The Issue The issues in this case are whether Respondent violated the Principles of Professional Conduct for the Education Profession, specifically Rules 6B-1.006(3)(a), (e), (f), (g), (i), and 6B- 1.006(4)(a), Florida Administrative Code, and, if so, what disciplinary action should be taken against her pursuant to Section 231.2615(1)(i), Florida Statutes.
Findings Of Fact Respondent Ellen Goldberg (“Goldberg”) holds a Florida Educator's Certificate that is currently valid. For the past 20 years, more or less, she has been employed as a public school teacher in the Dade County School District. In the 2000-2001 school year, Goldberg taught reading and language arts to seventh graders at Shenandoah Middle School. On November 8, 2000, many of Goldberg’s students were interested in discussing the presidential election, which had not yet produced a president-elect, though the polls had closed the night before.1 Believing this topic would be a good subject for an academic debate, Goldberg asked her students if they knew whom their parents had voted for——Governor George W. Bush of Texas or Vice President Al Gore——and why. A majority of those who responded expressed support for Gore.2 Because they were in the minority, Goldberg put the onus on the Bush backers to recite factual grounds for their choice, ostensibly to persuade the Gore supporters that Bush was the superior candidate. Those students who, in Goldberg’s judgment, gave thoughtful answers were given extra credit. Those who failed adequately to articulate reasons for choosing Bush (or elected not to participate in the discussion) received no extra credit but were not penalized. Participation in the discussion was voluntary. There is conflicting evidence as to whether Goldberg called upon Gore supporters likewise to defend their man. It is determined that some students, looking for extra credit, did volunteer to speak on Gore’s behalf. During this discussion, Goldberg revealed to her students that she had voted for Gore. She also argued that Bush wanted to take away a woman’s right to an abortion. The undersigned is convinced that Goldberg made it clear to her class where she stood in this electoral contest. At least a couple of students were upset that their teacher had asked how their parents had voted and also seemed to be advocating partisan political views that they did not share. One student’s mother, after being told about this classroom debate, wrote a letter to the school’s principal complaining about the incident. This parent requested that her son be removed from Goldberg’s class, and he was.3 In due course, the school initiated an internal disciplinary proceeding against Goldberg that culminated, on December 14, 2000, with the principal issuing the teacher a letter of reprimand. In this letter, Goldberg was directed “to immediately refrain from imparting [her] personal views and beliefs and sharing one-sided views with [her] students” and “to refrain from using inappropriate procedures in the performance of [her] assigned duties.” The Charges In his Amended Administrative Complaint against Goldberg, which was served on August 6, 2002, the Commissioner made the following pertinent factual allegations: On or about November 9, 2000, [Goldberg] asked her students how their parents voted in the presidential election. However, only those students who said their parents had voted for Bush had to explain their answers. Some students reported that it made them feel nervous and uncomfortable to talk about their parents’ decisions in this way. Additionally, [Goldberg] told her students who she voted for and made negative comments about the other candidate. On or about December 14, 2000, [Goldberg] was issued a letter of reprimand by her principal. On these allegations, the Commissioner accused Goldberg of having violated subsections (3)(a), (3)(e), (3)(f), (3)(g), (3)(i), and (4)(a) of Rule 6B-1.006, Florida Administrative Code, which are part of the Principles of Professional Conduct for the Education Profession in Florida. If proved by clear and convincing evidence, the alleged rule violations would be grounds for discipline under Section 231.2615(1)(i), Florida Statutes. Ultimate Factual Determinations While the undersigned agrees with the Commissioner that Goldberg exercised poor judgment in her classroom on November 8, 2000,4 he is not convinced that she intended to disparage, embarrass, discriminate against, or infringe upon the rights of, any of her students. Rather, Goldberg’s explanation that she believed the political debate served the legitimate pedagogic purpose of honing the students’ critical thinking skills, which would be useful on a standardized test such as the Florida Comprehensive Assessment Test, is accepted. This is not to suggest that no student was offended or embarrassed in Goldberg’s class that day or to discount the feelings of those who were, but only to find that it was not Goldberg’s conscious object to cause such discomfiture. The undersigned is not convinced that Goldberg unreasonably created conditions in her classroom that were harmful to learning or harmful to her students. To be sure, the undersigned is of the opinion that Goldberg’s questioning her seventh-grade students about how their parents had voted, even as part of a voluntary exercise for extra credit, was ill advised, as was expressing her personal political views. The undersigned reasonably infers, however, that