09-000343 Clayton Allen vs. Jeanine Blomberg, As Commissioner Of Education Status: Closed Recommended Order on Friday, July 31, 2009.

Summary: Petitioner failed to establish that he has good moral character and thus, his application for a teaching certificate was properly denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLAYTON ALLEN, )

)

Petitioner, )

)

vs. ) Case No. 09-0343

)

JEANINE BLOMBERG, AS )

COMMISSIONER OF EDUCATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on April 17, 2009,

before Carolyn S. Holifield, Administrative Law Judge of the

Division of Administrative Hearings, by video teleconference at

sites in Tallahassee and Tampa, Florida.

APPEARANCES

For Petitioner: Clayton R. Allen, pro se

1669 Jersey Drive

Fayetteville, North Carolina 28314

For Respondent: Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154-0012

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner's application

for a Florida educator's certificate should be denied for the

reasons set forth in the Notice of Reasons dated November 15,

2007.

PRELIMINARY STATEMENT

On November 15, 2007, Respondent, Jeanine Blomberg, then

Commissioner of Education, issued a Notice of Reasons advising

Petitioner, Clayton R. Allen ("Petitioner"), that the Department

of Education ("Department") intended to deny his application for

a Florida Educator's Certificate. 1 The Notice of Reasons

indicates that the Department's intended denial was based on

Petitioner's misappropriating chorus funds during the 2004-2005

school year, while he served as a chorus faculty advisor. The

Notice of Reasons also stated that Petitioner's alleged conduct

was evidenced by his: (1) forging the signatures of authorized

signer(s) on chorus checks; (2) writing a check on the chorus

account in excess of $2,000.00 without sufficient funds

available to cover the check 2 ; (3) writing and cashing checks on

the chorus account for his personal use; and (4) failing to

maintain appropriate accounting records.

Based on the alleged conduct, the Notice of Reasons charged

Petitioner with five statutory violations and three rule

violations. Count 1 charges that Petitioner does not qualify

for a Florida Educator's Certificate in that he does not have

"good moral character" as required by Subsection 1012.56(2)(e),

Florida Statutes (2007). 3 Count 2 charges that Petitioner

committed acts for which a teaching certificate can be revoked,

and, thus, in accordance with Subsection 1012.56(11)(a), Florida

Statutes, is a basis for denying his application for

certification.

Counts 3 and 4 set forth the statutorily proscribed acts

with which Petitioner is charged. Count 3 charges that

Petitioner violated Subsection 1012.795(1)(c), Florida Statutes,

in that he has been found guilty of gross immorality or an act

involving moral turpitude. Count 4 alleges that Petitioner

violated Subsection 1012.795(1)(f), Florida Statutes, in that he

has been found guilty of personal conduct which seriously

reduces his effectiveness as an employee of the school board.

Count 5 charges that Petitioner is in violation of

Subsection 1012.795(1)(i), Florida Statutes, in that he violated

the Principles of Professional Conduct for the Education

Profession ("Principles of Professional Conduct") prescribed by

the State Board Rules. Counts 6, 7 and 8 charge Petitioner with

specific rule violations of the Principles of Professional

Conduct. Count 6 charges Petitioner with exploiting a

relationship with a student for personal gain or advantage in

violation of Florida Administrative Code Rule 6B-1.006(3)(h).

Count 7 charges Petitioner with using his institutional

privileges for personal gain or advantage in violation of

Florida Administrative Code Rule 6B-1.006(4)(c). Finally,

Count 8 charges Petitioner with failure to maintain honesty in

all professional dealings in violation of Florida Administrative

Code Rule 6B-1.006(5)(a).

On January 18, 2008, Petitioner filed an Election of Rights

form denying the allegations in the Notice of Reasons, seeking

to discuss settlement of the case and requesting a formal

hearing, if a settlement could not be reached. On January 20,

2009, Respondent transmitted the case to the Division of

Administrative Hearings to conduct a formal hearing.

