The Issue The issue is whether Mr. Mirvis is eligible to receive a Florida teacher's certificate.
Findings Of Fact Laurence Mirvis completed an application for a Florida teacher's certificate on January 23, 1989, which the Department received on January 27, 1989. In 1981, Mr. Mirvis was charged in the circuit court with carrying a concealed weapon by the state attorney in Martin County, Florida, in the case styled State of Florida v. Larry Mirvis, Case No. 80-751CF. The matter was refiled as a misdemeanor prosecution in the county court, as State of Florida v. Mirvis, Case No. 80-19232MM. Mr. Mirvis was found guilty by the county judge based upon plea of guilty he entered after discussing the matter with his attorney, was sentenced to 60 days in the county jail, one year of nonreporting probation conditioned upon leaving Martin County. A little over three years later, on January 22, 1984, Mr. Mirvis was arrested in Delray Beach, Florida for threatening an employee at a convenience store who had followed Mr. Mirvis into the parking lot because he believed Mr. Mirvis had taken items from the store without paying for them. In the parking lot Mr. Mirvis had pointed a handgun at the employee and then fled. On August 7, 1985, Mr. Mirvis was adjudged guilty of carrying a concealed firearm, a third degree felony, in violation of Section 790.01(2), Florida Statutes, upon entering a plea of guilty. He was sentenced to time served.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Commissioner of Education denying the application of Laurence Mirvis for a Florida teacher's certificate. DONE and ENTERED this 12th day of February, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1991. Copies furnished: Robert J. Boyd, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Laurence Mirvis Post Office Box 6821 Delray Beach, Florida 33484 Karen B. Wilde, Executive Director Education Practices Commission 325 West Gaines Street, #301 Tallahassee, Florida 32399 Martin Schaap, Administrator Professional Practices Services 325 West Gaines Street, Room 352 Tallahassee, Florida 32399 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System pursuant to section 112.3173, Florida Statutes (2010).1/
Findings Of Fact Based on the record in this proceeding, including the evidence presented at the formal hearing and the stipulation of the parties in the Joint Response to Pre-hearing Order, the following Findings of Fact are made: The Florida Retirement System (FRS) is a public retirement system as defined by Florida law. The Florida Division of Retirement is charged with managing, governing, and administering the FRS on behalf of the Florida Department of Management Services. On or about August 19, 1991, Mark G. Bollone began employment as an instructor with TCC, an FRS-participating employer. By reason of this employment, Mr. Bollone was enrolled in the FRS. Mr. Bollone was assigned a computer that belonged to TCC to assist him in the performance of his job duties, create curriculum, and communicate with students and faculty. Faculty at TCC are assigned computers primarily for creating curriculum and communication with students and faculty, but employees at TCC do use their computers for some other things, both for job-related purposes and for personal use. Mr. Bollone did not share his faculty office with anyone else and he kept his faculty office door locked when he was not there. Computer technicians, custodial workers, the police, and the Mathematics and Science Division office had keys to Mr. Bollone’s office. Computer technicians, custodial workers, the police, and office staff were not supposed to use Mr. Bollone’s computer, which was assigned for his exclusive use. On or about September 1, 2010, the Leon County Sheriff's Office executed a warrant at Mr. Bollone’s personal residence. During the execution of the warrant, Detective Robert H. Waller, Jr. conducted an interview with Mr. Bollone. Following the interview, Detective Waller contacted the TCC Campus Police, who elected to secure the computer equipment from Mr. Bollone's faculty office. On or about September 3, 2010, Detective Waller requested one of TCC's IT computer specialists to assist him in removing the hard drive from Mr. Bollone's work computer. On or about September 3, 2010, Detective Waller conducted an examination of Mr. Bollone's work computer hard drive and discovered three images of child pornography. Detective Waller found the child pornography among the folders associated with the LimeWire file-sharing program on the TCC computer. LimeWire is a peer-to-peer file-sharing program that had been installed on the TCC computer assigned to Mr. Bollone. LimeWire is not part of the software provided by TCC. LimeWire cannot be installed accidently by clicking on a link or opening an email, but must be downloaded, with the user’s consent. A user cannot download files using LimeWire