09-003590PL Dr. Eric J. Smith, As Commissioner Of Education vs. Bradley Joseph Magid Status: Closed Recommended Order on Monday, March 1, 2010.

Summary: Petitioner demonstrated that Respondent violated the offenses set forth in the Amended Administrative Complaint. Mitigating were circumstances established. Recommend revocation of teaching certificate for five years.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 09-3590PL

)

BRADLEY JOSEPH MAGID, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on October 27, 2009, by video teleconference with connecting

sites in West Palm Beach and Tallahassee, Florida, before

Errol H. Powell, an Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 10

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed

the offenses set forth in the Amended Administrative Complaint

issued on May 28, 2009, and, if so, what action should be taken.

PRELIMINARY STATEMENT

On May 28, 2009, Dr. Eric J. Smith, as Commissioner of

Education (COE), issued a five-count Amended Administrative

Complaint (Amended AC) against Bradley Joseph Magid. The COE

charged Mr. Magid with three counts of violating Section

1012.795: Count 1, violating Section 1012.795(1)(d), Florida

Statutes, by being guilty of gross immorality or an act

involving moral turpitude as defined by rule of the State Board

of Education; Count 2, violating Section 1012.795(1)(g), Florida

Statutes, by being guilty of personal conduct which seriously

reduces his effectiveness as an employee of the school board;

and Count 3, violating Section 1012.95(1)(j), Florida Statutes,

by violating the Principles of Professional Conduct for the

Education Profession prescribed by State Board of Education

rules. Further, the Amended AC charged Mr. Magid with two

counts of violating Florida Administrative Code Rule 6B-1.006:

Count 4, violating Florida Administrative Code Rule 6B-

1.006(4)(c) by using institutional privileges for personal gain

or advantage; and Count 5, violating Florida Administrative Code

Rule 6B-1.006(5) by failing to maintain honesty in all

professional dealings. Mr. Magid challenged the material

allegations in the Amended AC and requested a hearing. On

July 9, 2009, this matter was referred to the Division of

Administrative Hearings.

Prior to hearing, the parties filed a Joint Pre-hearing

Stipulation. At hearing, the COE presented the testimony of

four witnesses and entered 11 exhibits (Petitioner's Exhibits

numbered 1-4, and 6-12), one exhibit being the deposition

testimony of Mr. Magid, into evidence. Mr. Magid did not

testify at hearing. Mr. Magid requested leave to take the

deposition testimony of his father subsequent to the hearing,

and submit it as a late exhibit. The COE did not object and the

request was granted. The deposition testimony of Mr. Magid’s

father was late-filed and entered into evidence as Respondent’s

Exhibit numbered 1.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was

set for more than ten days following the filing of the

transcript. The Transcript, consisting of one volume, was filed

on December 10, 2009. The parties timely filed post-hearing

submissions, which have been considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. No dispute exists that, at all times material hereto,

the COE was charged with the duty of investigating and

prosecuting complaints against individuals who hold a Florida

educational certificate and who are alleged to have violated

Section 1012.795, Florida Statutes.

2. At all times material hereto, Mr. Magid held Florida

Educator’s Certificate No. 936553, covering the area of

Elementary Education, which is valid through June 30, 2012.

3. During the 2006-2007 and 2007-2008 school years,

Mr. Magid was employed as a kindergarten teacher with the Palm

Beach County School Board (School Board) at Westwood Elementary

School (Westwood).

4. In January 2008, Mr. Magid arranged to obtain a tripod

from another teacher, Janae Dean, at Westwood. On January 9,

2008, Mr. Magid contacted Ms. Dean, who was in a meeting in a

classroom other than her own, to obtain the keys to her

classroom in order to get the tripod from her locked classroom.

Ms. Dean kept her classroom locked when she was not in the

classroom. Ms. Dean gave Mr. Magid the keys to her classroom.

Later, Mr. Magid returned to the classroom where the meeting was

being held and returned Ms. Dean’s keys to her.

5. After the meeting, Ms. Dean returned to her classroom

and discovered that a $100 bill was missing from her purse,

which was locked inside a file cabinet in her classroom.

Ms. Dean called another teacher, Josette Archbold, 1 a media

specialist, to her (Ms. Dean’s) classroom. Ms. Dean requested

Ms. Archbold to look into her (Ms. Dean’s) purse and determine

if a $100 bill was in the purse; Ms. Archbold verified that no

$100 bill was in Ms. Dean’s purse.

