The Issue The issue is whether the following rules are invalid exercises of delegated legislative authority: Florida Administrative Code Rules 64B1-2.008; 64B1-6.002(1), (4) (only the following language: "is responsible for filing provider approval applications and"), (5), (8) (only the following language: ". . .n approved"), and (10) (only the following language: "individual,"); 64B1-6.005(4); 64B1-6.006(1), (8) (only the following language: "approved"), and (11); 64B1-6.007(1) and (2); and 64B1-6.008(1) and (2).
Findings Of Fact Petitioner received his degree in Acupuncture and Oriental Medicine in 1997. He subsequently obtained a license, under Chapter 457, Florida Statutes (2003), and is now an acupuncture physician, practicing Acupuncture and Oriental Medicine. Petitioner has been a member of numerous acupuncture organizations. Respondent has approved Petitioner, individually, as a continuing education provider, under provider number BP02-92. To obtain such approval, Petitioner has twice paid Respondent $100 for a two-year approval as an acupuncture continuing education provider. Respondent has also approved the Acupuncture and Oriental Medicine National Coalition Corp. (NCC), which is a Florida for-profit corporation, as an acupuncture continuing education provider. Incorporated on March 3, 2003, NCC has paid Respondent $100 for approval as an acupuncture continuing education provider. Petitioner and David Sontag are the sole officers, directors, and shareholders of NCC. Each shareholder owns half of the company's stock. The purpose of NCC is to raise the standards of the acupuncture profession nationally, including educational standards, and to support the advancement of "acupuncture and oriental medicine." NCC has about 300 members residing in Florida and 1000 members nationally. Membership, which is free, entitles the member to benefits, such as access to information on the NCC website and negotiated discounts from other service providers, but not to rights in governing the corporation. Respondent has approved NCC as a "State or National Acupuncture and Oriental Medicine Organization," pursuant to Section 457.107(3), Florida Statutes (2003). In November 2001, Petitioner coordinated an acupuncture continuing education program in Fort Lauderdale for another provider. In 2002, Petitioner sponsored an acupuncture continuing education program in Florida on electro-acupuncture. On August 23, 2003, Petitioner taught a weekend acupuncture continuing education program sponsored by NCC. Petitioner obtained Respondent's approval for the electro-acupuncture course, but the process took nine months to complete. However, the record is insufficient to determine the cause or causes for the delay and, thus, who was responsible for it. At least 60 days before conducting the course, Petitioner paid the $50 program approval fee and submitted the approval forms. When Petitioner inquired about the approval, Respondent's executive director advised him to provide the course, pending approval. Petitioner thus was unable to advertise the course as approved by Respondent and instead advertised only that the sponsor had applied for Respondent's approval. Nearly 100 persons attended the electro-acupuncture course, paying $65 each. However, Petitioner netted only $350 on the program because of the expenses in advertising the program, renting a hotel, and other items. NCC obtained Respondent's approval for its course in August 2003 within two weeks of submitting its application. NCC submitted the required forms and the required $100 check. Persons attending the NCC course received their acupuncture continuing education credits from Respondent. Petitioner is substantially affected by the rules that he has challenged. Petitioner has sponsored an acupuncture continuing education course and, as an employee, taught another course that was sponsored by NCC. It may be reasonably expected that Petitioner will participate in future acupuncture continuing education programs in one or both of these capacities. The rules concerning a filing fee for approval require a modest fee, but NCC's net on the one course for which detailed financial information was provided suggests that the provider is substantially affected by even a modest fee, given the relatively little profit that ensued from that course. In their entirety, the subject rules in this case are as follows (challenged portions underlined): 64B1-2.008 Continuing Education Program Approval Fee. The continuing education program approval fee shall be $50. Specific Authority 457.104, 457.107(3), Florida Statutes. Law Implemented 457.107(3), Florida Statutes. History–New 5- 12-87, Amended 9-15-92, Formerly 21AA-2.008, 61F1-2.008, 59M-2.008, Amended 10-15-97. 64B1-6.002 Definitions. “Approved” means acceptable to the Florida Board of Acupuncture. “Board” means Florida Board of Acupuncture. “Committee” means Committee on Continuing Education of the Board. “Contact Person” means one who is responsible for filing provider approval applications and insures compliance with these rules, maintains complete rosters of participants, and is knowledgeable about the provider’s program(s). “Correspondence Program” means an approved program offered by mail with a defined course of study to be completed by the participant for which an evaluation of performance is made and a rating of satisfactory or unsatisfactory completion of the course is given by the provider. “Credit Hour” means a minimum of 50 minutes and a maximum of 60 minutes of class time. One-half (1/2) credit hour means a minimum of 25 minutes and a maximum of 30 minutes of class time. “Department” means the Department of Health. “Participant” means an acupuncturist who attends a program presented by an approved provider in order to achieve the stated objectives of the program. “Program” means a planned educational experience dealing with a specific content based on the stated objectives. “Provider” means the individual, organization or institution conducting the continuing education program. Specific Authority 456.013, 456.025, 456.033, 457.104, 457.107(3) Florida Statutes. Law Implemented 456.013, 456.025, 456.033, 457.107(3), Florida Statutes. History–New 2-24-88, Formerly 21AA-6.002, 61F1-6.002, Amended 1-16-97, Formerly 59M-6.002. 64B1-6.005 Standards for Approval of Continuing Education Credit. A continuing education program must contribute to the advancement, extension or enhancement of the licensee’s skills and knowledge related to the practice of acupuncture and oriental medicine. Programs should concern the history and theory of acupuncture, acupuncture diagnosis and treatment techniques, techniques of adjunctive therapies, acupuncturist-patient communication and professional ethics. All continuing education courses are subject to evaluation and approval by the Board to determine that the continuing education course meets the criteria established by the Board which has final determination as to the number of hours of acceptable credit that will be awarded for each program. Each program offered for continuing education credit must be presented or taught by a person who at a minimum holds a bachelor’s degree from an accredited college or university or a post-secondary education institution licensed by the State of Florida, with a major in the subject matter to be presented; or has graduated from a school of acupuncture, or has completed a tutorial program which has a curriculum equivalent to the requirements in this state and was approved by a state licensing authority, a nationally recognized acupuncture/oriental medicine association or a substantially equivalent accrediting body, and has completed three (3) years of professional experience in the licensed practice of acupuncture; and has a minimum of two (2) years teaching experience in the subject matter to be presented, or has taught the same program for which approval is sought a minimum of three (3) times in the past two (2) years before a professional convention, professional group or at any acupuncture school, or has completed specialized training in the subject matter of the program and has a minimum of two (2) years of practical experience in the subject. In order to meet the continuing education requirements, the continuing education program submitted by the licensee must meet the criteria established by the Board. No credit will be given for programs which are primarily devoted to administrative or business management aspects of acupuncture practice. To receive credit for programs on HIV/AIDS, the program must be, at a minimum, two (2) hours in length and must address the areas mandated in Section 456.033, F.S. The Board accepts HIV/AIDS programs presented or conducted by the Department of Health and programs approved by other professional regulatory boards for the health professions. Continuing education programs related to laboratory test or imaging findings shall be designed to provide course content on the clinical relevance of laboratory and diagnostic tests and procedures as well as biomedical physical examination findings and to advance, extend or enhance the licensee’s skills and knowledge related to the safe and beneficial use of laboratory test and imaging findings. Specific Authority 456.013(9), 456.033, 457.104, 457.107(3), Florida Statutes. Law Implemented 456.013(9), 456.033, 457.107(3), Florida Statutes. History–New 2-24-88, Amended 8-6-89, Formerly 21AA-6.005, 61F1-6.005, Amended 3-18-97, Formerly 59M- 6.005, Amended 6-1-99, 1-7-03. 