by accident. LimeWire has a search feature which is used to intentionally seek out and download files. The forensic examination revealed that two still images of child pornography on the TCC computer assigned to Mr. Bollone had been downloaded from the Gnutella network through use of LimeWire on March 28, 2008,2/ and had been accessed subsequently. The forensic examination revealed that one video file of child pornography on the TCC computer assigned to Mr. Bollone had been downloaded from the Gnutella network through use of Limewire on March 31, 2008, and had been accessed subsequently. E-mails, lesson plans and other files bearing the name of Mark Bollone and associated with TCC classes had been created close to the times the child pornography files were downloaded, which reflected that Mark Bollone used the computer during this time. Detective Waller has completed training in digital evidence acquisition and has experience in computer forensics. His evidence as to the electronic files found on the TCC computer taken from Mr. Bollone on September 1, 2010, as well as the dates that the files had originally been downloaded and subsequently accessed, was very credible. Detective Waller also has experience in recognizing and identifying child pornography. His involvement with the North Florida Internet Crimes Against Children (ICAC) Task Force in seeking out child predators on the Internet includes work with several other task forces working on similar issues nationally. His evidence that two still images and one video file found among the other pornography located on the TCC computer issued to Mr. Bollone constituted child pornography was very credible. The ongoing criminal investigation by the Leon County Sheriff’s Office triggered Mr. Bollone’s writing of a letter to TCC President Barbara Sloan dated September 6, 2010. In the letter to TCC President Barbara Sloan, Mr. Bollone asserted that he would be cleared following the criminal investigation. In the letter to TCC President Sloan, Mr. Bollone admitted that, “I made mistakes. I misused my time and my resources while at work.” In the letter to President Sloan, Mr. Bollone admitted that, “I was stupid. I understand this and I own it.” In the letter to President Sloan, Mr. Bollone stated, “I am taking steps to become a healthier person. I am getting medical/professional help for my addictive behaviors.” At hearing, Mr. Bollone stated that the addictive behaviors he was referring to in the letter were on-line “fantasy” behaviors related to sexual identity issues with which he had been dealing. Mr. Brown, Acting Vice President for Academic Affairs at TCC, notified Petitioner on September 8, 2010, that because pornography had been found on his work computer in the criminal investigation conducted by the Leon County Sheriff’s Office, his employment was terminated effective October 1, 2010. Mr. Bollone was advised of his right to a hearing on the charge and the method for requesting one. Mr. Bollone did not request a hearing to contest these charges resulting in his termination from TCC. On or about September 10, 2010, Detective Waller filed, in connection with his investigation of Mr. Bollone, a sworn and notarized Summary of Offense and Probable Cause Affidavit with the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, LCSO Case No. 10-173144. On September 13, 2010, Mr. Bollone was arrested by the Leon County Sheriff’s Office. On or about January 6, 2011, Mr. Bollone was charged, by Amended Information, in relevant part, with three counts of possession of child pornography, a third-degree felony, in violation of section 827.071(5), Florida Statutes. On or about March 4, 2011, Mr. Bollone entered an agreement with the State Attorney's Office to plead no contest to three counts of possession of child pornography as charged in the Amended Information. On March 4, 2011, Mr. Bollone attended a plea conference in which he pled no contest to three counts of possession of child pornography on September 1, 2010, as charged in the Amended Information. On or about March 4, 2011, judgment was entered withholding adjudication of guilt on all counts. Mr. Bollone possessed child pornography on the computer owned by TCC, assigned to him to perform his duties as a Professor, and housed in his faculty office. Mr. Bollone was not convicted of aiding or abetting embezzlement of public funds. Mr. Bollone was not convicted of aiding or abetting any theft by a public officer or employee of TCC. Mr. Bollone was not convicted of bribery in connection with his TCC employment. Mr. Bollone was not convicted of any felony specified in chapter 838, Florida Statutes. Mr. Bollone was not convicted of an impeachable offense. Mr. Bollone was not convicted of any felony defined in section 800.04, Florida Statutes, against a person less than 16 years of age. Mr. Bollone was not convicted of any felony