Findings Of Fact Petitioner, Bill A. Corbin, has been a member of the Florida Bar since October, 1972 and has continually engaged in the private practice of law in Blountstown since that time. His present office is located at 305 Fannin Street, Blountstown, Florida. On January 1, 1973, petitioner was retained by the Calhoun County Board of Commissioners to represent the county in the capacity of county attorney. He remained in that position until March 1, 1983, or a period of ten years. During that period of time he was a member in good standing of the Florida Retirement System (FRS) and made the required contributions into the program. From April 1, 1980 until August 26, 1983, Corbin also served as county attorney for Liberty County. When he left the employ of Calhoun County on March 1, 1983, he reenrolled in the FRS effective the same date using his employment with Liberty County as a basis for the continued enrollment. After conducting an audit of petitioner's employment in early 1983, respondent, Department of Administration, Division of Retirement, advised petitioner by letter dated April 22, 1983 that because he failed to comply with current FRS membership requirements, he was being removed from FRS membership effective July 1, 1979. The effect of this action was to leave Corbin with approximately 6 1/2 years of creditable service with the FRS rather than almost 10 1/2 years. The proposed agency action triggered the instant proceeding. The position of county attorney in Calhoun County was a regularly established position and has been for some 25 years. The same is true for the county attorney slot in Liberty County. In Calhoun County, Corbin was paid on a monthly basis and had the normal deductions made from his salary. He received the same annual percentage increase in salary as did other county employees. He was also covered under the County's errors and omissions policy, and was eligible for workers' compensation coverage. According to a Calhoun County Commissioner, Corbin received annual and sick leave of one day per month while serving as county attorney. However, unlike other county employees, he was not compensated for unused leave when he terminated employment, and did not have to fill out leave slips as do other employees when taking leave. He also was given stationery, use of a reproduction machine, and clerical help from the county clerk's office when necessary. Corbin's initial employment with Calhoun County was based upon an oral agreement between he and the commissioners. This agreement was later reduced to writing in 1979 in order to comply with concerns expressed by the county's outside auditors. The standard employment contract specified a set fee per month for Corbin to attend regular Board meetings, advise them on legal matters concerning County business, and to prepare resolutions, correspondence and ordinances. Additional services concerning litigation were rendered on either a contingent fee basis or an hourly rate basis. These sums were paid from monies set aside each year by the County for legal services not covered by Corbin's monthly salary. No deductions were taken from payments made to Corbin for these additional services. The contract also provided that either party could terminate the same upon giving thirty days' notice. A similar agreement was executed by Corbin for his employment with Liberty County except that the agreement called for compensation at a rate of $40 per hour. Corbin's normal duties generally included attending two regular board meetings each month which lasted from two to twelve hours each, attending special meetings, handling correspondence, keeping minutes of each meeting, and being on call for requests for advice from Board members. In all, petitioner estimated he spent approximately 30 hours per month on Calhoun County business. Although some of the county work was performed in the courthouse where the boards met, most of it was done in Corbin's law office since he was not provided an office by either county. The members of the Board control petitioner's hours by assignment of the work to be done, including requests for advice, research and opinions, and litigation. The Board determines which cases will be settled, defended or appealed. Corbin is required to accept any case or matter assigned, and does not reject assignments. However, the Boards do not control the day to day methods by which petitioner litigates cases and performs legal judgments. Petitioner does not supervise any employees employed by the County nor does he supervise or direct the activities of any full time or part time assistant county attorneys or legal secretaries. The rule which makes petitioner ineligible for membership in the FRS is Rule 22B-1.04, Florida Administrative Code, which became effective on July 1, 1979. After the rule was adopted, respondent sent a memorandum to all local agencies, including Calhoun and Liberty Counties, requesting that they review those employees that might fall within the "professional" status in order to determine their eligibility under the newly adopted rule. A copy of the rule was also sent to each local agency. The agencies were then required to transmit information on each such employee to the respondent. Thereafter, it began the lengthy process of auditing all reporting units, including the two counties in question. Because respondent is now reviewing over 700 reporting units, the audit process is time-consuming, and has resulted in lengthy delays in removing ineligible employees from FRS.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Bill A. Corbin to remain in the Florida Retirement System from July 1, 1979 through August 26, 1983 be DENIED. DONE and ENTERED this 18th day of June, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 18th day of June, 1984.