on the day after an extraordinary presidential election that was too close to call, some discussion of the current political events was probably unavoidable. Therefore, given the context in which Goldberg’s conduct occurred, it would be unfair and inaccurate to characterize the conditions in her classroom as harmful. Goldberg did not fail to keep in confidence “personally identifiable information.” The information she solicited (how parents had voted) would not, by itself, permit the personal identification of any student. Moreover, in any event, there is no evidence——and hence can be no finding——that Goldberg disclosed this information outside the classroom, wherein its use, Goldberg believed, served a professional purpose. The undersigned is not convinced that Goldberg attributed her personal views to the school or any other organization with which she was affiliated. The problem in this case is not that Goldberg failed reasonably to distinguish between her personal views and those of the school (or another organization), but rather that she expressed personal views which prudence dictates she should have kept to herself. The undersigned is not convinced that Goldberg’s effectiveness as a teacher has been impaired in any way as a result of the incident that occurred on November 8, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Amended Administrative Complaint against Respondent Ellen Goldberg. Jurisdiction is retained in this cause to enter a final order disposing of Goldberg’s motion for sanctions (i.e. an award of attorney’s fees and costs) pursuant to Section 120.569(2)(e), Florida Statutes. If the Commissioner wants to be heard on this matter, he shall file a written response no later than December 27, 2002. DONE AND ENTERED this 6th day of December, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 6th day of December, 2002.
The Issue Whether Respondent violated Section 112.313(6), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact From May 26, 1989 to September, 1994, the Respondent, Donald Jaeger (Jaeger), was employed as the Building Official for the City of Boynton Beach, Florida (City). As part of Jaeger's responsibilities he oversaw the zoning, construction, code enforcement and occupational licensing for the City. His job description stated that he would keep abreast of new changes in applicable laws and regulations and recommend changes to the laws and regulations for which the Building Official was responsible for enforcing. The City's building, licensing, and housing codes are elements which affect affordable housing in the City. In the fall semester of 1991, Jaeger enrolled in an academic program leading to a doctorate degree in public administration at Florida Atlantic University (FAU). He requested that the City pay for the course work. The City manager denied his request, stating that the pursuit of a doctorate degree in public administration was not applicable to being a building official. During the fall semester of 1991, Jaeger took a course entitled State Government and Public Policy at FAU taught by former Governor Reuben Askew. For his State Government and Public Policy Course, Jaeger wrote a research paper entitled "The Effect of Government Regulation on Affordable Housing -- Competing Public Policy Objectives." Jaeger dictated the original draft of his research paper to his administrative assistant, Fran Sceblo, who then typed it up, presented it to him for editing and retyped it whenever he made corrections. She worked for approximately two and half to three weeks on the report. During some of the time she shifted some her work to others in the office so that she could finish the report. Some of the dictation and typing of Jaeger's research paper was done during regular Monday-through-Friday work hours. All dictation and typing of the Respondent's research paper were done in City offices, on City equipment and using City paper. Jaeger provided the computer disk upon which the work in progress and final product of his research paper were stored. Before beginning dictation, Jaeger offered to pay Ms. Sceblo for working on his research paper, if she worked outside her normal working hours. On a few occasions, Ms. Sceblo stayed in the office past five o'clock to work on Jaeger's research paper. Jaeger never paid Ms. Sceblo for any of her work on his research paper. On February 20, 1992, Jaeger sent a letter to Samuel Gerace, along with a manuscript of his research paper, offering that research paper for publication in Southern Building Magazine. The paper was never published. Jaeger received a satisfactory grade in his State Government and Public Policy course, and that grade was based in part on his 16-page research paper. Jaeger did not submit copies of the paper to his colleagues on the City's staff, the City manager, or the City commissioners. Jaeger attended three conferences concerning affordable housing prior to the time the research paper was written. The cost for the conferences and the cost of attending were paid by the City. Jaeger had prepared other school related reports using City resources, during business hours, with the knowledge and permission of the City manager. These reports reflected activities that were directly related to his work with the City. The research paper did have some benefit to the City because the City did deal with issues dealing with affordable housing and the City had evidenced its intention to have some of its employees, including Jaeger, educated on the issues involving affordable housing. There was no city policy which would have prohibited Jaeger from researching the issue of affordable housing and making a report on his research. Jaeger's job description stated that the building official "has wide latitude for exercise of independent jugment and use of delegated authority, laws, regulations, codes, and ordinances applicable to Inspection Division operations." The cost of the time spent by Jaeger and Ms. Sceblo on the paper was approximately $1,745.