defined in chapter 794, Florida Statutes, against a person less than 18 years of age. Mr. Bollone had no inappropriate contact with a TCC student. Mr. Bollone had no inappropriate contact with a TCC student that was harmful to the student. During his tenure at TCC, Mr. Bollone always received satisfactory evaluations from his Dean. During his tenure at TCC, Mr. Bollone always received average or above evaluations from his students. In the 2007-2008 academic year, Mr. Bollone had excellent student evaluations. Mr. Bollone provided extra- curricular service to the College and community, including the mentoring of a new faculty member, service as a member of the Science Expert Review Committee for the Florida Comprehensive Assessment Test (FCAT), and membership on School Advisory Councils for Lincoln High School and Swift Creek Middle School. Mr. Bollone performed all of the duties and responsibilities of fulltime faculty members at TCC satisfactorily. In his 2008-2009 academic year, Mr. Bollone again had excellent student evaluations. Mr. Bollone’s new web-based BSC1050 class was successful. Mr. Bollone continued to provide extra-curricular services to the College and community. Mr. Bollone carried out all of the duties and responsibilities of a fulltime faculty member at TCC satisfactorily. Mr. Bollone is not retired from the FRS and is not receiving FRS retirement benefits. Petitioner’s substantial interests are affected by Respondent’s determination that Petitioner has forfeited his retirement benefits. Mr. Bollone downloaded the LimeWire file-sharing application to the TCC computer that had been assigned to him. The fact that the computer had been assigned to Mr. Bollone for his exclusive use at the time it was downloaded and the fact that there was limited access to the computer by others strongly support this conclusion. Petitioner downloaded still images of child pornography on March 28, 2008, and a video file of child pornography on March 31, 2008 onto his TCC-issued computer using the LimeWire file-sharing application. Although Detective Waller admitted he did not see Petitioner do so, the forensic evidence showing that the files had been downloaded on these dates, the fact that the computer had been assigned to Mr. Bollone for his exclusive use, and the limited access to it by others strongly support this conclusion. Mr. Bollone’s statement that he did not recall downloading those files was not credible. Mr. Bollone accessed those child pornography files from TCC’s computer after they were downloaded and prior to the discovery of these files by Detective Waller. The forensic evidence demonstrating that the files had been subsequently accessed, the fact that the computer had been assigned to Mr. Bollone for his exclusive use, and the limited access to it by others strongly support this conclusion. Mr. Bollone’s statement that he did not recall having viewed those files was not credible. Mr. Bollone knowingly possessed child pornography using the TCC computer that had been assigned to him. The fact that the computer had been assigned to Mr. Bollone for his exclusive use and the limited access to it by others strongly support this conclusion. Mr. Bollone’s statement at hearing that he had no knowledge of child pornography being on the computer was not credible. Mr. Bollone’s possession of child pornography was done willfully and with intent to defraud the public and TCC of the right to receive the faithful performance of his public duty. Mr. Bollone was aware that use of his TCC computer to acquire or view child pornography was a violation of TCC policies. The use of the TCC computer for possession of child pornography was contrary to the faithful performance of his duty as an employee, and was a breach of the public trust. Mr. Bollone realized or obtained, or attempted to realize or obtain, a profit, gain, or advantage to himself through the use or attempted use of the power, rights, privileges, duties, or position of his TCC employment. Mr. Bollone possessed the child pornography for his personal sexual gratification. Mr. Bollone was able to possess child pornography on the TCC computer only through the use of the power, rights, privileges and position of his employment at TCC. Mr. Bollone possessed this child pornography on the date the computer was taken from his possession, September 1, 2010, a time prior to retirement from the Florida Retirement System.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order finding that Petitioner was a public employee convicted of a specified offense committed prior to retirement pursuant to section 112.3173, Florida Statutes, and directing the forfeiture of his FRS rights and benefits, except for the return of his accumulated contributions as of the date of termination. DONE AND ENTERED this 19th day of October, 2011, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 2011.
