STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, AS COMMISSIONER ) OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 02-1387PL

)

ISABELLE E. CAMILLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on July 16, 2002, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a

duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316

For Respondent: Isabelle E. Camille, pro se

10621 Southwest 138th Street Miami, Florida 33176

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.

PRELIMINARY STATEMENT

On or about February 7, 2001, Petitioner filed an Administrative Complaint, in which he asserted the following:

Petitioner, CHARLIE CRIST, as Commissioner of Education, files this Administrative Complaint against Isabelle E. Camille. The Petitioner seeks the appropriate disciplinary sanction of the Respondent's educator's certificate pursuant to Sections 231.262 and 231.2615, Florida Statutes, and pursuant to Rule 6B-1.006, Florida Administrative Code, Principles of Professional Conduct for the Education Profession in Florida, said sanctions specifically set forth in Section 231.262(6) and 231.2615(1), Florida Statutes.

The Petitioner alleges:

JURISDICTION

1. The Respondent holds Florida educator's certificate 601929, covering the areas of biology and chemistry, which is valid through June 30, 2001.

   
   

2. At all times pertinent hereto, the Respondent was employed as a science teacher at Coral Gables Senior High School, in the Miami-Dade County School District.

   
   

   MATERIAL ALLEGATIONS

   
   

3. On or about October 7, 2000, Respondent violated proper testing procedures, when she worked out the answers

of the HSCT test while she was proctoring the examination. This was in violation of the instructions which Respondent had received prior to proctoring the examination. On or about October 24, 2000, Respondent received a letter of reprimand from her Principal.

STATUTORY VIOLATIONS

COUNT 1: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude.

COUNT 2: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession in Florida prescribed by State Board of Education.

RULE VIOLATIONS

COUNT 3: The allegations of misconduct set forth herein are in violation of Rule

6B-1.006(5)(a), Florida Administrative Code, in that Respondent has failed to maintain honesty in all professional dealings.

WHEREFORE, the Petitioner recommends that the Education Practices Commission impose an appropriate penalty pursuant to the authority provided in Sections 231.262(6) and 231.2615(1), Florida

Statutes, which penalty may include a reprimand, probation, restriction of the authorized scope of practice, administrative fine, suspension of the teaching certificate not to exceed three years, permanent revocation of the teaching certificate, or combination thereof, for the reasons set forth herein, and in accordance with the Explanation and Election of Rights forms

which are attached hereto and made a part hereof by reference.

Through the submission of a completed Election of Rights form signed March 2, 2001, Respondent requested a "formal hearing" on the allegations of wrongdoing made in the Administrative Complaint if settlement negotiations did not result in a settlement agreement. On April 5, 2002, the matter was referred to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct the "formal hearing" Respondent had requested.

As noted above, the final hearing in this case was held on July 16, 2002. 1/ Four witnesses testified at the final hearing: Dr. Lisa Robertson, Maria Cristina Noya, Ada Fernandez-Vicaria, and Respondent. In addition to the testimony of these four witnesses, ten exhibits (Petitioner's Exhibits 1 through 9 and Respondent's Exhibit 1) were offered and received into evidence.

At the close of the evidentiary portion of the hearing, the undersigned established a deadline (15 days from the date of the filing of the hearing transcript with the Division of Administrative Hearings) for the filing of proposed recommended orders. A Transcript of the final hearing (consisting of one volume) was filed with the Division of Administrative Hearings on August 19, 2002. On September 6, 2002, Petitioner filed a

Proposed Recommended Order, which the undersigned has carefully considered. To date, Respondent has not filed any post-hearing

submittal.

FINDINGS OF FACT

Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made:

1. At all times material to the instant case, Respondent has been a Florida-certified teacher.

2. At all times material to the instant case, Respondent has taught chemistry at Coral Gables Senior High School (CGSHS), which is a school operated by the Miami-Dade County School Board (School Board).

3. Respondent is a dedicated educator who has a passion for teaching.

4. On Saturday, October 7, 2000, the mathematics portion of the High School Competency Test (HSCT) was administered at CGSHS. 2/

5. The HSCT is a standardized statewide examination that students must pass to qualify for a regular high school diploma. 3/

6. It contains multiple choice questions testing basic skills in reading/communications and mathematics.

7. It has been administered since the 1980's and has always been a "secure" test.

8. There are approximately three or four "editions" of the mathematics portion of the HSCT. 4/

9. Having to replace one of these "editions" because of a breach of security would entail "significant cost."

10. Respondent was one of the test administrators at CGSHS on October 7, 2000. She had served as a HSCT test administrator five or six times prior to October 7, 2000.

