STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DR. ERIC J. SMITH, AS COMMISSIONER OF EDUCATION,
Petitioner,
vs.
DIANA MARIE JACKSON,
Respondent.
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) Case No. 10-2782PL
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RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on August 17, 2010, in Bradenton, Florida, before Elizabeth W. McArthur, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Ron Weaver, Esquire
Post Office Box 5675 Douglasville, Georgia 30154
For Respondent: Patricia A. Draper, Esquire
Meyers, Brooks, Demma and Blohm, P.A.
131 North Gadsden Street Tallahassee, Florida 32301
STATEMENT OF THE ISSUES
The issues in this case are whether Respondent violated Subsections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j),
Florida Statutes (2008),1 and Florida Administrative Code Rules
6B-1.006(5)(a) and 6B-1.006(5)(h), and, if so, what discipline should be imposed.
PRELIMINARY STATEMENT
On February 19, 2010, Petitioner, Dr. Eric J. Smith, as Commissioner of Education, issued a five-count Administrative Complaint against Respondent, Diana Marie Jackson ("Ms. Jackson" or "Respondent"). The Complaint alleged that Respondent, "while enrolled in the Alternative Certification for Educators (ACE) Program, falsified information relating to the program.
Respondent plagiarized eight (8) lesson plans and submitted them as her own work as part of the program requirement necessary to obtain an educator's certificate." Based on that alleged conduct, the Complaint charged statutory and rule violations and sought to impose sanctions authorized by Subsections 1012.795(1) and 1012.796(7), Florida Statutes.
Respondent timely requested an administrative hearing involving disputed issues of material fact, and on May 19, 2010, the case was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the hearing requested by Respondent.
The parties entered into a Joint Pre-Hearing Stipulation in which they stipulated to certain facts. These stipulated facts are accepted and are set forth as the first two findings of fact below.
Shortly before the final hearing, Respondent filed a Motion to Permit Late-Filed Testimony. The motion stated that Monica Presha, a witness listed by Respondent whose testimony was described as crucial to Respondent's case, would be unavailable on the day of the final hearing, because she was in training every weekday for a new job. The motion stated that the parties had made arrangements to take Ms. Presha's deposition over the weekend before the final hearing, and Respondent requested leave to submit the deposition transcript after the final hearing.
The motion was unopposed by Petitioner and was granted.
At the final hearing, Petitioner presented the testimony of Aimee Booth, Timothy Smith, Pauline Barnes, Debra Horne, and Timothy McGonegal. Petitioner's Exhibits 1 through 6 were admitted into evidence.
Respondent testified in her own behalf and also presented the testimony of Carl Olson. Respondent's Exhibits 1 through 5 were admitted into evidence. Upon inquiry as to whether it was necessary to leave the record open for the late-filed deposition of Ms. Presha, counsel for Respondent advised that Ms. Presha did not show up to her deposition, and Respondent was not going to pursue her testimony further.
The two-volume Transcript of the final hearing was filed on September 3, 2010. The parties initially agreed to file proposed recommended orders within ten days of the filing of the
transcript. Respondent filed an unopposed motion to extend that deadline by one week, and then Petitioner filed an unopposed motion to extend the deadline by another two days. Both motions were granted. The parties timely filed their Proposed Recommended Orders ("PRO") by the extended deadline of September 22, 2010. By letter dated September 24, 2010, Respondent corrected two errors in Respondent's PRO, which are accepted. Petitioner's PRO and Respondent's PRO, as corrected, have been considered in the preparation of this Recommended
Order.
FINDINGS OF FACT
Respondent held a temporary Florida educator's certificate no. 1080908, covering the area of social science, which was valid from July 1, 2007 through June 30, 2010.
At all times pertinent hereto, Respondent was employed as a dropout prevention teacher at Sugg Middle School in the Manatee County School District.
Before becoming a teacher pursuant to her temporary educator's certificate, Ms. Jackson spent nearly 13 years as a paraprofessional (i.e., teacher's aide; see § 1012.01(2)(e), Fla. Stat.) in both the Sarasota and Manatee County school systems. Her recent evaluations as a teacher's aide were favorable.
Ms. Jackson went to college while working as a paraprofessional and graduated with a degree in social science in 2007, which qualified her for a temporary educator's certificate. Ms. Jackson was officially hired as a teacher at Sugg Middle School in April 2008. The assistant principal of the school at that time would not go so far as to say that Respondent was an effective educator, but that she did an acceptable job given that she was a first-year teacher. She did a good job in particular working with troubled students in the STAR dropout prevention program.
In order to be able to continue teaching after her temporary certificate expired in June 2010, Ms. Jackson had to satisfy additional requirements to qualify for a permanent educator's certificate. These requirements could be met by completing additional college courses or by another approved method, such as the ACE program offered by the Manatee County School District and approved by the Department of Education.
