Findings Of Fact At all times material, Respondent, Claudia Walker, was employed as a continuing contract teacher by Petitioner Broward County School Board. The Respondent taught from January 1979 through November 1, 1984 at Bright Horizons School. In November 1984, she transferred to South Florida State Exceptional Student Center and thereafter taught elementary school age children with behavioral problems. Among those assigned to her Self-contained classroom were some homicidal and suicidal students with low impulse control. During the time Respondent has worked for the Broward County School Board, her teaching evaluations have been good, to outstanding, to exceptional. She has never previously been cited or disciplined. Doris Seitner was employed by Petitioner as a teaching assistant from approximately September 3, 1985 to December 3, 1985 and was assigned to Respondent's class. On Thursday, November 7, 1985, Respondent and Seitner took the class of about 25 students on a field trip to the Metro Zoo. Prior to their departure on the bus, Ms. Seitner noticed Respondent entering the staff restroom. When Respondent emerged, a student immediately entered the restroom. Upon the student exiting the restroom, Ms. Seitner also entered the restroom where she found a small pink glasses case. Believing the case belonged to the student, the aide opened the purse and saw a plastic baggie containing a white powder, a small vial, a razor blade, and several cut up straws. Upon leaving the restroom, Ms. Seitner encountered the Respondent, who identified the case as hers and took it. At this point, the state of events was that Doris Seitner had seen a substance she thought was cocaine. Doris Seitner is not an expert on drug identification. She admits never previously having seen cocaine up close. Although she had seen some drug abuse classes at the school, she had no courses in cocaine and had never smelled or tasted it. She did not open the plastic baggie or examine its contents on November 7, 1985. However, believing that the case contained cocaine and drug related paraphernalia, Ms. Seitner confided what she had found, together with her suspicions to a number of people and sought their advice on how to proceed. Shawn Joseph, another teacher's aide, suggested Ms. Seitner inform the school officials of what she had found. Later in the evening, Ms. Seitner contacted Pam Tepsic, a teacher on task assignment, who suggested she advise the principal immediately. The acting principal, Kathryn Mangan, upon learning of the discovery, contacted Howard Stearns, Petitioner's Director of Internal Affairs, who referred her to William Bohan. At all times material, William Bohan was employed by Petitioner as an investigator for Internal Affairs and has been a certified law enforcement officer. On November 12, 1985, Mangan told Bohan about Ms. Seitner's belief that she had seen cocaine in Respondent's glasses case. Bohan instructed Mangan to take no action but to call him in case the glasses case was seen again. Bohan interviewed Ms. Seitner and instructed her to watch out for the case. On the morning of Monday, November 25, 1985, while Respondent was in her classroom, Ms. Seitner came in and asked if she could fetch lunch for Respondent. Respondent retrieved her purse from the back room of the self- contained classroom, a location called "the teacher planning area", wherein she normally isolates her purse from the students, and gave Ms. Seitner money to pay for her lunch. Doris Seitner sat at the desk, and looking down into the Respondent's unzipped purse, spotted the pink glasses case. Seitner notified Tepsic, who notified John Smith, acting principal, who notified Bohan, who came to the school. Bohan and Tepsic walked to Respondent's classroom. When they arrived there, Tepsic approached Respondent in the classroom; Bohan stationed himself at the door. Tepsic told Respondent that a man wanted to see her in the principal's office. Tepsic avoided responding to Respondent's repeated requests to know what was going on or answered Respondent that she did not know what was going on. Respondent walked with Tepsic to the door. Bohan asked Respondent if the purse by her classroom desk was hers. The Respondent answered, "yes" whereupon Bohan walked over, picked up the purse, and, retaining the purse, began walking with Respondent and Pam Tepsic to John Smith's office. On the way to Smith's office, Respondent told Bohan she could carry her own purse but Bohan responded that he could carry it. She repeated her questions to Pam Tepsic, asking what was going on and received the same evasions. In making the immediately preceding finding of fact, the testimony of Pam Tepsic, Investigator Bohan, and Respondent have been considered and weighed. While Investigator Bohan testified that Respondent said and did nothing to claim her purse after he seized it and Pam Tepsic initially related that Respondent said nothing about her purse at any time in the classroom or while walking over to the principal's office, Pam Tepsic's testimony as a whole reveals that she was particularly nervous during all these incidents and that at a point in time closer to the actual events, she had believed some such conversation took place between Bohan and Respondent, but