STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR as COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4623

)

CYNTHIA JUNE LEE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer assigned by the Division of Administrative Hearings, on March 29, 1989, in Ft. Pierce, Florida.

APPEARANCES

For Petitioner, Craig R. Wilson, Esquire

Betty Castor: 1201 U.S. Highway One, Suite 315

North Palm Beach, Florida 33408-3581

For Respondent, Lesley Holland, Esquire Ms. Lee: FEA United

208 West Pensacola Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issue is whether Ms. Lee's teaching certificate should be revoked because she has been guilty of dishonesty in maintaining student grades and has engaged in a course of conduct which seriously reduced her effectiveness as an employee of the School Board of St. Lucie County, Florida.

PRELIMINARY STATEMENT

The Commissioner of Education presented testimony of Cynthia Lee, Allen Edwards, Altamese Hilick, Alice Hosty, Marsha Cully, Linda Francine Applebee, and Antonoio M. Laurito. Exhibits 1-7, 11, 100-103, and Joint Exhibit 3 were entered in evidence. Ms. Lee presented her own testimony, the testimony of Lillian Newman, and introduced exhibits 1-4 into evidence. A transcript of the proceeding was filed on April 20, 1989, and the parties filed proposed findings of fact and conclusions of law. Rulings on proposed findings of fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Cynthia Lee holds a Florida teaching certificate, and has been a teacher for 11 years in the public schools of St. Lucie County. She earned a

   bachelor's degree in special education for grades kindergarten through 12 and in elementary education, grades 1 through 6. She also has received a Master's degree in administration and supervision from Nova University. During her last year of teaching, Ms. Lee had been transferred to Lakewood Park Elementary School where Allen Edwards was principal and Linda Francine Applebee was an Assistant Principal. She taught a self-contained third grade class.

   
   

2. For reasons which were not satisfactorily explained, the school administrators made meticulous notes of observations of Ms. Lee's performance at school. For example, on August 25, 1986, it was recorded that Ms. Lee had an open Bible on a shelf in her classroom, and had assembled her students at 3:00 to wait for the school bus rather than releasing them from the classroom. On August 27, it was recorded that she spoke with students in the suspension room; on August 28, it was recorded that Ms. Lee had not made marks in student folders to indicate their attendance on the first day of class. On September 3, it was documented that she had assembled her students for the reading laboratory at 10:01 a.m, as opposed to 10:05 a.m., and on October 9, it was recorded that Ms. Lee had a cup of something to drink after lunch. Eventually these surveillance notes gave way to more serious confrontations with the administration.

   
   

3. In November of 1987, Ms. Lee received a reprimand for returning to her classroom after she had left school one morning because of an eye problem. Appropriate arrangements were made to have a substitute in her classroom for about an hour, because she thought that her visit at the doctor's office would be brief. The assistant principal, Ms. Applebee, then determined to retain the substitute to stay with Ms. Lee's class for the rest of the day, "in the interest of continuity." Ms. Applebee left a message with the doctor's secretary that Ms. Lee should return home after she was finished with her appointment. Ms. Lee did not understand why she had been given permission to leave and return, but then received a message not to return to school while at the doctor's office. She had left items at the school which she would not ordinarily leave overnight. When Ms. Lee returned to school, Ms. Applebee was quite upset, and Ms. Lee thereafter received a reprimand stating that "your return to the classroom after seeing the doctor was a flagrant disregard for the authority of the school administration." This response by the administration to Ms. Lee's return to the campus was petty, and indicative of the administration's general hostility to Ms. Lee.

   
   

4. During the school year, Mr. Edwards decided that it would be appropriate to have another teacher assist Ms. Lee with her lesson plans, to help her develop more specific learning objectives for her class. At first, the chairperson of the third grade teachers at the school, Altamese Hilick, assisted Ms. Lee with lesson plans in reading. Later, the district coordinators for mathematics, Alice Hosty, and for language arts, Marsha Cully, came to Ms. Lee's classroom, observed her teaching, and made suggestions for her to improve her classroom management and curriculum.

   
   

5. Third grade students at Lakewood Park Elementary School used the mathematics text published by D.C. Heath & Company; pre- and post-tests are coordinated with teaching materials used at the school. Students were given the pre-test before a unit of instruction was given, instructed, and then the post- test was administered. Similar pre- and post-tests were used in the reading and language arts program at the school, based on materials and a text published by Harcourt, Brace, Jovanovich, Inc. The pre- and post-test results were charted on group profile sheets for the entire class, in individual folders for the students and in the students' cumulative records.

6. After the tests were given, Ms. Lee corrected the students' papers by placing Xs on wrong answers and check marks on correct answers. The tests were then placed on a shelf in the back of her classroom in a place that would have been open to anyone who entered the classroom. Teachers or administrators ordinarily were on campus before Ms. Lee arrived in the morning and others would remain after Ms. Lee had left in the afternoon. The door to her classroom was unlocked. Despite the administration's general unfriendliness, Ms. Lee's contention that any alteration of the tests was done to discredit her by someone with access to her classroom, but not by herself, is rejected.