11. Prior to the administration of the test on October 7, 2000, Respondent had been provided training at CGSHS on how to properly discharge her responsibilities as a test administrator.

12. The importance of maintaining test security was emphasized during the training.

13. As part of the training, Respondent received a packet of written materials. It was Respondent's responsibility to read these materials.

14. The training materials repeatedly warned that test administrators were not to open the test booklets.

15. Included in the materials was the version of the "Florida Test Security Statute," Section 228.301, Florida Statutes, in effect prior its amendment by Chapter 97-190, Laws of Florida, 5/ and the version of "Florida Test Security Board of Education Rule," Rule 6A-10.042, Florida Administrative Code, that has been in effect since October 26, 1994.

16. The pre-Chapter 97-190 version of Section 228.301, Florida Statutes, provided as follows:

    1. It is unlawful for anyone knowingly and willfully to violate test security rules adopted by the State Board of Education or the Commissioner of Education for mandatory tests administered by or through the State Board of Education or the Commissioner of Education to students, educators, or applicants for certification or administered by school districts pursuant to s. 229.57, or, with respect to any such test, knowingly and willfully to:

       
       

       1. Give examinees access to test questions prior to testing;

          
          

       2. Copy, reproduce, or use in any manner inconsistent with test security rules all or any portion of any secure test booklet;

          
          

       3. Coach examinees during testing or alter or interfere with examinees' responses in any way;

          
          

       4. Make answer keys available to examinees;

          
          

       5. Fail to follow security rules for distribution and return of secure test as directed, or fail to account for all secure test materials before, during, and after testing;

          
          

       6. Fail to follow test administration directions specified in the test administration manuals; or

          
          

       7. Participate in, direct, aid, counsel, assist in, or encourage any of the acts prohibited in this section.

          
          

    2. Any person who violates this section is guilty of a misdemeanor of the first degree, punishable by a fine of not more than $1,000

       or imprisonment for not more than 90 days, or both.

       
       

    3. A district superintendent of schools, a president of a community college, a president of a university, or a president of a private postsecondary institution shall cooperate with the Commissioner of Education in any investigation concerning the administration of a test administered pursuant to state statute or rule.

       
       

17. Rule 6A-10.042, Florida Administrative Code, provides as follows:

    Maintenance of Test Security

    
    

    1. Tests implemented in accordance with the requirements of Sections 229.053(2)(d), 229.57, 231.087, 231.0861(3), 231.17, 233.011, 239.301(10), 240.107(8), and 240.117, Florida Statutes, shall be maintained and administered in a secure manner such that the integrity of the tests shall be preserved.

       
       

       1. Test questions shall be preserved in a secure manner by individuals who are developing and validating the tests. Such individuals shall not reveal in any manner, verbally or in writing, the test questions under development.

          
          

       2. Tests or individual test questions shall not be revealed, copied, or otherwise reproduced by persons who are involved in the administration, proctoring, or scoring of any test.

          
          

       3. Examinees shall not be assisted in answering test questions by any means by persons administering or proctoring the administration of any test.

          
          

       4. Examinees' answers to questions shall not be interfered with in any way by persons

          administering, proctoring, or scoring the examinations.

          
          

       5. Examinees shall not be given answer keys by any person.

          
          

       6. Persons who are involved in administering or proctoring the tests or persons who teach or otherwise prepare examinees for the tests shall not participate in, direct, aid, counsel, assist in, or encourage any activity which could result in the inaccurate measurement or reporting of the examinees' achievement.

          
          

       7. Each person who has access to tests or test questions during the development, printing, administration, or scoring of the tests shall be informed of specifications for maintaining test security, the provisions in statute and rule governing test security, and a description of the penalties for breaches of test security.

          
          

       8. During each test administration, school district and institutional test administration coordinators and contractors employing test administrators and proctors shall ensure that required testing procedures are being followed at all test administration sites. Officials from the Department are authorized to conduct unannounced observations of test administration procedures at any test administration site to ensure that testing procedures are being correctly followed.

