The Issue Whether the Education Practices Commission should revoke or suspend Respondent's teaching certificate, or impose any other penalty provided by law, for the reasons cited in the Administrative Complaint filed July 12, 1994.
Findings Of Fact Respondent holds Florida Educator's Certificate No. 182469, covering the areas of business education and vocational education. It is valid through June 30, 1997. Respondent filed an application for the renewal of her certificate. Respondent was formerly employed by the Brevard County School District. She retired from her employment with the school district in March 1994. In the case of United States of America v. Marguerite Y. Smith, Case Number 93-185-CR-Orl-18, the Respondent was charged by the Federal Grand Jury with the following: Marguerite Y. Smith knowingly and intentionally executed and attempted to execute the scheme and artifice to defraud and to obtain money and funds by means of false pretenses and representations, in that Marguerite Y. Smith, forged the signature of Jerry Bellomy on Check Nos. 001081 and 001071, presented those checks to Southeast Bank, N.A. for payment, and then used the proceeds of those checks for her own purposes. All in violation of Title 18, United States Code, Section 1344. In the case of United States of America v. Marguerite Y. Smith, Case No. 93-198-CR-Orl-18, the Respondent was charged by the Federal Grand Jury with the following: On or about September 13, 1993, in Brevard County, Florida, in the Middle District of Florida, Marguerite A. Smith, the defendant herein, in a matter within the jurisdiction of the National Aeronautics and Space Administration of the United States, knowingly and willfully made a false, fictitious and fraudulent material statement and representation, in that the defendant certified that she had not, within a three year period preceding September 13, 1993, been convicted of commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public contract or subcontract, or with commission of theft, or with making false statements, whereas, as Marguerite A. Smith then and there well knew, on September 20, 1991, in the case of United States v. Marguerite A. Smith, Case No. 910166-CR-Orl- 19, Marguerite A. Smith was convicted of a violation of Title 18, United States Code, Section 665(A) theft from employment and training funds, arising from the submission of a false claim to obtain funds administered by a federal agency pursuant to the Job Training Partnership Act. All in violation of Title 18, United States Code, Section 1001. Respondent plead not guilty to the charges and following a trial by jury was found guilty of both charges. On April 20, 1994, Respondent was adjudicated guilty of Bank Fraud and making a False Statement to an Agency of the United States. She was sentenced to be imprisoned for a term of fifteen months, followed by supervised release for a term of three years during which Respondent must pay $22,953.28 in restitution. Respondent was arrested on the above charges at Rockledge High School, where she was employed, during a school day on November 15, 1993. Two FBI agents went to the principal's office and told the principal that they came there to arrest Respondent. The principal went to Respondent's classroom and asked her to come with him to his office, whereupon she was arrested and taken to detention by the FBI agents. The principal was contacted by the local radio station and one of the major news networks sent a television crew to the school for an on-campus interview. There was television and radio coverage of the fact that Respondent was arrested. There was widespread knowledge of her arrest among the students at the school, their parents and the community at large. Respondent's arrest and conviction was the subject of newspaper articles in Florida Today on January 5, 1994, and The Orlando Sentinel on November 16, 1993. Respondent is not eligible for rehire by the Brevard County School District because she had been found guilty of a felony and that Respondent's effectiveness as a teacher has been damaged. In a prior case, an Administrative Complaint was filed against Respondent on May 12, 1993, alleging that Respondent submitted a fraudulent claim to receive federal funds and that she pled guilty to the charge of Obtaining Federal Funds by Fraud, Betty Castor v. Marguerite Smith, Case No. 93-067-RT, EPC Index No. 93-197-FOI. As a result of that administrative proceeding, Respondent was disciplined by the Education Practices Commission (EPC) in a Final Order issued on December 24, 1993. Respondent was placed on four years probation and was issued a letter of reprimand by the EPC.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission issue a Final Order finding Marguerite Smith guilty of violating the provisions of Sections 231.28(1)(c)(e)(f) and (2), Florida Statutes. It is further RECOMMENDED that a Final Order be issued revoking Respondent's teaching certificate for a period of seven years. DONE AND ENTERED this 26th day of December, 1997, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 1997. COPIES FURNISHED: Barbara J. Staros, Esquire Post Office Box 3444 Tallahassee, Florida 32315 Lorene C. Powell, Esquire Chief Trial Counsel FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Kathleen Richards, Executive Director Professional Practices Services 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Program Director Professional Practices Services 351 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue to be determined is whether the Division of Administrative Hearings has jurisdiction to determine whether Florida Administrative Code Rule 6B-4.009 is an invalid exercise of delegated legislative authority in violation of section 120.52(8)(d), Florida Statutes (2013).