64B1-6.006 Requirements for the Provider. Each provider shall: File all information necessary for provider and program approval on Forms DOH/AP007, Continuing Education Course Approval Applications, DOH/AP006, Continuing Education Provider Approval, which are hereby incorporated by reference and will be effective 2-18-98, copies of which may be obtained from the Board office. Insure that the continuing education program(s) presented by the provider complies with these rules. Maintain a complete, alphabetized, legible roster of participants for a period of 3 years following each program presentation. Maintain a “sign-in” sheet and a “sign- out” sheet with the signatures of participants. Provide each participant with a certificate certifying that the participant has successfully completed the program. The certificate shall not be issued until completion of the program and shall contain the provider’s name, title of program, date of program, location, and number of credit hours. Notify the Board of any significant changes relative to the maintenance of standards as set forth in these rules. Ensure that no person receives credit for the same program more than once. Notify the Board of any change in the presenters or instructors of any approved program, and demonstrate the new instructor meets the criteria set forth in subsection 64B1-6.005(2), F.A.C. Designate a contact person who assumes responsibility for each program, and who is knowledgeable about each program. The contact person shall notify the Board of any significant changes in programs or a lapse in the maintenance of standards. In a correspondence continuing education program, each provider is responsible for obtaining from each certificateholder a signed statement which states that the participant did in fact read the material, performed the exercises and took the examination personally. A clearly defined refund policy shall be in the flyer. There shall be adequate personnel to assist with administrative matters and personnel with competencies outside content areas in cases when the method of delivery requires technical or other special expertise. Providers shall maintain records of individual offerings for inspection by the Board; records shall include subject matter, objectives, faculty qualifications, evaluation mechanisms, credit hours and rosters of participants. Specific Authority 456.013, 457.104, 457.107(3), Florida Statutes. Law Implemented 456.013, 457.107(3), Florida Statutes. History–New 2-24-88, Amended 7-25- 88, Formerly 21AA-6.006, 61F1-6.006, Amended 3-18-97, Formerly 59M-6.006, Amended 2-18-98. 64B1-6.007 Preapproved Providers. Subject to the requirements of Rule 64B1-6.005 and subsections 64B1-6.007(3) through (5), F.A.C., the Board approves for continuing education credit programs offered by: (a) The Continuing Education Committee of the American Association of Oriental Medicine (AAOM); (b) The Florida State Oriental Medicine Association (FSOMA); (c) Individual member schools of the Colleges of Acupuncture and Oriental Medicine (CCAOM); and (d) The National Alliance for Acupuncture and Oriental Medicine. A nonrefundable processing fee of $50 must be submitted with each registration of course offering. Each program offering shall contain: A detailed program outline or syllabus; A current curriculum vitae of each speaker or lecturer; The procedure to be used for recording attendance; and Evidence of meeting all the requirements of Rule 64B1-6.005, F.A.C. Upon processing of a program offering, the Board will assign an identification number to that program. Upon receipt by the provider of the course identification number, the provider may identify the program as “approved by the Florida Board of Acupuncture for purposes of Continuing Education Credit” in any flyer or other advertisement. Specific Authority 456.013(7), (8), (9), 457.104, 457.107(3), Florida Statutes. Law Implemented 456.013(7), (8), (9), 457.107(3), Florida Statutes. History–New 2- 24-88, Formerly 21AA-6.007, Amended 7-4-94, Formerly 61F1-6.007, Amended 4-10-97, Formerly 59M-6.007. 64B1-6.008 Process for Program Approval. Each program to be offered by an approved provider must be approved by the Board. Applications for approval Form DOH/AP007, Continuing Education Provider Approval, which are hereby incorporated by reference and will be effective 2-18-98, copies of which may be obtained from the Board office shall be submitted to the Board Office at least 60 days prior to the date of presentation. Each program application shall contain: A detailed program outline or syllabus; A current curriculum vitae of each speaker or lecturer; The procedure to be used for recording attendance; Evidence of meeting all the requirements of Rule 64B1-6.005, F.A.C.; and A nonrefundable fee of $50.00. Upon approval of a program, the Board will assign an identification number to that program. If approved, the provider may identify the program as “approved by the Florida Board of Acupuncture for Purposes of Continuing Education Credit” in any flyer or other advertisement. Specific Authority 456.013(7), (8), (9), 457.104, 457.107(3), Florida Statutes. Law Implemented 456.013(7), (8), (9), 457.107(3), Florida Statutes. History–New 2- 24-88, Formerly 21AA-6.008, 61F1-6.008, Amended 1-16-97, Formerly 59M-6.008, Amended 2-18-98. The forms mentioned in Florida Administrative Code Rule 64B1-6.006(1) involve two approval processes. Form DOH/AP007, which is also mentioned in Rule 64B1-6.008(1), is the application for Respondent's approval of the provider. Form DOH/AP006 is the application for Respondent's approval of the program. Form DOH/AP007 comprises two pages of instructions, a copy of Florida Administrative Code Rule 64B1-6.005, and a four- page application. The instructions state: "Application Fee: $100 (Non- Refundable). The remainder of the instructions explain the items set forth in the application. The checklist at the end of the instructions restates the requirement to submit a $100 check or money order. The first page of the application states: "$100 non- refundable application fee." It asks whether the application is a "renewal application." The first page also asks the name of the "organization" and its "continuing education director," as well as contact information, such as mailing address. The first page asks four questions: Does your organization monitor attendance to assure those in attendance have been present for the entire program for which they receive credit? Does your organization assign an identifiable person to be present at continuing education activities who is responsible for recording attendance? Does your organization have facilities available to store records for at least 3 years? Have you attached a curriculum vitae for each instructor? The first page concludes with an affidavit signed by the continuing education director, although not notarized, and stating that he or she represents that the information in the completed form is accurate and will comply with the rules contained in Florida Administrative Code Chapter 64B1-6.006. The second page of the application is a certificate of completion. It requests the name, license number, and address of the licensee attending the program; the name and address of the provider; and the site, course title, continuing education hours awarded, and name of the instructor. The third page of the application is Form C: Course Offering Data Form. This page requires the provider to list the educational objectives of the course and the continuing education hours and subject matter for each objective. The form also requires the identification of the teaching methods. The fourth page of the application is Form D: Course Offering Data Form. This page requires the provider to list the name and job title of each instructor and his or her relevant education and experience. Form DOH/AP006 is the application for Respondent's approval of the program. Form DOH/AP006 comprises one page of instructions, a copy of Florida Administrative Code Rules, 4B1-6.005 and 64B1-6.008, and a three-page application, the last two pages of which are identical to the last two pages of the Form DOH/AP007 application. The first numbered instruction requires: "Prior to offering or advertising a continuing education course, the provider must have registered by way of submitting this application: the course, along with any materials to be offered and the name and qualifications of the instructor . . .." This instruction warns: "If you have failed to submit all of the above, you will not be eligible to offer the course for continuing education credit. NO RETROACTIVE CREDIT IS GRANTED BY THE BOARD." The second numbered instruction requires the provider to submit any material to be used in a home-study course. The third numbered instruction requires a "nonrefundable fee of $50" with "each program application." The first page of the application requires identifying information for the provider and program, as well as disclosure of whether the course for which approval is sought is a previously approved course with a new or additional instructor, a new course, or a previously approved course with different credit hours. The first page also states that instructors must meet the qualifications of Florida Administrative Code Rule 64B1-6.005(2)(a) or (b).
Findings Of Fact On November 11, 1989, Respondent forwarded a request for hearing by Petitioner to contest his suspension without pay and dismissal by the school board. Due to insufficient information being furnished, no case was opened. Subsequent administrative oversight resulted in no action being taken on this request by the Division of Administrative Hearings. By letter dated June 5, 1989, Petitioner, by and through his attorney, requested the status of the hearing requested by the school board in November 1987. In response thereto, Respondent filed the Motion to Dismiss that constituted the basis for the telephone conference call. At this conference call hearing, Petitioner conceded that all facts recited in the Motion to Dismiss are accurate and, that on May 14, 1987, Petitioner and the Florida Department of Education entered into a Stipulation for Settlement wherein Petitioner's teaching certificate was suspended for one year retroactive to April 25, 1986. Petitioner was suspended without pay by Respondent on May 14, 1986, based upon his arrest for the offense which resulted in the suspension of his teaching certificate by the Department of Education. Petitioner was subsequently terminated by Respondent on May 26, 1987, retroactive to May 14, 1986, the date he was suspended without pay. On the effective date of Petitioner's termination by Respondent, May 14, 1986, he did not hold an active teaching certificate from the State Department of Education and was not qualified to work as a teacher in any Florida public school.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that Franklin B. Etheridge's request for hearing to challenge his dismissal by the School Board of Polk County be denied, and Respondent's Motion to Dismiss be granted. Entered this 18th day of August, 1989, in Tallahassee, Florida. K.N. AYERS 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 18th day of August, 1989. COPIES FURNISHED: Dr. John A. Stewart Superintendent Polk County Schools Post Office Box 391 Bartow, Florida 33830 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 C. A. Boswell, Esquire School Board of Polk County Post Office Box 391 Bartow, Florida 33830 John F. Laurent, Esquire Post Office Box 1018 Bartow, Florida 33830
The Issue The Respondent seeks to cancel and/or rescind the continuing contract of the Petitioner based on the fact that she refused to report to work as requested. The issue to be resolved is whether the Respondent may refuse to grant an instructor who is the holder of a continuing contract a consecutive fifth year of personal leave and secondly whether or not the Respondent may properly dismiss its instructional employee who has requested and has been denied such leave and thereafter refuses to report to work as directed.