The ACE program is designed as a two-phase, two-year program for teachers employed full-time at a Manatee district school. Phase one of the program is typically completed during the first school year of program participation, and phase two is done during the second school year.
In phase one of the ACE program, participants attend a series of nine training classes, five of which are face-to-face
classes held on Saturdays and four of which are online structured classes. After each of the first eight training classes, participants are required to demonstrate their mastery of the particular topic by developing a lesson plan that applies what they have learned, and then using that lesson plan in their classrooms. The participants are then required to put together a lesson plan packet to submit to the ACE program. Each lesson plan packet is required to contain a rubric corresponding to each topic that sets forth the criteria used to score the lesson plan and student samples, followed by the lesson plan prepared and used by the teacher, samples of student work done in carrying out that lesson plan, and the teacher's own reflections.
The rubric submitted with each lesson plan packet includes the teacher's self-evaluation, with the teacher's own scores for how well the criteria are met. The rubric also includes a peer evaluation of the lesson plans and student samples, with the peer's scores for how well the criteria are met and any additional comments the peer may have. After submission of the lesson plan packet to the ACE program, two different ACE program evaluators add their scores for the lesson plan and student samples, with any additional comments, using the same rubric criteria.
According to the ACE program manual, participants are supposed to submit each lesson plan packet for scoring after each of the eight training sessions, at least one week prior to the next session. In practice, however, the program was administered with more flexibility, with the goal of facilitating successful completion by participants. Therefore, lesson plan packets were accepted late from program participants, and in some cases, the entire submission of all eight lesson plan packets would be accepted after the end of the phase-one school year.
The ACE program was also flexibly administered as to the phasing and order of completion of the many program components. But there could be no flexibility in the overall requirement that a participant successfully complete all program components, nor could there be any flexibility in the ultimate deadline of successful completion of the ACE program before the participant's temporary educator's certificate expires.
In addition to the nine phase-one training classes and eight lesson plan packets to be completed and submitted for scoring, the ACE program included the following components:
a Teaching Skills Assessment Program; a 60-hour English Speakers of Other Languages ("ESOL") survey course; a workshop for instructional strategies called Project CRISS; and another
60-hour course called Florida Online Reading for Professional
Development ("Online Reading"). The last part of the ACE program is successful completion of state testing requirements with general knowledge and subject area tests.
In a few rare cases, the entire two-phase program has been completed in a single year, but that is very challenging and would be very difficult to accomplish.
Respondent enrolled in the ACE program in August 2008, at the beginning of the second year of her three-year temporary educator's certificate. With her temporary certificate expiring in June 2010, this put Respondent on track to complete phase one of the ACE program during the 2008-2009 school year, and phase two during the 2009-2010 school year.
Respondent started going to the face-to-face training classes in 2008, but she struggled with the online aspects of the program because she had poor computer skills. As a result, she not only fell behind in the online training classes, but she also fell behind with the lesson plans that she was supposed to prepare after each face-to-face training class. Preparation of the lesson plan packets in the required format was a problem for Respondent, because the templates for the packets were loaded on a flash drive given to the ACE program participants so that they could pull up the forms electronically in Word format and type in their lesson plans.
Respondent was also coping with several difficult and time-consuming family issues during this time. She took care of her grandmother, who lived with her, during her grandmother's final illness. Her grandmother was hospitalized in June 2009 and died on June 22, 2009. Respondent also took into her home her daughter-in-law and two young children after her son walked out on them. These circumstances contributed to Respondent falling behind in the ACE program.
By January 2009, halfway through the school year, Respondent had fallen so far behind that Aimee Booth, the ACE program director, met with her to discuss her options. One option discussed was for Respondent to "restart" the training sessions and lesson plan part of the program in the next school year. They reviewed the ACE program components Respondent still had to complete. Ms. Booth mapped out an option for completing the training sessions and lesson plan portfolios during the 2009-2010 school year, which included moving up some of the components that would otherwise be done in that second school year during the summer of 2009. Ms. Booth gave Respondent information on possibly taking the ESOL 60-hour course, as well
as the 60-hour Online Reading course over the summer. Ms. Booth gave Respondent the information to register for the Online Reading course so as to be able to take the class when it would be offered online over the summer.
Ms. Booth and Ms. Jackson also discussed the option of withdrawing entirely from the program, but Ms. Jackson did not withdraw.
There was no agreement reached as to how Respondent planned to proceed, but the impression left as a result of the January 2009 meeting was that Respondent would probably pursue the option mapped out by Ms. Booth that included restarting the training classes and lesson plans in the 2009-2010 school year. However, there was no evidence that Respondent followed this approach by taking the ACE program courses Ms. Booth suggested over the summer of 2009.
