STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK BROGAN, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 93-7154

)

ADELE "NIKKI" LEON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on March 9, 1995, in Miami, Florida.

APPEARANCES

For Petitioner: J. David Holder, Esquire

1408 North Piedmont Way, Suite 100

Tallahassee, Florida 32313

For Respondent: Nikki A. Leon, pro se

Joe Whitenton, qualified representative 1234 South Dixie Highway Number 121 Coral Gables, Florida 33146

STATEMENT OF THE ISSUE

At issue in this proceeding is whether respondent committed the offense alleged in the administrative complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated September 20, 1993, petitioner 1/ charged that respondent, the holder of a Florida teaching certificate, had, during the course of the 1992-93 school year, falsified attendance records for the reporting periods of September 14-27, September 28-October 11, and October 12-25, 1992, by marking students present who were not. 2/ Specifically, petitioner averred that respondent marked, as present, two students that were deceased, students who were no longer residents at the nursing home where the class was taught, and other students who never attended her class. As a consequence, petitioner contended that respondent violated the provisions of Sections 231.28(1)(f) and (h) and 232.023, Florida Statutes (1991), as well as Rules 6B-1.006(5)(a) and (h), Florida Administrative Code.

Respondent filed an election of rights which disputed the allegations of the administrative complaint, and requested a formal hearing. Consistent with such election, petitioner referred the matter to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called as witnesses, Thomas Hackett, Edward Gehret, and Ivette Morgan, and petitioner's exhibits 1-3 were received into evidence.

3/ Respondent testified on her own behalf, and called Brenda Gibbs, Connie Gilbert, Denny Sangiovanni, and Evelyn Foster as witnesses. Respondent's exhibits 1, 4, 5, and 7-12 were received into evidence.

The transcript of hearing was filed April 3, 1995, and the parties were initially accorded until April 13, 1995, to file proposed recommended orders; however, at respondent's request, that deadline was extended to April 19, 1995. The parties' proposed findings of fact, contained within their proposed orders, are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, Adele "Nikki" Leon, holds Florida teaching certificate number 413436, covering the area of emotional disturbances and special learning disabilities. Such certificate is valid through June 30, 1996.

   
   

2. At all times material hereto, respondent was employed by the Dade County Public Schools, Palmetto Adult Education Center, as a part-time teacher, and was assigned to teach Adult Basic Education for the Elderly (ABE) at Snapper Creek Nursing Home.

   
   

3. Pertinent to this case, respondent's assignment during September and October 1992, included the teaching of an ABE class at Snapper Creek Nursing Home each Tuesday from 3:00 p.m. to 5:00 p.m. According to respondent's attendance reports for that period, twenty-five residents were enrolled in the class.

   
   

4. On September 15, 1992, Ivette Morgan, assistant principal of Palmetto Adult Education Center, at the request of Edward Gehret, principal of Palmetto Adult Education Center, visited Snapper Creek Nursing Home to evaluate the adult education program. During the course of that visit, as well as visits on September 22, September 29, and October 20, 1992, Dr. Morgan had an opportunity to observe respondent's Tuesday class. On those occasions, Dr. Morgan noted only four to six residents in the classroom. 4/

   
   

5. Dr. Morgan reported her observations regarding class attendance to Dr. Gehret who, at the time, had been involved with enrollment and attendance review for, inter alia, Snapper Creek Nursing Home. Based on that review, Dr. Gehret observed that respondent had routinely marked all twenty-five residents in her class as "present," which did not square with Dr. Morgan's observations.

   
   

6. On October 22, 1992, Dr. Gehret met with respondent to review the discrepancies he perceived in her attendance report procedures. At that time, it was the School Board's policy to mark residents "present" for an ABE class if they appeared at any time during the class period, no matter how briefly; but if they never appeared, to mark them as "absent." 5/ Respondent advised Dr. Gehret that she was of a different perception, and understood that nursing home residents enrolled in an ABE class were not to be marked as "absent" but, rather

   as "present," whether attending or not, so long as they were still in the facility. Notwithstanding, following the meeting, respondent agreed to conform her attendance procedure to the policy Dr. Gehret outlined.