that on the date of formal hearing she simply could not recall any conversation between Bohan and the Respondent, including Bohan's asking Respondent if the purse were hers and Respondent's reply, "yes", statements Bohan and Respondent each testified had been made. The Respondent's account of her request to carry her own purse is highly credible. It is simply not credible that any adult woman would not request return of such an intimate item as her purse, containing all her personal effects, including valuables and money, from a man whom she had never seen before in the absence of any explanation of what was going on. Bohan, Tepsic, and Respondent entered John Smith's office. Bohan placed Respondent's purse on Smith's desk in front of himself. Bohan told Respondent he had been informed she was in possession of an illegal drug and asked if she would consent to Bohan's searching her purse. Pam Tepsic's recollection of what happened next was that either Respondent said she would consent to the search or that someone else said Respondent had consented or said something like, "Well, then you consent," to Respondent. Respondent denies ever being asked to consent to a search of her purse. John Smith understood Bohan to ask permission to search the purse and understood that Respondent said "yes" to Bohan's request. Bohan relates an affirmative answer from Respondent. Before he started searching her purse, but after the question concerning consent/permission, Bohan asked Respondent did she have anything in her purse that might be a problem that she might want to tell him about before he searched her purse. Tepsic, Bohan, Smith, and Respondent are in agreement that Respondent replied, "yes" that she did want to tell Bohan what was in the purse. The explanation given at that time was that early that morning she had taken cocaine and other items from her estranged husband who had a drug problem. Bohan removed from Respondent's purse the pink glasses case; some other unrelated items; four small plastic bags containing a white powdery residue; four straws cut 2-1/4 inches to 2-3/4 inches long; one GEM single edge razor blade; one small, 3/4 inch empty vial; one piece of aluminum foil 2-1/2 inches by 3-1/4 inches; eight straws in Wendy's wrappers; one wooden toothpick; and one nickel. When Respondent persisted in her explanation that the drugs and paraphernalia were her husband's property and that she had taken them to protect him but in response to further questioning by Bohan, Respondent was unable to flesh out an explanation she had begun concerning the husband's drug counselling and treatment and her participation therein, Bohan told Respondent that her options were either jail in Fort Lauderdale via the Broward County Sheriff's Department or discussing the matter at Petitioner's Internal Affairs Office. Although Bohan asserted that he made no "threats," Bohan, Tepsic, Smith, and Respondent concur that these were the only alternatives Bohan provided Respondent during their confrontation in Smith's office. A subsequent laboratory analysis conducted on the items seized November 25, 1985 revealed the presence of cocaine only in the small plastic bag containing the white powder. The property in the purse was taken into the Internal Affairs Office for inventory. These items, including the cocaine, were described by Ms. Seitner as "similar" to the items she saw in the pink case on November 7, 1985. Respondent customarily keeps a razor blade in her purse to use for arts and crafts projects in her class. Other teachers at the center also use razor blades to perform art projects. The Respondent customarily keeps drinking straws in her purse to give to her three small children to drink with while they are riding in her car. Article XVIII, Section K, of the current collective bargaining agreement between the Broward Teachers Union and Petitioner provides: "No investigation of an em- ployee, beyond preliminary inquiry, by the Internal Affairs Department may be undertaken without written notice to the employee, such notice to include a statement of the cause giving rise to the investigation." No written notice was given to Respondent by Petitioner. A sign posted on the grounds of the school at the front gate notifies anyone entering that they are subject to being searched while on the grounds. (TR 149-150) Respondent accompanied Bohan to Internal Affairs where Bohan and Stearns interrogated her. Respondent again told them the drugs inventoried belonged to her husband. She further revealed to Stearns, apparently in hopes of receiving counselling instead of dismissal, that she had been clean of cocaine during the nine months of her recent pregnancy and clean recently until the immediately preceding Saturday night. (TR-205) After Internal Affairs finished questioning Respondent, Bohan took her to the Employee Assistance Program and then later to the Broward Alcohol and Rehabilitation Center. Respondent claims she was denied use of a phone to contact anyone until she reached the Employee Assistance Program, but she concedes there were public phones available at the school and she did not insist on using any. At hearing, Respondent testified that she had never used cocaine and would not have used it in November, 1985 because she was breastfeeding her new daughter. She also testified that the contraband items were taken from her husband the morning of November 25, however, rather than corroborating this story, the testimony of Wilton Johnson, her estranged husband, is contrary to Respondent's account of the incident in so many details as to adversely affect Respondent's credibility that the incident occurred. Respondent was suspended with pay November 26-28, 1985, the remainder of the school week. On Monday, December 2, 1985, she was permitted to resume her classroom duties until she was notified of suspension with pay, December 6, 1985. On December 19, 1985, Petitioner suspended Respondent without pay.