   
   

7. Marsha Cully wrote a memorandum to Mr. Edwards on January 29, 1987, explaining that when she had visited Ms. Lee's class, she randomly checked the group profile sheets for the class. The profiles showed that all the students in Ms. Lee's top reading group had scored 100 per cent on each skill and subtest. Ms. Cully's review of the graded tests themselves revealed that Ms. Lee's students had not performed that well. Ms. Hosty submitted a similar memorandum about Ms. Lee's mathematics skills checklist and pre- and post-tests to Mr. Edwards on February 9, 1987, noting that on at least one test paper, an "X" indicating a wrong answer had been whited-out, an answer changed, and a student given a perfect score. Ms. Lee adamantly maintains that she never erased Xs on graded tests to replace them with check marks, changed answers for students by erasing incorrect answers, replaced them with correct answers, or whited-out markings on student test papers.

   
   

8. The School Board retained Antonio M. Laurito, a forensic document examiner for the regional crime laboratory at Indian River Community College, to review the tests, Ms. Lee's group profile sheets, individual student records and known samples of her handwriting. Mr. Laurito eschewed reliance on exemplars knowingly prepared for comparison to questioned documents. He concluded that she had changed several of the students' test grades and their scores on school records.

   
   

9. Ms. Lillian Newman was retained by Ms. Lee, who reviewed handwriting exemplars which she saw Ms. Lee prepare, with knowledge that the exemplars would be used for comparison with the questioned documents in this case. Ms. Newman also reviewed a large number of Ms. Lee's cancelled checks as additional exemplars. Ms. Newman found the evidence inconclusive on whether the questioned documents were prepared by Ms. Lee.

   
   

10. Having carefully considered the testimony of both handwriting experts and the exhibits which they relied on, the opinions expressed by Mr. Laurito are more persuasive, and convincing. Ms. Lee altered the students' work on their tests, and recorded and maintained false test results in student records for the class and for individual students which overstated their achievement. That conduct has seriously reduced her effectiveness as a teacher.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

12. A teacher is subject to discipline under Section 231.28(1), Florida Statutes (1987) when

    (f) Upon investigation, [the teacher] has been found guilty of personal conduct which seriously reduces the person's effectiveness as an employee of the school board; or

    * * *

    (h) has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

    
    

13. Rule 6B-1.006, Florida Administrative Code, contains restrictions on the conduct of teachers. Violation of those principles subjects a teacher's certificate to revocation or suspension. Rule 6B-1.006(2), Florida Administrative Code. Rule 6B-1.006(3)(d) provides that a teacher

    
    

    shall not intentionally suppress or distort subject matter relevant to a student's academic program.

    
    

    Rule 6B-1.006(5)(a) requires a teacher to

    
    

    maintain honesty in all professional dealings, while Rule 6B-1.006(5)(g) requires that a teacher

    not submit fraudulent information on any document in connection with professional activities.

    
    

14. Ms. Lee's maintenance of false grades has seriously reduced her effectiveness as a school board employee. Section 231.28(1)(f) , Florida Statutes (1987).

    
    

15. Ms. Lee's tenure of the Lakewood Park Elementary School was made difficult by the attitude of the school administrators towards her. The present charges do not arise from some plot by the administration to discredit her, however. She purposefully maintained false records for her students.

    
    

16. There is no indication in this record of the penalties imposed by the Education Practices Commission in other prosecutions for similar violations. The misconduct proven here appears to be sufficiently serious to revoke the teaching certificate, but the Commissioner's suggestion that the revocation be permanent is unduly harsh.

RECOMMENDATION

It is RECOMMENDED that the teaching certificate of Cynthia June Lee be revoked by the Education Practices Commission for a period of three years, after which she may reapply for a new certificate as provided in Section 231.28(4)(b), Florida Statutes.

DONE AND ENTERED this 12th day of June, 1989, in Tallahassee, Leon County, Florida.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th of June, 1989.