By notice issued February 12, 2009, the formal hearing in

this case was scheduled for April 2, 2009. Pursuant to an Order

issued March 26, 2009, Petitioner's request for a continuance

was granted, and the hearing was rescheduled for April 17, 2009.

The matter was transferred to the undersigned on April 14, 2009.

At hearing, Petitioner testified on his own behalf and

offered and had nine exhibits received into evidence. 4

Respondent called six witnesses and had two exhibits admitted

into evidence.

The Transcript of the hearing was filed on May 4, 2009. At

the conclusion of the hearing, proposed recommended orders were

to be filed ten days after the Transcript was filed. Petitioner

did not file any post-hearing submittals. Respondent timely

filed its Proposed Recommended Order, which has been considered

in preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Clayton R. Allen, began his teaching career

when he was employed as a teacher by the Hillsborough County

School Board for the 2003-2004 school year. Petitioner was

assigned to Wharton High School, where he worked during the

2003-2004 school year and for most of the 2004-2005 school year.

Petitioner's job performance for those two years was rated as

satisfactory.

2. During the 2004-2005 school year, Petitioner worked as

the director of the Wharton High School chorus and orchestra.

3. At all times relevant to this proceeding, the Wharton

High School orchestra and the school's chorus each had a booster

club. The Orchestra Booster Club and the Chorus Booster Club

are composed of parents and volunteers who assist with the

respective orchestra and chorus programs and help support

fundraising activities.

4. The Orchestra Booster Club and the Chorus Booster Club

are separate entities with separate checking accounts.

5. Laura Jean Raley, the parent of a student in the

Wharton High School chorus, was the president and treasurer of

the Chorus Booster Club during the 2004-2005 school year.

During that time period, Ms. Raley, then known as Laura Bergen,

was the only person authorized to write checks on the Chorus

Booster Club checking account. 5

6. The checks for the Chorus Booster Club were kept in the

chorus/orchestra office at the school, which was used by

Petitioner. Consequently, Petitioner had access to those

checks.

7. At this proceeding, Ms. Raley, formerly Ms. Bergen, 6

identified several checks from the 2004-2005 school year that

were written on the Chorus Booster Club checking account. Even

though her name was on the signature line of most of those

checks, Ms. Raley testified credibly that she had not signed

three of the above-referenced checks. The checks written on the

Chorus Booster Club checking account which Ms. Raley, formerly

Ms. Bergen, did not sign were Check Nos. 1123, 1127 and 1130.

The first check (No. 1123), dated February 4, 2005, for $184.00,

was payable to Quality and Plus Cleaners; the memo section of

the check indicates that the payment was for "chorus dresses."

The second check (No. 1127), dated March 10, 2005, for $40.00,

was payable to the Florida Vocal Association. The third check

(No. 1130), dated April 21, 2005, for $300.00, was payable to

Clayton Allen; the memo section of the check indicated that the

payment was for a "refund."

8. Although not authorized to do so, Petitioner wrote and

signed "L. Bergen" on each of the three checks on the Chorus

Booster Club checking account described in paragraph 7. Check

No. 1123 and Check No. 1127, payable to Quality and Plus

Cleaners and to the Florida Vocal Association, respectively,

were for chorus-related expenses and appear to have been

deposited into the accounts of those payees. 7

9. Check No. 1130, for $300.00, was written to and signed

and endorsed by Petitioner. Although the check indicated the

payment was for a "refund," no documentation or explanation was

offered regarding the reason for the refund or if the $300.00

was, in fact, for a refund.

10. Nancy Johnson was the president and/or treasurer of

the Wharton Orchestra Booster Club in the 2003-2004 school year.

During the 2003-2004 school year through about May 9, 2005,

Ms. Johnson was the only person authorized to sign checks on the

Orchestra Booster Club checking account.