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that Petitioner enter a final order dismissing Counts I and II, finding Respondent guilty as charged in Counts III and IV, and dismissing her from employment. DONE and ORDERED this 5th day of September, 1986, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1986.
The Issue Whether Respondent should be terminated from her employment with the Seminole County School Board.
Findings Of Fact Mack has been employed by the School Board for six years. During the 2001-2002 school year, Mack was a school lunch assistant assigned to Seminole High School. Her immediate supervisor was John Caldwell (Caldwell). Mack received satisfactory evaluations of her work for Petitioner until April 2002, when she received an evaluation from Caldwell criticizing her in several areas. On April 12, 2002, a Friday, Mack was upset about her evaluation, showed her evaluation to fellow workers and loudly complained about her evaluation. She was becoming disruptive to the cafeteria operations. Caldwell called Mack into his office to discuss her behavior. She became loud, and Caldwell had to call the Assistant Principal. Mack was sent home. Caldwell did not tell her not to come back, and, at that time, did not tell her that he was going to recommend that she be terminated. On Monday, April 15, 2002, Mack called her workplace and said that she was sick and was going to the emergency room. On April 16, 2002, Mack called in and spoke to Janelle Harris (Harris), who was Caldwell's assistant. Mack told Harris that she had the flu and would not be coming to work. The policy for a food service worker at Seminole High School who was going to be absent from work because of sickness was that the worker was to call either Caldwell or Harris and notify them of the absence. The telephone in Caldwell's office has voice mail capabilities; thus, if Caldwell or Harris were not in the office, the sick employee was to leave a message on the voice mail. Caldwell and Harris were the only two persons who had access to the code to retrieve messages from the voice mail. On April 17, 2002, Mack was absent from work, but did not call in and give an explanation for her absence. Mack continued to be absent from work without calling in. On April 26, 2002, Mack came to the school office and picked up her paycheck. She did not go to the cafeteria and tell Caldwell or Harris why she had not been at work. Learning that Mack had gone to the school to pick up her check, Caldwell called Mack at her home. Mack told Caldwell that she had called in and left a voice mail. No messages were left on the voice mail by Mack between April 17 and April 26. Caldwell explained to Mack that she was required to call in unless she was in the hospital or could not talk. Daniel Andrews (Andrews), the Director of Food Services, prepared a letter to be sent to Mack under Caldwell's signature. The letter, dated May 2, 2002, advised Mack that she had continued to be absent without calling in to notify Caldwell of her absence and to provide a reason for the absence. The letter further advised her that three days of absence without leave required a penalty of termination. Mack was requested to contact Caldwell by noon on May 7, 2002, or the case would be referred to Andrews. Mack did not receive the letter until May 8, 2002; however, she never contacted Caldwell concerning the letter. By letter dated May 10, 2002, Andrews advised Mack that because of her continued absences without leave and her failure to provide justification for her absences that he would be requesting that her termination be recommended to the School Board. Mack received this letter on May 18, 2002. By letter dated May 20, 2002, Paul Hagerty, Superintendent of Public Schools for the School District of Seminole County, Florida, advised Mack that he would be appearing before the School Board on May 28, 2002, and recommending that she be suspended without pay. He further advised her that at the June 11, 2002, School Board meeting he would file a recommendation that her employment be terminated effective June 12, 2002. Mack contacted Andrews by telephone and left a voice mail. On May 21, 2002, Andrews returned her call, and Mack told him that she had gotten the voice mail when she tried to call Caldwell but did not leave any messages. Andrews would have accepted a reasonable explanation from Mack for her absences when she talked to him on May 21, but she did not provide any plausible reason for not notifying Caldwell of her absences nor did she ever provide any documentation from a