          
          

    2. Test materials, including all test booklets and other materials containing secure test questions, answer keys, and student responses, shall be kept secure and precisely accounted for in accordance with the procedures specified in the examination program administration manuals and other communications provided by the Department. Such procedures shall include but are not limited to the following:

       
       

       1. All test materials shall be kept in secure, locked storage prior to and after administration of any test.

          
          

       2. All test materials shall be precisely accounted for and written documentation kept by test administrators and proctors for each point at which test materials are distributed and returned.

          
          

       3. Any discrepancies noted in the number or serial numbers of testing materials received from contractors shall be reported to the Department by designated institutional or school district personnel prior to the administration of the test.

          
          

       4. In the event that test materials are determined to be missing while in the possession of an institution or school district, designated institutional or school district personnel shall investigate the cause of the discrepancy and provide the Department with a report of the investigation within thirty (30) calendar days of the initiation of the investigation. At a minimum, the report shall include the nature of the situation, the time and place of occurrence, and the names of the persons involved in or witness to the occurrence. Officials from the Department are authorized to conduct additional investigations.

          
          

       5. In those cases where the responsibility for secure destruction of certain test materials is assigned by the Department to designated institutional or school district personnel, the responsible institutional or school district representative shall certify in writing that such destruction was accomplished in a secure manner.

          
          

       6. In those cases where test materials are permitted by the Department to be maintained in an institution or school district, the test materials shall be maintained in a

          secure manner as specified in the instructions provided by the Department. Access to the materials shall be limited to the individuals and purposes specified by the Department.

          
          

    3. In those situations where an employee of the educational institution, school district, or contractor, or an employee of the Department suspects a student of cheating on a test or suspects other violations of the provisions of this rule, a report shall be made to the department or test support contractor, as specified in the test administration procedures, within ten

       (10) calendar days. The report shall include a description of the incident, the names of the persons involved in or witness to the incident, and other information as appropriate. Officials from the Department are authorized to conduct additional investigations.

       
       

       (4) Violations of test security provisions shall be subject to penalties provided in statute and State Board Rules.

       
       

18. Notwithstanding the instructions she had been given (both verbally and in writing), towards the end of the testing period on October 7, 2000, when there were only a few students remaining in Respondent's classroom, Respondent took an "unsealed" 6/ test booklet that a student had handed in, sat down at her desk, looked at the test questions and multiple choice answers in the booklet, and wrote down (on the back of a piece of paper that contained an assignment for a course that she was taking at Florida International University) the numbers of some questions (Questions 1 through 16, 30, 31, 35, 38, 43,

    45, 50, 53, and 56 through 60), and, next to each number, what she believed to be the correct (letter) choice for that

    item. 7/

    
    

19. Respondent was motivated, not by any evil intent, but by mere intellectual curiosity. She simply wanted to see whether the Factor-Label method she had touted to her chemistry students as the best way to solve stoichiometry problems could also be used by them to answer the mathematics questions on the test.

20. She had no intention whatsoever to disseminate, or in any way reveal, to anyone any of the questions on the test or any of her answers to these questions or to otherwise use in a dishonest manner the information she obtained by looking inside the test booklet contrary to the instructions she had been given.

21. To be sure, in failing to follow these directions, Respondent exercised poor judgment 8/; but her actions certainly do not reflect a lack of integrity, good morals, or honesty on her part.

22. Maria Cristina Noya, an educational specialist in the School Board's assessment and educational testing office, monitored the administration of the HSCT at CGSHS (and other schools) on October 7, 2000, to make sure that there were no breaches of security.

23. When she walked into Respondent's classroom, she saw Respondent at her desk engaging in the conduct described above.

24. As Ms. Noya approached, Respondent got up from her seat, with the test booklet in her hand, and greeted Ms. Noya.

25. She did not try to hide from Ms. Noya that she was looking at an open test booklet.

26. Ms. Noya left Respondent's classroom without discussing with Respondent Respondent's non-compliance with test administration protocol.

27. Ms. Noya notified her supervisor, Ada Fernandez- Vicaria, the administrator of the School Board's assessment and educational testing office, of what she had observed in Respondent's classroom.

28. Pursuant to Ms. Fernandez's directive, Respondent was asked to leave the classroom 9/ and go to the office of one of the assistant principals at the school, Dr. Lisa Robertson (who was in charge of the testing at CGSHS that day).

29. Respondent thought that she was going to be admonished for sitting at her desk and not getting up to monitor the activities of the students in her classroom.

