Findings Of Fact Based on my obersvation of the witnesses and their demeanor while testifying, the arguments of counsel, and the briefs which were filed post- hearing, the following relevant facts are found. Ernest B. Brown is the holder of Post-Graduate Rank II Florida Teaching Certificate No. 167290, covering administration and supervision, elementary education and junior college which by its term is valid until June 30, 1985. Ernest Brown, Respondent, has been employed in the public schools of Pinellas County as fifth grade teacher at Gulf Beaches Elementary School since August, 1975, and was on continuing contract during the 1976-77 school year. He resigned effective May 31, 1977 after inquiries were raised concerning his personal conduct with a female fifth grade student (Michelle Stewart). Thereafter the Department of Education received a report from the Pinellas County School officials on or about June 1, 1977 indicating that Respondent had been charged with lewd and lascivious acts in the presence of a female child under the age of 14 and handling and fondling a female child under the age of 14 years. Pursuant thereto and following an inquiry by the staff of the Professional Practices Council, on July 18, 1977, said Council issued a report to the Executive Committee of the Professional Practices Council whereupon the Executive Committee recommended that the Commissioner of Education find that probable cause exist to believe that Respondent is guilty of acts which provide grounds for the revocation of his Florida teaching certificate. By letter dated July 27, 1977, the Commissioner found probable cause and directed the filing of the instant petition herein. Michelle Stewart, eleven years old and presently a fifth grade student at Gulf Beaches Elementary School, was a student of Respondent while she completed here third grade instruction. Ms. Stewart was approximately three weeks late reporting for classes during her third grade school year. After being in school for approximately two weeks, she sought assistance from Respondent regarding problems she was having with her math. At that time, there were approximately three or four other students also seeking assistance from the Respondent. Respondent asked Michelle to sit in a chair behind his desk where she waited until the other students had received their assistance. According to Ms. Stewart, Respondent asked to touch her pants in the crotch section. Ms. Steward was shocked but did not protest when the Respondent touched her in the seat of her pants for approximately one minute. On another occasion, Respondent was invited to attend a birthday party given at Michelle's house by her. Respondent was reluctant to attend inasmuch as he did not have a gift to give her. He reluctantly agreed to attend based on the enticement of Ms. Stewart, her mother, and several other students who attended the party. When persuaded to attend the party, Respondent agreed only to come if Ms. Stewarts mother permitted him to take Ms. Stewart shopping for some clothing within the next few days. As best as can be determined from the record, it appears that the birthday party was during the early part of May, 1977. Within a few days, Respondent arranged to take Ms. Stewart shopping by obtaining permission from her mother. However, as the facts were later brought out, it appears that Respondent obtained permission from Ms. Stewart's mother by telling her that he wanted Ms. Stewart to assist him in arranging some books on his book shelves, and Ms. Stewarts mother agreed with the condition that Ms. Stewart be brought back home before six oclock. Ms. Stewart testified that she was picked up by Respondent and taken to his home where they were alone. Immediately after entering Respondents house, he asked here if she was hungry and whether or not she would like to fix herself a sandwich and watched TV for a few minutes. Thereafter Respondent took some pictures of here with his Polaroid camera. Respondent later offered her some clothing and brought them out telling her that she could try the dresses on in his presence. Ms. Stewart undressed in Respondent's presence and when she finished trying on her dresses that he had purchased, Respondent went to the bathroom and undressed, entering his living room area with only his shirt on. During this time Ms. Stewart was undressed and Respondent asked her to lie down on the floor where he had placed a towel and had relocated an electric fan positioned so that it would blow down on them. She testified that he laid on top of her for approximately ten minutes stroking and kissing her. After this incident was over (approximately ten minutes) Respondent pleaded with Ms. Stewart to refrain from telling anyone about the incident to which she agreed. However she testified that she did tell some of her friends about the incident. Ms. Stewart testified that during the next school year she opted to be in another teacher's classroom and Respondent rebelled by talking to her and here mother in an attempt to get her to change her mind. She refused to do so because she wanted to be in the class with a neighbor and her boyfriend. During the school year Ms. Stewart recalled that she and approximately two other students were taken to several extracurricular activities by Respondent after school hours, including the circus, lipizian stallions, and Holiday on Ice. Detective William Creekbaum presently employed as a real estate salesman, was formerly employed as a detective with the St. Petersburg Police Department was assigned to investigate complaints regarding incidents that the Respondent had allegedly been engaged with several minor students including Michelle Stewart. Detective Creekbaum was assigned to investigate the case on or about May 19, 1977 at which time, and during the course of his investigation, he interviewed approximately ten minor female students. On May 31, 1977, he decided that he should contact the Respondent and make certain inquiries of him, which he did at the school. He