Findings Of Fact The Petitioner, Linda S. Powell, began her original employment associated with Orange County on February 19, 1975. The period from February 19, 1975, to July 1, 1980, is 5 years, 4.4 months. In order to be entitled to disability benefits under the Florida Retirement System (FRS), Ms. Powell must have completed five years of creditable service with the County on or before July 1, 1980. The period from February 19, 1975, through September 7, 1975, equals approximately 6.4 months. It is this 6.4 months which is at issue in this case because the Respondent, Department of Administration, Division of Retirement, maintains that Ms. Powell was ineligible for creditable service because she was a temporary CETA employee. If the 6.4 months of CETA employment is deducted from the 5 years 4.4 months of total service before July 1, 1980, Ms. Powell has 4 years 10 months of creditable service, 2 months short of the 5-year requirement. Ms. Powell began employment with the Orange County Board of County Commissioners on February 19, 1975, as a keypunch operator under the CETA Program. At this time, and for several months prior to her beginning employment, Orange County had been operating under a federally subsidized program known as the Comprehensive Education and Training Act (CETA), which was operated by Orange County under two separate programs known as Title I and Title II. Title I was an on-the-job training program which provided employment positions to individuals in addition to the regular employment positions already maintained by the County. These individuals were brought on the regular payroll of the County and were given full benefits, including retirement and social security. Approximately 20 to 25 individuals took part in this program. In the latter part of 1974, the CETA Title II program was begun by the County. This program was for certain identifiable population groups of unemployment within the County. Individuals hired under Title II were put on the regular County payroll, and the County would submit a bill to CETA for payment of the individual's salary and benefit, which included retirement (FRS) and social security. In February 1975, the CETA Title VI program was implemented by Act of Congress. Title VI was a federal emergency employment measure designed to get people into productive job situations and to provide an immediate salary payment. In implementing Title VI, the County determined that no fringe benefits, including social security and retirement, would be paid for these individuals, since this method would allow approximately 20 percent more individuals to be hired in the program. The County determined that individuals in the Title VI program were to be temporary employees of the County. Individuals were further notified on the first day of employment during an orientation session that they were temporary employees and would receive no fringe benefits. Petitioner signed a statement on her first day of employment that she understood that she was placed in a federally funded program and had no assurance of continued employment at the end of the funding for such program. (Respondent's Exhibit 1). CETA Title VI funds were placed in a special, separate bank account by the County, and from this account the County would pay salary to Title VI individuals and other bills such as equipment and supplies purchased. This account was not a regular payroll account. Upon payment of Title VI individuals, the County would then invoice the federal CETA office for the salaries paid and receive reimbursement. Employees who worked under Title VI performed work in nonprofit agencies, such as United Nay, as well as work for the County. Petitioner continued to be an employee under CETA Title VI from February 19, 1975, to September 7, 1975, at which time she was transferred from CETA Title VI to CETA Title II and placed in a regularly established position. (Respondent's Exhibit 2). At this time, an employment history file was begun on the Petitioner, and said file reflected a service date of September 7, 1975. In addition, an "employee change notice" was completed on Petitioner, signifying a transfer from CETA Title VI to permanent status. (Respondent's Exhibit 3). The County began payment of retirement contributions on Ms. Powell in September 1975, as reflected by the certification of earnings provided by the County to Respondent. Ms. Powell filed an application for disability retirement benefits on April 5, 1983. (Petitioner's Exhibit 1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Linda S. Powell be denied service credit for her employment under CETA from February 19, 1975, to September 7, 1975. Said service is not creditable under the Florida Retirement System. DONE and ENTERED this 9th day of May, 1984, in Tallahassee, Leon County, Florida. Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 9th day of May, 1984. COPIES FURNISHED: Terry C. Young, Esquire 109 East Church Street, Suite 301 Post Office Box 2631 Orlando, Florida 32802 Stanley M. Danek, Esquire Division of Retirement 2639 North Monroe Street, Suite 207-C, Box 81 Tallahassee, Florida 32303 Nevin G. Smith, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
The Issue Whether Respondent, a middle school teacher, violated section 1012.795(1)(d) and (1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1., (2)(a)5., (2)(a)8., (2)(c)1., (2)(c)8., and (2)(c)9., as alleged in the Amended Administrative Complaint (AAC); and, if so, the appropriate penalty.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Respondent holds Florida Educator Certificate number 1299379, covering the area of music. The certificate is valid through June 30, 2020. At all times pertinent hereto, Respondent was employed as a Music Teacher at LMS in the Manatee County School District. The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796. The Commissioner is responsible for investigating and prosecuting misconduct allegations against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. Background On April 28, 2017, Respondent submitted a resignation letter to MCSD, and later that same day rescinded this resignation letter. Based on a prior investigation, on May 17, 2017, Respondent was issued a letter of reprimand by the LMS principal for poor judgement and poor classroom management. MCSD Office of Professional Standards started another investigation of Respondent in May 2017. In June 2017, PPD served a subpoena on Respondent, and seized his electronic devices. On August 4, 2017, Respondent was temporarily reassigned to MCSD transportation office. On August 17, 2017, MCSD placed Respondent on paid administrative leave. In August 2017, Investigator Nelson completed an investigation report that went to MCSD senior administrators, including the superintendent and its legal counsel. A practice of MCSD is that once an investigation is opened involving a union member, that union member is represented by a union paid counsel. MCSD communicates solely through the employee’s counsel. At the time, Respondent was a union member, and was represented by counsel during the pertinent MCSD’s investigations. On August 30, 2017, Respondent was not present when his counsel met with Investigator Nelson and MCSD general counsel. They advised Respondent’s counsel of the evidence found regarding Respondent, and that MCSD was going to move forward with the termination of Respondent’s employment. Respondent’s counsel was informed that Respondent could resign his teaching position in lieu of termination. Respondent submitted a letter of resignation to the Manatee County School Board (Board), dated September 1, 2017, providing for his resignation to become effective on September 12, 2017. Further, this letter provided that Respondent would not seek “reemployment” with MCSD. The Board was scheduled to meet on September 12, 2017, and would have considered any termination requests. Once Respondent resigned, MCSD did not have any further jurisdiction over Respondent. Dr. Breslin served as an assistant principal at SCSD’s Booker High School (Booker) when Respondent applied for a position there shortly after he resigned from MCSD. She was on the committee that interviewed the various candidates, including Respondent, and decided to hire Respondent. Respondent was hired by SCSD and taught at Booker. During his probationary