99-002922
Palm Beach County School Board vs.
Ramona Wright
Status: Closed
Recommended Order on Friday, June 2, 2000.
Recommended Order on Friday, June 2, 2000.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8PALM BEACH COUNTY SCHOOL BOARD, )
14)
15Petitioner, )
17)
18vs. ) Case No. 99-2922
23)
24RAMONA WRIGHT, )
27)
28Respondent. )
30__________________________________)
31RECOMMENDED ORDER
33Pursuant to notice, the Division of Administrative
40Hearings, by its duly-designated Administrative Law Judge,
47William J. Kendrick, held a formal hearing in the above-styled
57case on May 8, 2000, by video teleconference, with sites in
68Tallahassee and West Palm Beach, Florida.
74APPEARANCES
75For Petitioner: Glen J. Torcivia, Esquire
81Glen J. Torcivia, P.A.
851800 Australian Avenue, South
89Suite 205
91West Palm Beach, Florida 33409
96For Respondent: Mark Herdman, Esquire
101Herdman and Sakellarides
1042595 Tampa Road
107Palm Harbor, Florida 34684
111STATEMENT OF THE ISSUE
115At issue in this proceeding is whether, as alleged in the
126Amended Administrative Complaint, Respondent's application for a
133temporary teacher's certificate was denied and, consequently, her
141dismissal from employment as an elementary school teacher with
150the Palm Beach County School Board was proper.
158PRELIMINARY STATEMENT
160By letter of April 27, 1999, the Palm Beach County School
171Board (School Board) dismissed Respondent from her employment as
180a elementary school teacher, effective April 28, 1999, based on
190its conclusion that her application for a temporary teacher's
199certificate had been denied and, consequently, her termination
207was proper. Such letter did not provide notice or an
217opportunity to request a pre-termination hearing.
223Subsequently, by letter of June 21, 1999, Respondent's
231counsel advised the School Board that Respondent denied there
240was any basis to support the action taken in the letter of
252termination, and demanded a hearing pursuant to Section
260120.57(1), Florida Statutes, before the Division of
267Administrative Hearings. In response, the School Board filed an
276administrative complaint which formally sought Respondent's
282dismissal from employment, based on the denial of her
291application for a temporary teacher's certificate by the
299Commissioner of Education, and forwarded the matter to the
308Division of Administrative Hearings for the assignment of an
317administrative law judge to conduct the hearing Respondent had
326requested. The School Board's complaint was later amended, but
335its gravamen remained the same.
340At hearing, the Petitioner (School Board) called Respondent
348and Marion Weil as witnesses, and Petitioner's Exhibits 1-7 were
358received into evidence. Respondent called no additional
365witnesses and offered no additional exhibits.
371A transcript of the hearing was filed May 16, 1999, and the
383parties were accorded 10 days from that date to file proposed
394recommended orders. The parties elected to file such proposals
403and they have been duly considered.
409FINDINGS OF FACT
4121. On or about August 14, 1998, Respondent, Ramona Wright,
422received a Statement of Academic Eligibility (Statement of
430Eligibility) for elementary education (grades 1-6) from the
438Florida Department of Education. The Statement of Eligibility
446was valid until July 29, 2000, and (consistent with Rule 6A-
4574.004, Florida Administrative Code,) provided, as follows:
465The State of Florida issues two types of
473certificates for full-time teaching, a
478nonrenewable Temporary Certificate valid for
483two years and a Professional Certificate
489valid for five years . . . The Temporary
498Certificate is issued to allow time to
505complete requirements for the Professional
510Certificate.
511Your application for teacher certification
516has been received and evaluated. Based upon
523current requirements, you will be eligible
529for a two-year nonrenewable Temporary
534Certificate valid for two consecutive school
540fiscal years covering Elementary Education
545when:
546You obtain employment with a Florida
552public, state supported, or nonpublic school
558which has an approved system for documenting
565the demonstration of required professional
570education competence. Your employer must
575request issuance of your certificate.
580Your employer submits a fingerprint
585card which as been processed by the Florida
593Department of Law Enforcement and the
599Federal Bureau of Investigation. If your
605fingerprint report reflects an arrest
610record, your file will be referred to
617Professional Practices Services for further
622review. Issuance of your certificate will
628be contingent upon the results of this
635review . . . .