visited the school and asked the Respondent to come with him down to the police station for some questions. The Respondent drove his car down to police headquarters and a statement was given to Detective Creekbaum. Prior therto, Respondnent was apprised of his rights per Miranda. Detective Creekbaum explained to Respondent the necessity of his being truthful during his investigation, although he stressed the fact that he made no promises that the matter would be handled internally". He testified, and the statements bear out the fact that the Respondent was, in fact, advised that the investigation was criminal in nature. Initially, during the interview, Respondent denied the material allegations of the charges that he had fondled Michelle Stewart, however, upon repeated questioning by Detective Creekbaum, Respondent admitted that he had fondled Michelle Steward as charged. Although Respondent's position on this admission is that he only told Detective Creekbaum that he had fondled Michelle Stewart because he "thought that was what he wanted to hear and further he was led to believe that nothing would come of it". After the admissions by Respondent, Detective Creekbaum advised Respondent that he was under arrest where he was taken to the booking section of the police department. Immediately thereafter, Douglas McBriarty, an employee of the personnel department for the Pinellas County school system and charged with resolving teacher problems, visited Respondent at the jail where Respondent also admitted to the charge of fondling Michelle Stewart. Dr. McBriarty advised Respondent that it would be the Board's recommendation to immediately suspend him pending a decision on the merits and further action by the board to seek revocation of his (Respondent's) teaching certificate by the Professional Practices Council. Respondent asked if he had any options whereupon Dr. McBriarty told him that he could resign. At that point, the Respondent resigned effective May 31, 1977. The Respondent took the stand and testified that he was misled by Detective Creekbaum into thinking that nothing would come of the incident and that while he denied initially fondling Ms. Stewart, he only changed his story to an admission because he was of the opinion that that was what Detective Creekbaum wanted. He also testified that he was of the opinion that nothing would come of the incident as related by Detective Creekbaum. 1/ Without question, the Respondent enjoys a good reputation in the community and by his fellow peers at the school. He is regarded as a very good instructor who goes over and above his call of duty with respect to his classroom duties. Witnesses Nancy H. Akins and Catherine Smith, both instuctors in the Pinellas County school system, testified of their familiarity with the Respondents professional life and both gave him high marks. As stated, the Respondent denied the material allegations of the charging allegations in this case. Presently he is project director for the Tampa sickle cell disease project. In addition to denying the allegations of the complaint herein he testified that he was "set up" by Detective Creekbaum. He voiced his opinion that he felt that if he were cooperative and stated what Detective Creekbaum wanted him to say that he would go free. The undersigned has examined the record to see whether or not any misrepresentations or other statements were made to prompt Respondent to admit to the fondling of Michelle Stewart and the record is barren in this regard. Based thereon, I shall recommend that the allegations contained in the petition filed herein be sustained.
Recommendation Based on the foregoing Findings and Conclusions, it is hereby RECOMMENDED that the teaching certificate of Respondent, Ernest B. Brown, be suspended for a period of two years. ENTERED this 20th day of September, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Mail: 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact At relevant times to this inquiry Respondent has held the teaching certificate number 664911 in the area of substitute teacher issued by the Petitioner. In the case of the State of Florida v. Robert Ray Stone, in the Circuit Court of the Fifth Judicial Circuit of the State of Florida in and for Marion County, Case Number 90-1630-CF-A-W, Respondent was charged with two counts of vehicular homicide, a single count of leaving the scene of an accident in which a death was involved and a single count of evidence tampering. The accident was alleged to have occurred on May 6, 1990 and the alleged evidence tampering was said to have occurred between May 6 and May 12, 1990. On April 30, 1991 Respondent was tried, found guilty and was adjudicated guilty of unlawfully and willfully failing to stop his vehicle at the scene of an accident or as close thereto as possible, or forthwith to return to that scene and fulfill the reporting requirements and rendering of aid requirements set out in Section 316.062, Florida Statutes, thus violating Section 316.027, Florida Statutes. He pled and was adjudicated guilty of unlawfully and knowingly altering, destroying, concealing, or removing any record, document or thing, in this instance an automobile and/or automobile parts with the purpose to impair its verity or availability in any proceeding or investigation, knowing full well that a criminal trial or proceeding or an investigation by duly constituted prosecuting authority, law enforcement agency or grand jury of the state was pending or was about to be instituted, and through such evidence tampering violated Section 918.13(1)(a), Florida Statutes. The accident in question involved death. These offenses in Counts 3 and 4 to the information to which Respondent offered his pleas were third degree felonies. The two counts of vehicular homicide were not pursued and are not part of the judgment and sentence in the aforementioned case. For his plea Respondent was given concurrent sentences of twelve months imprisonment for Counts 3 and 4 to the second amended