94-006356 Doug Jamerson, Commissioner Of Education vs. Marguerite Smith Status: Closed Recommended Order on Friday, December 26, 1997.

Summary: Respondent is guilty of act of moral turpitude upon two felony convictions. Recommend revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK T. BROGAN, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) Case No. 94-6356

)

MARGUERITE SMITH, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative

Hearings, before Administrative Law Judge, Daniel M. Kilbride, in

Orlando, Florida, on October 31, 1997. The following appearances

were entered:

APPEARANCES

For Petitioner: Barbara J. Staros, Esquire

131 North Gadsden Street

Tallahassee, Florida 32301

For Respondent: Lorene C. Powell, Esquire

FEA/United

118 North Monroe Street

Tallahassee, Florida 32399-1700

STATEMENT OF THE ISSUE

Whether the Education Practices Commission should revoke or

suspend Respondent's teaching certificate, or impose any other

penalty provided by law, for the reasons cited in the

Administrative Complaint filed July 12, 1994.

PRELIMINARY STATEMENT

On July 12, 1994, Petitioner issued an Adm inistrative

Complaint alleging that Respondent, a certified teacher, engaged

in conduct that was in violation of subsections 231.28(1)(c), (e)

and (f), Florida Statutes, and therefore warranted the taking of

disciplinary action against her certificate. The Administrative

Complaint also charges Respondent with violating Section

231.28(2), Florida Statutes. The Respondent requested a formal

hearing on these allegations.

On November 3, 1994, this matter was referred to the

Division of Administrative Hearings for adjudication. This

matter was first set for final hearing on May 4, 1995, but was

continued, for good cause, at the request of the Petitioner. On

November 3, 1995, a Joint Motion for Abeyance was filed. An

Order of Abatement was issued for good cause on November 13,

1995, and the case remained in abeyance until a Notice of Hearing

was issued on March 13, 1997, scheduling the final hearing for

June 10, 1997. That hearing was continued for good cause at the

request of the Respondent. On September 8, 1997, a Notice of

Hearing was issued rescheduling the hearing for October 31, 1997,

at 9:00 by video teleconferencing between Tallahassee and

Orlando.

Shortly before the hearing was about to commence on

October 31, 1997, counsel for Respondent telephoned the

Administrative Law Judge, who was already located at the

Tallahassee video hearing site, requesting a continuance of the

hearing. Counsel for Respondent called from an Orlando location

other than the video hearing room. Counsel for Respondent was

advised to report to the Orlando video hearing room to make her

motion for continuance on the record and with the presence of

opposing counsel. More than one hour after the scheduled start

time of the hearing, the Administrative Law Judge commenced the

hearing noting that counsel for Respondent had more than adequate

time to attend the hearing. Sometime after the hearing

commenced, counsel for Respondent arrived at the hearing room.

Counsel for Respondent made an ore tenus motion for continuance.

Counsel stated that she had excused her client, the Respondent,

who was not with her in the hearing room, because her client's

only other witness was unavailable to testify that morning. No

subpoena had been issued to compel the attendance of said

witness. No prior motion for accommodation had been filed on

behalf of Respondent or her witness. Counsel proffered that said

witness was elderly and was physically unable to travel to the

hearing site. The motion for continuance was denied and the

hearing proceeded. See Geralds v. State , 674 So. 2d 96 (Fla.

1996); Williams v. State , 438 So. 2d 936 (Fla. 3rd DCA 1983); Cf.

Beachum v. State , 547 So. 2d 288 (Fla. 1st DCA 1989).

At the hearing, Petitioner presented one witness, Thomas

McIntyre, and offered four exhibits into evidence. Counsel for

Respondent did not present any evidence. Counsel for Respondent

proffered her witnesses' testimony. The essence of the proffer

was that the Respondent and the other absent witness would have

testified to facts and circumstances of the Respondent's two

felony convictions. The proffer included references to the

absent witness planning to testify that he had given money to the

Respondent, not to the partnership; that the money was actually

used by the Respondent's partner; that Respondent used the money

to open a school and that there was an $800 discrepancy. Counsel

for Respondent also stated that the Respondent's criminal case is

on appeal to the Florida Supreme Court.

At the close of the evidentiary hearing, the parties w ere

advised that post-hearing submittals were to be filed no later

than 10 days following the filing of the transcript. A

transcript of the proceedings was filed on November 25, 1997. A

corrected transcript was furnished on December 4, 1997. On

December 5, 1997, Petitioner timely filed a Proposed Recommended

Order. Respondent has not filed her proposals as of the date of

this order.