period, Respondent was released from his SCSD employment. Material Allegations The material allegations upon which the charged violations are predicated are, in their entirety, as follows: During the 2016-2017 school year, Respondent engaged in an inappropriate relationship with K.A., a sixteen year old female student, as evidenced by a picture of Respondent and K.A. kissing. On or about September 5, 2017, in the midst of a district investigation into inappropriate relationships between Respondent and female students, Respondent resigned in lieu of termination from his teaching position with the district, to be effective September 12, 2017. On or about September 22, 2017, Respondent submitted an application for a teaching position with Sarasota County Public Schools. Respondent fraudulently answered 'no' to the following questions: Have you ever: failed to fulfill a teaching or administrative contract? had any disciplinary action taken against you by any Board of Education? been removed or dismissed from any position? resigned in lieu of termination? On the last page of Respondent’s SCSD application, he certified that his answers were true and to the best of his knowledge. Pictures In June 2017, pursuant to a search warrant, the PPD seized Respondent’s laptop computer and two cell phones, and sent them to FDLE for analysis. FDLE Analyst Carson was assigned to retrieve any pictures and/or text messages from Respondent’s devices. FDLE Analyst Carson issued the results via a report to the PPD. The FDLE report was not admitted into evidence. Mr. Oyler (and other PPD officers) reviewed the FDLE report, including the pictures4/ taken from Respondent’s devices, and found no evidence of an inappropriate relationship as alleged by a female LMS student. However, Mr. Oyler observed pictures of Respondent with another young (female) person. Mr. Oyler contacted LMS Resource Officer Moore to determine the identity of this other young female. Officer Moore, a 17-year employee of PPD, has been a resource officer assigned and stationed at LMS since 2013. In early 2016, Respondent was investigated for “some allegations,” and Officer Moore had a conversation with Respondent about his interactions with female students. Officer Moore advised Respondent to: So you just protect yourself. Make sure you’re keeping the door [to his classroom] open if you can between classes with view so the other [band/orchestra] teacher has observation. Don’t be alone with students, especially female students. Make sure you’re protecting yourself and making smart choices about it. Officer Moore knows N.A., the mother of K.A.5/ During the 2016-2017 school year, Officer Moore and N.A. both worked at LMS. Officer Moore would see K.A., a MCSD student, when she came to LMS to wait for her mother. Additionally, Officer Moore socialized with the A. family at various parties, including K.A.’s graduation from high school in May 2018. At the hearing, Officer Moore was shown a picture retrieved from Respondent’s devices of two people kissing, specifically Petitioner’s Exhibit 18, page 39 (hereafter referred to as the “kissing photograph”). When shown the kissing photograph, Officer Moore expressed no doubt or hesitation in identifying the two persons kissing: Respondent and K.A. Further, Officer Moore identified Respondent and K.A., individually or together, in the remaining pictures of Petitioner’s Exhibit 18, pages 40-47. Officer Moore’s testimony is found credible. Investigator Nelson conducted two investigations of Respondent, and met with him five or six times. When shown the pictures retrieved from Respondent’s devices, Investigator Nelson expressed no doubt or hesitation in identifying Respondent in all of the pictures found in Petitioner’s Exhibit 18, including the kissing photograph. Investigator Nelson’s testimony is found credible. Respondent’s counsel, through questioning of Mr. Oyler intimated that K.A. manipulated and uploaded multiple altered images to Respondent’s electronic devices. Mr. Oyler provided that he had heard K.A. “saying that she modified the images,” or that she had “doctored the photos.” K.A. did not testify in this hearing, nor did any other students. However, Mr. Oyler interviewed K.A. during the course of the PPD investigation. Initially K.A. denied having any relationship with Respondent. However, when Mr. Oyler presented K.A. with all the pictures found in Petitioner’s Exhibit 18, her reaction left Mr. Oyler with the impression that K.A. and Respondent had “more of a romantic, physical relationship.” Mr. Oyler’s testimony is found credible. Pastor Mazon was asked the following question: “Do you recognize the male in that photograph [the kissing photograph]?” He answered “Not really, not from that angle . . . no, not really.” He was then asked specifically: “Does that appear to be Mr. Peterson [Respondent] in that photograph?” Pastor Mazon responded: “It would be hard for me to tell from the side view like that. I would have to see it from the front.” And when shown the same kissing photograph in color and asked if the male was Respondent, Pastor Mazon replied: “That’s still a hard call for me. You know, skin tone. But then I see a scar from – on behind the ear, which I never saw, which I never - - that’s kind of hard for me, yeah. . . . I wouldn’t be able to identify him in that fashion.” Pastor Mazon was unable to confirm or deny that Respondent was in the kissing photograph, yet he positively identified Respondent in each remaining picture of Petitioner’s Exhibit 18. Pastor Mazon’s testimony lacks clarity and credibility as he waffled on identifying Respondent in the first picture, but had no hesitation in the remaining pictures. Ms. Bellamy, Respondent’s aunt, testified that she did not recognize the male in the kissing photograph. In the remaining pictures, Ms. Bellamy confirmed Respondent was in the pictures on pages 40 and 42 of Exhibit 18, but was not in the pictures on pages 41 or 43 through 47. Ms. Bellamy did confirm that Respondent was in the picture in Petitioner’s Exhibit 20. As Respondent’s relative, Ms. Bellamy’s testimony appears to be selective and is not found credible. Sarasota County School District Petitioner’s Exhibit 17, which was admitted without objection, provided that Respondent was under contract with MCSD to serve as an instructional employee for the 2017-2018 school year. Petitioner’s Exhibit 12, Respondent’s resignation letter, which was admitted without objection, provided that Respondent resigned his MCSD position for the 2017-2018 school year, effective September 12, 2017. Further, Respondent agreed to not seek reemployment with MCSD. Dr. Breslin was an assistant principal at Booker in Sarasota, Florida, for the 2017-2018 school year. She served on the committee that interviewed candidates for a teaching position at Booker. Dr. Breslin reviewed and relied upon Respondent’s SCSD application, and interviewed Respondent (with the other committee members) for the Booker teaching position. Further, Dr. Breslin performed the reference checks regarding Respondent’s application. Dr. Breslin was instrumental in the decision to hire Respondent for the position at Booker. Dr. Breslin was never provided a copy of Respondent’s letter of reprimand or his MCSD resignation letter. Further, during SCSD’s interview process, Dr. Breslin was not told that Respondent had been under investigation by MCSD. Dr. Breslin confirmed that by Respondent’s failure to tell her (or the committee) of these (the letter of reprimand, his resignation letter from MCSD, and/or the investigation), Respondent gave a false presentation. Had Dr. Breslin known of any of these, Respondent would not have been brought in for an interview and would not have been hired. Dr. Bowden testified that Respondent was released from his SCSD teaching contract during his probationary period. Typically, SCSD does not provide a reason for an employee’s release. However in this case, Respondent’s employment was terminated based on his arrest. Dr. Bowden also testified that Respondent’s failure to advise SCSD of his resignation from MCSD, his letter of reprimand, and that he was under investigation was tantamount to falsification of his application to work for SCSD. Respondent was represented by competent counsel, during MCSD’s investigation and his ultimate resignation from MCSD.