   
   

7. Regarding the discrepancies in respondent's attendance reports, when measured against the School Board's policy, the proof demonstrates that for the attendance reporting periods of September 14-27, September 28-October 11, and October 12-25, 1992, respondent completed and signed the attendance report for her Tuesday class on which she marked as "present" nursing home residents Helen Ambler and Gertrude Monge. Ms. Ambler and Ms. Monge were not, however "present" during such periods since they had died September 2, 1992, and June 15, 1992, respectively.

   
   

8. The proof further demonstrated that for the same reporting periods, respondent had marked as "present" nursing home residents Agaton Bolanio, Nazario Lopez, and Martin Ruiz. Mr. Bolanio, Mr. Lopez and Mr. Ruiz were not, however, "present" during such periods since they had been discharged from the nursing home on June 19, 1992, July 20, 1992, and May 14, 1992, respectively.

   
   

9. Finally, based on Dr. Morgan's observations of respondent's Tuesday class on September 15, September 22, September 29, and October 20, 1992, wherein she observed no more than four to six residents in attendance, it is reasonable to conclude that a significant number of residents who were marked as "present," other than the residents heretofore mentioned, were likewise not "present" on those dates. Which residents and why they were not present was not, however, established of record. 6/

   
   

10. Regarding the ABE program and the preparation of enrollment and attendance reports at Snapper Creek Nursing Home, the proof demonstrates that the ABE program was under the direction of the nursing home activities director who, without the participation of the instructors, prepared the enrollment for each class. 7/ Accordingly, respondent would not necessarily have known the residents assigned to her class, and reasonably assumed that the list of residents she received from the activities director contained current residents of the nursing home. Likewise, respondent relied on the activities director to advise her when residents died, were discharged or were otherwise no longer able or interested in attending before removing them from the roll; however, such information was rarely provided by the activities director. Finally, absent advice to the contrary from the activities director, respondent did not consider a resident's failure to attend on a given day an absence, as in the traditional classroom setting, and routinely marked them "present." Such practice in the ABE program was reflective of the voluntary nature of the program, as opposed to compulsory attendence in the traditional school setting, and the unavailability of information, except from the activities director, as to the reason a resident did not attend. Notably, residents frequently did not attend because, inter alia, nurses aides failed to bring them to class or they were too ill to attend, as opposed to not wanting to attend the course any longer.

    
    

11. That such was the procedure at Snapper Creek Nursing Home, and perhaps other adult education centers in Dade County, finds other support in the record apart from respondent's testimony. For example, another instructor, Evelyn Foster, during the times in question, carried Francies Lambrou as "present" on her attendance record until July 27, 1992, although she was discharged July 2, 1992; and carried Maria Diaz, Carmen Morela, and Lorenzo Legundo as "present" until at least October 9, 1992, although Ms. Diaz and Ms. Morela were discharged September 5, 1992, and Mr. Segundo was discharged September 24, 1992. Moreover, Dr. Morgan found it necessary, at sometime between September 15 and October 26,

    1992, to give the activities director specific instructions on how attendance was to be recorded, and Dr. Gehret found it necessary to conduct a "rollbook workshop" at Snapper Creek Nursing Home for all instructors, as well as agreeing to urge the nurses aides to bring the residents who desired to attend to class. [Petitioner's exhibit 1, pages 17 and 21, and respondent's exhibit 12.]

    Finally, there is of record a memorandum of July 8, 1993, almost one year after the events at issue in this case, from Connie Gilbert, District Director, Division of Adult Education, Dade County Schools, to all adult education center principals, which suggests continued confusion in attendance procedures for off- campus classes and that the practice at Snapper Creek Nursing Home was not an isolated occurance. That memorandum provided, in part, as follows:

    
    

    SUBJECT: ATTENDANCE PROCEDURES

    
    

    Off-campus visitations have revealed problems and confusion about attendance procedures.

    Please inform all teachers of the following procedures:

    1. Students must be present in a teacher's class and participate in the class activities in order for the teacher to mark this student present in that class.

       * * *

       Please make sure that off-campus teachers understand that students present "someplace

       in the facility" can not be considered present in a particular class. Students must be physically present in a class in order to

       be marked present in that class.