6402. Given her eligibility, Respondent was employed by the
649Palm Beach County School Board (School Board) as an elementary
659school teacher on August 20, 1998, and, consistent with the
669provisions of her Statement of Eligibility, an application was
678submitted to the Florida Department of Education (Department of
687Education) for a temporary certificate. Pertinent to this case,
696the annual contract of employment under which Respondent was
705employed, provided as follows:
709This contract is conditioned and based on
716the assertions by the Employee:
721* * *
724(2) That the Employee has completed the
731requirements and will be legally qualified
737to teach in the State of Florida upon
745issuance of a Florida teacher's certificate,
751for which application has been duly made as
759evidenced by the official receipt and
765acknowledgment recorded in the office of the
772Superintendent, bearing Department of
776Education file number cited above. In the
783event that such application is denied, the
790Employee agrees that the School Board shall
797be relieved of all obligation under this
804provision.
8053. By letter of April 1, 1999, Tom Gallagher, Commissioner
815of Education, Department of Education, advised Respondent that
823her application for a temporary teacher's certificate was
831denied. 1/ Specifically, the letter stated:
837Dear Ms. Wright:
840Your application for a Florida Teacher's
846Certificate has been carefully considered by
852the Department of E ducation and, for the
860reasons stated in the Notice of Reasons,
867your application is hereby DENIED pursuant
873to Section 231.17(5), Florida Statutes,
878which states in pertinent part:
"883The Department of Education is
888authorized to deny an applicant a
894certificate if it possesses evidence
899satisfactory to it that the applicant
905has committed an act or acts or that a
914situation exists for which the
919Education Practices Commission would
923be authorized to revoke a teaching
929certificate."
930You may appeal the certificate denial by
937following the Florida Administrative
941Procedures Act and Rule 6B-11.005 of the
948Florida Administrative Code. If you want to
955appeal the Department's decision, you have
961TWENTY (20) DAYS from the date this Notice
969of Denial is RECEIVED to fill in and FILE an
979Election of Rights Notice of Appeal with the
987Office of Professional Practices Services .
993. . .
996The reasons stated in the Notice of Reasons were as follows:
1007The Department of Education files and serves
1014upon the Applicant, RAMONA BIANCA WRIGHT,
1020its Notice of Reasons for its denial in
1028accordance with the provisions of Section
1034120.60, Florida Statutes, and as grounds
1040therefore, alleges:
1042On or about July 23, 1995, Applicant was
1050involved in an altercation with a tenant of
1058rental property owned by Applicant and her
1065family. Applicant yelled at the tenant,
1071struck a police officer and smashed some the
1079tenant's dishes. Applicant then refused the
1085request of the police to leave the area.
1093Applicant was arrested and charged with
1099Disorderly Conduct, Battery and Criminal
1104Mischief. On or about October 10, 1996,
1111Respondent pled Not Guilty to the charges.
1118The court withheld adjudication to the
1124charge of Disorderly Conduct, found
1129Applicant Not Guilty of the Battery charge
1136and Nolle Prosequi the remaining charge.
1142The Department of Education charges:
1147STATEMENT OF VIOLATIONS
1150COUNT 1: The applicant is in violation
1157of Section 231.17(3)(c)6., Florida Statutes,
1162which requires that the holder of a Florida
1170Educator's Certificate be of good moral
1176character.
1177COUNT 2: The applicant is in violation
1184of Section 231.17(5)(a), Florida Statutes,
1189which provides that the Department of
1195Education is authorized to deny an Applicant
1202an educator's certificate if it possesses
1208evidence satisfactory to it that the
1214Applicant has committed an act or acts or
1222that a situation exists for which the
1229Education Practices Commission would be
1234authorized to revoke a teaching certificate.
1240COUNT 3: The Applicant is in violation
1247of Section 231.28(1)(c), Florida Statutes,
1252in that she has been guilty of gross
1260immorality or an act involving moral
1266turpitude.