Findings Of Fact The testimony of Wilbur S. Franklin, Principal, and Armando Henriquez, Superintendent, District School Board of Monroe County and other documentary evidence reveals that the Petitioner was granted personal leave for four consecutive school years beginning with the 1971-72 school year. The Petitioner also requested personal leave for a fifth year (school year 1975-76) and the principal of the school to which she was last assigned and who was responsible for approving such requests denied it. Messr. Franklin, Principal, testified that his reason for denying the Petitioner a fifth year of personal leave was based on the fact that he needed to make permanent staffing recommendations and the situation in which the Petitioner presented posed a problem in that from year to year he did not know whether or not she would return to school or whether she would again request an additional year of personal leave. He testified that in making his staff recommendations, he sought the best instructors in order to have a sound overall educational program and in order to fulfill that goal, he sought to utilize the services of the most qualified instructors available. The Petitioner testified that during the four years of annual leave which she was granted, she obtained a masters degree in guidance and counseling and that she thought that her training and educational background was more attuned to that type position and that was the position in which she was seeking with the Respondent. She testified that she was certified and was holder of a continuing contract as a classroom teacher and that her employment with the Respondent was in the areas of elementary education, i.e., fourth grade and below. She further testified that she made application for part-time and full- time positions in the areas of guidance and counseling and while vacancies have occurred during those times in which she had an application pending, she was bypassed and she voiced her opinion that based on her education and tenure, she has been discriminated against. In this regard the undersigned asked her to point to specific instances which would substantiate her position and she was unable to do so during the course of the hearing. She testified that vacancies occurred and were filled but she did not know what the educational background of the person(s) who was selected to fill these positions. The Petitioner has been an instructor within the county for more than fifteen years and she, as earlier stated, is the holder of a continuing contract. During March, 1975, she requested by letter a fifth year of annual leave and the Respondent, through its Principal, Messr. Franklin, advised that a fifth year of annual leave would not be granted to her. The Petitioner appealed this denial up to the level of superintendent and he sustained the Principal's recommendation. Messrs. Arthur, Assistant Superintendent Monroe County School District, Armando Henriquez and Wilbur Franklin, Principal, all testified that when the school year 1975-76 began, the Petitioner did not report for duty and has not reported during the current school year. They all testified that while they had no direct conversations with the Petitioner, they have corresponded through written communiques. The Petitioner was given 10 days following the conclusion of the hearing to submit any supporting memoranda which would tend to substantiate her claim that her denial of a position in guidance and counseling was done for ulterior and other unlawful reasons. Respondent's counsel asked the undersigned to take official notice of Section 231.43,44, Florida Statutes, regarding absence without leave and school board rules and regulations 1.4.13 dealing with absence without leave and 1.4.14, personal leave without pay as to the discretion vested in the Respondent with regard to setting school policies. The Petitioner in accordance with her request for ten days leave to file a written statement and/or other documentary evidence supportive of her position, has submitted such and it has been duly considered. Section 231.43, F.S., states, in pertinent part, that the school board shall adopt regulations prescribing conditions under which the instructional staff shall be granted personal leave which when granted shall be approved by the superintendent. In keeping with this dictate, the Respondent promulgated certain guides for the granting of leave (See Board's Exhibit No. 9 received in evidence and made a part hereof). Section 231.44, F.S., dealing with "Absence without leave" states pertinently that any instructor who is willfully absent from duty without leave shall forfeit compensation...and his contract shall be subject to cancellation...(Emphasis added). It is true that the Petitioner has requested positions in areas which she was certified and the evidence indicates that, at least on one occasion, a vacancy existed and was filled by another applicant. However absent any evidence that the successful applicant was selected based on an arbitrary or capricious method or that the Petitioner was not selected due to some discriminatory or other unlawful means, it must be inferred that the Respondent employment selection process was fair. Nor was any evidence submitted which tends to show that the Respondent's attempt to dismiss the Petitioner was initiated for any reason other than the stated reason advanced by Messr. Franklin to the effect that he was desirous of establishing a stable and efficient complement of instructors. It is only logical that an administrator would seek to achieve this. Based on the above and the entire record, it is recommended that the Respondent be permitted to terminate the employment of the Petitioner, Betty Suarez Patterson for failing to report for work and continuing to do so at her assigned position at Truman Elementary School, Key West, Florida. DONE and ORDERED this 28th day of January, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1976. COPIES FURNISHED: Hilary U. Alberry, Esquire 310 Fleming Street Post Office Drawer 1430 Key West, Florida 33040 Betty Suarez Patterson 3712 Donald Avenue Key West, Florida 33040
The Issue Whether there is just cause to terminate Respondent’s employment with the school district.
Findings Of Fact At all times material to this case, Respondent was employed pursuant to a professional services contract as an Exceptional Student Education (ESE) consultant at Haines City High School (HCHS). In her 20 years at HCHS, Respondent has also served as an ESE teacher, an English teacher, and a Reading teacher. Prior to this case, Respondent has not been disciplined. During the 2013-2014 school year, Respondent was assigned to a small office that she shared with the HCHS football coach, Ron Johnson, and another ESE teacher, Selma Gandy. In January 2014, a mathematics teacher, Sue Allemang, retired and moved to Virginia. Ms. Allemang and Respondent knew one another, and Respondent had Ms. Allemang’s telephone number. When spring football started that year, Coach Johnson asked Respondent to telephone Ms. Allemang to see if the mathematics teacher would agree to change a student’s grade that had been given in the fall term. According to Ms. Allemang, Respondent telephoned her and asked if the grade could be changed (presumably to improve the student’s grade point average). After a brief conversation, Ms. Allemang agreed that the student’s grade could be improved. Ms. Allemang’s agreement to raise the grade extended to one student. Thereafter, Respondent completed a grade change form for the student, indicated that Ms. Allemang had authorized the change, and signed the form before delivering it to Angela Allen, the terminal operator at HCHS, who was responsible for inputting data into the HCHS system. Although Ms. Allemang recalled authorizing changing a grade for one student, Respondent executed two forms for two of Ms. Allemang’s students so that grades could be improved. Between January 13 and May 7, 2014, Respondent delivered 15 grade change forms for students who were on the football team. In almost every instance the changes increased the students’ grades and would have thereby increased their grade point averages. Respondent did not feel that she had done anything wrong in delivering the grade change forms. She maintained that she was simply a messenger delivering forms as a courtesy to others because she was going to the office. Such testimony has not been deemed credible or persuasive. Respondent knew or should have known that, absent her conduct, the grades would not have been changed at the times they were. In fact, Respondent was the facilitator of the grade change for Ms. Allemang’s student because had she not initiated the telephone conversation there would have been no basis for the change. As it was, Respondent knew or should have known that the student whose grade was changed had done no additional work to merit the change as Ms. Allemang no longer taught at the school. Further, Respondent did not represent to Ms. Allemang that additional work (supervised by Respondent or another teacher) would support the grade change. Other teachers who have approved grade changes have done so based upon additional work required of the student. In this case, two of Ms. Allemang’s students did not perform additional work to support the grade changes. Moreover, Ms. Allemang only authorized the change for one student. The record established that Respondent completed grade change forms for two of Ms. Allemang’s students. Another teacher no longer employed at HCHS authorized a grade change for one of the football players. When Ms. Allen questioned Respondent about that change, Respondent claimed that Coach Johnson had obtained the signature from the former teacher to support the change. Whether additional work was required to support the grade change is unknown. During a normal school year, Ms. Allen processes grade change forms for approximately six students. In this case, Respondent submitted 15 grade change forms to Ms. Allen. One of the physical education teachers at HCHS was asked to change grades for athletes. Coach Johnson gave the teacher a list of the athletes needing improved grades. Before the teacher would agree to the changes, the students were required to complete extra work. Some ran laps or did other physical activities for extra credit. Some wrote essays or did other academic work. The teacher did not change the grades absent extra credit work done by the students. There was not an ongoing “culture of grade changing” at HCHS. Coach Johnson sought grade changes presumably to allow football players to be eligible to participate. Respondent assisted in obtaining the grade changes and should have known that grades should not be improved absent bona fide justification for the change. Respondent knew or should have known that changes without justification were inappropriate. Respondent demonstrated a lack of remorse or comprehension of the gravity of her behavior. Respondent’s willful indifference to the fundamental concept of how grades must be earned calls into question her education ethics.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Polk County School Board enter a final order finding Respondent guilty of misconduct and imposing such penalty as may be appropriate up to, and including, termination of employment. DONE AND ENTERED this 3rd day of April, 2015, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 3rd day of April, 2015. COPIES FURNISHED: Mark S. Herdman, Esquire Herdman and Sakellarides, P.A. 29605 U.S. Highway 19, North, Suite 110 Clearwater, Florida 33761-1538 (eServed) Donald H. Wilson, Esquire Boswell and Dunlap, LLP 245 South Central Avenue Bartow, Florida 33830 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Kathryn LeRoy, Superintendent Polk County School Board 1915 South Floral Avenue Bartow, Florida 33830
The Issue The issue is whether the Petitioner is entitled to receive a Florida Educator's Certificate, or whether he should be denied a certificate based on the allegations in the Amended Notice of Reasons dated January 30, 2006.