FINDINGS OF FACT

1. Respondent holds Florida Educator's Certificate No.

182469, covering the areas of business education and vocational

education. It is valid through June 30, 1997. Respondent filed

an application for the renewal of her certificate.

2. Respondent was formerly employed by the Brevard County

School District. She retired from her employment with the school

district in March 1994.

3. In the case of United States of America v. Marguerite Y.

Smith , Case Number 93-185-CR-Orl-18, the Respondent was charged

by the Federal Grand Jury with the following:

Marguerite Y. Smith knowingly and intentionally

executed and attempted to execute the scheme and

artifice to defraud and to obtain money and funds by

means of false pretenses and representations, in that

Marguerite Y. Smith, forged the signature of Jerry

Bellomy on Check Nos. 001081 and 001071, presented

those checks to Southeast Bank, N.A. for payment, and

then used the proceeds of those checks for her own

purposes.

All in violation of Title 18, United States Code,

Section 1344.

4. In the case of United States of America v. Marguerite Y.

Smith , Case No. 93-198-CR-Orl-18, the Respondent was charged by

the Federal Grand Jury with the following:

On or about September 13, 1993, in Brevard County,

Florida, in the Middle District of Florida, Marguerite

A. Smith, the defendant herein, in a matter within the

jurisdiction of the National Aeronautics and Space

Administration of the United States, knowingly and

willfully made a false, fictitious and fraudulent

material statement and representation, in that the

defendant certified that she had not, within a three

year period preceding September 13, 1993, been

convicted of commission of fraud or a criminal offense

in connection with obtaining, attempting to obtain, or

performing a public contract or subcontract, or with

commission of theft, or with making false statements,

whereas, as Marguerite A. Smith then and there well

knew, on September 20, 1991, in the case of United

States v. Marguerite A. Smith , Case No. 910166-CR-Orl-

19, Marguerite A. Smith was convicted of a violation of

Title 18, United States Code, Section 665(A) theft from

employment and training funds, arising from the

submission of a false claim to obtain funds

administered by a federal agency pursuant to the Job

Training Partnership Act.

All in violation of Title 18, United States Code,

Section 1001.

5. Respondent plead not guilty to the charges and following

a trial by jury was found guilty of both charges. On April 20,

1994, Respondent was adjudicated guilty of Bank Fraud and making

a False Statement to an Agency of the United States. She was

sentenced to be imprisoned for a term of fifteen months, followed

by supervised release for a term of three years during which

Respondent must pay $22,953.28 in restitution.

6. Respondent was arrested on the above charges at

Rockledge High School, where she was employed, during a school

day on November 15, 1993. Two FBI agents went to the principal's

office and told the principal that they came there to arrest

Respondent. The principal went to Respondent's classroom and

asked her to come with him to his office, whereupon she was

arrested and taken to detention by the FBI agents.

7. The principal was contacted by the local radio station

and one of the major news networks sent a television crew to the

school for an on-campus interview. There was television and

radio coverage of the fact that Respondent was arrested. There

was widespread knowledge of her arrest among the students at the

school, their parents and the community at large.

8. Respondent's arrest and conviction was the subject of

newspaper articles in Florida Today on January 5, 1994, and The

Orlando Sentinel on November 16, 1993.

9. Respondent is not eligible for rehire by the Brevard

County School District because she had been found guilty of a

felony and that Respondent's effectiveness as a teacher has been

damaged.

10. In a prior case, an Administrative Complaint was filed

against Respondent on May 12, 1993, alleging that Respondent

submitted a fraudulent claim to receive federal funds and that

she pled guilty to the charge of Obtaining Federal Funds by

Fraud, Betty Castor v. Marguerite Smith , Case No. 93-067-RT, EPC

Index No. 93-197-FOI. As a result of that administrative

proceeding, Respondent was disciplined by the Education Practices

Commission (EPC) in a Final Order issued on December 24, 1993.

Respondent was placed on four years probation and was issued a

letter of reprimand by the EPC.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.569, 120.57(1), and 231.262(5), Florida

Statutes.

12. This proceeding involves disciplinary action against

Respondent's teaching certificate. Therefore, the burden of

proof to establish the facts upon which the Petitioner seeks to

discipline Respondent's teaching certificate is on the

Petitioner. Balino v. Dept. Of Health and Rehabilitative

Services , 348 So. 2d 349 (Fla. 1st DCA 1977). The charges must

be proved by the Petitioner through the introduction of clear and

convincing evidence. Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

13. Section 231.28(1), Florida Statutes, authorizes the

Department of Education, Education Practices Commission, to

revoke or otherwise penalize a teaching certificate provided it

can be shown that the holder of the certificate:

(c) Has been found guilty of gross immorality or an

act involving moral turpitude;

(e) Has been convicted of a misdemeanor, felony, or

any other criminal charge, other than a minor traffic

violation; and

(f) Upon investigation, has been found guilty of

personal conduct which seriously reduces that person's

effectiveness as an employee of the school board.