6. Ms. Dean went to confront Mr. Magid. She discovered

that he had left the Westwood’s campus and was working as a

referee at a high school basketball game. She went to the

basketball game and confronted Mr. Magid, who admitted to taking

the money, but told her that it was a practical joke. Ms. Dean

informed him that she wanted her money, and Mr. Magid wrote her

a check for $100.

7. Ms. Dean did not wish to file a criminal complaint

against Mr. Magid. However, she did report the incident to the

Westwood’s principal, Melvis Pender, that same evening.

8. The following day, Mr. Pender met with Mr. Magid and

Ms. Dean. Mr. Magid admitted taking the $100 bill from

Ms. Dean’s purse that was secured in the locked cabinet in her

classroom. However, he (Mr. Magid) indicated that it was a

practical joke, which was refuted by Ms. Dean. Mr. Pender

determined that the incident was not a practical joke.

9. Mr. Pender issued a directive to Mr. Magid,

characterizing Mr. Magid’s behavior as “unprofessional and

inappropriate,” and directing Mr. Magid to discontinue the type

of behavior in which Mr. Magid had engaged. Mr. Magid executed

an acknowledgement of the directive on January 24, 2008.

10. On March 14, 2008, Ms. Archbold was reporting to work

at Westwood. As she entered the area where the circulation desk

was located, which was outside of her office, a colleague

approached her and immediately needed some paperwork on an

audit, which the two of them were preparing. Ms. Archbold

placed her wallet and other material on the circulation desk and

entered her office to retrieve the paperwork that her colleague

requested. Considerable time had elapsed, and Ms. Archbold

noticed Mr. Magid going in and out of the media office; then she

realized that she had left her wallet outside of her office on

the circulation desk.

11. Ms. Archbold had $20 in her wallet. The day before,

March 13, 2008, she had gone to the bank to borrow money because

her refrigerator had stopped working and food in the

refrigerator had spoiled. She borrowed money from the bank to

purchase another refrigerator and replace groceries that had

spoiled; and, after doing that, she had only $20 remaining.

12. Ms. Archbold went to the circulation desk and opened

her wallet. The $20 was missing.

13. Ms. Archbold’s colleague went to Mr. Magid and

confronted him about the missing $20. He admitted to taking the

$20 and gave Ms. Archbold’s colleague $20 to give to

Ms. Archbold.

14. Prior to the incident on March 14, 2008, Ms. Archbold

had encountered other thefts involving Mr. Magid. On one

occasion, he stole $100 from money being raised at a book fair

at Westwood. Ms. Archbold was responsible for the money, so she

replaced the $100 from her personal funds, instead of

confronting Mr. Magid. None of these thefts were reported to

Mr. Pender and, therefore, were not the subject of any

disciplinary action.

15. Mr. Pender was notified of theft of the $20 and went

to his office. When Mr. Pender entered his office, he found

admitted to Mr. Pender that he took the $20. Mr. Magid also

indicated to Mr. Pender that he (Mr. Magid) was seeing a

therapist for his behavior.

16. Mr. Pender reported the theft to the Palm Beach County

School District Police for investigation. Mr. Magid was placed

on alternative assignment during the investigation.

17. Before any formal action was taken by the School

Board, regarding the thefts, Mr. Pender notified Mr. Magid by

letter dated March 24, 2008, that he (Mr. Pender) was not

recommending Mr. Magid for reappointment for the 2009-2010

school year; and that, therefore, as a non-reappointed employee,

he (Mr. Magid) would be terminated from employment with the

School Board at the end of his (Mr. Magid’s) contractual period

18. Even though Mr. Pender had rated Mr. Magid as

satisfactorily performing his duties as a classroom teacher,

Mr. Pender had reached the conclusion that Mr. Magid had become

untrustworthy and no longer wanted him (Mr. Magid) to work at

Westwood. As a result, Mr. Pender recommended non-reappointment

of Mr. Magid.

19. Instead of being faced with termination proceedings,

Mr. Magid resigned from employment with the School Board.

20. Mr. Pender believes that, if Mr. Magid can

successfully control his behavior, i.e., successfully control

whatever is causing him (Mr. Magid) to steal money, he

(Mr. Magid) could be a capable, competent teacher.

21. Mr. Magid admits that the conduct in which he engaged

was inappropriate and “very stupid.”

22. Mr. Magid suffers from dyslexia and Attention Deficit

Disorder (ADD). He contends that dyslexia and ADD have caused

him throughout his life to make poor decisions in the taking of

things and the situations involving the taking of money in this

instant matter. No medical evidence was presented to show that

dyslexia and ADD cause one, and specifically Mr. Magid, who

suffers from the medical conditions to engage in the conduct in

which Mr. Magid has engaged. The evidence fails to demonstrate

that Mr. Magid’s dyslexia and ADD caused him to engage in the

conduct in which he engaged.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2009).