Findings Of Fact Petitioner, Allen Dubois, (Petitioner or Mr. Dubois) received his bachelor's degree in physical sciences and chemistry, with a minor in mathematics in 1972. From 1972 to 1992, he worked for the United States Postal Service and as a tennis instructor. In 1992, Mr. Dubois received his master's degree in health education and nutrition, and began teaching in New York City high schools. Mr. Dubois was licensed to teach in New York with a certificate of qualification (CQ), the equivalent of a provisional or temporary teaching certificate. In New York, the CQ differs from other types of temporary teaching certificates only because it allows someone who may not be teaching full-time to have additional time to meet the requirements to secure a permanent teaching certificate. In April 1994, Mr. Dubois filed an application with New York State Education Department for a permanent certificate to teach biology and general sciences in grades 7-12. In March 1994, a sixteen-year old female student alleged Petitioner had engaged her in an inappropriate relationship and forced her to have sexual intercourse with him. Mr. Dubois was placed on paid leave through the end of the school year, June 1994. Mr. Dubois denied the allegations, and continues to maintain the allegations are false. He does admit to having had several conversations with the student that made him feel "uncomfortable," that included information about her mother's boyfriend and her showing him pictures of her baby. He concedes that, on a Friday evening following a sports event at the school, she walked with him some distance from the school to his parked car and that he offered her a ride. Mr. Dubois said that as she was getting in the car, "[w]e saw the bus coming and then she decided to take the bus." Mr. Dubois admitted calling the girl's house a day or two after he offered her a ride, but stated that she was not there and he talked to her grandmother. After that, Mr. Dubois continued to have conversations with a member of the girl’s family. The allegations were investigated and presented to a grand jury that, in October or November 1994, failed to indict Mr. Dubois. After he was fired from his job as a teacher by the Board of Education of New York City, Mr. Dubois apparently did not pursue the matter at a hearing, as he could have, but instead moved to Florida in December 1994, where he has lived since then. When he first came to Florida, Mr. Dubois was employed with the State Department of Labor and Employment Security. Among other duties, Mr. Dubois provided seminars and workshops on how individuals could file applications for employment with the State of Florida. Since that time, he has gone on to work for another state agency and, at some time, also taught at a community college in St. Lucie County. On July 22, 2003, Mr. Dubois filed an application for a Florida Educator's Certificate. On the application, he listed his teaching experience in New York City. Question #29 on the application is titled "Revocation" and requires a yes or no response to the following question: "Have you ever had a teaching certificate revoked, suspended or denied by any state, or is there any action pending against your certificate or application? If YES, you must give the state, reason, and year in which your certificate was revoked, suspended, denied, or in which action is pending against your certification or application." Petitioner answered "no" to the question. A letter, dated October 3, 1995, from New York City investigators to the New York State Commissioner of Education indicated that Mr. Dubois was “. . . currently suspended from service.” There is no evidence that the City had the authority to suspend his certificate. In fact, the letter was intended to give notice to the State so that it could take disciplinary action against the certificate. On June 12, 1996, the Commissioner of Education of the State of New York filed a Notice of Substantial Question as to Moral Character, charging Mr. Dubois with having sexual intercourse with the sixteen-year old female student on or about March 25, 1994. The Notice offered an opportunity for a hearing, if requested within 30 days. Mr. Dubois received the Notice, but testified that he did not recall responding to it. He did recognize a letter, in his hand writing, that he must have written on or about September 26, 1996, ". . . acknowledging that New York is questioning my moral character" and asking the New York authorities to contact the attorney who handled the criminal charges against him. Mr. Dubois testified that he had a telephone conversation, in 1998, with an attorney for the New York State Department of Education, who indicated that he had been unable to contact the criminal attorney who previously represented Mr. Dubois. Mr. Dubois testified that, ". . . it was not my intention to pursue a teaching license in New York. At that point in 1998 I was not inclined to want to become a public school teacher." As a result of the telephone discussion, Mr. Dubois entered into an agreement with the New York State Education Department that provides as follows: This is written confirmation of the fact that the parties have agreed to settle this matter and not proceed to a hearing under the provisions of Part 83 of the regulations of the Commissioner of Education. The Education Department will withdraw the Part 83 charges now pending against Allen J. DuBois in return for the surrender of his certificate of qualification of a teacher of biology and general science 7-12 and the withdrawal of his pending application for permanent certificate in the same areas. Allen J. DuBois, by this agreement, neither admits nor denies the allegations in the Notice of Substantial Question dated June 12, 1996, but acknowledges that he is unable to defend against them at this time. Upon surrender, the Department will notify all licensing and credentialing agencies and jurisdictions who participate in the National Association of State Directors of Teacher Education and Certification (NASDTEC) and advise them of the surrender and withdrawal but will not otherwise disclose nor make public the contents of this agreement or the charges contained in the Notice unless required by law or upon an order of a court of competent jurisdiction. Allen J. DuBois reserves his right in the future to apply to the Education Department for certification as a teacher in biology and general science 7-12 or any other area and will be held harmless from any changes in the educational requirements subsequent to the date of this agreement. However, in the event he makes application for certification in the future, the Education Department reserves its rights under Part 83 of the Regulations including the right to hold a hearing on the issues raise in the Notice. In furtherance of this agreement, Mr. DuBois, shall forward the original certification document to the education department within thirty (30) days or, if said document cannot be located, then he will provide a written statement to that effect. As provided in the agreement, the State of New York filed a form with NASDTEC, reporting that the nature of its action on the CQ was a denial. There is no evidence that Mr. Dubois received a copy of the document. Concerning the agreement, Mr. Dubois said, in his deposition, that he felt “railroaded” into signing it without legal advice, and that (although explicit in the agreement) he did not know that there would be a report to some national network that might keep him from ever getting a teaching job any place in the United States. The NASDTEC document that appeared to contradict the information on his application was received by Respondent, prompting a further investigation of his Florida application. Mr. Dubois testified that he answered "no" to Question 29 on the application because he never had a permanent teaching certificate in New York. He denied that he thought his "provisional status" constituted a certificate. He claimed not to ". . . know that New York City passed something on to New York State," although the agreement he signed was with state authorities. In any event, based on the fact that the CQ was surrendered and the application for a permanent teaching certificate was withdrawn, Mr. Dubois maintains that he did not have to respond affirmatively to the question that was so narrowly worded as to only ask about certificates that were "revoked, suspended or denied" and suggested that "[m]aybe the State of Florida . . . needs to reword the questions on the application. " In an Amended Notice of Reasons dated January 30, 2006, Respondent notified Mr. Dubois that the Department of Education intended to deny his application for a Florida Educator's Certificate. The Amended Notice of Reasons cited six statutory violations and four rule violations as grounds for the denial: Statute Violations Count 1: The Applicant is in violation of Section 1012.56 (2) (e), Florida Statutes, which requires that the holder of a Florida Educator's Certificate be of good moral character. Count 2: The Applicant is in violation of Section 1012.56(12)(a), Florida Statutes, which provides that the Department