doctor that she had been ill during her absences. Mack told Andrews that she did not care if her employment was terminated. By letter dated May 25, 2002, Mack requested a hearing on the decision to terminate her employment. Mack did not request a hearing concerning the recommendation for her suspension. On May 28, 2002, the School Board suspended Mack, effective May 29, 2002. Mack had a job at a local barbeque restaurant during the evening hours. While she was absent from her job at Seminole High School, she continued to work at the barbeque restaurant. The Non-Instructional Personnel of Seminole County Board of Public Instruction, Inc., and the School Board have entered into a collective bargaining agreement, effective July 1, 1997, through June 30, 2002, covering the wages, hours, and the terms and conditions of employment of the public employees within the bargaining unit. The collective bargaining agreement applies to Mack's employment with the School Board. Article VII, Sections 5, 11, and 15 of the collective bargaining agreement provide: Section 5. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following providing just cause is present: * * * 10. Improper use of sick leave. Section 11. Absence Without Leave Employees will be considered absent without leave if they fail to notify their principal, appropriate director or supervisor that they will be absent from duty and the reason for such absence. Absence without leave is a breach of contract and may be grounds for immediate dismissal. Section 15 Employees shall report absences and the reason for such absences prior to the start of their duty day in accordance with practices established at each cost center. An employee who has been determined to have been AWOL shall be subject to the following progressive discipline procedures: 1st Offense--Written reprimand and one day suspension. 2nd Offense--Five day suspension without pay. 3rd Offense--Recommend for termination. The School Board interprets the collective bargaining agreement to mean that each day an employee is absent without leave is a separate offense. At no time did the School Board issue Mack a written reprimand, one-day suspension, or a five- day suspension prior to her termination, as set forth in Section 15 of the collective bargaining agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Dorothy Mack was absent without leave, suspending her for one day, and issuing a reprimand. DONE AND ENTERED this 10th day of April, 2003, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 10th day of April, 2003. COPIES FURNISHED: Thomas L. Johnson, Esquire Chamblee, Johnson & Haynes, P.A. 215 West Verne Street, Suite D Tampa, Florida 33606 Sandra J. Pomerantz, Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Dr. Paul J. Hagerty, Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Honorable Jim Horne Commissioner of Education Department of Education 325 West Gaines Street Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400
Findings Of Fact Petitioner, Chester K. Lewis (Lewis), applied to the Respondent, Department of Education (Department), for a Florida teacher's certificate. By letter of January 15, 1987, the Department advised Lewis that his application had been denied, and Lewis filed a timely request for formal hearing. Pertinent to this case, the application for teacher's certificate posed the following questions, and Lewis gave the following answers: - FULL TIME TEACHING EXPERIENCE Grades taught or No months Type School State District School if departmental- taught in Certi- Year (County) ized subjects school ficate taught term Held * * 1982 to Florida Dade Edison 1983 Park Elem. 9 1983 to Florida Dade Edison 1984 Park 9 1984 to Florida Dade Edison 1985 Park 9 1985 to Florida Dade Edison Varied 1986 Park Elem. 9 PLEASE CHECK ONE YES X NO 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? If yes, you must give complete details for each charge. Please attach a separate sheet if additional space is needed. Where Arrested Dates Nature of Charge(s) Disposition(s) Trespassing Resist- Nolo Contendere Dade County 5/6/82 ing Arrest 9 mos served 1/19/83 NOTARIZATION I hereby certify that I subscribe to and will uphold the principles incorporated in the Constitutions of the United States of America and the State of Florida. I understand that Florida Statutes provide for revocation of a teacher's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means. I further certify that all information pertaining to this application is true, correct and complete. /s/ Chester K. Lewis Signature of Applicant Sworn to and subscribed before me this 3rd day of June , 1986. My Commission Expires Seal and Signature of Notary Public Contrary to the sworn representations in part IV of the application, that he had been employed full time by the Dade County School Board for the school years 1982-83 through 1985-86, the proof established that Lewis was employed by the Dade County School Board as follows: For the 1982-83 school year Lewis was employed as a per diem (daily) substitute teacher, and worked only 29 days between March 1983 and June 1983. For the 1983-84 school year Lewis was employed as a daily substitute teacher, and worked at 5 different schools between November 1983 and June 1984 for a