1267WHEREFORE, the undersigned concludes
1271that RAMONA BIANCA WRIGHT has committed an
1278act or acts or that a situation exists for
1287which the Education Practices Commission
1292would be authorized to revoke an educator's
1299certificate. It is therefore, respectfully
1304recommended that the Education Practices
1309Commission affirm the Department of
1314Education's denial of the issuance of a
1321teaching certificate to the Applicant based
1327upon the reasons set forth herein, in
1334accordance with the Explanation of Rights
1340form which is attached to and made a part of
1350this Notice of Reasons.
1354Respondent timely filed an election of rights and requested a
1364formal hearing of the Education Practices Commission to contest
1373the C ommissioner's decision to deny her application. Section
1382231.17(10), Florida Statutes.
13854. On April 27, 1999, notwithstanding the pendency of
1394Respondent's challenge to the Commissioner's decision and
1401without inquiry of her regarding the status of that matter, the
1412School Board advised Respondent that her employment was
1420terminated. Specifically, the letter of termination stated:
1427Dear Ms. Wright:
1430Please be advised that the School District
1437of Palm Beach County has received
1443notification from the Florida Department of
1449Education (DOE) that your application for a
1456teaching certificate was denied pursuant to
1462Section 231.17(5), Florida Statutes. As a
1468result, your last day of employment with the
1476district is Wednesday, April 28, 1999.
1482Until such time as there is a change in your
1492certification status, you are ineligible for
1498teaching as well as coaching assignments.
1504As you are aware, you have the right to
1513appeal the DOE's decision to deny your
1520application for certification, as outlined
1525in the April 1st letter from the
1532Commissioner of Education. Should you have
1538questions or need clarification regarding
1543the above matter, please contact me at (561)
1551434-8043. We regret such action is
1557necessary and hope you are successful in
1564your pursuit of other employment
1569opportunities.
1570Consistent with the terms of the letter, Respondent's last day
1580of employment was April 28, 1999, a number of weeks prior to the
1593end of the school year and her contractual term of employment.
16045. Respondent's administrative challenge to the
1610Commissioner's decision to deny her application for a temporary
1619certificate was resolved, as between Respondent and the
1627Commissioner of Education, subject to the approval of the
1636Education Practices Commission, by a Settlement Agreement dated
1644September 10, 1999, wherein it was agreed, inter alia , that the
1655Commissioner would issue Respondent the certificate she had
1663applied for. (Petitioner's Exhibit 3) The agreement was
1671subsequently approved by the Education Practices Commission in
1679late October 1999, and Respondent was issued her teacher's
1688certificate in November 1999.
1692CONCLUSIONS OF LAW
16956. The Division of Administrative Hearings has
1702jurisdiction over the parties to and the subject matter of these
1713proceedings. Sections 120.569 and 120.57(1), Florida Statutes.
17207. Pertinent to this case, Chapter 231, Florida Statutes,
1729provides:
1730231.02 Qualifications of personnel.-
1734(1) To be eligible for appointment in any
1742position in any district school system, a
1749person shall be of good moral character;
1756shall have attained the age of 18 years, if
1765he or she is to be employed in an
1774instructional capacity; and shall, when
1779required by law, hold a certificate or
1786license issued under rules of the State
1793Board of Education . . . .
1800(2)(a) Instructional and noninstructional
1804personnel who are hired to fill positions
1811requiring direct contact with students in
1817any district school system or laboratory
1823school shall, upon employment, file a
1829complete set of fingerprints taken by an
1836authorized law enforcement officer or an
1842employee of the school or district who is
1850trained to take fingerprints. These
1855fingerprints shall be submitted to the
1861Department of Law Enforcement for state
1867processing and to the Federal Bureau of
1874Investigation for federal processing. Such
1879new employees shall be on probationary
1885status pending fingerprint processing and
1890determination of compliance with standards
1895of good moral character. Employees found
1901through fingerprint processing to have been
1907convicted of a crime involving moral
1913turpitude shall not be employed in any
1920position requiring direct contact with
1925students. 2/ Probationary employees
1929terminated because of their criminal record
1935shall have the right to appeal such
1942decisions . . . .
