99-002922 Palm Beach County School Board vs. Ramona Wright Status: Closed Recommended Order on Friday, June 2, 2000.

Summary: Teacher`s contract was wrongfully terminated where the decision of the Commissioner of Education to deny her application for temporary certification was under challenge and not final.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-2922

)

RAMONA WRIGHT, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

William J. Kendrick, held a formal hearing in the above-styled

case on May 8, 2000, by video teleconference, with sites in

Tallahassee and West Palm Beach, Florida.

APPEARANCES

For Petitioner: Glen J. Torcivia, Esquire

Glen J. Torcivia, P.A.

1800 Australian Avenue, South

Suite 205

West Palm Beach, Florida 33409

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides

2595 Tampa Road

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

At issue in this proceeding is whether, as alleged in the

Amended Administrative Complaint, Respondent's application for a

temporary teacher's certificate was denied and, consequently, her

dismissal from employment as an elementary school teacher with

the Palm Beach County School Board was proper.

PRELIMINARY STATEMENT

By letter of April 27, 1999, the Palm Beach County School

Board (School Board) dismissed Respondent from her employment as

a elementary school teacher, effective April 28, 1999, based on

its conclusion that her application for a temporary teacher's

certificate had been denied and, consequently, her termination

was proper. Such letter did not provide notice or an

opportunity to request a pre-termination hearing.

Subsequently, by letter of June 21, 1999, Respondent's

counsel advised the School Board that Respondent denied there

was any basis to support the action taken in the letter of

termination, and demanded a hearing pursuant to Section

120.57(1), Florida Statutes, before the Division of

Administrative Hearings. In response, the School Board filed an

administrative complaint which formally sought Respondent's

dismissal from employment, based on the denial of her

application for a temporary teacher's certificate by the

Commissioner of Education, and forwarded the matter to the

Division of Administrative Hearings for the assignment of an

administrative law judge to conduct the hearing Respondent had

requested. The School Board's complaint was later amended, but

its gravamen remained the same.

At hearing, the Petitioner (School Board) called Respondent

and Marion Weil as witnesses, and Petitioner's Exhibits 1-7 were

received into evidence. Respondent called no additional

witnesses and offered no additional exhibits.

A transcript of the hearing was filed May 16, 1999, and the

parties were accorded 10 days from that date to file proposed

recommended orders. The parties elected to file such proposals

and they have been duly considered.

FINDINGS OF FACT

1. On or about August 14, 1998, Respondent, Ramona Wright,

received a Statement of Academic Eligibility (Statement of

Eligibility) for elementary education (grades 1-6) from the

Florida Department of Education. The Statement of Eligibility

was valid until July 29, 2000, and (consistent with Rule 6A-

4.004, Florida Administrative Code,) provided, as follows:

The State of Florida issues two types of

certificates for full-time teaching, a

nonrenewable Temporary Certificate valid for

two years and a Professional Certificate

valid for five years . . . The Temporary

Certificate is issued to allow time to

complete requirements for the Professional

Certificate.

Your application for teacher certification

has been received and evaluated. Based upon

current requirements, you will be eligible

for a two-year nonrenewable Temporary

Certificate valid for two consecutive school

fiscal years covering Elementary Education

when:

You obtain employment with a Florida

public, state supported, or nonpublic school

which has an approved system for documenting

the demonstration of required professional

education competence. Your employer must

request issuance of your certificate.

Your employer submits a fingerprint

card which as been processed by the Florida

Department of Law Enforcement and the

Federal Bureau of Investigation. If your

fingerprint report reflects an arrest

record, your file will be referred to

Professional Practices Services for further

review. Issuance of your certificate will

be contingent upon the results of this

review . . . .

2. Given her eligibility, Respondent was employed by the

Palm Beach County School Board (School Board) as an elementary

school teacher on August 20, 1998, and, consistent with the

provisions of her Statement of Eligibility, an application was

submitted to the Florida Department of Education (Department of

Education) for a temporary certificate. Pertinent to this case,

the annual contract of employment under which Respondent was

employed, provided as follows:

This contract is conditioned and based on

the assertions by the Employee:

* * *

(2) That the Employee has completed the

requirements and will be legally qualified

to teach in the State of Florida upon

issuance of a Florida teacher's certificate,

for which application has been duly made as

evidenced by the official receipt and

acknowledgment recorded in the office of the

Superintendent, bearing Department of

Education file number cited above. In the

event that such application is denied, the

Employee agrees that the School Board shall

be relieved of all obligation under this

provision.