total of only 5 1/2 days. For the 1984-85 school year Lewis was employed as a daily substitute teacher, and worked at 5 different Schools between October 1984 and June 1985 for a total of only 15 days. For the 1985-86 school year Lewis was employed as a daily substitute teacher, and worked only 1 day during that school year. With respect to Lewis' response to part V of the application, the proof established that by Information filed May 27, 1982, in the Circuit Court of Dade County, Florida, Case No. 82-11708, he was charged with aggravated assault (Section 784.021(1)(a), Florida Statutes), battery upon a law enforcement officer (Sections 784.03 and 784.07, Florida Statutes), and resisting an officer with violence to his person (Section 843.01, Florida Statutes). On January 19, 1983, Lewis entered a plea of nolo contendere, and the court sentenced him to a term of imprisonment of nine months. Regarding the substance of the charges, the proof established that on May 6, 1982, at or about 11:00 p.m., in Dade County, Florida, Lewis did commit the crimes of aggravated assault (Section 784.O2l(1)(a), Florida Statutes), battery upon a law enforcement officer (Sections 784.03 and 784.07, Florida Statutes), and resisting an officer with violence to his person (Section 843.01, Florida Statutes). At the aforesaid time and date, a uniformed Florida Highway Patrol Officer (trooper) responded to a request for assistance at the home of a female complainant (complainant) who professed a fear that Lewis would harm her. While at the complainant's residence, the trooper took a telephone call from Lewis, identified himself as a trooper with the Florida Highway Patrol, and asked Lewis what the problem was. Lewis replied: I don't care who the fuck you are. If I get over there in 15 minutes and you're there I'm going to kill you. Approximately 15 minutes later, Lewis drove up to the residence. The trooper then told Lewis: Look, we don't need a problem Just leave. She doesn't want to be bothered with you. Just leave so we don't have a problem with you. Lewis responded, "Fuck you", sped down the street, and turned the car to face the trooper. Lewis then sped his car at the trooper, who barely avoided injury by jumping out of the way of Lewis' vehicle. Lewis then drove his car into an alley, and as the trooper approached from the rear Lewis attempted to back his car over the trooper. Again the trooper barely avoided injury. Subsequently, Lewis jumped from the car, and ran toward the complainant's residence. At that time the trooper removed the keys from the ignition of Lewis' car, and pursued Lewis. Fortunately, a backup unit from the Metro-Dade Police Department arrived and Lewis fled to his car and tried to lock himself inside. The trooper, noting that the front passenger door was open, entered the vehicle to arrest Lewis. During the course of the trooper's efforts to arrest him, Lewis repeatedly punched and kicked the trooper. Lewis' conduct demonstrated gross immorality or an act involving moral turpitude. His conduct was inconsistent with the standards of public conscience, and was sufficiently notorious to bring himself and his profession into public disgrace or disrespect. Due to such notoriety, Lewis' service in the community, as well as his effectiveness in the school system, has been severely impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Petitioner, Chester K. Lewis, for a Florida teacher's certificate be DENIED. DONE AND ORDERED this 8th day of July, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 8th day of July, 1987. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Mr. Chester K. Lewis 1028 N.W. Third Avenue, #1 Miami, Florida 33136 Marlene T. Greenfield, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Karen Barr Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, General Counsel Department of Education Knott Building Tallahassee, Florida 32399
Findings Of Fact THIS CAUSE comes on for consideration based upon the Petition for Determination of the Invalidity of the existing Rules 6A-14.416 and 6A-14.417, Florida Administrative Code, for allegedly being in violation of the provisions of Section 120.56, Florida Statutes. The Petition was filed on September 22, 1978 and the hearing was conducted on October 20, 1978. The hearing rises out of the collateral Section 120.57(1), Florida Statutes hearing in which an administrative complaint had been filed under the guise of Rule 6A-14.416, Florida Administrative Code, (in addition to certain statutory authority) against the current Petitioner, Gregory Bruce Nelson. During the course of that hearing it developed that Gregory Bruce Nelson, through his affirmative defenses to the Complaint, wished to challenge Rule 6A-14.416, Florida Administrative Code for alleged violation of Section 120.56, Florida Statutes. In response to that challenge, the Section 120.57(1) hearing, (which is reported as Lee G. Henderson, as Director of the Division of Community Colleges, Petitioner, vs. Gregory Bruce Nelson, Respondent, DOAH Case Number 78-283), has been stayed pending the outcome of the case sub judice. An order was entered by the undersigned allowing for sufficient time to file the Section 120.56, Florida Statutes challenge to Rule 6A-14.416, Florida