Findings Of Fact Petitioner, Donna Burney (Petitioner or Ms. Burney), is a teacher in Duval County. She is also the subject of an Administrative Complaint in DOAH Case No. 13-4958PL, by which the Education Practices Commission seeks to discipline her educator certificate pursuant to section 1012.795, Florida Statutes. The Administrative Complaint alleges that Petitioner is incompetent to teach or to perform duties as an employee of the public school system or to teach in or operate a private school. Respondent, the State Board of Education, is the chief implementing and coordinating body of public education in Florida. The Board adopted the rule which is the subject of this proceeding. At all times material to the issues alleged in the Administrative Complaint in DOAH Case No. 13-4958PL, Florida Administrative Code Rule 6B-4.009 was the rule applied in those cases where alleged conduct forming the basis for dismissal from employment or discipline against an instructor’s license occurred prior to the amendment to and transfer of the rule in 2012. Rule 6B-4.009 provided definitions for the basis of charges upon which a district school board could pursue a dismissal action against instructional personnel. “Incompetency” is one of the bases for charges defined by rule 6B-4.009. Incompetency was defined as follows: Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following: Inefficiency: (1) repeated failure to perform duties prescribed by law (section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired. Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization. The specific authority for and law implemented by the rule are all provisions from chapters 229 and 231, Florida Statutes. Section 231.09, referenced in the rule, as well as all of chapters 229 and 231, were repealed in 2002. § 1058, ch. 2002-387, Laws of Fla. At the time of rule 6A-4.009’s final amendment in 1983, section 231.09, Florida Statutes (1983), provided: Members of the instructional staff of the public schools shall perform duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently and faithfully, using prescribed materials and methods; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board. Prior to its repeal in 2002, section 231.09, Florida Statutes (2001), provided: The primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals, to meet state and local achievement requirements, and to master the skills required to graduate from high school prepared for postsecondary education and work. This duty applies to instructional personnel whether they teach or function in a support role. Members of the instructional staff of the public schools shall perform duties prescribed by rules of the district school board. The rules shall include, but are not limited to, rules relating to a teacher’s duty to help students master challenging standards and meet all state and local requirements for achievement; teaching efficiently and faithfully, using prescribed materials and methods, including technology- based instruction; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the district school board. The rule was not amended between 1983 and 2012 to address the repeal of section 231.09. Nor was it amended to provide new statutory authority or law implemented. Rule 6B-4.009 on its face applied to actions by district school boards seeking to dismiss instructional personnel, as opposed to cases brought by the Education Practices Commission seeking to discipline certified educators. However, administrative law judges have referred to the definition of incompetency in educator certificate discipline cases. While section 1012.795(1)(c) authorizes discipline for incompetence, rules 6B-4.009 and 6A-5.056 appear to be the only rules adopted by the State Board of Education to define the term. Effective July 8, 2012, rule 6B-4.009 was transferred to rule 6A-5.056 and amended. Rule 6A-5.056 presently defines incompetency as follows: “Incompetency” means the inability, failure or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. “Inefficiency” means one or more of the following: Failure to perform duties described by law; Failure to communicate appropriately with and relate to students; Failure to communicate appropriately with and relate to colleagues, administrators, subordinates, or parents; Disorganization of his or her classroom to such an extent that the health, safety or welfare of the students is diminished; or Excessive absences or tardiness. “Incapacity” means one or more of the following: Lack of emotional stability; Lack of adequate physical ability; Lack of general educational background; or Lack of adequate command of his or her area of specialization. Petitioner has not challenged rule 6A-5.056.
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