       
       

12. Given the proof, it must be concluded that respondent's failure to record attendance in accordance with school board policy was, more likely than not, a consequence of a misunderstanding of, or ignorance of, that policy. In this regard, it is observed that no state policy for recording ABE attendance was established of record, and no proof that any policy established by the school board had been reduced to writing or imparted to respondent, or any other adult education instructor, prior to the events giving rise to the issues in this case. Accordingly, it follows that there was no compelling proof that respondent, by completing the attendance reports in the manner she did, had any intent to deceive the school board.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Sections 120.57(1) and 231.262(5), Florida Statutes.

    
    

14. Where, as here, it is proposed that the Education Practices Commission take action to revoke, suspend, or otherwise discipline the certification of a teacher, petitioner bears the burden of proving the charges contained in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 492 So.2d 797, 800 (Fla. 4th DCA 1983).

15. Moreover, in determining whether respondent violated the provisions of section 231.28, as alleged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute . . . This being true, the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the licensee." Lester

    v. Department of Professional and Occupational Regulation, 348 So.2d 923, 925 (Fla. 1st DCA 1977). Finally, the disciplinary action taken can be based only upon the facts specifically alleged in the administrative complaint. See, MacMillan v. Nassau County School Board, 629 So.2d 226 (Fla. 1st DCA 1993), Kinney v. Department of State, 501 So.2d 129 (Fla. 5th DCA 1987), and Hunter v. Department of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984).

    
    

16. Pertinent to this case, the administrative complaint charges that in maintaining the attendance records in the manner she did, respondent violated the provisions of Section 231.28(1)(f) and (h), Florida Statutes (1991), currently codified at Section 231.28(1)(f) and (i), Florida Statutes (1993).

    
    

17. Those subsections authorize the EPC to revoke, suspend or otherwise discipline a teaching certificate provided it can be shown that the teacher:

    
    

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

    * * *

    (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.

    
    

18. As the "law or rules" violated, which would support a violation of subsection 231.28(1)(h), the administrative complaint cites Section 232.023, Florida Statutes, and Rule 6B-1.006(5)(a) and (h), Florida Administrative Code.

    
    

19. Addressing the charges, it is first observed that petitioner's reliance on section 232.023, as a predicate for a section 231.28(1)(h) violation, is misplaced. That section is found within chapter 232, Florida Statutes, which addresses compulsory school attendance for children, and clearly relates to the provisions of section 232.021, which requires the maintenance of attendance reports for "each child," and section 232.022, which defines attendance of "public school pupils." Section 232.023 does not relate to, and cannot reasonably be construed to relate to, the teaching of adult basic education, as in the instant case, which is governed by Chapter 239, Florida Statutes, and for which attendance is not compulsory. Accordingly, the provisions of section 232.023 are not relevant to the instant case.

    
    

20. It is next observed that, based on the proof, petitioner's contention that respondent's conduct violated subsection 231.28(1)(f), is rejected. There is "no evidence demonstrating a loss of effectiveness in the school system. Accordingly, the [charges cannot be sustained]." MacMillan v. Nassau County School Board, 629 So.2d 226 (Fla. 1st DCA 1993).

    
    

21. Finally, resolution of the charges against respondent is reduced to whether the attendance reports she prepared violated the provisions of Rule 6B- 1.006(5)(a) and (h), Florida Administrative Code, and therefore Section 231.28(h), Florida Statutes (1991).

22. Rule 6B-1.006, Florida Administrative Code, provides, pertinent to this case, as follows:

    
    

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certif-

    icate, or the other penalties as provided by law.

    * * *

    1. Obligation to the profession of education requires that the individual:

       1. Shall maintain honesty in all professional dealings.

    * * *

    (h) Shall not submit fraudulent information on any document in connection with professional activities.

    
    

    Accordingly, this case resolves itself to whether the attendance reports respondent prepared reflect a failure to "maintain honesty" in her professional dealings or the submittal of "fraudulent information."

    
    

23. Webster's Ninth New Collegiate Dictionary (1986), defines 8/ "honest" as being "free from fraud or deception," and "honesty" as:

    
    

    . . . a: fairness and straight forwardness of conduct b: adherence to the facts:

    SINCERITY . . .