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 Respondent guilty on Counts 1, 2, and 5 through 8, and permanently revoking his Educator Certificate. DONE AND ENTERED this 24th day of October, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 24th day of October, 2019.
The Issue Should the State of Florida, Education Practices Commission impose discipline against Respondent for alleged violations of the statutes and rules regulating Respondent's Florida Teaching Certificate No. 284544?
Findings Of Fact Respondent holds Florida Teaching Certificate No. 284544 in the subject areas of economics and drivers' education valid through June 30, 2005. In a case before the State of Florida, Education Practices Commission, Frank T. Brogan as Commissioner of Education, Petitioner, vs. James F. Davis, Respondent, Case No. 9450786-C, among the allegations was the reference to Respondent's arrest on March 6, 1994, for driving under the influence and adjudication on October 4, 1994, related to that offense. In Case No. 94-012585 MM A, County Court of the Fourth Judicial Circuit, in and for Duval County, Florida, Respondent pled guilty and was adjudicated guilty on October 4, 1994, to the driving under the influence offense and was fined $1270.00 as part of the disposition of the case. Pertaining to Case No. 945-0786-C, in an action before the State of Florida, Education Practices Commission, Frank Brogan, as Commissioner of Education, Petitioner, vs. James F. Davis, Respondent, Case No. 96-022-RT, final order, entered June 19, 1996, the Education Practices Commission accepted a settlement agreement between the parties. As a consequence, Respondent received a letter of reprimand. In the case disposition, Respondent agreed to be placed on probation for a period of two years commencing with the issuance of the final order, assuming Respondent's current employment as an educator in Florida at the time the final order was entered. Respondent was so employed. Among the conditions of his probation were that Respondent "violate no law and shall fully comply with all district school board regulations, school rules and state board of education Rule 6B-1.006." Through the settlement agreement, accepted in the final order, Respondent agreed that should he fail to comply with each of the conditions of probation set forth in the settlement agreement; then the Petitioner, the Commissioner of Education, would be authorized to bring an administrative complaint for sanctions up to an including the possible revocation of the teaching certificate based upon a violation of the terms of the probation. The present Administrative Complaint is premised upon this agreement authorizing a further administrative complaint for alleged violations of the conditions of probation. Contrary to the expectations of his probation, Respondent was arrested on March 22, 1998, in Jacksonville, Duval County, Florida, while driving under the influence of alcoholic beverages, to the extent that Respondent's normal faculties were impaired. Section 316.193, Florida Statutes. This arrest led to the filing of a criminal information in the case of State of Florida vs. James Felder Davis, the Respondent herein, in a case before the County Court of the Fourth Judicial Circuit, in and for Duval County, Florida, Case No. 98-19559-MM, charging a violation of Section 316.193, Florida Statutes. Although no proof was presented that the DUI case No. 98-19559-MM has been resolved, facts are known concerning Respondent's driving on March 22, 1998. On that date Officer J. T. Carey of the Jacksonville Sheriff's Office observed Respondent in an automobile passed out in the drive-thru at the Taco Bell Restaurant at 9300 Atlantic Boulevard. Other cars were going around Respondent's car to avoid it. Respondent was in the driver's seat with the keys in the ignition and the car running. No other person was in the car with Respondent. The officer tried several times to wake Respondent. When the officer succeeded, he asked Respondent to step out of the vehicle. Respondent had to use the door to brace himself when getting out of the car. Respondent's appearance revealed bloodshot watery eyes. Respondent's speech was slurred. Respondent had soiled his shorts and had a strong odor of alcoholic beverage on his breath. Respondent was very disoriented. Respondent's car was removed from the lane of traffic at the drive-thru, and the officer then drove Respondent to an adjacent location to perform a field sobriety exercise. This involved an eye test, a walk and turn in which the Respondent was required to walk nine steps on a line and turn around and come back. The Respondent was required to stand on one leg a period of 30 seconds to test balance; another test performed was the finger to nose exercise. Respondent performed poorly on the exercises. Officer Carey believed that Respondent was too impaired to drive and arrested Respondent for DUI. Respondent refused to take a breathalyzer test to measure impairment. In the school year 1992-93 Respondent was hired as a driver's education teacher at First Coast High School, part of the Duval County School District. Respondent worked in that capacity through January 18, 2002. It was anticipated, though not established in the hearing record, that Respondent would retire from his position with the Duval County School Board on January 31, 2002. The Duval County School District took action against Respondent for misconduct. This action was taken on February 16, 1999, and accepted by Respondent on February 24, 1999. The nature and specifications of the misconduct related to the March 22, 1998 arrest and charge for driving under the influence. The nature and specifications were also related to the grounds for discipline in the Education Practices Commission Case No. 945-0786-C, leading to the final order that has been discussed. The Duval County School Board perceived that the arrest and charge on March 22, 1998, violated the terms of the settlement agreement as contained in the final order from the Education Practices Commission related to Case No. 945-0786-C, thus violating Section 231.262(7), Florida Statutes. The School District also found a violation of the State Board of Education Rule 6B-1.006, Florida Administrative Code, concerning the Principles of Professional Conduct of the Education Profession and Rule 6B- 1.001(3), Florida Administrative Code, pertaining to the Code of Ethics of the Education Profession on the subject of the need to be of good moral character, the need to avoid engaging in acts of gross immorality or acts involving moral turpitude and the conviction of misdemeanors other than minor traffic violations. The disciplinary terms imposed by the Duval County School District included a written reprimand and suspension without pay for ten working days before the 1998-99 school year entered.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Count 1; dismissing Counts 2 through 5, other than in relation to Count 1; and suspending Respondent's Florida Teaching Certificate No. 284544 for two years. DONE AND ENTERED this 13th day of March, 2002, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2002. COPIES FURNISHED: J. David Holder, Esquire 24357 US Highway 331, South Santa Rosa Beach, Florida 33459 James F. Davis Post Office Box 11990 Jacksonville, Florida 32239 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399-0400