3. By letter of April 1, 1999, Tom Gallagher, Commissioner

of Education, Department of Education, advised Respondent that

her application for a temporary teacher's certificate was

denied. 1/ Specifically, the letter stated:

Dear Ms. Wright:

Your application for a Florida Teacher's

Certificate has been carefully considered by

the Department of Education and, for the

reasons stated in the Notice of Reasons,

your application is hereby DENIED pursuant

to Section 231.17(5), Florida Statutes,

which states in pertinent part:

"The Department of Education is

authorized to deny an applicant a

certificate if it 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."

You may appeal the certificate denial by

following the Florida Administrative

Procedures Act and Rule 6B-11.005 of the

Florida Administrative Code. If you want to

appeal the Department's decision, you have

TWENTY (20) DAYS from the date this Notice

of Denial is RECEIVED to fill in and FILE an

Election of Rights Notice of Appeal with the

Office of Professional Practices Services .

. . .

The reasons stated in the Notice of Reasons were as follows:

The Department of Education files and serves

upon the Applicant, RAMONA BIANCA WRIGHT,

its Notice of Reasons for its denial in

accordance with the provisions of Section

120.60, Florida Statutes, and as grounds

therefore, alleges:

On or about July 23, 1995, Applicant was

involved in an altercation with a tenant of

rental property owned by Applicant and her

family. Applicant yelled at the tenant,

struck a police officer and smashed some the

tenant's dishes. Applicant then refused the

request of the police to leave the area.

Applicant was arrested and charged with

Disorderly Conduct, Battery and Criminal

Mischief. On or about October 10, 1996,

Respondent pled Not Guilty to the charges.

The court withheld adjudication to the

charge of Disorderly Conduct, found

Applicant Not Guilty of the Battery charge

and Nolle Prosequi the remaining charge.

The Department of Education charges:

STATEMENT OF VIOLATIONS

COUNT 1: The applicant is in violation

of Section 231.17(3)(c)6., Florida Statutes,

which requires that the holder of a Florida

Educator's Certificate be of good moral

character.

COUNT 2: The applicant is in violation

of Section 231.17(5)(a), Florida Statutes,

which provides that the Department of

Education is authorized to deny an Applicant

an educator's certificate if it 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.

COUNT 3: The Applicant is in violation

of Section 231.28(1)(c), Florida Statutes,

in that she has been guilty of gross

immorality or an act involving moral

turpitude.

WHEREFORE, the undersigned concludes

that RAMONA BIANCA WRIGHT has committed an

act or acts or that a situation exists for

which the Education Practices Commission

would be authorized to revoke an educator's

certificate. It is therefore, respectfully

recommended that the Education Practices

Commission affirm the Department of

Education's denial of the issuance of a

teaching certificate to the Applicant based

upon the reasons set forth herein, in

accordance with the Explanation of Rights

form which is attached to and made a part of

this Notice of Reasons.

Respondent timely filed an election of rights and requested a

formal hearing of the Education Practices Commission to contest

the C ommissioner's decision to deny her application. Section

231.17(10), Florida Statutes.

4. On April 27, 1999, notwithstanding the pendency of

Respondent's challenge to the Commissioner's decision and

without inquiry of her regarding the status of that matter, the

School Board advised Respondent that her employment was

terminated. Specifically, the letter of termination stated:

Dear Ms. Wright:

Please be advised that the School District

of Palm Beach County has received

notification from the Florida Department of

Education (DOE) that your application for a

teaching certificate was denied pursuant to

Section 231.17(5), Florida Statutes. As a

result, your last day of employment with the

district is Wednesday, April 28, 1999.

Until such time as there is a change in your

certification status, you are ineligible for

teaching as well as coaching assignments.

As you are aware, you have the right to

appeal the DOE's decision to deny your

application for certification, as outlined

in the April 1st letter from the

Commissioner of Education. Should you have

questions or need clarification regarding

the above matter, please contact me at (561)

434-8043. We regret such action is

necessary and hope you are successful in

your pursuit of other employment

opportunities.

Consistent with the terms of the letter, Respondent's last day

of employment was April 28, 1999, a number of weeks prior to the

end of the school year and her contractual term of employment.

