a result of the instant sale, however, she finally broke off the relationship. As a result of the controlled buy in issue, Mr. Sampson was convicted of sale of cocaine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Sydell T. Sales, be found guilty of demonstrating less than good moral character, and that her certification as a corrections officer be placed on probation for a period of one year. RECOMMENDED this 29th day of December, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of December, 1995. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Miriam L. Sumpter, Esquire 2700 North MacDill Avenue Suite 208 Tampa, Florida 33607 A. Leon Lowry, II Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Petitioner established "just cause" to terminate Respondent from her teaching job.
Findings Of Fact Ms. Harter is a special education teacher in the School District. She is a long-time Polk County, Florida, resident and has worked for the School District since 1985. The School Board is responsible for the operation, control, and supervision of free public schools in Polk County, Florida. On December 10, 2010, Ms. Harter entered a guilty plea for leaving the scene of an accident, which is a third-degree felony, and resisting or obstructing an officer without violence, which is a first-degree misdemeanor. The circuit court withheld adjudication and sentenced Ms. Harter to 36 months’ probation on the felony charge, a short period of incarceration in the county jail, community service, fines, and restitution. As of the hearing date, Ms. Harter had successfully completed her community service hours and was successfully completing the remainder of her probation. Polk County School Board Policy 6Gx53-3.001 (School Board Policy 3.001) sets out the Employment Procedures followed by the School Board. In pertinent part, School Board Policy 3.001(V)(C)(4)(a), provides that: "criminal offenses listed below will render applicants and employees ineligible for employment with Polk County Public Schools. WILL NOT HIRE OR EMPLOY -- Felony convictions including, but not limited to the following: . . ." The School Board Policy then lists 49 enumerated crimes that specifically make a person ineligible for employment. School Board Policy 3.001(V)(C)(4)(d)4, also provides that a person may be considered for employment with the School District on a "case-by-case basis" when a person is "on probation [for] (Crimes not listed above)." Mr. Farinas, the School District director of employee relations, credibly testified that, it is the School Board's practice to automatically terminate employees who plead guilty to a felony charge, no exception. The School Board does not employ anyone who has a felony conviction. Further, the School Board, in considering whether or not to grant a "case-by-case" analysis for employing a person who has been convicted of an offense not listed in the School Board Policy, has limited its consideration to misdemeanors. The record, however, shows that the School Board has not been presented the question of whether or not to consider a person for continued employment, who has a felony conviction for a crime not listed in the School Board Policy and is serving a probationary sentence. Ms. Harter has worked for the School District in many different capacities since 1985. It was undisputed that Ms. Harter was an exemplary special education teacher, who is respected by her peers and students. Ms. Harter has a long, successful record of working with emotionally-handicapped students. As Mr. Darby, an assistant principal who supervised Ms. Harter stated, "without Julie's influence, a lot of those students would have never made it through high school." It was undisputed that Ms. Harter is a "very dedicated and responsible teacher." For example, Ms. Whiteley credibly testified that Ms. Harter "knew all of her students, knew everything about her students, and worked very hard to get them to be successful, and also job placements." The record clearly shows that Ms. Harter is a dedicated special education teacher who loved her students and did an excellent job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the School Board established "just cause" to terminate Ms. Harter and that Ms. Harter's employment be terminated. DONE AND ENTERED this 14th day of July, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2011.
The Issue Should Petitioner impose discipline on Respondent's correctional certificate for alleged violations set forth in the Administrative Complaint, Case No. 17450?
Findings Of Fact Based upon the election of rights and proof identifying Respondent's employment with the Florida Department of Corrections, it is inferred that Respondent is certified as a corrections officer by Petitioner. It is perceived that Respondent, in his contest of material facts, disagrees with the allegations in paragraph two to the Administrative Complaint, as those facts might reveal a violation of statutes and rules referred to in the Administrative Complaint in its latter provisions. Respondent rented an acoustic guitar and an item referred to as a "gig-bag" from Guitar Renters in its Gainesville, Florida store. The amount of rental was $30.74 for the period November 16, 1999, through December 11, 1999. The overdue rate for the rental was $2.97 per day. The retail value of the instrument and bag was identified in the rental agreement as $345.00. The rental contract was executed by Respondent agreeing to those terms. The contract made clear that the arrangement was for rental only and not for sale. There was a specific reminder that any rental over 10 days past due would be reported to the police department as a stolen item. Respondent did not timely return the guitar and bag consistent with the contract terms. As a consequence, the proprietors at Guitar Renters sent letters in the ordinary mail to remind Respondent that he was late in returning the items. No response was made to those letters. A certified letter was sent to Respondent reminding him of his obligation to return the equipment. Again Respondent failed to respond. Scott Tennyson, who managed the Gainesville store, telephoned Respondent about the overdue items. Respondent replied that he could not return the instrument. When asked why, Respondent indicated that he had pawned the instrument. Mr. Tennyson told Respondent that if the matter were not resolved in some fashion, namely for Respondent to go back and get the guitar from the pawnshop and bring it to the owner, then criminal charges would be filed. Consistent with that statement, a complaint was made and criminal charges were filed in the Circuit Court in and for Alachua County, Florida, Court No. 01-2000-01573-CFA, C.R. No. 007601, Division One. This case was pursuant to a sworn complaint from the Gainesville Police Department charging Respondent with grand theft. The case was subsequently nolle prosequi/no information, based upon what is referred to in that dismissal, as an appropriate administrative action deemed sufficient in lieu of prosecution. On June 25, 2001, the matter was resolved to the satisfaction of Guitar Renters when Respondent made payment in full on the items that he had rented. In effect, the items were sold by way of restitution at their stated value when the rental contract was made.
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered revoking Respondent's correctional certificate. DONE AND ENTERED this 20th day of August 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2003. COPIES FURNISHED: Kevin Dannunzio 1718 Spring Street Lake City, Florida 32025 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