    
    

    syn HONEST, HONOR, INTEGRITY, PROBITY mean

    uprightness of character or action. HONESTY implies a refusal to lie, steal, or deceive in any way. . . .

    
    

    It further defines "fraudulent" as "characterized by, based on, or done by fraud: DECEITFUL," and "fraud" as:

    
    

    . . . a: DECEIT, TRICKERY; specif: intentional perversion of truth in order to induce another to part with something of value or to surrender a legal right b: an act of deceiving or misrepresenting. . . .

    
    

24. Therefore, to establish that respondent failed to "maintain honesty" in her professional dealings or that she submitted "fraudulent information" when she submitted the subject attendance reports, it was incumbent upon petitioner to show not only that respondent provided false or misleading information regarding a material fact, but also that she knowingly did so with the intent to deceive the school board. See, Gentry v. Department of Professional Occupational Regulation, 293 So.2d 95, 97 (Fla. 1st DCA 1974) (statutory provision prohibiting physician from "[m]aking misleading, deceptive and untrue representations in the practice of medicine" held not to apply to "representations which are honestly made but happen to be untrue"; "[t]o constitute a violation, . . . the legislature intended that the misleading,

    deceptive and untrue representations must be made willfully (intentionally)"), and Naekel v. Department of Transportation, 782 F.2d 975, 978 (Fed. Cir. 1986) ("a charge of falsification of a government document requires proof not only that an answer is wrong, but also that the wrong answer was given with intent to deceive or mislead the agency"; "[a] system of real people, pragmatic in their expectations, would not easily tolerate a rule under which the slightest deviation from truth would sever one's tenuous link to employment").

    
    

25. While it has been clearly and convincingly established that the information respondent provided on her attendance reports was inaccurate, when measured against the school board's existent policy, the evidence adduced at hearing established that her inaccurate reporting was more likely the product of a misunderstanding or lack of knowledge regarding the appropriate procedure than a conscious disregard of school board policy. It follows, therefore, that there was no evident intent by respondent, in maintaining the attendance reports in the manner she did, to deceive or defraud the school board. Accordingly, petitioner has failed to sustain the charge that respondent violated Rule 6B- 1.006(5)(a) and (h), Florida Administrative Code, and therefore Section 231.28(h), Florida Statutes (1991).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the administrative

compliant.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of May 1995.

WILLIAM J. KENDRICK

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 18th day of May 1995.

ENDNOTES

1/ The administrative complaint was filed by Betty Castor, as Commission of Education. Ms. Castor was replaced by Doug Jamerson, as Commissioner of Education, and Mr. Jamerson was ultimately replaced by Frank Brogan, who is the current Commissioner of Education.

2/ See administrative complaint and petitioner's proposed recommended order which address such reporting periods.

3/ Much of petitioner's exhibit 1 is hearsay, which will not support a finding of fact. Section 120.58(1), Florida Statutes.

4/ There is proof of record that Dr. Morgan visited some other class or classes taught by respondent during September and October 1992; however, neither the enrollment nor attendance reports for those classes are of record and, moreover, they are not at issue.

5/ Subsequently, the School Board adopted a new policy that required a resident to be in attendance at least thirty minutes before they would be marked as "present."

6/ There was proof that residents Bess Ward and Doxie Motes were observed by Dr. Morgan on some unestablished date to have been bedridden, and there was also proof that the School Board's investigator and Dr. Morgan were informed by the Snapper Creek Nursing Home activities director that other residents were unable to attend or refused to attend respondent's class. The proof regarding Ms. Ward and Ms. Motes is too indefinite to establish any date of nonattendance, and the proof regarding other residents, as related by the activities director, is hearsay which cannot support a finding of fact.

7/ Supportive of the conclusion that the ABE program was under the direction of the activities director, as well as the conclusion that the manner in which respondent recorded attendance was not an intentional rejection of the School Board policy but, rather, a misapprehension of proper procedure, is a memo of October 26, 1992, from Dr. Morgan to Dr. Gehret. That memo provided, in part, as follows:

As per your assignment to oversee the curriculum program at Snapper Creek Nursing Home. I began my visitations on September 15, 1992.