24. The ultimate burden of proof is on the COE to

establish by clear and convincing evidence that Mr. Magid

committed the violations as set forth in the Amended AC dated

May 28, 2009. Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Company ,

670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987); McKinney v. Castor , 667 So. 2d 387, 388 (Fla. 1st

DCA 1995); § 120.57(1)(j), Fla. Stat.

25. Mr. Magid committed the alleged violations in 2008.

Section 1012.795, Florida Statutes (2007), provides in pertinent

part:

(1) The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01(2) or (3)

for a period of time not to exceed 5 years,

thereby denying that person the right to

teach or otherwise be employed by a district

school board or public school in any

capacity requiring direct contact with

students for that period of time, after

which the holder may return to teaching as

provided in subsection (4); may revoke the

educator certificate of any person, thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students for a

period of time not to exceed 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with

students; . . . or may impose any other

penalty provided by law, provided 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.

* * *

(4)(a) An educator certificate which has

been suspended under this section is

automatically reinstated at the end of the

suspension period, provided the certificate

did not expire during the period of

suspension. If the certificate expired

during the period of suspension, the holder

of the former certificate may secure a new

certificate by making application therefor

and by meeting the certification

requirements of the state board current at

the time of the application for the new

certificate. . .

(b) A person whose educator certificate has

been revoked under this section may apply

for a new certificate at the expiration of

that period of ineligibility fixed by the

Education Practices Commission by making

application therefor and by meeting the

certification requirements of the state

board current at the time of the application

for the new certificate.

26. Section 1012.795, Florida Statutes (2009), provides in

pertinent part:

(1) The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01(2) or (3)

for up to 5 years, thereby denying that

person the right to teach or otherwise be

employed by a district school board or

public school in any capacity requiring

direct contact with students for that period

of time, after which the holder may return

to teaching as provided in subsection (4);

may revoke the educator certificate of any

person, thereby denying that person the

right to teach or otherwise be employed by a

district school board or public school in

any capacity requiring direct contact with

students for up to 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with

students; . . . or may impose any other

penalty provided by law, if the person:

* * *

(d) Has been guilty of gross immorality or

an act involving moral turpitude as defined

by rule of the State Board of Education.

* * *

(g) Upon investigation, has been found

guilty of personal conduct that seriously

reduces that person's effectiveness as an

employee of the district school board.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

* * *

(4)(a) An educator certificate that has

been suspended under this section is

automatically reinstated at the end of the

suspension period, provided the certificate

did not expire during the period of

suspension. If the certificate expired

during the period of suspension, the holder

of the former certificate may secure a new

certificate by making application therefor

and by meeting the certification

requirements of the state board current at

the time of the application for the new

certificate. . .

(b) A person whose educator certificate has

been revoked under this section may apply

for a new certificate at the expiration of

that period of ineligibility fixed by the

Education Practices Commission by making

application therefor and by meeting the

certification requirements of the state

board current at the time of the application

for the new certificate.

27. The COE referenced the incorrect statutory provisions

of Section 1012.795, Florida Statutes, in the Amended AC:

Mr. Magid was charged with the statutory provisions that were in

effect in 2009, not 2008, which is the relevant time period.

The statutory provisions in effect for the relevant time period

in 2008 were Section 1012.795(1)(c), (f), and (i), not Section

erroneous reference to the statutory provisions in the Amended

AC, the wording for the charged violations and the violations

that should have been charged are essentially the same, the

necessary elements of the offenses are alleged, and the proof

required for the elements is the same. Consequently, having

erroneously referenced the statutory provisions is not fatal and

should be treated as a scrivener’s error. Danzy v. State , 603

So. 2d 1320, 1322 (Fla. 1st DCA 1992). Moreover, the parties

knowingly litigated the instant matter, addressing the necessary

elements of the charges in spite of the erroneously referenced

statutory provisions.

28. Florida Administrative Code Rule 6B-1.006 provides in

pertinent part:

(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.

29. Florida Administrative Code Rule 6B-4.009 provides

guidance in the instant case and provides in pertinent part:

(2) 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.

* * *

(6) 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.

30. “Gross immorality,” as the term suggests, is

misconduct that is more egregious than mere “immorality.” It is

“immorality which involves an act of conduct that is serious,

rather than minor in nature, and which constitutes a flagrant

disregard of proper moral standards.” See Castor v. Lawless ,

1992 WL 880829 (EPC 1992) (Final Order); Turlington v. Knox , 3

FALR 1373A, 1374A (EPC 1981) (Final Order).