11. At the end of the 2003-2004 school year, when

Ms. Johnson's tenure as an officer in the Orchestra Booster Club

ended, Ms. Johnson gave Petitioner all the checkbooks for the

Orchestra Booster Club checking account. 8

12. On or about May 9, 2005, both Petitioner and

Ms. Johnson went to the bank to change the authorized signer on

the Orchestra Booster Club checking account. At that time,

Ms. Johnson was removed as the authorized signer on the

Orchestra Booster Club checking account, and Petitioner was put

on the account as the authorized signer. 9

13. During the 2004-2005 school year, Petitioner had

planned to take members of the orchestra on a field trip to

Orlando, Florida, in the spring of 2005. Not long before the

scheduled field trip, Petitioner determined that additional

funds were needed for transportation to Orlando. 10

14. During the 2004-2005 school year, B.F. was about

16 years old and a student at Wharton High School. B.F. was in

the school's orchestra, in Petitioner's orchestra class, and was

also Petitioner's student assistant for one class period a day.

15. Prior to the date the students were to go on the field

trip, B.F. became aware that additional funds were needed in

order for the orchestra members to go on the field trip. B.F.

wanted to help out and, to that end, willingly gave Petitioner

$2,250.00 in cash, from his (B.F.'s) personal savings account,

as a loan to help with the cost of the orchestra's field trip to

Orlando. 11

16. Prior to giving Petitioner the $2,250.00, B.F. never

discussed or disclosed to his parents that he was providing the

$2,250.00 loan. B.F. wanted "to keep it [the loan] real

discreet," because he knew his parents would not have approved.

17. On or about April 23, 2005, the night that the

students returned from the field trip, Petitioner gave B.F. a

check for $2,250.00 as repayment for the loan. The check was

written on the Wharton High School Orchestra Booster Club

account at AmSouth Bank and was made payable to B.F. On the

signature line of the check, Petitioner signed the name "Nancy

Johnson," because at that time, Ms. Johnson was the authorized

signer of the account.

18. A few days after receiving the $2,250.00 check from

Petitioner, B.F. went to AmSouth Bank and presented the check

for payment. However, when he presented the check, there were

insufficient funds in the Orchestra Booster Club checking

account to pay the check, so payment was declined.

19. In or about early May 2005, after B.F. was unable to

cash the $2,250.00 check, his parents became aware that he had

made the loan to Petitioner. Soon thereafter, B.F.'s mother

contacted George Gaffney, then principal of Wharton High School.

B.F.'s mother complained that: (1) Petitioner had given B.F. a

check as repayment for the $2,250.00 loan to help cover the

transportation cost of the field trip to Orlando; and (2) the

check could not be cashed, because there were insufficient funds

in the account on which the check had been written.

20. On or about May 2, 2005, Mr. Gaffney reported the

complaint made by B.F.'s mother to Linda Kipley, the general

manager of Professional Standards for the Hillsborough County

School District ("School District"). Ms. Kipley then initiated

an investigation of the complaint and assigned two School

District investigators, Kamir Ode and Andrew Rouleau, to assist

with the investigation. That same day Ms. Kipley also began to

work with Mr. Gaffney to remove Petitioner from his assigned

classroom duties.

21. Ms. Kipley met with Petitioner on or about May 7,

2005, and informed him that she had initiated an investigation

of the complaint made by B.F.'s mother. On or about this same

day, Petitioner was no longer allowed to continue his teaching

responsibilities at Wharton High School.

22. On May 11, 2005, Investigator Ode, the lead

investigator in the case, interviewed Petitioner about the

allegations related to the $2,250.00 check. Investigator

Rouleau was present during the entire interview and heard the

questions asked by Investigator Ode, Petitioner's responses to

those questions, and the admissions made by Petitioner.

23. During the May 11, 2005, interview, Petitioner made

several admissions which substantiate the findings in

paragraphs 15, 17 and 18 above. Petitioner also admitted that

while employed at Wharton High School, he "borrowed" money from

the booster club checking accounts for his personal expenses

(i.e., to pay bills), but always repaid the money. 12 According

to Petitioner, he was able to obtain the money by writing checks

to himself on the booster club accounts.

24. Upon completion of the School District's

investigation, a written investigative report was prepared and

submitted to Ms. Kipley.

