STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5689

)

ROBERT HERNANDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, conducted a formal hearing in this proceeding on January 6, 1994, in Kissimmee, Florida.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

411 East College Avenue Tallahassee, Florida 32301

For Respondent: Joseph Egan, Esquire

Post Office Box 2231 Orlando, Florida 32802

STATEMENT OF THE ISSUES

The issues for determination in this proceeding are whether Respondent fraudulently or dishonestly completed the professional orientation program required for teachers holding two year temporary certificates and, if so, what, if any, disciplinary action should be taken against Respondent's teaching certificate.

PRELIMINARY STATEMENT

This matter was referred to the Division of Administrative Hearings on October 4, 1993, and assigned to the undersigned on October 6, 1993. A formal hearing was scheduled for January 6, 1994, pursuant to a Notice of Hearing issued on October 22, 1993. The witnesses and exhibits, and the rulings with respect to each, are described in the transcript of the formal hearing filed with the undersigned on January 20, 1994.

Petitioner timely filed proposed findings of fact and conclusions of law on February 9, 1994. Respondent did not file proposed findings of fact and conclusions of law. Petitioner's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent was employed as a teacher at Hickory Tree Elementary School ("Hickory Tree") in the Osceola County School District during the 1990-1991 and 1991-1992 school years. Respondent holds Florida Teaching Certificate 684324 in psychology.

   
   

2. Respondent's teaching certificate is a two year nonrenewable certificate. All teachers certified in Florida must complete a professional orientation program before receiving a five year professional educator certificate.

   
   

3. Teachers who do not complete the program the first year are not entitled by right to a second year to complete the program. However, they may be granted an additional year to complete the program at the discretion of the assistant principal.

   
   

4. Credit received by a teacher in the first year is not cumulative. A teacher who does not complete the professional orientation program in the first year must satisfy all of the requirements in the program during the second year.

   
   

5. Respondent failed to complete the professional orientation program during the 1990-1991 school year. Respondent was granted an additional year to complete the program.

   
   

6. There are 27 Florida Essential Generic Competencies which must be satisfied in order to complete the professional orientation program. A teacher complies with each item by submitting a written document which is kept in a portfolio during the school year and evaluated by a supervisor and the assistant principal.

   
   

7. Item 24 requires a teacher to construct or assemble classroom tests to measure student achievement of objectives. A teacher must create his or her own test to evaluate what students learned from a lesson given by the teacher in the classroom. A teacher is not permitted to use form tests or tests prepared by other teachers to satisfy this requirement. The test must be the teacher's original work.

   
   

8. During his first year of teaching, Respondent satisfied item 24 in the professional orientation program by submitting a test that demonstrated his competency to construct or assemble classroom tests. During the second year, however, Respondent submitted a different test.

   
   

9. Respondent submitted a test on simple machines during his second year in the professional orientation program. The test was substantially identical to a test written by Ms. Margaret Ann Walek, another teacher at Hickory Tree at the time.

   
   

10. Ms. Walek wrote the simple machines test in a previous year to satisfy her own professional orientation program requirement. The simple machines test was written by Ms. Walek to evaluate third grade students on concepts such as pulleys, levers, and basic functions of machines. It was created solely by Ms. Walek in her handwriting and transcribed by her mentor-teacher for the ditto master before being submitted to Ms. Walek's students. Ms. Walek used the simple machines test the following year in typed form.

11. Respondent used a copy of the same test to satisfy item 24 in his professional orientation program. The similarity in the two tests was not detected by Respondent's supervisor or the assistant principal at the time Respondent submitted the simple machines test. Respondent received a satisfactory score for successfully completing the professional orientation program during the 1991-1992 school year.

    
    

12. In December, 1992, the assistant principal was reviewing all of Respondent's records as a result of a charge of discrimination filed by Respondent against the assistant principal after his employment was terminated for reasons not at issue in this proceeding. The assistant principal called Ms. Walek to the office. Without knowing the purpose of the inquiry, Ms. Walek identified a copy of both the ditto version of the simple machines test and the typed version as her original work.

    
    

13. Respondent submitted evidence during the formal hearing that the allegations against him were made in retaliation for his charge of discrimination. However, Ms. Walek is no longer employed as a teacher in the Osceola County School District. She is employed in the private sector and has no discernible secondary gain for testifying on behalf of Petitioner. Her testimony on behalf of Petitioner during the formal hearing was credible and persuasive and was corroborated by competent and substantial evidence.

    
    

14. Respondent completed the professional orientation program and obtained his teaching certificate by fraudulent means. He converted the work of another teacher and submitted it as his own in order to complete the professional orientation program.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

16. The burden of proof in this proceeding is on Petitioner. Petitioner must satisfy her burden of proof by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

17. Petitioner satisfied her burden of proof. The testimony of Ms. Walek was credible and persuasive. Her testimony and the corroborating evidence submitted by Petitioner was clear and convincing.

    
    

18. Respondent completed the professional orientation program and obtained his teaching certificate by fraudulent means in violation of Section 231.28(1)(a), Florida Statutes, and Florida Administrative Code Rule 6B- 1.006(5)(h). Respondent intentionally converted the work of another teacher and submitted it as his own in order to complete the professional orientation program in violation of Rule 6B-1.006(5)(a).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is,

RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of obtaining his teaching certificate by fraudulent and dishonest means, within the meaning of Section 231.28(1)(a) and Florida Administrative Code Rule 6B- 1.006(5)(a) and (h), and suspending Respondent's teaching certificate for two years from the date of Respondent's termination of employment.

DONE AND ENTERED this 28th day of February, 1994, in Tallahassee, Leon County, Florida.

DANIEL MANRY

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 28th day of February, 1994.

APPENDIX TO RECOMMENDED ORDER

Petitioner's Proposed Findings of Fact

All of Petitioner's proposed findings of fact are accepted in substance.

Respondent's Proposed Findings of Fact

Respondent did not submit proposed findings of fact.

COPIES FURNISHED:

Robert J. Boyd, Esquire

411 East College Avenue Tallahassee, Florida 32301

Joseph Egan, Jr., Esquire

P.O. Box 2231

Orlando, Florida 32802

Honorable Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-005689

Orders for Case No: 93-005689