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint dated April 4, 2000, and, if so, what disciplinary action should be taken against her.
Findings Of Fact At all times material hereto, the Commissioner is responsible for providing public, primary, secondary, and adult education teaching certificates in the State of Florida. At all times material hereto, Mitchell was employed by the Miami-Dade County School Board and was a teaching instructor assigned to Barbara Goleman Senior High School (BGSHS). At all times material to this case, an examination known as the High School Competency Test (HSCT) was required for students to qualify for a regular high school diploma pursuant to Section 229.57(3)(c), Florida Statutes. The HSCT is a secured test within the meaning of Section 228.301, Florida Statutes. That section provides, in pertinent part, that it is unlawful for anyone to knowingly and willfully violate test security rules adopted by the State's Board of Education for mandatory tests administered by school districts pursuant to Section 229.57, Florida Statutes. It is also unlawful to copy, reproduce, or use any portion of any secured test booklet in any manner inconsistent with test security rules. Id. A violation of Section 228.301, Florida Statutes, is a misdemeanor of the first degree, punishable by a fine of not more than $1,000 or imprisonment for not more than 90 days, or both. The Department of Education has adopted Rule 6A-10.042, Florida Administrative Code, which requires, inter alia, that tests implemented in accordance with the requirements of Section 229.57, Florida Statutes, be maintained and administered in a secure manner such that the integrity of the test shall be preserved and that tests or individual test questions shall not be revealed, copied, or otherwise reproduced by persons who are involved in the administration, proctoring, or scoring of any test. On Saturday, October 4, 1997, Mitchell was one of the teachers proctoring the HSCT at BGSHS. On that date, while the communications portion of the HSCT was being administered, Mitchell unlawfully gained access to the mathematics portion of the examination, which was to have been administered at a later date. Shortly thereafter, and before the mathematics portion of the HSCT was to be administered, Mitchell sent an e-mail message to four out of approximately ten fellow BGSHS math teachers, advising them that they would find a "blue gift" in their respective school mail boxes. Each of these instructors, unlike those who did not receive a "blue gift," were friendly with Mitchell, and ate lunch with her on a regular basis. Thereafter, Mitchell in fact provided a blue disk to each of the four teachers to whom the e-mail was directed. On each disk were many of the actual HSCT mathematics questions unlawfully obtained by Mitchell. The first of the teachers to review the contents of the "blue gift" immediately suspected that Mitchell had engaged in a criminal violation of test security law, and reported her suspicions to BGSHS' principal. Following investigations by appropriate authorities and the panoply of due process protections appropriate to each forum, Mitchell was convicted on the misdemeanor charge of having knowingly and willfully breached the security of the HSCT, and her employment as a Miami-Dade County school teacher was terminated. The criminal case, State of Florida v. Margaret Mitchell, Case Number 04586-W, was tried to a jury before Honorable Caryn Canner Schwartz in the County Court in and for Miami-Dade County, Florida, in June 1999. On June 28, 1999, following a week-long trial, the jury returned a verdict of guilty against Mitchell for her violation of Section 228.301, Florida Statutes. Mitchell does not dispute that the foregoing criminal and administrative proceedings were conducted, and that the charges against her in each case were sustained. Mitchell did not seek appellate relief with respect to either proceeding. Mitchell maintains here, as in both of the previous proceedings, that she did not intend to violate test security procedures. She claims that she innocently copied and distributed what she thought was an authorized practice test. Mitchell did not offer her innocent mistake defense to anyone until two months after her crime was revealed. Mitchell's claims of innocence are inconsistent with her conduct and demeanor when she was first confronted with the allegations against her, as well as the known facts and circumstances surrounding the HSCT security breach. In addition, Mitchell's testimony at final hearing in this proceeding with respect to her innocent mistake defense is unworthy of belief. Mitchell's demeanor while testifying was deceptive, and her testimony was inconsistent with the known facts and circumstances surrounding the HSCT security breach. At Mitchell's criminal sentencing, Judge Schwartz noted that the jury's guilty verdict was supported by evidence which was "overwhelming" and assessed a fine of $1,000, court costs, and ordered Mitchell to serve 90 days house arrest and six months probation. On February 10, 1999, the Miami-Dade County School Board initiated dismissal proceedings against Mitchell and, on December 28, 1999, Administrative Law Judge William J. Kendrick sustained the dismissal. In his Recommended Order, Judge Kendrick concluded, in pertinent part: Here, it should not be subject to debate that Respondent’s act of knowingly and willfully reproducing the mathematics portion of the 1997 HSCT and providing copies of that test to her fellow teachers constituted an act of immorality and misconduct in office; that such conduct was sufficiently notorious to bring Respondent into public disgrace or disrespect and impair her service in the community; and that such conduct was so serious as to impair her effectiveness in the school system. It should also not be subject to debate that, upon conviction of the crime for breach of test security, Respondent, as an educator, was also shown to have been convicted of a crime involving moral turpitude. (P.4 at 10-11.