1947231.15 Positions for which certificates
1952required.-
1953(1) The State Board of Education shall
1960classify school services, designate the
1965certification subject areas, establish
1969competencies, including the use of
1974technology to enhance student learning, and
1980certification requirements for all school-
1985based personnel, and prescribe rules in
1991accordance with which the professional,
1996temporary, and part-time certificates shall
2001be issued by the Department of Education to
2009applicants who meet the standards prescribed
2015by such rules for their class of
2022service . . . Each person employed or
2030occupying a position as school supervisor,
2036principal, teacher, library media
2040specialist, school counselor, athletic
2044coach, or other position in which the
2051employee serves in an instructional
2056capacity, in any public school of any
2063district of this state shall hold the
2070certificate required by law and by rules of
2078the state board in fulfilling the
2084requirements of the law for the type of
2092service rendered . . . .
2098231.17 Official statements of eligibility
2103and certificates granted on application to
2109those meeting prescribed requirements.-
2113(1) APPLICATION.-Each person seeking
2117certification pursuant to this chapter shall
2123submit a completed application to the
2129Department of Education . . . . Pursuant to
2138s. 120.60, the Department of Education shall
2145issue within 90 calendar days after the
2152stamped receipted date of the completed
2158application an official statement of
2163eligibility for certification or a
2168certificate covering the classification,
2172level, and area for which the applicant is
2180deemed qualified.
2182(2) STATEMENT OF ELIGIBILITY.-The
2186statement of eligibility must advise the
2192applicant of the qualifications that must be
2199completed to qualify for the temporary or
2206professional certificate sought. Each
2210statement of eligibility is valid for 2
2217years after its date of issuance and may be
2226reissued for one additional 2-year period if
2233application is made while the initial
2239statement of eligibility is valid or within
22461 year after the initial statement expires.
2253(3) TEMPORARY CERTIFICATE.-
2256(a) The department shall issue a
2262temporary certificate to any applicant who
2268submits satisfactory evidence of possessing
2273the qualifications for such a certificate as
2280prescribed by this chapter and by rules of
2288the state board. Each temporary certificate
2294is valid for 2 years after the date of its
2304issuance and is nonrenewable, except as
2310otherwise provided in subsection (6) . . . .
2319* * *
2322(10) DENIAL OF CERTIFICATE.-
2326(a) The Department of Education may deny
2333an applicant a certificate if the department
2340possesses evidence satisfactory to it that
2346the applicant has committed an act or acts,
2354or that a situation exists, for which the
2362Education Practices Commission would be
2367authorized to revoke a teaching certificate.
2373(b) The decision of the Department of
2380Education is subject to review by the
2387Education Practices Commission upon the
2392filing of a written request from the
2399applicant within 20 days after receipt of
2406the notice of denial.
24108. Also pertinent to this case are the rules of the State
2422Board of Education relating to temporary certificates. Among
2430other things, the rule requires, as a condition of issuance of a
2442temporary certificate, that the applicant provide "verification
2449of full-time employment in a Florida public . . . school which
2461has an approved Florida provisional orientation program." Rule
24696A-4.004(2), Florida Administrative Code.
24739. Based on her Statement of Eligibility, the School Board
2483employed Respondent as an elementary school teacher, and she
2492taught while her application for a temporary certificate was
2501pending; however, the contract of employment expressly provided
2509that "[i]n the event that such application is denied, the
2519Employee [Respondent] agrees that the School Board shall be
2528relieved of all obligation under this [agreement; and
2536Respondent's employment may be terminated]". Respondent's
2543employment was consistent with the Statement of Eligibility she
2552received from the Department of Education, the provisions of
2561Rule 6A-4.004(2), Florida Administrative Code, and the School
2569Board's accepted practice, 3/ and the terms of the contract
2579regarding termination were clear and unambiguous.
258510. Here, the School Board contends it was authorized to
2595terminate Respondent's employment (under the terms of the annual
2604contract) when the Commissioner of Education, by letter of
2613April 1, 1999, denied her application for temporary
2621certification. Respondent is of the opinion that, given her
2630timely challenge of the Commissioner's decision, there was no
2639change in the status of her application; it remained pending and
2650not denied. Consequently, until the matter was formally
2658resolved, Respondent contends the School Board could not, based
2667on a claim that her application was denied, terminate her
2677employment. Respondent's position has merit.