of Education may deny an Applicant a certificate if the department possesses evidence satisfactory to it that the Applicant has committed an act or acts, or that a situation exists, for which the Education Practices Commission would be authorized to revoke a teaching certificate. Count 3: The Applicant is in violation of Section 1012.795 (1)(a), Florida Statutes, in that he obtained or attempted to obtain an educator's certificate by fraudulent means. Count 4: The Applicant is in violation of Section 1012.795 (1)(c), Florida Statutes, in that he has been guilty of gross immorality or an act involving moral turpitude. Count 5: The Applicant is in violation of Section 1012.795(1)(f), Florida Statutes, in that he has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. Count 6: The Applicant is in violation of Section 1012.795 (1)(I) [sic], Florida Statutes, in that he has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. Rule Violations Count 7: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(a), Florida Administrative Code, in that Applicant has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental health and/or physical health and/or safety. Count 8: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(e), Florida Administrative Code, in that Applicant has intentionally exposed a student to unnecessary embarrassment or disparagement. Count 9: The allegations of misconduct set forth herein are in violation of Florida Administrative Code Rule 6B-1.006(3)(h), in that Applicant has harassed or discriminated against a student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment of discrimination. Count 10: The allegations of misconduct set forth herein are in violation of Rule 6B-1.006(3)(h), Florida Administrative Code, in that Applicant has exploited a relationship with a student for personal gain or advantage. Respondent offered no competent evidence that Mr. Dubois engaged, as alleged by New York authorities, in any inappropriate relationship with a student and forced her to have sexual intercourse with him. One of Respondent's witnesses testified that she believed the alleged victim has been located and would be available to testify, if needed, but that was not done. Respondent offered no competent evidence that Mr. Dubois' answer to Question 29 was an intentional fraudulent misrepresentation. Mr. Dubois was not credible when he asserted, in a 2006 deposition, (1) that he thought his CQ was not a teaching certificate, (2) that he did not expect New York City to pass information to New York State (although he signed the agreement with the State), or (3) that he was not aware that a report would be sent to a national network. He is correct, however, that the CQ was surrendered and the application was withdrawn, in exchange for not having an action against him proceed to hearing. Because he has no current certificate of application, there is also no action pending against either of these. Without having to answer yes to Question 29, Mr. Dubois did not have to give information concerning the matters that could be the subject of a hearing only if he ever again applies to teach in New York.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that Petitioner be issued a Florida Educator's Certificate. DONE AND ENTERED this 19th day of December, 2008, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 December, 2008. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether there are sufficient grounds for the imposition of disciplinary sanctions against Respondent?s educator?s certificate, and if so, the nature of the sanctions.
Findings Of Fact Petitioner, as Commissioner of the Florida Department of Education, is charged with the duty to investigate and take disciplinary action against individuals who hold a Florida educator's certificate and are alleged to have violated section 1012.795, Florida Statutes, and the Department?s rules establishing standards of teacher conduct. Respondent holds an educator?s certificate, No. 726067, covering the areas of biology and general science, issued by the Florida Department of Education. At all times material to this proceeding, Respondent was employed as a science teacher at Callahan Middle School in Nassau County, Florida. Respondent was first employed by the Nassau County School Board in 1995. He taught special education courses for his first two years, and “at-risk” classes for the following two years. Since then he has taught middle school science. In addition to his normal teaching duties, Respondent has coached the middle school football team and the boys and girls track teams for 11 years. Respondent is a capable and competent teacher, and has a good reputation. Respondent has not previously been the subject of a disciplinary proceeding. On October 7, 2010, at the end of the school day, Respondent went to the Fred?s discount department store located at 22 South 8th Street, Fernandina Beach, Florida. The purpose of the visit was to purchase reading glasses to replace a pair that was broken that day at the school. Respondent testified that he entered Fred?s and went immediately to the glasses display. Since the glasses were inexpensive -- $4.95 a pair -- he decided to buy 2 pairs. After selecting the glasses, Respondent noticed a display of candy. As a reward for students scoring 90 or above on an assignment, Respondent places them in the “smarty party” and allows them to take a piece of candy from a supply he keeps. He was low on candy, and decided to buy some to replenish his stock. He picked up three large bags of candy, and given that he was running out of space in his hands, placed the glasses in his left pants pocket. On his way to the checkout line, Respondent noticed that Fred?s had a sale on dog food. He picked up a bag of dog food, slung it on his shoulder, and proceeded to the checkout line. When he reached the checkout line, Respondent testified that he forgot about the glasses in his pocket, and proceeded to pay for the candy and dog food with a credit card. The candy was placed in a plastic “T-sack.” He exited the store with his plastic bag and dog food, whereupon an alarm sounded. Not thinking the alarm was a result of his action, Respondent continued towards his car. As he was about halfway to his car, the cashier came to the door and said “Hey honey, that might be you. That sometimes happens with dog food.” Respondent testified that he turned to walk back in and at that time noticed Mr. Esckelson, who was returning from assisting a customer in the parking lot, walking about four steps in front of Respondent. As he was about halfway back to the store, Respondent testified that he remembered the glasses in his pocket, and that he had forgotten to pay for them. He knew that Fred?s had a reputation for implementing an aggressive, “hard-core” policy against shoplifters, and in a split-second and ill-conceived decision, decided to toss the glasses into a nearby display of mums. In his haste, he thought that he had grabbed both pairs of glasses from his pocket and tossed them into the flowers. However, he managed to grab only one pair, while the second pair remained in his pocket without his knowledge. Respondent testified that his action was observed by Mr. Esckelson, despite his being a few steps in front of Respondent, who then said “OK, get in here.” Mr. Esckelson asked what Respondent threw, and he replied that he threw glasses. Respondent was asked to stand by the register, and Mr. Esckelson advised the cashier to call the police. Respondent testified that he spoke with Mr. Esckelson, and asked, “is there any way to make this right?” He told Mr. Esckelson that he had taken the glasses out of the store by accident, and wanted to pay for them. Respondent?s intent in making that statement was to offer payment, and was not an attempt to bribe Mr. Esckelson. The offer was, in any event, declined. Although Respondent had his Nassau County School District employee badge attached to his belt on the right side of his pants, Respondent testified that there was no discussion regarding his employment as a teacher. When the police arrived, Respondent was taken into custody almost immediately. The two officers at the scene arrived in separate cars. Officer Kopinski, who was first on the scene, had separate conversations with Respondent and Mr. Esckelson. Officer Kozak arrived sometime after and took control of the situation since Fred?s was in his zone. Officer Kopinski, who testified at the hearing, had little independent recollection of the events, his testimony being based almost exclusively on Office Kozak?s arrest report to which he referred frequently during the hearing to refresh his recollection. The arrest report was not entered in evidence by either party. Officer Kopinski could not recall whether Mr. Esckelson provided him with the pair of glasses at the time of his placing Respondent in custody. Respondent testified that when he was being placed in handcuffs, the officer, having noticed his school district identification badge, asked if Respondent was a school district employee. Respondent replied that he was a school teacher, and that the arrest would be a bad situation