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered revoking the teaching certificate of the Respondent. DONE AND ENTERED this 5th day of March, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 5th day of March, 2001. COPIES FURNISHED: Lisa N. Pearson, Esquire United Teachers of Dade 2929 Southwest Third Avenue Coral Way Miami, Florida 33129 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400 Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast 13th Street Fort Lauderdale, Florida 33316 Jerry W. Whittier, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Respondent, Department of Business and Professional Regulation, Board of Accountancy (the "Board" or the "Florida Board"), is liable to Petitioner, David C. Hastings, for attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and, if so, the amount of attorney's fees and costs Petitioner should be awarded.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Respondent, the Board of Accountancy, is the state agency charged with the responsibility to regulate the practice of certified public accountants licensed within the state. Chapter 473, Florida Statutes. One of the Board's duties is to certify applicants for licensure to the Department of Business and Professional Regulation. An applicant may seek licensure by passing the Florida examination prescribed by Section 473.306, Florida Statutes, or may seek licensure by endorsement as prescribed by Section 473.308(3), Florida Statutes. Section 473.308(3), Florida Statutes, provides (emphasis added): The board shall certify as qualified for a license by endorsement an applicant who: 1. Is not licensed and has not been licensed in another state or territory and who qualifies to take the examination as set forth in s. 473.306 and has passed a national, regional, state, or territorial licensing examination which is substantially equivalent to the examination required by s. 473.306; and 2. Has completed such continuing education courses as the board deems appropriate, within the limits for each applicable 2-year period as set forth in s. 473.312, but at least such courses as are equivalent to the continuing education requirements for a licensee in this state during the 2 years immediately preceding her or his application for licensure by endorsement; or 1. a. Holds a valid license to practice public accounting issued by another state or territory of the United States, if the criteria for issuance of such license were substantially equivalent to the licensure criteria which existed in this state at the time the license was issued; or b. Holds a valid license to practice public accounting issued by another state or territory of the United States but the criteria for issuance of such license did not meet the requirements of subparagraph a., who qualifies to take the examination as set forth in s. 473.306 and has passed a national, regional, state, or territorial licensing examination which is substantially equivalent to the examination required by s. 473.306; and 2. Has completed continuing education courses which are equivalent to the continuing education requirements for a licensee in this state during the 2 years immediately preceding her or his application for licensure by endorsement. The Uniform CPA Examination, prepared by the Board of Examiners of the American Institute of Certified Public Accountants, is administered throughout the United States and constitutes the primary means by which state boards of accountancy determine the competence of CPA candidates. The "substantially equivalent" language of Section 473.308(3)(b)1.a, Florida Statutes, underscored above, has been interpreted since at least 1981 as requiring a candidate for licensure by endorsement to demonstrate that his grade on the Uniform CPA Examination would have been a passing score in Florida at the time he sat for the examination. See Cohen v. State Board of Accountancy, DOAH Case No. 80-2332 (Recommended Order, June 22, 1981). The Uniform CPA Examination consists of four sections. Since at least 1949, Florida has required that a candidate pass each section of the examination with a score of 75 or better. Cohen involved a candidate for licensure by endorsement who was a CPA licensed in the State of Pennsylvania. The evidence established that the Pennsylvania Board of Accountancy had determined to accept Mr. Cohen's score on the Uniform CPA Examination as passing, though he had failed to reach a score of 75 on two of the four sections. The Florida Board of Accountancy preliminarily denied Mr. Cohen's application because the criteria applied by the Pennsylvania board were not "substantially equivalent" to the Florida licensure criteria. The DOAH Hearing Officer recommended that the denial be upheld, and the agency's final order adopted that recommendation. Martha P. Willis, the director of the Division of Certified Public Accountants, testified that the Board had also become aware that the State of Illinois had a practice of averaging the four sections of the examination to arrive at a passing score, rather than requiring a score of 75 or better on each section. Ms. Willis testified that, from at least the early 1980's until 1996, the Board required any candidate for licensure by endorsement to submit his or her actual scores from the Uniform CPA Examination, to provide assurances that the candidate's score would have constituted a passing grade in Florida at the time the exam was administered. Candidates who could not provide evidence of their exam scores would have their applications denied. No evidence was presented to establish that this practice was ever codified by rulemaking. In 1996, the Board decided that outright denial was too onerous an outcome for a candidate who is licensed as a CPA in another state but who is unable to provide evidence of his actual examination scores. Since 1996, the Board has issued a license to such a candidate, but placed the candidate on probation for a period of one year, pending a practice review to ensure that the candidate possesses the technical ability and ethical attributes expected of a Florida CPA. Upon successful completion of the practice review, the probation is lifted and the candidate is fully licensed. The Board has not codified this practice through rulemaking. Mr. Hastings is a Virginia-licensed CPA. At all times relevant to this proceeding, he has owned and operated