31. “Moral turpitude involves the idea of inherent

baseness or depravity in the private social relations or duties

owed by man to man or by man to society. . . It has also been

defined as anything done contrary to justice, honesty, principle

or good morals, though it often involves the question of intent

as when unintentionally committed through error of judgment when

wrong was not contemplated. . . .” State ex rel. Tullidge v.

Hollingsworth , 146 So. 660, 661 (1933).

32. “By virtue of their leadership capacity, teachers are

traditionally held to a high moral standard in a community.”

Adams v. Florida Professional Practices Council , 406 So. 2d

1170, 1172 (Fla. 1st DCA 1981).

33. The evidence demonstrates that Mr. Magid stole money

from his colleagues and that he intended to steal the money.

Further, the evidence demonstrates that he used his position, as

a teacher, to steal from his colleagues for his personal gain or

advantage.

34. Also, the evidence does not demonstrate that the theft

of the money was a practical joke. Further, the evidence does

not demonstrate that Mr. Magid’s conduct was the result of his

medical conditions of dyslexia and ADD.

35. Additionally, the evidence demonstrates, and the

parties agree, that Mr. Magid engaged in personal conduct that

seriously reduced his effectiveness as an employee of the School

Board and that his conduct was unprofessional.

36. Further, the evidence demonstrates that Mr. Magid,

through his conduct, had become untrustworthy and that he failed

to maintain honesty in all of his professional dealings.

37. Furthermore, the evidence demonstrates that Mr. Magid

committed gross immorality or acts involving moral turpitude.

38. Hence, the evidence demonstrates that Mr. Magid

(2007), and violated Florida Administrative Code Rules 6B-

1.006(4)(c) and 6B-1.006(5)(a).

39. As to penalty, Section 1012.796(7), Florida Statutes

(2007), provides in pertinent part:

(7) A panel of the commission shall enter a

final order either dismissing the complaint

or imposing one or more of the following

penalties:

* * *

(b) Revocation or suspension of a

certificate.

(c) Imposition of an administrative fine

not to exceed $ 2,000 for each count or

separate offense.

(d) Placement of the teacher,

administrator, or supervisor on probation

for a period of time and subject to such

conditions as the commission may specify,

including requiring the certified teacher,

administrator, or supervisor to complete

additional appropriate college courses or

work with another certified educator, with

the administrative costs of monitoring the

probation assessed to the educator placed on

probation. . . .

* * *

(h) Refer the teacher, administrator, or

supervisor to the recovery network program

provided in s. 1012.798 under such terms and

conditions as the commission may specify.

40. Florida Administrative Code Rule 6B-11.007 provides

penalties for the violations ranging from probation to

revocation. Furthermore, the said Rule provides for the

consideration of mitigating and aggravating factors. The

following mitigating factors should be considered: the evidence

does not demonstrate any prior disciplinary action; the evidence

does not demonstrate the involvement of or harm to a student or

child; Mr. Pender’s belief that Mr. Magid can be a capable and

competent teacher if he (Mr. Magid) can get control of his

behavior; and Mr. Magid’s seeking the help of a therapist in

2008 with his behavior.

41. The COE suggests permanent revocation of Mr. Magid’s

certificate. Mr. Magid suggests probation, with the requirement

of obtaining proper medical treatment and counseling and

complying with all requirements imposed by the medical provider

and the COE.

42. Considering the totality of the circumstances,

permanent revocation is too harsh a penalty, but probation, with

the medical treatment and counseling, is too lenient. However,

the totality of the circumstances indicates that the appropriate

penalty is revocation of Mr. Magid’s certificate for five years.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Dr. Eric J. Smith, as Commissioner of

Education enter a final order:

1. Finding that Bradley Joseph Magid violated Section

1012.795(1)(c), (f), and (i), Florida Statutes (2007), and

violated Florida Administrative Code Rules 6B-1.006(4)(c) and

6B-1.006(5)(a).

2. Imposing a penalty of revocation of Mr. Magid’s

certificate for five years.

DONE AND ENTERED this 1st day of March 2010, in

Tallahassee, Leon County, Florida.

__________________________________

ERROL H. POWELL

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 1st day of March, 2010.

ENDNOTE

1/ Ms. Archbold’s deposition testimony was admitted into

evidence as Petitioner’s Exhibit 12.

COPIES FURNISHED:

Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A.

300 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 10

Clearwater, Florida 33761

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Kathleen M. Richards, Executive Director

Department of Education

Florida Education Center

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 34399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional

Practices Services

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 34399-0400

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.