information, followed by six years probation to run concurrent. In the imposition of the sentence the court also recommended payment of restitution and investigative costs, alcohol counseling, and that the Respondent consume no alcohol and that the driver's license of the Respondent be revoked for a period of three years. Knowledge of the crime was publicized in the Ocala Star Banner in its July 10, 1990 edition. Frank Washington, Jr., Director of Personnel for the Marion County School System, Marion County, Florida, in which Respondent had been employed as a substitute teacher, offered his opinion on the Respondent's effectiveness to serve as a substitute teacher following the subject incident. Mr. Washington has 31 years of experience in education to include classroom instruction at the elementary, junior high and high school level, service as assistant principal or principal in elementary and middle schools as well as his administrative service. Mr. Washington holds a Florida certificate to teach. Mr. Washington is somewhat familiar with the criminal law case against the Respondent. As a consequence of the case Respondent has been removed from the approved list of substitute teachers in the Marion County School System. Mr. Washington's opinion on the effectiveness of the Respondent to carry forward his duties as a substitute teacher is that Respondent's effectiveness has been reduced. This is especially true given that the school system has limited control over substitute teachers as contrasted with full-time teachers. Mr. Washington's concerns about Respondent's effectiveness also addresses the apparent disregard for human life evidenced by the Respondent in his conduct in leaving the scene of an accident where a human life was lost and the deceit demonstrated by the Respondent in his evidence tampering following the accident. Mr. Washington does not believe that this type individual needs to be in the classroom working with children in a posture where children are to be taught good citizenship. Mr. Washington's opinion on loss of effectiveness is accepted.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is recommended: That the teaching certificate as a substitute teacher, No. 664911, held by Robert R. Stone be revoked for a period of ten years. RECOMMENDED this 31st day of March, 1992, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1992.
Findings Of Fact Thomas Pelley, the Respondent, holds Florida Teaching Certificate No. 318598, Standard, Rank III, valid through June 30, 1982, covering the area of furniture repair. The Respondent was employed during the 1978-79 school year in the public schools of Orange County at the Westside Adult Center in Winter Garden, Florida, as an instructor in furniture upholstery. The then Florida Professional Practices Council received a report from officials of the Orange County School System indicating that the Respondent had allegedly misappropriated school funds to his personal use. Pursuant to Rule 6A-4.37, Florida Administrative Code, an inquiry was conducted into the matter and a report made to the Professional Practices Council which culminated in the Commissioner of Education finding probable cause to file a proceeding against the Respondent, which probable cause finding was entered on November 5, 1979. The Respondent and his students typically engaged in the repair and re- upholstery of furniture brought in by members of the public at a reduced price as part of the training program in the occupation of re-upholstery. The procedure for payment for this re-upholstery work was that the customers wrote a check after Mr. Pelley wrote a "training order" and then Mr. Pelley was to submit the customer's money to the school bookkeeper in order to requisition material for the re-upholstery work involved. At the conclusion of the job the customer would come to the school office and pay for whatever charges were left for the labor and take custody of the furniture. Mr. Pelley did not comply with that procedure, however, with regard to customers Vicki Teal, Carol Johnson, and Winifred Good. In these instances involving work done for these customers, the Respondent was paid by the customers directly. The Respondent was fully informed of the proper procedure for payment by the customers for upholstery work. Customer Vicki Teal complained on one occasion that a sofa she had left to be re-upholstered had the wrong material installed on it and that Mr. Pelley had refused to replace the materials with those that she had actually ordered. Ms. Good and Ms. Johnson similarly complained about the workmanship on the furniture they had left to be repaired. With all three of these customers, the office personnel at the school discovered that they had no record that the customers had ever ordered work to be done by the Respondent and his students, nor that they had purchased anything, until they came forward with their cancel led checks for the same. Each of the checks was endorsed by Mr. Pelley. The subject checks from these three customers totaled $515.29, the funds represented which were received by the Respondent and never turned over to officials of the school, the bookkeeper of the school nor anyone employed by the Orange County School Board for proper accounting and use. Rather, the Respondent converted all of the monies collected to his own personal use. Witness House, who worked with the Respondent at the same school and who was his superior, has had long experience in the education profession and in teaching and dealing with students. He established that such conduct is not a proper example to students and is sufficiently notorious to bring the Respondent and the education profession into public disgrace and disrespect, especially in view of the several members of the public directly involved and victimized by the Respondent's misdeeds. It should be pointed out that at the times pertinent hereto, the Respondent was in severe financial straits due to medical expenses incurred by his wife being stricken with cancer.