APPENDIX TO RECOMMENDED ORDER 88-4623

Rulings on Proposed Findings of Fact by the Commissioner of Education

1. Covered in finding of fact 1.

2. Rejected as unnecessary.

3. Covered in finding of fact 4.

4. To the extent necessary, covered in finding of fact 4.

5. Covered in finding of fact 7.

6. Covered in finding of fact 7.

7. Covered in finding of fact 7.

8. Covered in findings of fact 8 and 10.

9. Covered in finding of fact 9.

10. Rejected as subordinate to finding of fact 10.

11. Covered in finding of fact 10.

Rulings on Proposed Findings of Facts by Ms. Lee

1. Covered in finding of fact 1.

2. Covered in finding of fact 1.

3. Covered in finding of fact 1.

4. To the extent necessary, covered in finding of fact 1.

5. Subordinate to finding of fact 5.

6. Subordinate to finding of fact 5.

7. Covered in finding of fact 5.

8. Rejected as unnecessary.

9. Rejected as unnecessary.

10. Covered in finding of fact 6.

11. Rejected because Ms. Lee's testimony has not been accepted.

12. Covered in finding of fact 6.

13. Implicit in finding of fact 6.

14. Covered in finding of fact 6.

15. Rejected as unnecessary.

16. Covered in finding of fact 6.

17. To the extent necessary, covered in finding of fact 6.

18. To the extent necessary, covered in finding of fact 6.

19. To the extent necessary, covered in finding of fact 6.

20. Covered in finding of fact 6.

21. Rejected as inconsistent with my view of the evidence.

22. Rejected as unnecessary.

23. Rejected as inconsistent with my view of the evidence.

24. Rejected as inconsistent with my view of the evidence.

25. Rejected as inconsistent with my view of the evidence.

26. Rejected as unnecessary.

27. Rejected as subordinate to finding of fact 10.

28. Rejected as unnecessary. These changes were performed by Ms. Lee. 29. Covered in finding of fact 7.

1. Covered in finding of fact 8.

2. Rejected as unnecessary, the exemplars Mr. Larito used were done by Ms. Lee, and his reason for not asking her to execute an exemplar is persuasive.

3. Rejected as unnecessary.

4. Rejected as unnecessary.

5. Covered in finding of fact 9. 35. Covered in finding of fact 9.

1. Covered in finding of fact 9.

2. Rejected as unnecessary.

3. Rejected as unnecessary and subordinate to finding of fact 10.

39.-49. Rejected as unnecessary and subordinate to finding of fact 10. The testimony of Mr. Larito was accepted and more persuasive.

1. Rejected as unnecessary.

2. Rejected as unnecessary.

52.-60. Rejected as unnecessary.

61.-67. Covered in finding of fact 3. 68.-75. Covered in finding of fact 2.

COPIES FURNISHED:

Martin Schapp, Administrator Professional Practices Services

319 West Madison Street, Room 3 Tallahassee, FL 32399

Karen Barr Wilde, Executive Director Education Practices Commission

Room 418, Knott Building Tallahassee, FL 32399

Criag R. Wilson, Esquire Suite 302

215 Fifth Street

West Palm Beach, FL 33401

Rev. Cynthia Lee 3201 Boston Avenue

Fort Pierce, FL 34950

Leslie Holland, Esquire FEA/United

208 West Pensacola Street Tallahassee, FL 32301

Sydney H. McKenzie, General Counsel Department of Education

The Capitol PL-08 Tallahassee, FL 32399-0400

=================================================================

AGENCY FINAL ORDER

=================================================================

Before the Professional Ethics Commission of the State of Florida

BETTY CASTOR, as

Commissioner of Education, Petitioner,

vs. FINAL ORDER

EPC CASE NO. 88-145-RT

CYNTHIA JUNE LEE, DOAH CASE NO. 88-4623

Respondent.

/

Respondent, CYNTHIA JUNE LEE, holds Florida educator's certificate No.

400787. Petitioner filed an Administrative Complaint seeking suspension, revocation, permanent revocation or other disciplinary action against the certificate.

Respondent requested a formal hearing and one was held before a hearing officer of the Division of Administrative Hearings. A Recommended Order was forwarded to the Commission pursuant to Section 120.57(1), F.S., which is attached to and made a part of this Order.

A panel of the Education Practices Commission met on September 20, 1989, in Tallahassee, Florida, to take final agency action. Petitioner was represented by Craig Wilson, Esquire. Respondent was represented by Leslie Holland, Esquire. The panel reviewed the entire record in the case.

The panel adopts the Hearing Officer's Findings of Fact, Conclusions of Law and Recommendation as set forth in the Recommended Order. However, the three- year revocation recommended by the Hearing Officer shall be made retroactive to February, 1987. The Commission determines that in light of the established facts of the administration's unexplained hostility to Respondent which created a difficult and unfriendly atmosphere, that retroactivity of the period of revocation is appropriate. This Order takes effect upon filing.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within 30 days of the date of filing.

DONE AND ORDERED, this 10 day of October, 1989.

COPIES FURNISHED TO:

Martin Schaap, Administrator Professional Practices Services ALBERT BLOMQUIST, Presiding

Officer

Julia Forrester, Esquire I HEREBY CERTIFY that a copy Attorney General's Office of the foregoing Order in the

matter of BC vs. Cynthia June Lee was mailed

Sydney McKenzie, III to Leslie Holland, Esquire,

General Counsel 208 W. Pensacola St., Tallahassee, Florida 32301, this 19th day of October

Florida Admin. Law Reports 1989 by U. S. Mail.

Dr. David DeRuzzo, Supt. St. Lucie County Schools KAREN B. WILDE, Clerk

2909 Delaware Avenue

Ft. Pierce, Florida 34947

Julius Lee, Jr. Director of Personnel

St. Lucie County Schools

Craig Wilson, Esquire 1201 U. S. Highway 1

Suite 315

North Palm Reach, Florida 33408-3581

William R. Dorsey, Jr.

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1530

Docket for Case No: 88-004623

Orders for Case No: 88-004623