14. In the Administrative Complaint filed against

Respondent, it has been alleged that she has committed the acts

prohibited by the provisions of Section 231.28(1)(c), (e) and

(f), Florida Statutes.

15. Rule 6B-4.009, Florida Administrative Code, provides:

(2) "Immorality" is defined as conduct that is

inconsistent with the standard 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.

16. The term "moral turpitude" is defined in Rule 6B-

4.009(6), Florida Administrative Code, 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 statutes fixes the

moral turpitude.

Moral turpitude has also been defined by the Supreme Court of

Florida as follows:

Moral turpitude involves the idea of inherent baseness

or depravity in the private social relations or duties

owed by 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 , 108 Fla. 607, 146 So.

660,661 (1933).

17. Section 231.28(2), Florida Statutes, provides that a

plea of guilty in any court or the decision of guilty by any

court shall be prima facie proof of grounds for revocation of a

teaching certificate. " Prima facie evidence is evidence

sufficient to establish a fact unless and until rebutted." State

v. Kahler , 232 So. 2d 166, 168 (Fla. 1970).

18. Resp ondent proffered the substance of what her witness

would have testified if he was at the hearing. However, it was

clear from statements made by counsel for Respondent that this

proposed testimony went to the guilt or innocence of the

Respondent. The Respondent may not, in this proceeding, attempt

to relitigate the issue if her guilt or innocence on any of these

criminal charges or convictions. McGraw v. Department of State,

Division of Licensing , 491 So. 2d 1193 (Fla. 1st DCA 1986).

19. As to Responden t's assertion that her criminal

conviction was on appeal, Petitioner need not wait for the

outcome of an appeal of a criminal conviction before seeking

disciplinary action against Respondent's teaching certificate.

Rife v. Dep't of Pro. Reg. , 638 So. 2d 542, 543 (Fla. 2nd DCA

1994) ("the Board was authorized to revoke Dr. Rife's license,

even though there are appellate proceedings pending in Vermont");

Dep't of Pro. Reg. V. Stern , 522 So. 2d 77, 79 (Fla. 3rd DCA

1988) (abuse of discretion to delay state license revocation

proceedings pending exhaustion of appellate process.)

20. Petitioner has demonstrated, by clear and convincing

evidence, that Respondent has been convicted of a felony in

violation of Section 231.28(1)(e), Florida Statutes.

21. Because the crimes of Bank Fraud and False Statement to

an Agency of the United States are clearly crimes of moral

turpitude, Respondent is also guilty of violating Section

231.28(1)(c), Florida Statutes.

22. By clear and convincing evidence, Petitioner has

demonstrated that the arrest and conviction for the crime and the

publicity surrounding it were sufficient to bring public disgrace

or disrespect to the Respondent herself and to the education

community. Respondent is therefore guilty of personal conduct

which seriously reduces her effectiveness as an employee of the

school board in violation of Section 231.28(1)(f), Florida

Statutes.

23. Rule 6B-11.007, Florida Administrative Code, contains

the disciplinary guidelines to apply to statutory violations.

For committing a felony, paragraph (2)(g) of the rule specifies a

penalty ranging from suspension to revocation of Respondent's

license. Paragraph (3) of the rule allows the Commission to

consider factors in mitigation or aggravation including the

number of times the educator has been disciplined by the

Commission.

24. This is Respondent's second time before the Commission.

Respondent has offered no evidence in mitigation.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that the Education Practices Commission issue a

Final Order finding Marguerite Smith guilty of violating the

provisions of Sections 231.28(1)(c)(e)(f) and (2), Florida

Statutes. It is further

RECOMMENDED that a Final Order be issued revoking

Respondent's teaching certificate for a period of seven years.

DONE AND ENTERED this 26th day of December, 1997, at

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Adm inistrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of December, 1997.

COPIES FURNISHED:

Barbara J. Staros, Esquire

Post Office Box 3444

Tallahassee, Florida 32315

Lorene C. Powell, Esquire

Chief Trial Counsel FEA/United

118 North Monroe Street

Tallahassee, Florida 32399-1700

Kathleen Richards, Executive Director

Professional Practices Services

224-E Florida Education Center

325 West Gaines Street

Tallahassee, Florida 32399-0400

Program Director

Professional Practices Services

351 Florida Education Center

325 West Gaines Street

Tallahassee, Florida 32399-0400

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.