Recommendation Having considered the foregoing findings of fact, conclusions of law, and pleadings and arguments of counsel for the Petitioner, it is, therefore, RECOMMENDED: That Respondent be found guilty of wrongfully converting monies to his own use that rightfully belonged to the Orange County School Board, which conduct constitutes gross immorality or an act involving moral turpitude and seriously reduces the Respondent's effectiveness as an employee of the School Board; and that the Respondent's Teaching Certificate be revoked for one (1) year. DONE and ENTERED this 19th day of March, 1982, in Tallahassee, Florida. 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 th Division of Administrative Hearing this 19th day of March, 1982. COPIES FURNISHED: J. David Holder, Esquire BERG AND HOLDER Post Office Box 1694 Tallahassee, Florida 32302 Mr. Thomas Pelley 149 Silver Star Road Ocoee, Florida 32761 Donald L. Griesheimer Executive Director Education Practices Commission Department of Education 125 Knott Building Tallahassee, Florida 32301
The Issue Whether Petitioner is entitled to participate in the Florida Retirement System (FRS) from January 1, 2000, through June 13, 2002, on the basis of his employment with Florida Community College at Jacksonville (FCCJ).
Findings Of Fact Petitioner, Robert Burns, has been employed as an adjunct instructor of FCCJ since March 1989. FCCJ is a member employer under FRS. Adjunct instructors traditionally have been employed by FCCJ on a class-by-class, semester-by-semester basis, and have no expectation of employment beyond any single semester. Petitioner knew this from his date of first hire. When Petitioner began work with FCCJ, all adjunct instructors were given a contract for each term and each course. This practice continued for all instructors and classes until the year 2000. Despite the semester-to-semester, repetitive contracts, occasionally Petitioner's courses were of a duration longer than one semester, and Petitioner was sometimes evaluated only on an annual basis. These evaluations were for purposes of certifying Petitioner and similarly situated adjunct instructional personnel for further semester contracts. At all times material, Petitioner taught on three campuses and taught college courses in biology and earth science; acted as a facilitator in the laboratory; and taught Adult Studies courses. At all times material, sixty percent of Petitioner's time was spent teaching Adult Studies courses. From 1989 until January 1, 2000, Petitioner was provided semester contracts for each of the three foregoing functions: college courses, lab facilitation, and Adult Studies courses. Every contract clearly acknowledged, in pertinent part, 3. This contract shall at all times be subject to any and all laws, Florida State Board of Education Rules and Florida Community College at Jacksonville Board of Trustees rules and regulations now existing or hereinafter lawfully enacted or promulgated. In furtherance thereof, the Contractor expressly agrees to become aware of and comply with all such applicable regulations, including but not limited to those addressing discrimination/affirmative action and sexual harassment. * * * The Contractor agrees and understands that he/she is not entitled to receive benefits made available by the College to its full-time employees. The Contractor further agrees and understands that his/her services are of a temporary nature, and that the College does not agree to provide the Contractor with any future employment or contract whether temporary, permanent or otherwise. The relationship hereby created between the Contractor and the College shall be deemed to have been voluntarily terminated by the Contractor upon the termination or expiration of this agreement. The Contractor agrees and understands that the compensation described herein is the entire compensation due to Contractor for performance of services pursuant to this contract. Specifically, Contractor agrees and understands that he/she shall not be entitled to wages or hours similar to those provided to College employees. * * * 9. The Contractor and the College understand and hereby agree that this contract does not and shall not be deemed to create an employment relationship. From January 1, 2000, through June 2002, Petitioner was not provided individual contracts for his Adult Studies classes, but was provided contracts for his other courses and lab facilitation work. In 2000, FCCJ began implementing a new computer system and, as a result, some adjunct instructors were not given individual contracts for each course. Adult Studies was one program area where time cards, rather than individual contracts, were used. No one at FCCJ ever told Petitioner that he had become a full or part-time employee, as opposed to an adjunct instructor. At various times during the period after January 1, 2000, Petitioner and other adjunct instructors approached Dean of Adult Studies, Lloyd Watkins, and asked him where their contracts were. The Dean inquired of FCCJ's Human Resources Department and was told there were too many contracts to do and so they would not be issued. It is not certain that Dean Watkins ever conveyed this information to Petitioner. However, throughout the period at issue, Petitioner used the time cards and understood that his employment was on a class by class, semester by semester basis. The issue of FRS benefits vis-á-vis independent contractor status did not arise until after Petitioner had been terminated.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order denying Petitioner's request to participate in FRS from January 1, 2000, through June 13, 2002. DONE AND ENTERED this 14th day of January, 2003, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 14th day of January, 2003. COPIES FURNISHED: Al Millar, Esquire 4627 Ocean Street Mayport, Florida 32233 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 Simone Marstiller, General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