25. According to the investigative report, based on his

findings, Investigator Ode referred the matter to local law

enforcement officials. On May 23, 2005, the Hillsborough County

Sheriff arrested Petitioner and charged him with the following:

(1) four counts of forgery; (2) four counts of uttering a forged

instrument; (3) one count of petty theft; and (4) one count of

grand theft.

26. On May 23, 2005, after Petitioner was released from

custody, he met with Ms. Kipley, who advised him that the School

District was aware of his arrest and of the criminal charges

against him. During that meeting, Petitioner resigned his

position with the School District in lieu of being terminated.

27. During the School District's investigation of the

complaint against Petitioner, Mr. Gaffney paid B.F. the

$2,250.00 he (B.F.) had loaned Petitioner for the field trip

from the Wharton High School Internal Fund.

28. In State of Florida vs. Clayton Allen , Hillsborough

County Criminal Division Case No.: 05-10057, Petitioner was

charged with Forgery (four counts), Uttering a Forged Instrument

(four counts), Petit Theft and Grand Theft. 13

29. On or about April 17, 2006, Petitioner entered into a

Pre-Trial Intervention Agreement ("Agreement") with the State

Attorney in Hillsborough County, Florida ("State Attorney").

The Agreement related to the charges described in paragraph 25

above. Pursuant to the Agreement, by virtue of Petitioner's

acceptance into the State Attorney's Pre-Trial Intervention

Program, prosecution of the criminal case was deferred for

18 months.

30. On April 18, 2006, the day after Petitioner was

accepted into the Pre-Trial Intervention Program, the State

Attorney closed the file on all counts in Petitioner's criminal

case.

31. Under the terms and conditions of the Agreement,

Petitioner was required to do (among other things) the

following: (1) pay restitution in the amount of $2,250.00;

(2) perform 50 hours of community service; and (3) be either

gainfully employed or enrolled in school while in the Pre-Trial

Intervention Program. Finally, according to the Agreement,

"should the Defendant [Petitioner] fully meet the terms and

conditions of this Agreement, the charges referred to herein

shall be dismissed."

32. Petitioner was never prosecuted for or convicted of

any of the offenses for which he was charged. Accordingly, it

is reasonably found that Petitioner "fully [met] the terms and

conditions of [the] Agreement," including: (1) paying

restitution in the amount of $2,250.00; and (2) enrolling in

school.

33. With regard to the restitution, it is reasonably found

that the restitution was paid to Wharton High School since B.F.

had been previously paid the $2,250.00 from the school's

internal fund.

34. In accordance with the education or employment

requirement in the Agreement, while in the Pre-Trial

Intervention Program, Petitioner earned his master's degree in

music from the University of South Florida.

35. In or about the summer of 2008, Petitioner enlisted in

the U.S. Army and, at the time of this proceeding, was on active

duty.

36. Except for the above-referenced charges and arrest,

Petitioner has had no criminal record and has not been charged

or convicted of any criminal offense.

37. At no time during this proceeding did Petitioner

address or explain his conduct as it relates to: (1) his

forging the names of authorized signers on the booster checking

accounts; (2) his writing a check to B.F. for $2,250.00 on the

Orchestra Booster Club account when there were insufficient

funds in the account; and (3) his admission during an interview

with School District investigators (i.e., that he "borrowed"

money from the booster club accounts to pay personal bills). In

fact, during cross-examination of Petitioner by Respondent's

counsel, Petitioner's responses to questions regarding the above

issues were either evasive or not credible.

38. Despite the conduct in which Petitioner engaged and to

which he admitted during the School District investigation,

Petitioner never accepted responsibility or expressed remorse

for his conduct.

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. See § 120.57(1), Fla. Stat. (2008).

40. Section 1012.56, Florida Statutes, governs the

issuance of teaching certificates and provides, in pertinent

part, that to be eligible to seek certification, a person must,

among other things, be of "good moral character." See

§ 1012.56(2)(e), Fla. Stat.