30. When she left her classroom to go to Dr. Robertson's office, Respondent took with her the aforementioned piece of paper on which she had written the numbers of certain test questions and her answers to those questions. She did so, not

    because she intended to make use of what she had written on the paper, but because the other side of the paper had information (unrelated to the test) that she needed.

31. Upon her arrival at Dr. Robertson's office, Respondent discovered that she was summoned to the office to discuss her actions in examining the contents of the test booklet and writing down answers to test questions.

32. At the meeting, Respondent freely admitted that she had engaged in such conduct and turned over to the administrators at the meeting 10/ the piece of paper on which she had written her test answers.

33. Ms. Fernandez-Vicaria placed the paper in a manila envelope, which she sealed with tape placed across the flap. She took the sealed envelope with her when she left the meeting and kept it in her possession until she turned it over to an investigator with the state Department of Education.

34. Respondent subsequently received a letter of reprimand from the principal of CGSHS for her actions on October 7, 2000. Furthermore, she was prohibited from serving as a test administrator until further notice.

35. A "school site investigation" did not reveal that "any students had benefited" from Respondent's non-compliance with test security requirements and therefore no test results had to be voided as a result of Respondent's actions.

    CONCLUSIONS OF LAW

    
    

36. Petitioner is requesting that the Education Practices Commission (EPC) take disciplinary action against Respondent pursuant to Subsections (1)(c) and (i) of Section 231.2615, Florida Statutes, which provide as follows:

    Education Practices Commission; authority to discipline.–

    
    

    1. The Education Practices Commission may suspend the teaching certificate of any person as defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); to revoke permanently the teaching certificate of any person; to suspend the teaching certificate, upon order of the court, of any person found to have a delinquent child support obligation; or to 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.

       
       

       * * *

       
       

       (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

37. Chapter 231, Florida Statutes, does not define the terms "gross immorality" or "an act involving moral turpitude." See Sherburne v. School Board of Suwannee County, 455 So. 2d 1057, 1061 (Fla. 1st DCA 1984).

38. Rule 6B-4.009, Florida Administrative Code (which deals with dismissal actions initiated by district school boards against instructional personnel pursuant to Section 231.36, Florida Statutes), however, provides guidance to those seeking to ascertain the meaning of these terms, as they are used in Subsection (1)(c) of Section 231.2615, Florida Statutes. See

    Castor v. Lawless, 1992 WL 880829 *10 (EPC 1992)(Final Order).

    
    

39. Subsection (2) of Rule 6B-4.009, Florida Administrative Code, defines "immorality" as follows:

    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.

    
    

    "Thus, in order to dismiss a teacher for immoral conduct the factfinder must conclude: a) that the teacher engaged in conduct inconsistent with the standards of public conscience and good morals, and b) that the conduct was sufficiently notorious so as to disgrace the teaching profession and impair the

    teacher's service in the community." McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996).

40. "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, supra; and Turlington v. Knox, 3 FALR 1373A, 1374A (EPC 1981)(Final Order).

41. Rule 6B-4.009, Florida Administrative Code, also contains a definition of "moral turpitude." This definition is found in Subsection (6) of the rule, which provides 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 statute fixes the moral turpitude.

    
    

    "Not every criminal act involves moral turpitude; only those which are by nature 'base[,] [vile,] or depraved' qualify." In

    re Berk, 602 A.2d 946, 948 (Vt. 1991). "In contrast to the definition of immorality in Rule 6B-4.009(2), the definition of moral turpitude in Rule 6B-4.009(6) does not require notoriety or impaired ability for service in the community." Gallagher v.

    Powell, 1999 WL 1483626 *14 n.16 (Fla. DOAH 1999)(Recommended Order).

42. In evaluating whether a teacher "[h]as been guilty of gross immorality or an act involving moral turpitude," in violation of Subsection (1)(c) of Section 231.2615 Florida Statutes, it must be remembered that "[b]y virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community." Adams v. Professional Practices Council, 406 So. 2d 1170, 1171 (Fla. 1st DCA 1981).

43. The Principles of Professional Conduct for the Education Profession in Florida (violation of which constitutes grounds for disciplinary action pursuant to Subsection (1)(i) of Section 231.2615, Florida Statutes) are set forth in Rule 6B- 1.006, Florida Administrative Code.