Hastings & Associates, P.A. in Pinellas County. Aside from a secretary, Mr. Hastings constitutes the entire workforce of Hastings & Associates, which has historically performed uncomplicated bookkeeping for individuals and small businesses. At all times relevant to this proceeding, Mr. Hastings' combined business and personal assets were less than $2 million. Seeking licensure by endorsement, Mr. Hastings wrote a letter dated May 10, 2001, authorizing the State Board of Accountancy of the Commonwealth of Virginia (the "Virginia Board") to release his regulatory records and test scores to the Florida Board. On May 25, 2001, the Virginia Board sent a letter to the Florida Board. The letter verified that Mr. Hastings had passed each section of the Uniform CPA Examination with a score of 75 or better, but also stated: "due to Virginia file retention schedule no other information available." The letter verified that Mr. Hastings had passed the Ethics Examination with a score of 90 percent or better, and that no record existed that Mr. Hastings had been found guilty of any violation by the Virginia Board. On June 22, 2001, Mr. Hastings submitted to the Florida Board an application for licensure by endorsement. On his application, Mr. Hastings answered affirmatively that he had unlawfully held himself out as a CPA in Florida prior to licensure. The Division of Certified Public Accountants investigated and found instances of Mr. Hastings having been disciplined in 1995 and 1998 for holding himself out as a CPA in Florida. No evidence was presented that Mr. Hastings' prior discipline caused the Board to treat him any differently than it did other candidates unable to verify their exact scores on the Uniform CPA Examination, and therefore no detailed findings are necessary on these incidents, which involved use of a business card stating that Mr. Hastings was a CPA. Some time passed after filing the application, and Mr. Hastings became concerned as to its status. He communicated with Board staff, who told him the delay was due to the fact that his exact examination scores had not been provided by the Virginia Board. At Mr. Hastings’ behest, the Virginia Board sent a second letter to the Florida Board, dated August 15, 2001. This letter restates that Mr. Hastings passed the Virginia Uniform CPA Examination, and adds: A search of the Board's records reveals that Mr. Hastings was selected for renewal in 1984, so he was initially licensed in 1983 or earlier. In order to qualify for licensure in Virginia before 1984, the Board's 1981 regulation 5.01.03.05 states that "a grade of at least seventy-five shall be necessary for passing" the CPA examination. On September 7, 2001, the Board adopted a staff recommendation that Mr. Hastings be granted a Florida CPA license with a one-year probationary period and practice review. Mr. Hastings received no prior notice of the Board's action. By letter dated September 21, 2001, Ms. Willis informed Mr. Hastings of the Board's action. The letter stated, in relevant part: One of the requirements for licensure is providing evidence of successful passage of the AICPA Uniform CPA Exam. According to the Virginia Board of Accountancy, due to the retention schedule, the exact exam dates and scores are not available, only that the applicant passed all four parts of the Uniform CPA exam with a score of 75% or above. The Board, at the September 7, 2001 meeting, reviewed your application for CPA licensure and determined you would be issued a license with stipulations. The Board's stipulations are listed in the Order. Accordingly, the stipulations outlined in the Order must be adhered to. The referenced Final Order, dated September 27, 2001, set forth the following conditions: . . . Respondent must notify the Board when employment in Florida commences, at which time he will be placed on one-year probation. A review must be done prior to the end of the probation period. The review shall include five (5) tax returns, three (3) compilations including any work papers and any audits or reviews if they have been performed. If the review has not been completed and presented to the Board, probation will be extended until the review is presented to the Board, at which time the Board may remove the probation or take such further action, as it deems necessary. This review will be conducted by a CPA/Consultant assigned by the Board and will be at Respondent's expense. Mr. Hastings again contacted the Virginia Board concerning his score, and received a letter dated October 24, 2001, from Nancy Taylor Feldman, the executive director of the Virginia Board. Ms. Feldman's letter stated, in relevant part: I have on several occasions in the past two months provided information to the Florida Board of Accountancy regarding your licensure status and Uniform CPA examination scores in the Commonwealth of Virginia. In my latest effort to explain that the Virginia Board of Accountancy had provided written documentation to the Florida Board of Accountancy that you passed the Uniform CPA examination for Virginia with a grade on each of the four parts of at least 75, I was provided some insight into the action by the Florida Board of Accountancy. A staff member stated that because of the fire in New Jersey Department of Professional Regulation about ten years ago that destroyed all regulant [sic] records, the Florida Board of Accountancy had established a policy that if actual examination grades could not be provided from another state, there would be a probationary period established for those who wanted to be obtain [sic] a CPA license there. I explained that if a candidate could not show proof that they had completed the Uniform CPA examination with a grade of at least 75 that a license could not be issued in Virginia, either. However, I explained that the Virginia Board had provided certification of your licensure status to the Florida Board of Accountancy and that our Board records substantiated that you received a grade of at least 75 on each of the four parts of the examination. As I indicated to you, the Board does not have your examination record card from the mid-1970s when you successfully completed the Uniform CPA examination and became licensed in Virginia. This morning, I personally reviewed the official minutes of the Board of Accountancy that are housed at the Virginia State Library. The minutes of the Board's meeting in April 1974 indicated by name, David C. Hastings, that your license application was approved by the Board, and you were granted Certificate Number 3883. It stated that you were a resident of Richmond, Virginia. Further