41. Subsection 1012.56(11), Florida Statutes, specifies

the grounds upon which the Department of Education may deny an

applicant a teaching certificate and provides, in part:

(11) DENIAL OF CERTIFICATE –

(a) The Department of Education may deny

an applicant a certificate if the department

possesses evidence satisfactory to it that

the applicant has committed an act or acts,

or that a situation exists, for which the

Education Practices Commission would be

authorized to revoke a teaching certificate.

42. Pursuant to Subsection 1012.795(1), Florida Statutes,

the Education Practices Commission may revoke an educator's

certificate where it can be shown that the person:

(c) Has been guilty of gross immorality or

an act involving moral turpitude.

* * *

(f) Upon investigation, has been found

guilty of personal conduct which seriously

reduces that person's effectiveness as an

employee of the district school board.

* * *

(i) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

43. The terms "gross immorality" and "moral turpitude" are

not defined in the referenced statute. § 1012.795, Fla. Stat.

However, the definitions in Florida Administrative Code Rule

6B-4.009, which relate to the suspension and dismissal

of teachers by school districts, are instructive.

44. Florida Administrative Code Rule 6B-4.009(2) 14 defines

"immorality" as follows:

Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or

disrespect and impair the individual's

service in the community.

45. Florida Administrative Code Rule 6B-4.009(6), 15 also

applicable to suspensions and dismissals of instructional

personnel, defines "moral turpitude" as follows:

Moral turpitude is a crime that is evidenced

by an act of baseness, vileness or depravity

in the private and social duties which,

according to the accepted standards of the

time a man owes to his or her fellow man or

to society in general, and the doing of the

act itself and not its prohibition by

statute fixes the moral turpitude.

46. Florida Administrative Code Rule 6B-1.006 16 contains

the Principles of Professional Conduct and provides, in

pertinent part, the following:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator's

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires

that the individual:

* * *

(h) Shall not exploit a relationship with

a student for personal gain or advantage.

* * *

(4) Obligation to the public requires

that the individual:

* * *

(c) Shall not use institutional

privileges for personal gain or advantage.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings. . . .

47. As the party seeking the certification, Petitioner has

the burden of proving by a preponderance of evidence that he

satisfies the statutory requirements for a teaching certificate.

Dept. of Banking and Finance, Div. of Securities and Investor

Protection v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996).

However, Respondent has the burden of establishing, by a

preponderance of the evidence that the statutory and rule

violations alleged in the Notice of Reasons are sufficient to

warrant denial of the applications. Osborne Stern & Co. , 670

So. 2d at 934.

48. In the instant case, the only eligibility criterion at

issue is the requirement of "good moral character." Thus, to

prevail, Petitioner must establish that he has good moral

character. Petitioner has failed to meet this burden.

49. The preponderance of the evidence established that

Petitioner's forged the authorized signer's names on booster

club checks, "borrowed" money from those accounts, and wrote a

check for $2,250.00 on the Orchestra Booster Club account when

insufficient funds were in the account to pay the check. Such

conduct clearly falls below accepted standards.

50. The Notice of Reasons charges Petitioner with specific

statutory and rule violations which are the basis for denying

Petitioner's application for an educator's certificate. The

Department has met its burden with respect to those charges.

51. The preponderance of evidence established that

Petitioner engaged in the conduct described in paragraph 49. By

doing so, Petitioner is guilty of an act involving moral

turpitude. See § 1012.795(1)(c), Fla. Stat.

52. The preponderance of evidence established that

Petitioner's conduct involved forgery and misappropriation of

funds belonging to organizations. Such dishonest conduct by

Petitioner seriously reduces his effectiveness as a school board

employee. See § 1012.795(1)(g), Fla. Stat.

53. The evidence established that Petitioner used his

institutional privileges for personal gain or advantage in

violation of Florida Administrative Code Rule 6B-1.006(4)(c).

54. The preponderance of evidence established that by

forging his name on the school's booster club checking accounts

and misappropriating funds from the booster club accounts,

Petitioner violated Florida Administrative Code Rule

6B-1.006(5)(a) in that he failed to maintain honesty in all

professional dealings.