44. The specific "principle" that Petitioner, in the instant Administrative Complaint, alleges that Respondent has violated is the "principle" set forth in Subsection (5)(a) of Rule 6B-1.006, Florida Administrative Code, which provides as

    follows:

    
    

    Obligation to the profession of education requires that the individual:

    
    

    Shall maintain honesty in all professional dealings.

    
    

45. "No revocation [or] suspension . . . of any [Florida teaching certificate] is lawful unless, prior to the entry of a

    final order, [Petitioner] has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the [certificate holder] of facts or conduct which warrant the intended action and unless the [certificate holder] has been given an adequate opportunity to request a proceeding pursuant to ss. 120.569 and 120.57." Section 120.60(5), Florida Statutes.

46. The certificate holder must be afforded an evidentiary hearing if, upon receiving such written notice, he or she disputes the alleged facts set forth in the administrative complaint. Sections 120.569(1) and 120.57, Florida Statutes.

47. At the hearing, Petitioner bears the burden of proving that the certificate holder engaged in the conduct, and thereby committed the violations, alleged in the administrative complaint. Proof greater than a mere preponderance of the evidence must be presented. Clear and convincing evidence of the certificate holder's guilt is required. See Department of Banking and Finance, Division of Securities and Investor

    Protection v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Pou v. Department of Insurance and Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998); and Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based upon a preponderance of the

    evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute ").

48. Clear and convincing evidence "requires more proof than a 'preponderance of the evidence' but less than 'beyond and to the exclusion of a reasonable doubt.'" In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard." Id. For proof to be considered "'clear and convincing' . . .

    the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. 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." In re

    Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

49. In determining whether Petitioner has met his burden of proof, it is necessary to evaluate his evidentiary presentation in light of the specific factual allegations made in the administrative complaint. Due process prohibits an agency from taking disciplinary action against a licensee or certificate holder based upon conduct not specifically alleged in the agency's administrative complaint or other charging

    instrument. See Hamilton v. Department of Business and Professional Regulation, 764 So. 2d 778 (Fla. 1st DCA 2000); Lusskin v. Agency for Health Care Administration, 731 So. 2d 67,

    69 (Fla. 4th DCA 1999); and Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996).

50. Furthermore, "the conduct proved must legally fall within the statute or rule claimed [in the administrative complaint] to have been violated." Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992). In deciding whether "the statute or rule claimed to have been violated" was in fact violated, as alleged by Petitioner, if there is any reasonable doubt, that doubt must be resolved in favor of the certificate holder. See Whitaker v. Department of Insurance and Treasurer, 680 So. 2d 528, 531 (Fla. 1st DCA 1996); Elmariah v. Department of Professional Regulation, Board of Medicine, 574 So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

51. In the instant case, Petitioner has charged Respondent with violating Subsections (1)(c), Section 231.2615, Florida Statutes, as well as Subsection (5)(a) of Rule 6B-1.006, Florida Administrative Code, and therefore also (1)(i) of Section 231.2615, Florida Statutes, by "violat[ing] proper testing

    procedures, when she worked out the answers of the HSCT test while she was [administering] the examination."

52. It is undisputed that Respondent "violated proper testing procedures, when she worked out the answers of the HSCT test while she was [administering] the examination"; however, while her actions may have been inappropriate, insubordinate, 11/ and even criminal (in violation of Section 228.301, Florida Statutes), they did amount to "gross immorality or . . . act[s] involving moral turpitude," within the meaning of Subsection (1)(c), Section 231.2615, Florida Statutes, nor did they constitute a breach of her duty, under Subsection (5)(a) of Rule 6B-1.006, Florida Administrative Code, as a member of the education profession in Florida, to "maintain honesty in all professional dealings."

53. Because Petitioner failed to meet his burden of proving that Respondent committed the specific violations alleged in the Administrative Complaint, these charges against Respondent should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the EPC issue a final order dismissing the instant Administrative Complaint.

DONE AND ENTERED this 9th day of September, 2002, in Tallahassee, Leon County, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2002.

ENDNOTES

1/ The hearing was originally scheduled for June 21, 2002, but was twice continued, the first time at the request of Respondent (until July 12, 2002) and the second time at the request of Petitioner (until July 16, 2002).

2/ It was scheduled to be given again the following Saturday, October 14, 2000.