The Issue The issue in this case is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System pursuant to Section 112.3173, Florida Statutes (2008).
Findings Of Fact Based on the record in this proceeding, including the evidence presented at the formal hearing and the joint pre- hearing stipulation1 of the parties, the following Findings of Fact are made: The Florida Retirement System (FRS) is a public retirement system as defined by Florida law. Respondent, Department of Management Services, Division of Retirement (Respondent or Division), is charged with managing, governing, and administering the FRS. Petitioner, Mr. Johnson Holsberry, Jr. (Petitioner or Mr. Holsberry), was formerly employed as a teacher at the West Area School of Choice by the Palm Beach County School Board (PBCSB). By reason of his employment with the PBCSB, Mr. Holsberry became a member of the FRS. As a teacher, Mr. Holsberry was subject to the Code of Ethics of the Education Profession in Florida found in Rule 6B- 1.001, Florida Administrative Code. As a teacher, Mr. Holsberry was subject to the Principles of Professional Conduct for the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.006. On or about December 5, 2000, Mr. Holsberry resigned his teaching position with PBCSB. On or about October 24, 2001, Mr. Holsberry was charged, by amended information, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, with one count of child abuse, a third degree felony, in violation of Section 827.03(1), Florida Statutes. The same amended information is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. The victim of the alleged crime, R.D., was a female student at the Area School of Choice. In Palm Beach County, Florida, between the dates of January 1, 1999, and December 31, 1999, Petitioner, while teaching in a position of parental responsibility, was alleged to have had contact with R.D. and to have acted in such a manner as to cause mental injury to said child. On or about October 24, 2001, Mr. Holsberry entered an agreement with the State Attorney's Office wherein he agreed to plead guilty as charged in the amended information. The same plea agreement is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF- 001185. Mr. Holsberry's guilty plea was made freely and voluntarily. Mr. Holsberry pled guilty because he was in fact guilty. On or about October 24, 2001, Mr. Holsberry was adjudicated guilty. The same judgment is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. On or about January 8, 2001, Mr. Holsberry applied to the Division for early service retirement from the FRS and began receiving retirement benefits. The Division suspended payment of Mr. Holsberry's monthly retirement benefits in June 2008. By certified letter dated June 13, 2008, Mr. Holsberry was notified of the Division's intended action to forfeit his FRS rights and benefits as a result of his guilty plea in the case styled and numbered State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. At the hearing, Mr. Holsberry testified that R.D. was in his classroom a few times, but that he was not sure of the year, frequency, or why she was there. He testified that he does not remember taking a picture of R. D. sitting at his desk, but that might have taken place. Mr. Holsberry also testified that he does not recall permitting R. D. to access her email from his classroom, or inviting her to join him on trips, to come to his home, or otherwise to meet him any place outside of the school. Mr. Holsberry testified that he does not recall giving R. D. his home telephone number. He recalls having an email screen name of Sameagle1, but does not recall whether he emailed R. D. from that email address or whether he had another screen name, Gutster. He testified that he does not recall referring to himself as H-Man (although he said some students called him "Mr. H.") or referring to R.D. as "Dukey Dufus." In general, Mr. Holsberry's testimony that he does not recall his actions that ultimately ended his career as a teacher is not credible. Mr. Holsberry noted that R.D. was not officially assigned to any of his classes, so that he was not responsible for her education, nor was he involved with her in any after school program that would