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Donald Jaeger did not violate Section 112.313(6), Florida Statutes and dismissing the complaint against Donald Jaeger. DONE AND ENTERED this 30th day of January, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 30th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2502EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Stipulated Facts 1. Paragraphs 1-13: Accepted. Facts Based on Evidence Presented at Hearing Paragraph 1: Accepted to the extent that the City would not pay for the coursework because it was not considered applicable to a building official. Rejected to the extent that it implies that any project or report that Jaeger may do during the coursework would also not be applicable to the work of the building official. Paragraph 2: Accepted in substance. Paragraph 3: The first sentence is accepted in substance. The second sentence is rejected as irrelevant. Paragraphs 4-6: Accepted in substance. Paragraph 7: Rejected as subordinate to the facts actually found. Paragraph 8: Accepted in substance. Paragraphs 9: Rejected as subordinate to the facts actually found. Paragraph 10: The last sentence is accepted in substance. The remainder is rejected as subordinate to the facts actually found. Paragraphs 11-13: Rejected as constituting argument. Paragraph 14: The first sentence is rejected as subordinate to the facts actually found. The second sentence is accepted in substance. The third sentence is rejected as subordinate to the facts actually found. Paragraphs 15-16: Rejected as constituting argument. Paragraph 17: Accepted in substance. Paragraph 18: Rejected as unnecessary. Respondent's Proposed Findings of Fact. Stipulated Facts 1. Paragraphs 1-13: Accepted. Facts Based on Evidence Presented at Hearing Paragraph 1: Rejected as unnecessary. Paragraph 2: Accepted in substance. Paragraphs 3-4: Accepted in substance. Paragraph 5: Rejected as subordinate to the facts actually found. Paragraph 6: The first sentence is accepted in substance. The second sentence is rejected as irrelevant. Paragraph 7: Accepted in substance. Paragraph 8: Accepted in substance except as it relates to Civil Service Rules. There was no competent substantial evidence to support such a finding as it related to the Civil Service Rules. Paragraph 9: The portion relating to the job description is accepted in substance. The remaining is rejected as not supported by competent substantial evidence. Paragraph 10: Rejected as subordinate to the facts actually found. COPIES FURNISHED: Kerrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Marty Moore, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, Florida 32399-1050 Randall Henley, Esq. 328 Banyan Boulevard, Suite C West Palm Beach, Florida 33401 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact On February 6 & 7, 1993, Petitioner, Alecia J. Miller, was the President of the student body of the University of South Florida. Petitioner, B. Mitchell Crandall, was serving as student Attorney general, a student government office. Both incumbents received financial remuneration for their services. The University of South Florida, (USF), is an institution of higher education, located in Tampa, and a part of the Florida State University System. Its President, Francis T. Borkowski, is the chief administrative officer of the university and responsible for its overall operation and administration. He is delegated statutory authority and may, within that authority, exercise such functions and take such actions as are necessary to achieve educational and other goals of the institution. The student government at USF is an integral part of the University and is subject to the direction and control of the university President and other supervisors responsible for the administration of the university's function. On February 6, 1993, Barbara J. Sherman, Interim Vice President for Student Affairs at USF, in a letter to President Borkowski, communicated her concern over the "situation involving student government leaders and the Student Coalition." She noted the continuing efforts by her and her staff to facilitate a compromise of their differences by which the parties to the dispute could be brought together for solution and the lack of success those efforts had met with. She also noted that many of the concerns of the Student Coalition appeared valid and, noting the inability of the parties to agree upon any resolution of the problem, concluded that its continuing existence was contributing to an erosion of the academic climate for a substantial number of students involved on both sides of the issues. Vice President Sherman also concluded that administration intervention was necessary to restore an orderly environment which would be conducive to the educational business of the institution. To facilitate that