5. Respondent's administrative challenge to the

Commissioner's decision to deny her application for a temporary

certificate was resolved, as between Respondent and the

Commissioner of Education, subject to the approval of the

Education Practices Commission, by a Settlement Agreement dated

September 10, 1999, wherein it was agreed, inter alia , that the

Commissioner would issue Respondent the certificate she had

applied for. (Petitioner's Exhibit 3) The agreement was

subsequently approved by the Education Practices Commission in

late October 1999, and Respondent was issued her teacher's

certificate in November 1999.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. Sections 120.569 and 120.57(1), Florida Statutes.

7. Pertinent to this case, Chapter 231, Florida Statutes,

provides:

231.02 Qualifications of personnel.-

(1) To be eligible for appointment in any

position in any district school system, a

person shall be of good moral character;

shall have attained the age of 18 years, if

he or she is to be employed in an

instructional capacity; and shall, when

required by law, hold a certificate or

license issued under rules of the State

Board of Education . . . .

(2)(a) Instructional and noninstructional

personnel who are hired to fill positions

requiring direct contact with students in

any district school system or laboratory

school shall, upon employment, file a

complete set of fingerprints taken by an

authorized law enforcement officer or an

employee of the school or district who is

trained to take fingerprints. These

fingerprints shall be submitted to the

Department of Law Enforcement for state

processing and to the Federal Bureau of

Investigation for federal processing. Such

new employees shall be on probationary

status pending fingerprint processing and

determination of compliance with standards

of good moral character. Employees found

through fingerprint processing to have been

convicted of a crime involving moral

turpitude shall not be employed in any

position requiring direct contact with

students. 2/ Probationary employees

terminated because of their criminal record

shall have the right to appeal such

decisions . . . .

231.15 Positions for which certificates

required.-

(1) The State Board of Education shall

classify school services, designate the

certification subject areas, establish

competencies, including the use of

technology to enhance student learning, and

certification requirements for all school-

based personnel, and prescribe rules in

accordance with which the professional,

temporary, and part-time certificates shall

be issued by the Department of Education to

applicants who meet the standards prescribed

by such rules for their class of

service . . . Each person employed or

occupying a position as school supervisor,

principal, teacher, library media

specialist, school counselor, athletic

coach, or other position in which the

employee serves in an instructional

capacity, in any public school of any

district of this state shall hold the

certificate required by law and by rules of

the state board in fulfilling the

requirements of the law for the type of

service rendered . . . .

231.17 Official statements of eligibility

and certificates granted on application to

those meeting prescribed requirements.-

(1) APPLICATION.-Each person seeking

certification pursuant to this chapter shall

submit a completed application to the

Department of Education . . . . Pursuant to

s. 120.60, the Department of Education shall

issue within 90 calendar days after the

stamped receipted date of the completed

application an official statement of

eligibility for certification or a

certificate covering the classification,

level, and area for which the applicant is

deemed qualified.

(2) STATEMENT OF ELIGIBILITY.-The

statement of eligibility must advise the

applicant of the qualifications that must be

completed to qualify for the temporary or

professional certificate sought. Each

statement of eligibility is valid for 2

years after its date of issuance and may be

reissued for one additional 2-year period if

application is made while the initial

statement of eligibility is valid or within

1 year after the initial statement expires.

(3) TEMPORARY CERTIFICATE.-

(a) The department shall issue a

temporary certificate to any applicant who

submits satisfactory evidence of possessing

the qualifications for such a certificate as

prescribed by this chapter and by rules of

the state board. Each temporary certificate

is valid for 2 years after the date of its

issuance and is nonrenewable, except as

otherwise provided in subsection (6) . . . .

* * *

(10) 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.

(b) The decision of the Department of

Education is subject to review by the

Education Practices Commission upon the

filing of a written request from the

applicant within 20 days after receipt of

the notice of denial.

8. Also pertinent to this case are the rules of the State

Board of Education relating to temporary certificates. Among

other things, the rule requires, as a condition of issuance of a

temporary certificate, that the applicant provide "verification

of full-time employment in a Florida public . . . school which

has an approved Florida provisional orientation program." Rule

6A-4.004(2), Florida Administrative Code.