for him. Respondent testified that as he was being escorted from the store to the police car, Mr. Esckelson was searching in the display of flowers for the glasses he had thrown. Respondent told Mr. Esckelson where he had thrown the glasses, at which time he was able to locate and retrieve them. Prior to his being placed in the police car for transport, Respondent was searched. At that time, Officer Kopinski discovered the second pair of glasses in Respondent?s pants pocket, and returned them to Mr. Esckelson. Officer Kopinski testified, based on the police report, that Respondent also had $12.20 and several credit cards in his possession. Although Officer Kopinski had no independent recollection of the money and cards, and the police report is not in evidence, Respondent did not dispute that he had that amount in his possession. Mr. Esckelson?s testimony differed in several respects from that of Respondent. Mr. Esckelson testified that at the time of the incident, he was in the parking lot returning a train of shopping carts to the store. As Respondent was exiting the store, Mr. Esckelson was approximately 15 feet from the door heading in. When the alarm went off, Mr. Esckelson testified that Respondent was pushing the door open with his left hand, and as soon as he opened the door, he removed an object from his right pants pocket, later found to be a pair of glasses, and tossed it into the display of mums. Mr. Esckelson asked Respondent to return to the store, and immediately retrieved the glasses from the display. He asked Respondent to stand by register 2, which was subject to video surveillance, and signaled the clerk to call the police. Although Mr. Esckelson indicated that he said nothing to Respondent, he testified that Respondent asked if there was “anything we can do to take care of this now?” and later stated that “you can?t arrest me, I?m a teacher.” Mr. Esckelson testified that he advised the police officers of Respondent?s statements. Officer Kopinski could not corroborate either of those statements. Mr. Esckelson could not recall whether Respondent was carrying a large bag of dog food. He recalled asking the clerk what Respondent had purchased, but could not remember what the clerk told him. However, there are no sensor tags on dog food that would have caused the alarm to trigger. Mr. Esckelson confirmed that Fred?s has a policy of discouraging shoplifting, and will always prosecute when shoplifters are caught. Over the years that he worked for Fred?s, Mr. Esckelson?s involvement with shoplifters, though not routine, was still relatively frequent. Despite the differences in their descriptions of the events, differences which for the most part were as to peripheral matters, both Respondent and Mr. Esckelson appeared to be forthright and credible. As to the material elements of the event, their testimony was generally consistent. However, Mr. Esckelson had no involvement in Respondent?s matter from the time of the incident until he received a subpoena on August 11, 2011. As was the case with Officer Kopinski, who had almost no independent recollection of the incident, it stands to reason that Mr. Esckelson?s memory of the incident would blur over time, particularly since he was involved with recurring incidents of a similar nature in the intervening period. Respondent on the other hand would be expected to retain a more vivid memory of the incident given its singular affect on him. The differences in Respondent?s and Mr. Esckelson?s testimony do little to affect the outcome of this case. For example, whether Mr. Esckelson was returning carts to the store or returning to the store from assisting a customer, whether the glasses were found before or after the police arrived, and whether the glasses were removed from Respondent?s left or right pocket have little to do with the salient facts of the case. Those and other similarly insignificant differences in the testimony were more likely due to the passage of time than to an attempt to obfuscate the facts of the incident. However, the testimony of Respondent is found to be a more accurate statement of the facts of the incident. At the time of the incident, there were customers and employees in Fred?s. Respondent was acquainted with several of the store clerks from previous times at which he shopped at Fred?s. There was no evidence offered to indicate that Respondent knew any one clerk from another other than from a purely employee/customer standpoint, nor was there any evidence offered that any customer or employee who witnessed the events knew Respondent, or was aware that he was a school teacher. Within a short period after his arrest, Respondent called John Ruis, the Superintendant of Schools for Nassau County, to advise him of the situation. His first calls were over the weekend, at which time he left messages. By the time Respondent spoke with Mr. Ruis, Mr. Ruis had been notified of the arrest, having received a computer notification. Respondent asked to meet with Mr. Ruis to provide his side of the story. When they met, Respondent appeared to be humiliated, humbled, and embarrassed. Respondent advised Mr. Ruis of all pertinent facts of the incident, including the fact that he tossed the glasses into the flower display. He asserted that his failure to pay for the glasses was inadvertent. Mr. Ruis informed the principal of Callahan Middle School and the school district?s personnel director of the situation involving Respondent. Mr. Ruis did not know if any other employee of the Nassau County School District knew of the incident. It is not the practice of Mr. Ruis, as Superintendant, to remove a teacher from the classroom in an alleged disciplinary matter unless the teacher presents a threat of harm to the students. When there is no perceived harm to students, the district allows the legal system to take its course. Mr. Ruis determined that Respondent presented no threat to any student, and he was therefore not removed. Respondent has taught continuously since the incident with no subsequent indication of any problem. As the judicial resolution of the incident, Respondent entered into a deferred prosecution agreement, the precise terms of which were not disclosed. The Petit Theft charge was subsequently nolle prossed, and the record of Respondent?s arrest has since been expunged. The conduct alleged was not known to anyone outside of the arresting officers, the Superintendant, the principal of Callahan Middle School, and the personnel director. Although there were customers and employees of Fred?s in the store at the time of Respondent?s arrest, there was no evidence that any of them knew Respondent, or knew that he was a Nassau County School District employee. There was no evidence that any student, parent, or other teacher had any knowledge of Respondent?s arrest. There was no media coverage of the incident, and no complaints filed with the school district regarding Respondent. Respondent?s conduct was not, in any sense of the term, “notorious.” Respondent denied any intent to steal the glasses. The testimony as to how the glasses came to be in his pocket upon buying the candy and dog food is plausible. Other than his split-second decision to toss the glasses into the flower display -- a decision that Respondent stated was based upon his knowledge of Fred?s aggressive stance on shoplifting -- there is no direct evidence of intent to steal the glasses. While there is evidence from which one could infer consciousness of guilt from the circumstances of this case, Respondent?s act of tossing the glasses when he realized he had exited the store without paying, under the particular facts and circumstances of this case, does not rise to the level of clear and convincing evidence of Respondent?s intent to shoplift the glasses.
Recommendation Upon consideration of the findings of fact and conclusions of law reached herein, it is RECOMMENDED that a final order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 18th day of November, 2011, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 18th day of November, 2011. COPIES FURNISHED: J. David Holder, Esquire J. David Holder, P.A. 40 Grand Flora Way Santa Rosa Beach, Florida 32459 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 224 325 West Gaines Street Tallahassee, Florida 32399-0400 Anthony D. Demma, Esquire Meyer, Brooks, Demma and Blohm, P.A. Post Office Box 1547 131 North Gadsden Street Tallahassee, Florida 32302 Charles M. Beal, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether the Education Practices Commission (EPC) should discipline the Respondent, Bruce R. Ferko, on charges set out in an Administrative Complaint that he was alcohol intoxicated on and off the job as an elementary school teacher, was convicted of driving under the influence of alcohol (DUI), once falsely represented to the administration at his school that he was unable to teach because he was in the emergency room of a hospital when he was in fact in the county jail on (DUI) charges, and was guilty of personal conduct which seriously reduced his effectiveness as a teacher, in violation of Section 231.28(1)(c), (e), (f) and (h), Fla. Stat. (1989).