Administrative Code and Mr. Nelson has complied with the terms and conditions of that order as to timeliness of the Petition for review pursuant to Section 120.56, Florida Statutes. Concurrently, Mr. Nelson has availed himself of the opportunity to submit a challenge to Rule 6A-14.417, Florida Administrative Code. The issue of consideration of the validity of Rules 6A-14.416 and 6A- 14.417, Florida Administrative Code, is properly joined and will be determined. Respondents moved to strike certain portions of the Petition at the commencement of the hearing and the motion was granted as to paragraphs 3(f), (g) and paragraph 4(d) and a portion of paragraph 5, beginning with the words ".... deprivation to Nelson of due process of law..." to the conclusion of said paragraph 5. In addition, the clause containing the Petitioner's prayer for relief was stricken in its language, "and directing Respondents to dismiss Case No. 78-283 with prejudice." An additional motion was made to strike the name of Lee G. Henderson, as Director of the Division of Community Colleges as a named Respondent. In view of the fact that the Director of the Division of Community Colleges is not responsible for the promulgation of rules and regulations of the State Board of Education, he is hereby deleted and stricken as a party Respondent. The Petitioner, Gregory Bruce Nelson, is an employee of the Florida Junior College, an institution governed by Chapter 230, Florida Statutes. Nelson holds a certificate issued under the terms and conditions of Rule 6A- 14.415, Florida Administrative Code. The pending Amended Petition for Revocation of Mr. Nelson's teaching certificate makes reference to the substantive basis for action as being found in Rule 6A-14.416, Florida Administrative Code, and the due process requirements for such revocation or suspension of the Petitioner's teaching certificate are ostensibly found in Rule 6A-14.417, Florida Administrative Code. The Petitioner's attack on the rules in question falls into two broad categories. The first category concerns the procedural requirements for the adoption of the rules and the second category is a contention on the part of the petitioner that the rules, as adopted, constitute invalid exercises of delegated legislative authority. The rules were adopted under the requirements of the then Administrative Procedures Act, Chapter 120, Florida Statutes. The adoption took place on December 3, 1974 and the rules became effective and operative on December 19, 1974. The controlling requirements for such adoption and effect and operation may be found in the former Administrative Procedures Act in operation in December 1974. Specifically, those provisions were Section 120.031 and Section 120.041,Florida Statutes. The Respondent in this cause met all conditions for the adoption of rules in terms of procedural requirements set forth in the aforementioned sections of the former Administrative Procedures Act. This can be determined by an examination of the Respondent's Exhibit #1, admitted into evidence which is a certified copy from the State of Florida, Department of State, of the promulgation and adoption of the rules in question on December 3, 1974, and of the filing of the rules with the Department of State on December 10, 1974, to become effective on the next day, December 19, 1974. Moreover, the rules were adopted by a public hearing which was noticed through publication in four newspapers of general circulation in the State of Florida on dates 10 to 30 days before the public hearing of December 3, 1974. Copies of the advertisements used in giving the notice may be found as the Respondent's Composite Exhibit #2, admitted into evidence. In view of the fact that the rules were adopted in accordance with the procedures set forth in the former Chapter 120, Florida Statutes, and were adopted by a public hearing properly noticed, it was not necessary to comply with the conditions of the new Administrative Procedures Act, Laws of Florida 1974, Chapter 74-310, which became effective January 1, 1975. In particular, this refers to the requirements set forth in Section 120.54, Florida Statutes, and Section 120.72, Florida Statutes, pertaining to Laws of Florida 1974, Chapter 74-310, effective January 1, 1975. Therefore, the Petitioner's claim of procedural violations as a basis for overturning Rules 6A-14.416 and 6A-14.417, Florida Administrative Code, is not well founded. The remaining question is whether or not the rules on their face constitute invalid exercises of delegated legislative authority within the meaning of the current Section 120.56, Florida Statutes. Turning to a consideration of the Respondent's Exhibit 41, it can be seen that in adopting and promulgating 6A-14.416, Florida Administrative Code, the State Board of Education made reference to Section 230.755, Florida Statutes as their general statement of authority and to the fact that the law being implemented was Section 230.759, Florida Statutes. Those provisions use the following language: "Section 230.755, Minimum standards for community colleges.-- The state board shall prescribe minimum standards which must be met before a community college is organized, acquired or operated, and which will assure that the purposes of the community college are attained. * * * Section 230.759 Employment of community college personnel.