268211. Section 120.60(3), Florida Statutes, provides that an
2690agency, such as the Department of Education, must provide notice
2700of its licensure decision, as follows:
2706(3) Each applicant shall be given written
2713notice either personally or by mail that the
2721agency intends to grant or deny, or has
2729granted or denied, the application for
2735license. The notice must state with
2741particularity the grounds or basis for the
2748issuance or denial of the license, except
2755when issuance is a ministerial act . . .
2764Each notice shall inform the recipient of
2771the basis for the agency decision, shall
2778inform the recipient of any administrative
2784hearing pursuant to ss. 120.569 and 120.57
2791or judicial review pursuant to s. 120.68
2798which may be available, shall indicate the
2805procedure which must be followed, and shall
2812state the applicable time limits . . . .
282112. Consistent with the mandate of Section 120.60(3),
2829Florida Statutes, the Department of Education gave Respondent
2837notice of her right to seek review of its decision, and
2848Respondent exercised that right. Consequently, until resolved
2855consistent with the Administrative Procedures Act, the
2862Department of Education's decision could, at best, be described
2871as proposed. See Department of Health and Rehabilitative
2879Services v. Barr , 359 So. 2d 503 (Fla. 1st DCA 1978)(The essence
2891of chapter 120 proceedings is to give a person whose substantial
2902interests have been determined by an agency action, an
2911opportunity to attack the agency's position by appropriate
2919means, subject to judicial review under section 120.68, Florida
2928Statutes.) See also Groves Watkins Constructors vs. Department
2936of Transportation , 511 So. 2d 323 (Fla. 1st DCA 1987)(One of the
2948proper purposes for a section 120.57 proceeding is to allow
2958persons affected by intended decisions of state agencies to
2967change the agency's mind.) Consequently, the School Board
2975improvidently terminated Respondent's employment on April 28,
29821999.
2983RECOMMENDATION
2984Based on the foregoing Findings of Fact and Conclusions of
2994Law, it is
2997RECOMMENDED that a final order be entered consistent with
3006the foregoing Findings of Fact and Conclusions of Law, and which
3017accords Respondent all benefits due under her annual contract of
3027employment that was wrongfully terminated.
3032DONE AND ENTERED this 2nd day of June, 2000, in
3042Tallahassee, Leon County, Florida.
3046___________________________________
3047WILLIAM J. KENDRICK
3050Administrative Law Judge
3053Division of Administrative Hearings
3057The DeSoto Building
30601230 Apalachee Parkway
3063Tallahassee, Florida 32399-3060
3066(850) 488-9675 SUNCOM 278-9675
3070Fax Filing (850) 921-6847
3074www.doah.state.fl.us
3075Filed with the Clerk of the
3081Division of Administrative Hearings
3085this 2nd day of June, 2000.
3091ENDNOTES
30921/ There is no explanation of record for the inordinate time the
3104Department of Education took to consider Respondent's
3111application.
31122/ Respondent was not convicted of any crime and there was no
3124statutory mandate against her continued employment in a position
3133requiring direct contact with students.
31383/ At hearing, the School Board offered proof that,
3147historically, the School Board had thirteen individuals with
3155similar circumstances as Respondent and in each instance the
3164person's employment with the School Board was terminated from the
3174moment the School Board was notified that the educator's
3183certificate was denied regardless of whether an appeal (request
3192for formal hearing) had been filed. Such testimony clearly
3201speaks to the acceptability of the manner in which Respondent was
3212employed (pending certification). As for the School Board's
3220practice of terminating employment regardless of the pendency of
3229a challenge to the denial of certification, it can only be said,
3241for reasons that follow, that the School Board has been
3251consistently wrong.
3253COPIES FURNISHED:
3255Dr. H. Benjamin Marlin, Superintendent
3260Palm Beach County School Board
3265Office of the General Counsel
32703340 Forest Hill Boulevard
3274Suite C-316
3276West Palm Beach, Florida 33406-5869
3281Tom Gallagher, Commissioner of Education
3286Department of Education
3289The Capitol, Plaza Level 08
3294Tallahassee, Florida 32399-0400
3297Glen J. Torcivia, Esquire
3301Glen J. Torcivia, P.A.