Findings Of Fact The Respondent, Bruce R. Ferko, held teaching certificate number 553660 issued by the Florida Department of Education, covering elementary education, at all times material to the allegations of the Administrative Complaint, until it expired on June 30, 1990. From approximately August, 1986, until approximately March, 1990, the Respondent was employed as a teacher at Southern Oak Elementary School in the Pinellas County School District. On July 11, 1988, the Respondent was arrested for driving under the influence of alcohol (DUI), fleeing and eluding a police officer, and driving with a suspended license. He pled guilty to the charges on August 30, 1988, and was sentenced to 30 days in the county jail, which was suspended, was fined a total of $382, was ordered to pay a total of $425 of court costs, was required to attend DUI school, and was placed on six months probation on two of the charges, to run concurrently. On several occasions during the 1988/1989 and 1989/1990 school years, the Respondent arrived at school with a smell of alcohol on his breath that was strong enough for at least four different employees at the school to have noticed on different occasions. When the smell was brought to the Respondent's attention, he sometimes would excuse himself to brush his teeth. On or about May 24, 1989, a fellow teacher with whom the Respondent team taught third grade in the 1988/1989 school year, noticed a very strong smell of alcohol on the Respondent's breath. The teacher was concerned and reported it to the school's assistant principal. The assistant principal consulted with the School District's chief personnel officer, who advised the assistant principal to have a conference with the Respondent about it this time. The Respondent admitted that he had been drinking the night before, had about five drinks, and did not eat breakfast. (Later, the assistant principal learned that he had been out until 2:00 a.m. that morning.) The assistant principal decided to send the Respondent to get something to eat and had to make arrangements to cover the Respondent's classroom responsibilities in the meantime. The Respondent often was late for school, especially during the 1988/1989 and 1989/1990 school years. Sometimes, he would take a shower at school when he arrived; sometimes, he would brush his teeth when he arrived at school. Once, after arriving late, the Respondent told an improbable tale of how his car broke down, requiring the Respondent to jump out and fall on his knee (although his white pants showed no evidence of this). Later the same day, the Respondent lay on top of another teacher's desk, in front of the teacher, and acted as if he was going to sleep. On January 17, 1990, the Respondent came to school late with the strong smell of alcohol on his breath and brushed his teeth when he arrived. While leading his class either to or from physical education class, the Respondent was heard singing "at the top of his lungs" This inappropriate behavior disrupted the classes being held nearby. The evidence was insufficient to causally connect the unusual behavior described in Finding 6, above, to the Respondent's use of alcohol. On the morning of October 12, 1989, the Respondent called the school office to arrange for a substitute classroom teacher to take his place for the morning. He reported that he was in the hospital emergency room and was spitting blood. The Respondent was asked if he was sure he only needed a substitute for the morning and was asked to call again if he would not be able to be in that afternoon. The Respondent neither called nor appeared for work the rest of the day, and last minute attempts had to be made to find a substitute for the Respondent for his afternoon classes. That evening, between 10:00 and 11:00 p.m., the Respondent telephoned the school secretary at home to ask if he was in trouble. He gave the excuse that he was lying on a table in the emergency room all morning having a barium enema and was not permitted to get up to call the school to get a substitute for the afternoon. Later, school officials learned that the Respondent had not been at the hospital that morning but rather, in fact, had been arrested earlier on the morning of October 12, 1989, and was in the Pinellas County Jail. (The evidence at the final hearing did not specify the charges or their disposition.) On the morning of October 24, 1989, the Respondent was scheduled to take his class on a field trip to Ruth Eckerd Hall, a performing arts center in Clearwater, with the other third grade class. The Respondent was late for school again, so late that the field trip almost had to be cancelled. He arrived with the strong smell of alcohol on his breath and complaining of a headache. When the bus arrived at Ruth Eckerd Hall, the Respondent jumped off and, inappropriately, headed across the busy parking lot toward the building well ahead of the children in his class, who were hurrying to try to keep up with him. The other third grade teacher was concerned for the safety of the children in the Respondent's class and had to take some of the stragglers from the Respondent's class, of whom the Respondent appeared oblivious, under her care for their safety. When the Respondent returned to school after the field trip, still complaining of a headache, he inappropriately yelled at one of the children in his class for not being appropriately dressed for Ruth Eckerd Hall, upsetting the child. On November 11, 1989, a Pinellas Park Police Department patrol officer saw the Respondent in his car weaving down the street and running a stop light. The officer attempted to stop the Respondent, who sped off in his car, leading the officer on a two mile chase at 60 miles per hour, 20 mile per hour over the legal speed limit, that ended in the driveway of the Respondent's residence. The Respondent resisted arrest (without violence), saying that he did not want to go back to jail because he would lose his job. The patrol officer had to call for back up assistance, and it took three officers to take the Respondent down to the ground to handcuff and arrest him. Although the Respondent's breathalyzer showed 13 to 14 percent blood alcohol, there was no evidence whether the breathalyzer was properly calibrated. However, the Respondent failed all four field sobriety tests, and it is found that he was intoxicated at the time of his arrest. Criminal charges are pending against the Respondent. He has failed to appear for criminal court proceedings, and there is an outstanding warrant for his arrest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Education Practices Commission enter a final order finding the Respondent, Bruce R. Ferko, guilty as specified in the Findings of Fact and Conclusions of Law and imposing the sanction that he be barred from applying for a new teacher certificate for a period of two years. RECOMMENDED this 18th day of February, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 18th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5822 To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the Petitioner's proposed findings of fact (the Respondent not having filed any): 1.-2. Accepted and incorporated. Rejected in part as not proven. There was no evidence to prove the third and fourth sentences. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. 5.-10. Accepted but subordinate, mostly to facts found. 11. Accepted and incorporated. 12.-21. Accepted but subordinate, mostly to facts found. Rejected as not proven. The witnesses were not clear as to the Respondent's contract status, and there was no evidence to prove the rest of the proposed finding. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Robert J. Boyd, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark S. Herdman, Esquire Kelly & McKee, P.A. Post Office Box 75638 Tampa, Florida 33675 Bruce R. Ferko 109 Collier Place, Apt. 2C Cary, North Carolina 27513 George A. Bowen Acting Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact The Respondent, Michael Fort, at times pertinent to the charges in the Administrative Complaints, held teacher's certificate number 514033, issued by the State of Florida Department of Education (Department). That certificate authorized practice as a teacher in the area of music education. The Respondent was employed as a teacher at Lake Weir Middle School in the Marion County School District. The Respondent was under an annual contract with that school system from November 23, 1983, through the 1984-85 school year. The Respondent's last annual contract expired on June 7, 1985. The Respondent's teacher's certificate expired on June 30, 1985. Some time prior to the expiration of his teacher's certificate, the Respondent applied to the Department for its renewal. That application still pends before the Department. In October 1983, the Respondent had a minor student spend the night at his apartment. The minor student had previously been a close friend of the Respondent and had socialized with him in the past, including spending the night at his residence on other occasions. The Respondent had entered into a close, friendly relationship with the minor, Darien Houston, by frequently letting him stay at his residence during periods of time when Darien Houston's parents were fighting or otherwise engaging in domestic discord, which apparently was very disturbing to the student. Darien Houston, although a student in the Marion County School System, was not a student of the Respondent. Indeed, the Respondent was not yet employed by that school district. In any event, during the course of the evening in question, while they were sitting near each other watching television, the Respondent placed his hand on the student's leg and the student requested that he remove his hand. The student at the time thought Fort was joking or had no serious intent by this action. Fort then went to bed and the student went to bed, sleeping on the floor in his jeans in a sleeping bag. Some time later that night, the student was awakened and realized that the Respondent had undressed himself and undressed the student and had proceeded to place his hand on and fondle the student's penis. He thereafter attempted to roll Houston over onto his stomach in spite of Houston's objections. In response to the student's objections, the Respondent made a statement to the effect, "Do you want to do it with me?" The student continued to object and to retreat from the Respondent's advances. He retreated to the bathroom where he locked himself in and remained for the remainder of the night. The student was embarrassed because of the incident and elected not to report it to school officials or others for approximately a year and a half. However, Houston did tell his best friend what had happened, who in turn informed Houston's mother of the incident. Eventually, Houston's brother informed another individual of the occurrence, who then informed Mr. Springer, the principal at Lake Weir Middle School, of the incident. Darien Houston, a student there, was then called before Mr. Springer, who investigated the matter. Houston related the information about the subject occurrence to him, in approximately May 1985. Thereafter, the criminal proceeding against the Respondent related to this incident and the instant administrative Prosecutions ensued. The matter became public knowledge among students at Lake Weir Middle School, who teased Houston about the incident, causing him great embarrassment and humiliation. The occurrence was widely reported in local newspapers. Sometime in May 1985, while a teacher at Lake Weir Middle School, during the course of a puppet show being Presented in a sixth grade classroom, Respondent stuck his hand down the back of a minor male student's pants between his underwear and his trousers. This action by the Respondent shocked and