55. The remaining charge in the Notice of Reasons alleging

that Petitioner violated of Florida Administrative Code Rule

6B-1.006(3)(h) is not a proper basis for denying Petitioner's

application because that violation was not sufficiently charged.

56. Although the Notice of Reasons made reference to the

foregoing rule provision, it contained no specific factual

allegations to support the alleged rule violations. See

Trevisani v. Department of Health , 908 So. 2d 1108 (Fla. 1st DCA

2005); Cottrill v. Department of Insurance , 685 So. 2d 1371

(Fla. 1st DCA 1996). Thus, the charge that Petitioner exploited

a relationship with a student for personal gain or advantage in

violation of Florida Administrative Code Rule 6B-1.006(3)(h),

should be dismissed.

57. Petitioner failed to establish his good moral

character by a preponderance of the evidence.

58. Respondent established by a preponderance of the

evidence that Petitioner lacks "good moral character" required

for certification as a teacher; that Petitioner committed acts,

for which the Education Practices Commission would be authorized

to revoke a teaching certificate; that Petitioner has been

guilty of an act involving moral turpitude; that Petitioner has

been guilty of personal conduct which seriously reduces his

effectiveness as an employee of the school board; and that

Petitioner has violated the Principles of Professional Conduct,

in that he used his institutional privileges for personal gain

or advantage and also failed to maintain honesty in his

professional dealings.

59. The standard of conduct to which prospective teachers

are held is a high one. Teachers hold a position of great trust

and are entrusted with the custody of children to educate and

prepare them for life. Tomerlin v. Dade County School Board ,

318 So. 2d 159, 160 (Fla. 1st DCA 1975). To fulfill this trust,

the teacher must be of good moral character; to do otherwise

would jeopardize the future of our children. Id. In this case,

Petitioner failed to prove that he meets the "good moral

character" criterion required for applicants seeking teacher

certification.

60. Here, where the applicant fails to meet his burden of

proving entitlement to certification, the Education Practices

Commission:

[S]hall enter a final order . . . imposing

one or more of the following penalties:

(a) Denial of an application for a teaching

certificate or for an administrative or

supervisory endorsement on a teaching

certificate. The denial may provide that

the applicant may not reapply for

certification, and that the department may

refuse to consider that applicant's

application, for a specified period of time

or permanently.

§ 1012.796(7), Fla. Stat.

61. Respondent's proposed penalty is to permanently bar

Petitioner from applying for a teaching certificate. The

rationale for recommending this most severe penalty is unclear

as there are no aggravating circumstances present that warrant

the recommended penalty.

62. No specific guidelines are provided concerning when,

and if, applicants, who are denied educator's certificates, may

reapply. However, the disciplinary guidelines established for

certified educator's certification by the Commission and set

forth in Florida Administrative Code Rule 6B-11.007 are

instructive in determining the appropriate penalty in this

case. 17

63. Applying the factors set forth in Florida

Administrative Code Rule 6B-11.007, an appropriate penalty in

this case is denial of Petitioner's application for a teaching

certificate with the provision that he may reapply for

certification in three years.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusion of

Law, it is

RECOMMENDED that the Education Practices Commission enter a

final order:

(1) denying Petitioner's application for a teaching

certificate; and

(2) allowing Petitioner to reapply for certification in

three years.

DONE AND ENTERED this 31st day of July, 2009, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of July, 2009.

ENDNOTES

1/ Neither the case file, nor the record in this proceeding,

includes information or evidence regarding the date that

Petitioner filed his application for a Florida educator's

certificate. However, in light of the date the Notice of

Reasons was issued, the application for certification had to

have been filed some time prior to November 15, 2007.

2/ This allegation mistakenly refers to "a check [written] on

the chorus account," instead of correctly referring to a check

as being written on the Orchestra Booster Club account.

However, this inadvertent error is not fatal. The reason is

that only one check in excess of a $2,000.00 is at issue in this

case, and there is no dispute that the subject check was written

on the Orchestra Booster Club.