have made him responsible for her welfare. Mr. Holsberry testified that he probably would not have met R.D. but for his position as a teacher at her school. He also recalled having being interviewed by an investigator named Green. Angelette Green, an employee of the Palm Beach County School District for 15 years, was the investigator assigned to Mr. Holsberry's case. Detective Green testified that Mr. Holsberry admitted that he helped R. D. set up an email account, communicated with her by email, including having sent by internet a picture of her taken in his classroom. She also testified that she remembers emails inviting R. D. to go somewhere. She said Mr. Holsberry called R. D. "Dukey Dufus" after he sent her an email and she questioned who it was from. On July 30, 2002, an Administrative Complaint was filed by the Commissioner of Education seeking disciplinary sanctions against Mr. Holsberry's license based on allegations of professional misconduct. Mr. Holsberry did not contest the disciplinary matter, having already agreed to surrender permanently his teaching certificate as a part of his plea agreement. The Education Practices Commission entered a final order permanently revoking his teaching certificate. On October 24, 2001, a plea conference was held on the following charge: Amended Information For: CHILD ABUSE In the Name and by the Authority of the State of Florida: BARRY E. KRISCHER, State Attorney for the Fifteenth Judicial Circuit, Palm Beach County, Florida, by and through his undersigned Assistant State Attorney, charges that JOHNSON LEO HOLSBERRY JR. on or between January 01, 1999 and December 31, 1999, in the County of Palm Beach and State of Florida, did knowingly or willfully, intentionally inflict physical or mental injury upon R.D., a child, {or} did an intentional act or actively encourage another to do an act that results or could reasonably be expected to result in physical or mental injury to R.D., a child, contrary to Florida Statute 827.03(1). (3 DEG FEL) At the plea conference, the following exchange occurred: [By Mr. Jaegers, Assistant State Attorney:] The defendant will be adjudicated guilty of the offense; he will be placed on five years probation. There will be no early termination contemplated. The defendant will be required to pay Court costs in the amount of $261.00, $50.00 to the Drug Trust Fund, $50.00 cost of prosecution. The defendant must undergo a psychological evaluation and successfully complete any recommended treatment. * * * The defendant is to surrender all and not seek at any time in the future any teaching certificates in any jurisdiction in the world. There will be no contact with children under 18 unless they're in the presence of an adult who is aware of these charges. And those are the terms of the negotiated settlement. The facts in this case, Judge, are that the defendant, Johnson Leo Holsberry, Jr., did in Palm Beach County, Florida, on, between the dates of January 1, 1999 and December 31st, 1999, while teaching in a position of parental responsibility, in that capacity had contact with a juvenile female by the name of, or by the initials of SRD, I think it's on the plea sheet. MR. WILINSKEY [Counsel for Mr. Holsberry] That's right. MR. JAEGERS: -- RD, and did act in a manner such as to cause mental injury to said child. The -- those are the facts that occurred in Palm Beach County. THE COURT: Sir, raise your right hand, please. JOHNSON LEO HOLSBERRY, JR. BEING FIRST DULY SWORN BY THE COURT, TESTIFIED AS FOLLOWS: THE COURT: Your name? THE DEFENDANT: Johnson Leo Holsberry, Jr. THE COURT: How old are you? THE DEFENDANT: 62 * * * THE COURT: Do you understand what the things are you have to do? THE DEFENDANT: Yes, sir. THE COURT: Are you pleading guilty because you are guilty? THE DEFENDANT: Yes. THE COURT: Do you agree with the facts the State Attorney gave me as the basis for your plea of guilty? THE DEFENDANT: Yes, sir.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner was convicted of a specified offense pursuant to Section 112.3173, Florida Statutes, and directing the forfeiture of his FRS rights and benefits. DONE AND ENTERED this 24th day of July, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2009.