end, Sherman recommended certain actions be taken by Borkowski which included the deactivation of certain functions of the executive branch of student government. On February 7, 1993, these recommendations were approved in total for immediate implementation by President Borkowski. As a result of that decision, the office of Student Body President and Vice President were immediately deactivated and the incumbents, including Petitioner Miller, were directed to vacate the student government offices. Borkowski's actions also included a scheduled termination of the appointment of cabinet officers, one of whom was the other Petitioner, Mr. Crandall. As a result of this action, Petitioners claim a significant decrease in the amount of monetary compensation they receive as student officers. Pursuant to the Constitution of the Student Body of the University of South Florida, the executive and legislative powers of the student body are vested in student officers including a president and student senators elected by a majority vote of the student body. The executive officer of the association, the Student Body President, has specific responsibilities which include the selection of student members of the University's activity and service, health, and athletic fee committees who act on the setting of student fees. Among other functions of the Student Body President are participation in the selection of student representatives to serve on various Board of Regents committees, and the selection of student representation in public employee bargaining negotiations involving the University. The student senate has limited authority over the allocation and expenditure of the student activity and service fund, subject to the veto of the University President. The student government association as a whole has been granted specific statutory rights and responsibilities which include the mandatory consultation of the University President with the association on proposed projects using capital improvement trust fund fees and other functions as well. Taken together, it is clear that the student government association serves as a representative body to negotiate with the University President on many issues. Sherman's letter to Borkowski also recommended the establishment of a commission on student governance " to be comprised of students with diverse interests and concerns along with appropriate faculty and administrative representatives." The proposed charge to this commission indicated a major consideration would be to "respond to the serious accountability issues identified through the several comprehensive university audits of student government operations. "
The Issue The issue is whether Petitioner is entitled to a consumer’s certificate of exemption from sales and use tax.
Findings Of Fact Petitioner is a Florida not-for-profit corporation. At all material times, Petitioner has qualified as a Section 501(c)(3) organization under the Internal Revenue Code. Since March 1992, Petitioner has also held the sales and use tax exemption that it seeks in this case. Pursuant to a change in law requiring all exempt organizations to reapply, Petitioner submitted an Application for Consumer’s Certificate of Exemption dated February 1, 1997. By stipulation, the parties agree that, for the purpose of this case, the sole legal basis for the application is Section 212.08(7)(o), Florida Statutes, and, if Petitioner fails to prevail in this case, it may immediately file an application seeking the same exemption under another statute, such as Section 212.08(7)(n). Petitioner was incorporated in 1989. It was first incorporated in 1975, but its corporate status lapsed. Petitioner has been in operation for 40 years. In broadest terms, Petitioner’s purpose is to assist social-studies education in Florida. Petitioner’s major activities involve training teachers of social studies. The most important annual activity of Petitioner is to sponsor a statewide conference that gives social-studies teachers a chance to receive inservice training. This inservice training satisfies, in whole or in part, each teacher’s requirement to obtain inservice training credits in order to maintain her teaching certificate. Petitioner conducts the conference in October during inservice days on which public-school teachers statewide are generally relieved from classroom duties. Between 600 and 1200 teachers participate in this annual conference. The conference runs two days, but Petitioner offers preconference institutes for a day or two prior to the start of the conference. These institutes, which are held at the same location as the conference, provide social-studies teachers with more specialized training in social studies. Petitioner also assists four regional affiliates in conducting inservice training to social-studies teachers. These affiliates are the Southwest Florida Coalition for the Social Studies, Big Bend Council for the Social Studies, Central Florida Coalition for the Social Studies, and Northeast Florida Council for the Social Studies. Petitioner works with various organizations, including the Florida Department of Education, ensuring that these organizations are aware of the interests of social- studies teachers and that the teachers are aware of the activities of these organizations. Petitioner quarterly publishes Trends in Social Studies, which provides useful, current information to social- studies