33051800 Australian Avenue, South
3309Suite 205
3311West Palm Beach, Florida 33409
3316William L. Reitz, Esquire
3320Palm Beach County School Board
3325Office of the General Counsel
33303318 Forest Hill Boulevard
3334Suite C-302
3336West Palm Beach, Florida 33406
3341Mark Herdman, Esquire
3344Herdman and Sakellarides
33472595 Tampa Road
3350Palm Harbor, Florida 34684
3354Thomas L. Johnson, Esquire
3358Chamblee & Johnson, P.A.
3362709 West Azeele Street
3366Tampa, Florida 33606
3369NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
3375All parties have the right to submit written exceptions within
338515 days from the date of this Recommended Order. Any exceptions
3396to this Recommended Order should be filed with the agency that
3407will issue the Final Order in this case.
- Date
- Proceedings
- Date: 06/19/2000
- Proceedings: Petitioner`s Motion for Extension of Time filed.
- PDF:
- Date: 06/02/2000
- Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 05/08/2000.
- Date: 05/30/2000
- Proceedings: Petitioner`s Notice of Supplemental Authority (filed via facsimile).
- Date: 05/26/2000
- Proceedings: Respondent`s Proposed Findings of Fact and Conclusion of Law filed.
- Date: 05/26/2000
- Proceedings: (Petitioner) Proposed Findings of Fact and Conclusions of Law w/diskette filed.
- Date: 05/16/2000
- Proceedings: Transcript of Proceedings ; Condensed Transcript and Concordance filed.
- Date: 05/09/2000
- Proceedings: CASE STATUS: Hearing Held.
- Date: 02/29/2000
- Proceedings: Notice of Video Hearing sent out. (hearing set for May 9, 2000; 9:00 a.m.; West Palm Beach and Tallahassee, FL)
- Date: 02/14/2000
- Proceedings: (G. Torcivia) Status Report (filed via facsimile).
- Date: 02/03/2000
- Proceedings: Order Granting Continuance sent out. (Parties to advise status by February 14, 2000.)
- Date: 02/02/2000
- Proceedings: (William Reitz) Notice of Appearance and Substitution of Counsel (filed via facsimile).
- Date: 02/01/2000
- Proceedings: Petitioner`s Unopposed Motion for Continuance (filed via facsimile).
- Date: 01/26/2000
- Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference sent out. (hearing set for February 7, 2000; 9:00 a.m.; West Palm Beach, FL)
- Date: 01/18/2000
- Proceedings: Petitioner`s Motion for Continuance (filed via facsimile).
- Date: 11/30/1999
- Proceedings: Notice of Video Hearing sent out. (hearing set for January 28, 2000; 9:00 a.m.; and Tallahassee, FL)
- Date: 10/06/1999
- Proceedings: Order Granting Motion to Amend and Granting Continuance sent out. (hearing cancelled, parties to advise status by 10/25/1999)
- Date: 10/06/1999
- Proceedings: (T. Elfers) Notice of Filing; Amended Administrative Complaint filed.
- Date: 10/05/1999
- Proceedings: (2) Petitioner`s Motion to Amend Administrative Complaint; Amended Administrative Complaint (unsigned) (filed via facsimile).
- Date: 07/30/1999
- Proceedings: Notice of Hearing by Video sent out. (Video Hearing set for 9:00 a.m.; West Palm Beach & Tallahassee; 10/8/99)
- Date: 07/22/1999
- Proceedings: Respondent`s Answer to Administrative Complaint (filed via facsimile).
- Date: 07/20/1999
- Proceedings: Joint Response to Initial Order (filed via facsimile).
- Date: 07/15/1999
- Proceedings: (T. Elfers) Notice of Appearance and Substitution of Counsel (filed via facsimile).
- Date: 07/08/1999
- Proceedings: Initial Order issued.
- Date: 07/07/1999
- Proceedings: Agency Referral Letter; Agency Action Letter; Administrative Complaint; Notice of Reasons (filed via facsimile).
Case Information
- Judge:
- WILLIAM J. KENDRICK
- Date Filed:
- 07/07/1999
- Date Assignment:
- 07/08/1999
- Last Docket Entry:
- 06/19/2000
- Location:
- West Palm Beach, Florida
- District:
- Southern
- Agency:
- County School Boards