embarrassed the student, although it was not established that any bystanders, of which there were a number present, observed the incident. The student, Patrick Hammer, was embarrassed to tell anyone of the occurrence, but ultimately informed his teacher of the incident by writing a note to the teacher concerning it. Other students at the school ultimately became aware of this and teased Patrick Hammer about it, causing him embarrassment and humiliation. In approximately May 1985, the Respondent attended a party at a local hospital. The Respondent was in the company of three minor male students who were then enrolled at Lake Weir Middle School. The students, Steve Hall, Richard Slaughter and Eddie Ericson, or some of them, were drinking beer from a keg or draft dispenser at the party. Steve Hall's mother, who was employed at the hospital, was present at the party and was aware that her son was drinking beer. All three of the boys later left the party and went with Mr. Fort to his apartment. While en route, the Respondent stopped at an ABC Liquor Store and purchased approximately two six-packs of beer. After purchasing the beer, the Respondent took the three students to his apartment where the students swam in the swimming pool and, in his presence and with his knowledge, drank the beer that the Respondent had purchased. It was not established that the Respondent bought the beer with the specific intent of giving it to the students but, by his own admission, he offered no objection to the students' consumption of the beer in his presence at his residence. On May 12, 1986, the Respondent pled nolo contendere to one count of attempted sexual battery and one count of lewd and lascivious behavior. He was sentenced to ten years probation, fined $200, ordered to undergo mental health counseling, to complete 100 hours of community service and to refrain from any custodial or supervisory contact with any person under the age of 16 years. Respondent's arrest, the circumstances surrounding the charges and his plea regarding the above incidents received widespread publicity in the local media and was known to students, faculty and other School Board personnel and the public at large. On or about April 10, 1985, the Respondent received a letter from Nick Marcos, Assistant Superintendent of Administrative Services with the School Board of Marion County, informing him that he would be reappointed to a position as an annual contract teacher with the Marion County School System as soon as he had been issued a regular or temporary teaching certificate for the 1985-86 school year. On or about May 16, 1985, the Respondent submitted a reapplication for a temporary certificate to the Florida Department of Education. On or about August 9, 1955, Respondent received a letter from R. S. Archibald, District School Superintendent, advising him that he had been suspended as an instructional employee of the Marion County School System, pending a meeting of the School Board. Thereafter, on or about August 19, 1985, the Respondent received a letter from Jim Ergle, as Chairman of the School Board, advising him of the Board's decision to suspend him without pay based upon the above-described arrest and charges. In the April 10, 1985 letter, the Assistant Superintendent had informed him that he had been recommended for reappointment for the 1985-86 school year, but reminded him that he would have to renew his teaching certificate to be eligible for reappointment. Upon his application for renewal of his teaching certificate, the application demonstrated that all requirements for renewal had been met. His teaching certificate expired on June 30, 1985. The renewal application was never acted upon by the Department, although it informed Mr. Fort, sometime prior to August 1985, that his application was in order and the certificate would be forthcoming. His suspension without pay was predicated upon the charges pending before the Circuit Court for Marion County concerning the alleged sexual battery and lewd and lascivious conduct, and the letter informing Mr. Fort of it did not indicate that it was at all based on his failure to renew his teaching certificate. The School Board employed the formal suspension process against the Respondent, although his express annual contract had already expired, in an abundance of caution because a grace period is normally allowed teachers to re- apply for renewal of their certificates after expiration and because the Board allows a grace period for reappointment of a contract teacher after the expiration of a teaching certificate, provided the teacher provides evidence that the certificate has been properly renewed. The Respondent was paid for all services rendered by him to the Marion County School Board through the last day of the 1984-85 school year, which was also the last day of his employment pursuant to his last express annual contract. He has never taught in the district since that time.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the EPC permanently revoking the certificate of the Respondent, Michael Fort, and that he be finally dismissed by the Marion County School District and forfeit any back pay. DONE and ORDERED this 14th day of July 1987, in Tallahassee, Florida. COPIES FURNISHED: William E. Williams, Esquire Rex D. Ware, Esquire 111 North Calhoun Street Post Office Box 1739 Tallahassee, Florida 32302 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Sydney McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Karen B. Wilde Executive Director Education Practices Commission 215 Knott Building Tallahassee, Florida 32399 P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 14th day of July 1987.
The Issue The issues to be determined are whether Respondent reported for duty while under the influence of alcohol in violation of section 1012.795(1)(j), Florida Statutes (2016), and Florida Administrative Code Rule 6A-10.081(2)(a)1.1/, as alleged in the Administrative Complaint; and, if so, what sanction is appropriate.
Findings Of Fact The Commissioner is the state officer responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. Ms. Jones held Florida Educator's Certificate No. 866702, covering the area of Music, which was valid through June 30, 2018. At all times pertinent to the Administrative Complaint, Ms. Jones was employed as a music teacher at Village Green in the St. Lucie County School District. On May 8, 2017, Ms. Cynthia Garcia reported to work at Village Green around 7:30 a.m. The desk where visitors and staff members sign in is adjacent to the front office where Ms. Garcia works. Sometime between 7:30 a.m. and 7:50 a.m., Ms. Jones signed in at the desk and crossed the front office. Ms. Jones said hello to Ms. Garcia and apologized for the way that she looked. Ms. Jones had on no makeup and her hair or wig was unkempt. Ms. Garcia asked Ms. Jones if she was okay because she was acting a little giddy and didn’t seem to be herself. Ms. McQueen was in the hallway at Village Green going to her classroom when Ms. Jones called out to her. Ms. McQueen went over to her to see what she wanted. Ms. Jones was laughing and told Ms. McQueen that the students would not recognize her because she wasn’t wearing any makeup. Ms. McQueen smelled alcohol and noticed that Ms. Jones’ was inappropriately dressed and that her hair was untidy. Ms. McQueen testified that Ms. Jones was slurring her words, but she was able to understand what Ms. Jones was saying. Ms. McQueen testified that Ms. Jones did not have any coordination problems or trouble walking. Ms. McQueen told Ms. Jones to go to her office to straighten herself up. Ms. McQueen testified, “And my reason for doing that, because I wanted to get her away from the students, so that I could go to the office to get help, to tell administration.” Ms. McQueen testified that while she was talking with Ms. Jones, a few students began waiting outside of the music room where they were to rehearse for a musical production. Ms. McQueen saw Ms. Brown in the cafeteria. Ms. McQueen told Ms. Brown that she thought Ms. Jones was drunk, or had been drinking. Ms. Brown asked Ms. McQueen to take over her responsibility to stay with the children who were having breakfast so that Ms. Brown could go see Ms. Jones in the music room. Ms. Brown testified that when she spoke to Ms. Jones: [Y]ou could smell the alcohol, and her eyes was swollen and the whites was red. And the students kept trying to come through the back part of the –- it’s like the stage, because they was practicing. They practice in the morning for a play. And I wanted to try to keep the students from seeing her, so I like get in front of her. * * * Because I didn’t want them to see how she looked. Because her hair was kind of wild and her top was up, you can kind of see her stomach. I didn’t want the students to see Ms. Jones like that. Ms. Brown told Ms. Jones she needed to get herself together, and Ms. Jones responded that she would leave the school. Ms. Brown asked Ms. Jones if she wanted her to get someone to help, was told no, and she then told Ms. Jones that she would tell the school administration that they would need to get a substitute teacher for the day. This credible, eyewitness testimony of Ms. Jones’ colleagues that she smelled of alcohol, had swollen and bloodshot eyes, exhibited slurred speech, and was acting in an unusual, “giddy” manner is sufficient evidence to reasonably infer that Ms. Jones was under the influence of alcohol when she reported to the school for duty on the morning of May 8, 2017. Ms. McQueen and Ms. Brown left campus, with Principal Barrett-Baxter’s permission, to make sure that Ms. Jones had arrived at her home. When they arrived, they saw her rental car parked there. Later the same morning, Ms. Jones returned to Village Green. She went to the office area to talk to Principal Barrett- Baxter. It was not clearly shown that Ms. Jones intended to return to duty or be in contact with students when she returned. Principal Barrett-Baxter said that she could smell alcohol from across the desk, and confirmed the others’ earlier observations that Ms. Jones’ appearance was unacceptable. Ms. Garcia also credibly testified that the smell of alcohol was so strong that it lingered in the room after she left. Based on her observations and reports, Principal Barrett-Baxter directed Ms. Jones to have a reasonable suspicion drug test conducted. Officer Ken Rodriguez, who transported Ms. Jones for the testing, also testified that he smelled alcohol, that Ms. Jones was a “little foggy,” and that she appeared to be under the influence of alcohol. Two breathalyzer tests were conducted at Absolute Testing, indicating that Ms. Jones had blood alcohol level readings of .186 and .191. The events after Ms. Jones returned to Village Green were of little value in considering the charge in the Administrative Complaint because of the interplay of two circumstances: 1) Ms. Jones spent time at home alone after her initial presentation at Village Green and before the time the alcohol test was conducted; and 2) it was not clearly shown that Ms. Jones was reporting for duty to teach students when she returned to the school. There was no evidence of any prior discipline involving the Florida Educator Certificate of Ms. Jones.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order finding Respondent Renya Jones in violation of section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1.; renewing her teaching certificate and placing her on probation for a period of three years; requiring her to obtain treatment through the Recovery Network Program at a frequency and for a duration deemed appropriate by the Commission; and requiring her to pay administrative fees and costs. DONE AND ENTERED this 15th day of November, 2018, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 15th day of November, 2018.