teachers. Petitioner sells advertising space in the journal, mostly to educational publishers. Petitioner provides free space to the Florida Department of Education, state universities, state community colleges, the Holocaust Center, and African-American educational centers. Partly through the use of an endowment fund, Petitioner also provides additional funding for the development of social-studies teachers and the promotion of social-studies education. Petitioner provides awards, including small monetary sums, for exceptional social-studies teachers in Florida, and recognizes, at the annual conference, the outstanding social-studies teacher from each of Florida’s 67 districts. Petitioner’s major sources of income are membership fees and conference registration fees. Individual teachers pay membership fees. Conference registration fees are paid by checks from individual attendees, school districts, archdioceses, and the State of Florida. Educational vendors pay Petitioner fees for the privilege of showing their products and services at the conference. Vendors’ fees typically make up the margin by which Petitioner’s revenues exceed expenses for the conference. Petitioner does not have any paid employees. Dr. Theron Trimble, who started teaching social studies in Florida in 1966, is the executive director of Petitioner and has been associated with Petitioner for 30 years. Dr. Trimble’s full-time employment is in the Collier County School District, where he is director of Fulltime Equivalents and Resource Allocations. All persons working for Petitioner are, like Dr. Trimble, volunteers with full-time educational employment throughout Florida. Petitioner pays small sums to instructors or presenters at the annual conference and pre- conference institutes, but these payments are strictly for their services in conducting their seminars. Petitioner intends to continue helping social- studies teachers meet students’ changing needs in social- studies education. For example, Petitioner recently sponsored an inservice program designed to help teachers incorporate computers in social-studies education. At a time of reduced state involvement, Petitioner has tried to fill the gaps in funding and curriculum control. Petitioner’s funding efforts are directed toward schools and teachers, rather than school districts. Three years ago, Petitioner started an endowment fund to establish a long-term mini-grant program for social- studies teachers. According to the Webster’s New Collegiate Dictionary, the first definition of “office” is “a special duty, charge, or position conferred by an exercise of governmental authority and for a public purpose: a position of authority to exercise a public function and to receive whatever emoluments may belong to it <hold public ~> [and] a position of responsibility or some degree of executive authority.” The fourth definition is “something that one ought to do or must do: an assigned or assumed duty, task, or role [and] the proper or customary action of something: FUNCTION.” The fifth definition includes: “a place in which the functions (as consulting, record keeping, clerical work) of a public officer are performed [and] the directing headquarters of an enterprise or organization.” The last definition is “a major administrative unit in some governments <British Foreign Office [and] a subdivision of some government departments <Patent Offices>.” According to the American Heritage Dictionary of the English Language, the second and third definitions of “office” are “[a] duty or function assigned to or assumed by someone: “the maternal office was supplied by my aunt (Gibbon) [and] “[a] position of authority, duty, or trust given to a person, as in a government, corporation, or other organization: the office of vice president.” However, the fourth definition is: “[a]ny of the branches of the Federal government of the United States ranking just below the departments [and a] major executive division of the British national government, often headed by a cabinet minister.” And the fifth and seventh definitions are “[a] public position: seek office" [and] [o]ften plural[; a]n Act performed for another, usually beneficial: a favor: 'The projected duel . . . was halted by the offices of friends on both sides.' (Katherine Anne Porter).” Webster’s second and third definitions of “administration” are “performance of executive duties: MANAGEMENT [and] the execution of public affairs as distinguished from policymaking.” The fourth definition includes “a governmental agency or board.” American Heritage’s first definition of “administration” is “[t]he management of affairs.” However, the second definition is “[t]he activity of a sovereign state in the exercise of its powers or duties.” The fourth definition is “[t]he management of any institution, public or private.”
Recommendation It is RECOMMENDED that the Department of Revenue enter a final order granting Petitioner’s application for a consumer’s certificate of exemption from sales and use tax. DONE AND ENTERED this 10th day of April, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1998. COPIES FURNISHED: Dr. Theron Trimble 3710 Estey Avenue Naples, Florida 34104 Kevin J. O’Donnell Assistant General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Linda Lettera, General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668 Larry Fuchs, Executive Director Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