-- Employment of all personnel in each community college shall be upon recommendation of the president, subject to rejection for cause by the board of trustees and subject to the rules and regulations of the state board relative to certification, tenure, leaves of absence of all types, including sabbaticals, remuneration, and such other conditions of employment as the division of community colleges deems necessary and proper; and to policies of the board of trustees not incon- sistent with law." Section 230.755, Florida Statutes, is a general statement establishing minimum standards for the organization, acquisition or operation of the various community colleges in the state. it does not create legislative authority for the relocation or suspension of the teaching certificates of those individuals who are employed in the community college system In the State of Florida. Section 230.759, Florida Statutes prescribes the method by which individuals may be hired by the community college. However, that provision is not sufficiently broad enough in its language to authorize procedures for the revocation or suspension of the teaching certificates of those personnel employed by the community college in the State of Florida. One other background item should be examined in discussing the authority for promulgating Rule 6A-14.416, Florida Administrative Code. As was noted in the course of the hearing, the published accounts of Rule 6A-14.416, Florida Administrative Code contains a reference to Section 229,053(1), Florida Statutes, which was not found in the rule as originally filed with the State of Florida, Department of State. Consequently, it may be argued that Section 229.053(1), Florida Statutes, may not be utilized in supporting the promulgation and adoption of rules 6A-14.416, Florida Statutes, because it was left out of the official Rule 6A-14.416, Florida Administrative Code, filed with the Department of State. That provision, Section 229.053, Florida Statutes, reads as follows: Section 229.053 General powers of state board.-- The state board of education is the chief policy-making and coordinating body of public education in Florida. It has the general powers to determine, adopt or prescribe such policies, rules, regulations, or standards as are required by law or as it may find necessary for the improvement of the state system of public education. Except as otherwise provided herein it may, as it shall find appropriate, delegate its general powers to the commissioner of education or the directors of the divisions of the department. " Assuming for purposes of argument that Section 229.053(1), Florida Statutes may be properly attributed to Rule 6A-14.416, Florida Administrative Code, as an attempted statement of authority for the exercise of the powers found in the subject rule, the provision Section 229.053(1), Florida Statutes, could not authorize the exercise of the powers found in that rule; which rule attempts to allow for the revocation or suspension of a teaching certificate held by a member of a staff of the community college in the State of Florida. Section 229.053(1), Florida Statutes is a general statement of the powers of the state board of education, only. No other provisions of Chapter 230, Florida Statutes, were offered in support of Rule 6A-14.416, Florida Administrative Code. Nonetheless, a review of Part II of Chapter 230, Florida Statutes, dealing with community colleges, in existance at the time that the rule was adopted and promulgated, does not reveal any provision of that Part which would allow for the adoption of rules pertaining to penalties against the holders of certificates to teach in the community colleges of the State of Florida. Consequently, Rule 6A-14.416, Florida Administrative Code is an invalid exercise of delegated legislative authority within the meaning of Section 120.56, Florida Statutes, and is invalid in its entirety. Rule 6A-14.417, Florida Administrative Code, is a due process statement of procedure to implement the provisions of Rule 6A-14.416, Florida Administrative Code. Again, it has as its statement of authority found in the Respondent's Exhibit #1, admitted into evidence, the then existing provisions of Sections 230.755 and 230.759, Florida Statutes. That statement of authority is also found in the published compilation of rules made by the Department of State. For the reason that there exists no statement in Chapter 230, Florida Statutes, as it existed at the time that the Rule 6A-14.416, Florida Administrative Code was promulgated, that allows penalties to be placed against the certificate held by the community college teachers, there is likewise no authority to establish procedures for undertaking a consideration of probable cause to revoke or suspend and the subsequent hearing on revocation or suspension. The rationale in reaching this opinion is the same as was utilized in the consideration of Rule 6A-14.416, Florida Administrative Code. Therefore, Rule 6A-14.417, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority within the meaning of Section 120.56, Florida Statutes and the entire language of Rule 6A-14.417, Florida Administrative Code is invalid.