in support of the statement by the Virginia Board of Accountancy that you passed each of the four parts of the Uniform CPA examination with a grade of at least 75, Board Regulations 54-92-5 effective October 15, 1970, 54-92-5 effective November 15, 1972 and POR 3-28 effective February 15, 1975 require a grade of at least 75 to pass the Uniform CPA examination. The Board did not make adjustments in examination grades as the regulations did not provide any discretion to the Board to raise or lower the grade required to pass the examination . . . . As you are aware, last week, I contacted the American Institute of Certified Public Accountants (AICPA) in an effort to locate your grades. The AICPA owns the Uniform CPA examination and that organization has the grades for all candidates. The AICPA is not permitted to retain the grades with the name and social security number of the examination candidate. A candidate ID number is issued at the time of registration to take the examination. AICPA can locate the grades for you with the ID number. Unfortunately, the Virginia Board does not have your candidate ID number and it is understandable that after nearly thirty years, you do not have that information . . . . (emphasis in original) On October 26, 2001, counsel for Mr. Hastings filed a petition for formal administrative hearing contesting the Board's decision to impose probationary status on Mr. Hastings' license. The petition asserted that the Board's rules made no provision for placing a licensee on probation for the reasons stated in Ms. Willis' letter of September 21, 2001, and that the Board's action was therefore based on an invalid non-rule statement or policy. The petition also claimed entitlement to reasonable costs and attorney’s fees under Section 57.111, Florida Statutes. Upon advice of the Board's counsel, Ms. Willis did not forward the petition to the Division of Administrative Hearings. Rather, she placed it on the agenda for the next regularly scheduled public meeting of the Board on December 17, 2001. Mr. Hastings was notified of this action by letter from Board staff dated November 6, 2001. On or about December 7, 2001, Ms. Willis approved a staff recommendation to the Board that Mr. Hastings' petition be denied and that the Board decline to remove his probationary status. However, at some point prior to the Board meeting, Ms. Willis had a telephone conversation with Ms. Feldman of the Virginia Board. Ms. Feldman conveyed to Ms. Willis essentially the same information contained in her October 24 letter to Mr. Hastings: that she had reviewed the minutes from the Virginia Board meeting at which Mr. Hastings was licensed, and that Mr. Hastings was approved for license pursuant to standards substantially equivalent to the contemporaneous Florida standards, but that she could not locate Mr. Hastings' exact scores on the Uniform CPA Examination. Ms. Willis testified that her conversation with Ms. Feldman served to distinguish this case from the blanket practice of requiring a probationary period for candidates unable to produce exact scores. The distinguishing factor was Ms. Feldman's assurance that Virginia's loss of Mr. Hastings' scores was a unique case, not a statewide problem or practice. At the December 17, 2001, Board meeting, Ms. Willis stated: . . . One thing I would like to clarify that in the correspondence that is in here is some point where I make reference to the Virginia Board of Accountancy-- their problem in this instance is that apparently they just lost that information relating only to Mr. Hastings. As you know we have instances in the past where some states have lost lots of information relating to lots of licensees because of floods and fires and whatever that does not appear to be the problem with Virginia. It doesn't appear that it would affect a lot of other people just in Mr. Hastings [sic] instance they have been unable to find out although they have given us assurances that their requirements are-- you have to have a grade of at least 75 or above in order to be licensed in Virginia. No explanation was offered for the apparent contradiction between this explanation and the Virginia Board’s initial statement that Mr. Hastings’ scores were unavailable “due to Virginia file retention schedule,” which appeared to imply a general practice of discarding old test scores. Moments later, the Board's counsel reiterated the widespread alteration and averaging of scores received from Pennsylvania and Illinois, pointing out that "there was history of not just losing information but also substantive problems." Counsel stated, "To my knowledge there has not been an issue in Virginia. I don't think we've ever seen where Virginia lost the grades in the first place. There has been no history in Virginia that there has been any changing of grades or modification of grades " After this discussion, the Board adopted a motion "to remove the requirement for probation due to the fact that the loss of [Mr. Hastings'] grades by Virginia appears to be an isolated instance." On January 15, 2002, a Board order was entered rescinding the stipulations previously placed on Mr. Hastings' Florida CPA license. The Board is an "agency" as defined in Section 57.111, Florida Statutes; the Board initiated an administrative proceeding against Mr. Hastings in that it was required by law or rule to advise Mr. Hastings of a clear point of entry after it issued his probationary license, a "recognizable event in the investigatory or other free-form proceeding of the agency," as set forth in Section 57.111(3)(b)3, Florida Statutes; and the Board was not a nominal party. On March 14, 2002, Mr. Hastings filed the Petition in the instant case. An Affidavit of Fees and Costs Expended was attached to the Petition in which it is represented that attorney's fees in the amount of $1,459.00 and costs of $270.00 were reasonably incurred in the underlying case between October 18, 2001 and January 28, 2002. Also attached to the Petition was a Supplemental Affidavit of Fees and Costs Expended in which it is represented that attorney's fees in the amount of $462.00 were reasonably incurred between January 29, 2002 and February 28, 2002. On May 8, 2002, Mr. Hastings filed a Second Supplemental Affidavit of Fees and Costs Expended in which it is represented that attorney's fees in the amount of $2,142.00 and costs of $176.00 were reasonably incurred between March 7, 2002 and April 30, 2002. The affidavits and expert testimony offered at the hearing establish that the claimed fees totaling $4,063.00 and costs totaling $908.00 were reasonably incurred.