3/ See Section 229.57(3)(c)5., Florida Statues, which provides as follows:

STATEWIDE ASSESSMENT PROGRAM.--The

commissioner shall design and implement a statewide program of educational assessment that provides information for the improvement of the operation and management of the public schools, including schools operating for the purpose of providing educational services to youth in Department of Juvenile Justice programs. Pursuant to the statewide assessment program, the commissioner shall:

Develop and implement a student achievement testing program as part of the statewide

assessment program, to be administered annually in grades 3 through 10 to measure reading, writing, science, and mathematics. The testing program must be designed so that:

Except as provided in subparagraph 6., all 11th grade students take a high school competency test developed by the state board to test minimum student performance skills and competencies in reading, writing, and mathematics. The test must be based on the skills and competencies adopted by the state board pursuant to paragraph (a). Upon recommendation of the commissioner, the state board shall designate a passing score for each part of the high school competency test. In establishing passing scores, the state board shall consider any possible negative impact of the test on minority students. The commissioner may establish criteria whereby a student who successfully demonstrates proficiency in either reading or mathematics or both may be exempted from taking the corresponding section of the high school competency test or the college placement test. A student must earn a passing score or have been exempted from each part of the high school competency test in order to qualify for a regular high school diploma. The school districts shall provide appropriate remedial instruction to students who do not pass part of the competency test.

4/ The same edition of the test was used statewide on October 7, 2000.

5/ Chapter 97-190, Laws of Florida, merely added the words "or the Commissioner of Education" after the "State Board of Education" in Subsection (1) of Section 228.301, Florida Statutes.

6/ The training materials that Respondent received prior to the October 7, 2000, administration of the mathematics portion of the HSCT provided as follows regarding the subject of "paper seals":

Paper Seals. For security purposes, paper seals have been placed over the edges of the pages of the test booklet. One seal secures the whole test, a second seal secures the mathematics section, and a third seal secures the communications section. No

one--students not school personnel--is allowed to break these seals or to preview the test items in any manner prior to testing. Only the student taking the test is permitted to break the seals at the time of the actual test administration.

7/ Respondent did not write down on the paper the text of any question or answer.

8/ Respondent herself conceded at hearing that it "was

wrong . . . to have opened the [test] booklet" and that, in so doing, she used "poor judgment" and acted "inappropriate[ly]."

9/ Another test administrator was sent to Respondent's classroom to replace Respondent before Respondent left.

10/ Present at the meeting, in addition to Respondent, were Dr. Robertson, Ms. Noya, Ms. Fernandez-Vicaria, and Jack Lamb, the CGSHS "test chairperson."

11/ Because this was an isolated incident of insubordination, Respondent was not guilty, as a result of having engaged in such insubordinate conduct, of either "gross insubordination," as that term is used in Subsection (1) of Section 231.36, Florida Statutes, and defined in Subsection (4) of Section 6B- 4.009, Florida Administrative Code, or "incompeten[cy]" on "inefficiency" grounds for which the holder of a teaching certificate may be disciplined by the EPC pursuant to Subsection (1)(b) of 231.2615, Florida Statutes. See Miami- Dade County School Board v. Guzman, 2002 WL 569462 *7 (Fla.

DOAH 2002)(Recommended Order)("In order to constitute 'gross insubordination' or 'willful neglect' a teacher's conduct must be more than an isolated incident of refusing to comply with an order; indeed, it must be on a constant or continuing basis."); and Rule 6B-4.009(1)(a), Florida Administrative Code, which provides as follows:

Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.

Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:

(a) Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.

(In any event, even if Respondent were guilty of "gross insubordination" and "incompeten[cy]" by "inefficiency," she could not be disciplined on these grounds inasmuch as they were not alleged in the Administrative Complaint. See Department of Health and Rehabilitative Services v. Milton, 1989 WL 644951 *10 (Fla. DOAH 1989)(Recommended Order)("Grounds not alleged in the administrative complaint cannot serve as the basis for disciplinary action.").)

COPIES FURNISHED:

Charles T. Whitelock, Esquire Whitelock & Associates, P.A.

300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316

Isabelle E. Camille

10621 Southwest 138th Street Miami, Florida 33176

Kathleen M. Richards, Executive Director Florida Education Center

Department of Education

325 West Gaines Street, Room 224-E Tallahassee, Florida 32399-0400

James A. Robinson, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education

325 West Gaines Street, Room 224-E 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.

Docket for Case No: 02-001387PL

Orders for Case No: 02-001387PL