3/ All statutory references are to Florida Statutes (2007),

unless otherwise noted.

4/ At hearing, the Department's Exhibit 2, the School District's

Investigative Report, was accepted as a business record. Upon

further consideration and review of the document, the

undersigned has determined that Respondent's Exhibit 2 is not a

business record within the meaning of Subsection 90.803(6)(a),

Florida Statute (2008).

5/ There is no dispute that in 2004-2005, Laura Raley's name was

Laura Bergen.

6/ See Endnote 5.

7/ During the course of the School District investigation,

Petitioner indicated that he signed the check to Quality and

Plus Cleaners, because he could not reach Ms. Bergen.

8/ According to statements in the School District's

Investigative Report referenced in paragraphs 24 of the Findings

of Fact, at the end of the 2003-2004 school year, when

Ms. Johnson's tenure as an officer of the Orchestra Booster Club

ended, she signed several blank checks for Petitioner to use for

orchestra expenses until another signer was designated for the

account.

9/ The School District's Investigative Report indicates that

Petitioner stated that Ms. Johnson's name had remained on the

account because he could not find anyone to replace her. The

Investigative Report also indicates that the principal was aware

of this situation.

10/ The School District's Investigative Report indicates that

during its subsequent investigation, Petitioner stated that the

additional funds were necessary because he had mistakenly

thought that school buses could be used for the trip, but later

learned that charter buses would have to be used for the trip.

The cost of the charter buses was over $3,000.00, more than the

cost of using school buses.

11/ B.F. testified that he "felt like it [lending the money] was

an opportunity given to [him] from . . . chance or karma or

whatever, just to do the right thing." Finally, B.F. testified

that he had "faith and trust" in Petitioner's word and gave the

money "willingly," because he "wanted to help out."

12/ No records or complete audit of the accounts were presented

by either party to verify how many checks Petitioner wrote to

himself on the booster club accounts, the amount of each check,

and if, or when, the funds were repaid.

13/ State of Florida vs. Clayton Allen , Case Number:05-10057, In

the Circuit Court of the Thirteenth Judicial Circuit of the

State of Florida, in and for Hillsborough County, Criminal

Justice Division.

14/ The rulemaking authority for this rule is Subsection

1012.79, Florida Statutes.

15/ See Endnote 14.

16/ See Endnote 14.

17/ Florida Administrative Code Rule 6B-11.007(3)(a) through (t)

states:

(3) Based upon consideration of

aggravating and mitigating factors present

in an individual case, the Commission may

deviate from the penalties recommended in

subsection (2). The Commission may consider

the following as aggravating or mitigating

factors:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of

offenses;

(d) The length of time since the

violation;

(e) The number of times the educator has

been previously disciplined by the

Commission;

(f) The length of time the educator has

practiced and the contribution as an

educator;

(g) The actual damage, physical or

otherwise, caused by the violation;

(h) The deterrent effect of the penalty

imposed;

(i) The effect of the penalty upon the

educator's livelihood;

(j) Any effort of rehabilitation by the

educator;

(k) The actual knowledge of the educator

pertaining to the violation;

(l) Employment status;

(m) Attempts by the educator to correct

or stop the violation or refusal by the

educator to correct or stop the violation;

(n) Related violations against the

educator in another state including findings

of guilt or innocence, penalties imposed and

penalties served;

(o) Actual negligence of the educator

pertaining to any violation;

(p) Penalties imposed for related

offenses under subsection (2) above;

(q) Pecuniary benefit or self-gain

inuring to the educator;

(r) Degree of physical and mental harm to

a student or a child;

(s) Present status of physical and/or

mental condition contributing to the

violation including recovery from addiction;

(t) Any other relevant mitigating or

aggravating factors under the circumstances.

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

325 West Gaines Street, Room 224-E

Tallahassee, Florida 32399-0400

Clayton R. Allen

1669 Jersey Drive

Fayetteville, North Carolina 28314

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154-0012

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.