I introduced myself to the activities director, Andrea Summer, and proceded to explain that we had some surplused instructors due to the devastation at Metropolitan Correctional Center. I asked her not to displace any of the present instructor, but if she was interested in some new classes for the residents. The process was to send the surplused instructors for Ms. Summer to interview, with the final hiring to be done by Dade County Public Schools, Principal, Dr. Edward Gehret.

I explained that instructors would not exceed 25 hours per week. Students could not be registered in two classes that overlapped since this would cause a time conflict, that students could be involved in classes for no more than 25-30 hours per week, that the ABE/ELDERLY curriculum had to be followed, that rollsheets had to be kept accurately, attendance must be taken on a day to day basis, using "P" for present (meaning student/teacher contact hour) and "A" for absent, students are withdrawn after the 6th consecutive absence unless student has left the program, then they should be withdrawn on the day the student no longer attends.

I reminded her that lesson plans should be available and that the instructors is following the days lesson plan. If additional materials were necessary for the instructors she should contact me that the materials would be provided for them . . . . [Petitioner's exhibit 7, page 17]

Notably, Dr. Morgan found it necessary to stress in detail how attendance was to be recorded, and thought it necessary to advise her principal of the specifics of that instruction. The memo was, however, notably silent as to when, between her first visit of September 15 and the date of the memo, such conversation occurred.

8/ Where, as here, the terms used are not defined by law, they are to be accorded their plain and ordinary meaning. Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So.2d 1351 (Fla. 1984).

APPENDIX

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraphs 2 and 3.

3. Addressed in paragraph 7.

4-6. Addressed in paragraph 8.

1. Rejected as not supported by competent proof. See endnote 6.

2. First sentence accepted. Second sentence rejected as contrary to the facts found.

3. Rejected as a misstatement of the record and not relevant. What occurred within Dr. Gehret's district was what could be more appropriately described as a surplusing of approximately forty teachers due to Hurricane Andrew's destruction of facilities and the inability of students to attend. (Tr. Volume I, page 32) As to the number of students to maintain a class such

   as respondent's, Dr. Gehret observed: "There's no county policy or state policy required. The only requirement is at least 22 people enrolled in the attendance, and I always felt that they should have around 15 to 18 people attending on a regular basis to warrant that it is needed." (Tr. Volume I, page

   31) Finally, upon consideration, the proof fails to support a conclusion that any such "requirement" was a factor in respondent's decision to maintain her attendance reports in the manner she did.

4. Addressed in paragraph 9.

11 and 12. To the extent pertinent, addressed in paragraph 10.

1. Rejected as contrary to the facts as found.

2. The action of the Dade County School Board in terminating respondent is not relevant to these proceedings, and it is quite unknown what competent proof supported its decision. Moreover, it was respondent's position that the grounds advanced by the School Board for her dismissal were a subterfuge. Given that neither Dr. Gehret or the School Board investigated the attendance reports of any other instructor at Snapper Creek Nursing Home there may be merit to respondent's contention; however, the action of the School Board in dismissing respondent is not, per se, relevant to these proceedings.

Respondent's proposed findings of fact are addressed as follows:

1-6 Addressed in paragraph 11, otherwise subordinate or argument. 7-9. Addressed in paragraph 10, otherwise subordinate or argument.

1. Rejected as recitation of testimony and argument, and not a finding of fact.

2. Rejected as recitation of testimony and argument, and not a finding of fact.

3. Addressed in paragraph 6, otherwise recitation of testimony or unnecessary detail.

4. Subordinate to the conclusion reached.

5. See response to petitioner's proposed finding of fact 9. Otherwise argumentative or unnecessary.

6. Not relevant.

7. Not relevant.

COPIES FURNISHED:

J. David Holder, Esquire Suite 100

1408 North Piedmont Way Tallahassee, Florida 32313

Nikki A. Leon Joe Whitenton

1234 South Dixie Highway #121 Coral Gables, Florida 33146

Karen Barr Wilde Executive Director

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Kathleen M. Richards, Administrator Professional Practices Services

352 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 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: 93-007154

Orders for Case No: 93-007154