9. Based on her Statement of Eligibility, the School Board

employed Respondent as an elementary school teacher, and she

taught while her application for a temporary certificate was

pending; however, the contract of employment expressly provided

that "[i]n the event that such application is denied, the

Employee [Respondent] agrees that the School Board shall be

relieved of all obligation under this [agreement; and

Respondent's employment may be terminated]". Respondent's

employment was consistent with the Statement of Eligibility she

received from the Department of Education, the provisions of

Rule 6A-4.004(2), Florida Administrative Code, and the School

Board's accepted practice, 3/ and the terms of the contract

regarding termination were clear and unambiguous.

10. Here, the School Board contends it was authorized to

terminate Respondent's employment (under the terms of the annual

contract) when the Commissioner of Education, by letter of

April 1, 1999, denied her application for temporary

certification. Respondent is of the opinion that, given her

timely challenge of the Commissioner's decision, there was no

change in the status of her application; it remained pending and

not denied. Consequently, until the matter was formally

resolved, Respondent contends the School Board could not, based

on a claim that her application was denied, terminate her

employment. Respondent's position has merit.

11. Section 120.60(3), Florida Statutes, provides that an

agency, such as the Department of Education, must provide notice

of its licensure decision, as follows:

(3) Each applicant shall be given written

notice either personally or by mail that the

agency intends to grant or deny, or has

granted or denied, the application for

license. The notice must state with

particularity the grounds or basis for the

issuance or denial of the license, except

when issuance is a ministerial act . . .

Each notice shall inform the recipient of

the basis for the agency decision, shall

inform the recipient of any administrative

hearing pursuant to ss. 120.569 and 120.57

or judicial review pursuant to s. 120.68

which may be available, shall indicate the

procedure which must be followed, and shall

state the applicable time limits . . . .

12. Consistent with the mandate of Section 120.60(3),

Florida Statutes, the Department of Education gave Respondent

notice of her right to seek review of its decision, and

Respondent exercised that right. Consequently, until resolved

consistent with the Administrative Procedures Act, the

Department of Education's decision could, at best, be described

as proposed. See Department of Health and Rehabilitative

Services v. Barr , 359 So. 2d 503 (Fla. 1st DCA 1978)(The essence

of chapter 120 proceedings is to give a person whose substantial

interests have been determined by an agency action, an

opportunity to attack the agency's position by appropriate

means, subject to judicial review under section 120.68, Florida

Statutes.) See also Groves Watkins Constructors vs. Department

of Transportation , 511 So. 2d 323 (Fla. 1st DCA 1987)(One of the

proper purposes for a section 120.57 proceeding is to allow

persons affected by intended decisions of state agencies to

change the agency's mind.) Consequently, the School Board

improvidently terminated Respondent's employment on April 28,

1999.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered consistent with

the foregoing Findings of Fact and Conclusions of Law, and which

accords Respondent all benefits due under her annual contract of

employment that was wrongfully terminated.

DONE AND ENTERED this 2nd day of June, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of June, 2000.

ENDNOTES

1/ There is no explanation of record for the inordinate time the

Department of Education took to consider Respondent's

application.

2/ Respondent was not convicted of any crime and there was no

statutory mandate against her continued employment in a position

requiring direct contact with students.

3/ At hearing, the School Board offered proof that,

historically, the School Board had thirteen individuals with

similar circumstances as Respondent and in each instance the

person's employment with the School Board was terminated from the

moment the School Board was notified that the educator's

certificate was denied regardless of whether an appeal (request

for formal hearing) had been filed. Such testimony clearly

speaks to the acceptability of the manner in which Respondent was

employed (pending certification). As for the School Board's

practice of terminating employment regardless of the pendency of

a challenge to the denial of certification, it can only be said,

for reasons that follow, that the School Board has been

consistently wrong.

COPIES FURNISHED:

Dr. H. Benjamin Marlin, Superintendent

Palm Beach County School Board

Office of the General Counsel

3340 Forest Hill Boulevard

Suite C-316

West Palm Beach, Florida 33406-5869

Tom Gallagher, Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

Glen J. Torcivia, Esquire

Glen J. Torcivia, P.A.

1800 Australian Avenue, South

Suite 205

West Palm Beach, Florida 33409

William L. Reitz, Esquire

Palm Beach County School Board

Office of the General Counsel

3318 Forest Hill Boulevard

Suite C-302

West Palm Beach, Florida 33406

Mark Herdman, Esquire

Herdman and Sakellarides

2595 Tampa Road

Palm Harbor, Florida 34684

Thomas L. Johnson, Esquire

Chamblee & Johnson, P.A.

709 West Azeele Street

Tampa, Florida 33606

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.