Instead, shortly after the end of the 2008-2009 school year, on June 18, 2009, Respondent called Pauline Barnes at home with the unexpected news that she had finally gotten caught up, had completed her lesson plans, and was ready to get them to
Ms. Barnes. Ms. Barnes had worked in the ACE program in 2008- 2009. She helped with the face-to-face classes held on Saturdays throughout the school year. She also was one of two graders who scored lesson plans for the ACE program, and the participants knew she was one of the graders.
Respondent knew that Ms. Barnes was working in a summer enrichment program at Wakeland Elementary School. Respondent told Ms. Barnes that she would be in that area the
next day, and she would drop off the lesson plans at Wakeland Elementary for Ms. Barnes.
Ms. Barnes thought that Respondent was going to leave the lesson plans for her at the office, but Respondent brought them to Ms. Barnes' classroom while she was in the middle of working with students. Respondent repeated what she had said the day before on the phone--that she was "relieved to be caught up and get this done."
After Ms. Barnes got home, she glanced at the folder delivered by Respondent and saw that it contained what appeared to be completed lesson plan packets organized in sequence for final submission, with rubrics on top containing self- evaluations and peer evaluations, followed by the corresponding lesson plan and student work for each topic.
Ms. Barnes was not working for, or being paid by, the ACE program over the summer and did not have authority to just grade the lesson plan packets without being instructed to do so by the program director, Ms. Booth. Therefore, she notified Ms. Booth by e-mail that Respondent had called to say that "she had completed all of her ACE lesson plans" and brought them to
Ms. Barnes at Wakeland. Ms. Barnes asked if she should send the lesson plan packets to Ms. Booth or whether Ms. Barnes should grade them first before sending them to Ms. Booth. Ms. Barnes commented that although they thought Ms. Jackson was going to
restart the lesson plan work in the fall, Ms. Jackson had apparently decided to keep working.
Ms. Booth responded that she had no idea what was going on, but would try to check with Ms. Jackson. Ms. Booth told Ms. Barnes to send them by courier to her.
Ms. Booth received the folder with eight lesson plan packets from Ms. Barnes. She saw that the packets were in final form for scoring and organized the way she had instructed the ACE program participants: a rubric was on top of each packet, with self-evaluation and a peer evaluation, followed by the lesson plan, student samples, and teacher reflections.
As Ms. Booth reviewed the packets, she noticed a number of anomalies. Starting with the first lesson plan packet, for example, after the rubric page on top, the first page of the lesson plan had white-out in the space where the teacher's name belongs, and Diana Jackson's name was hand- written on top of the white-out. The rest of that lesson plan was all typed. The date was also whited-out. There were many other instances throughout the folder where names or other information was obviously or not-so-obviously whited-out.
Ms. Booth also noticed that many of the dates on the student samples appeared to have been altered to change the last digit in the year so that a date that appeared to have been originally written as 2007 or 2008, was changed to 2009.
As Ms. Booth proceeded with her review, she thought the lesson plans sounded very familiar to her. She realized at some point that the work reminded her of the lesson plan packets submitted in the prior ACE program cycle by Timothy Smith and scored by Ms. Booth. Mr. Smith successfully completed the ACE program by the end of the 2007-2008 school year, just before Ms. Jackson began the ACE program. Ms. Booth pulled Mr. Smith's lesson plan packet and confirmed her suspicion. The lesson plans were the same, except that Respondent had altered the names and dates on Mr. Smith's lesson plans and submitted them as her own.
Ms. Booth reported the matter to Debra Horne and forwarded the lesson plan packets to her. Ms. Horne is a specialist in the Manatee County School District's Office of Professional Standards, and her job is to investigate allegations of employee misconduct. An investigation was initiated.
Ms. Horne interviewed Respondent twice as part of her investigation. The first interview was conducted at Sugg Middle School where Ms. Jackson was teaching, on August 31, 2009, a few weeks after the 2009-2010 school year had begun. Ms. Jackson was accompanied by her union representative at that interview. The second interview was a short telephone interview on
September 21, 2009, with Ms. Jackson's union representative on the telephone during that interview.
At the August 31, 2009, interview, Ms. Jackson stated that she turned in the lesson plans for the ACE program to Pauline Barnes, but that she turned in the wrong folder by mistake. She said she had the work done, but it was handwritten and had to be typed up.
At the final hearing, however, Respondent testified that she had not finished the lesson plan work. Instead, she said that she intended to submit to Ms. Barnes just some draft lesson plans so that Ms. Barnes could review them informally and let Respondent know whether she was on the right track.
Respondent admitted that the lesson plans she submitted to Ms. Barnes were Timothy Smith's work product. At the final hearing, Respondent's explanation for how she came to have Mr. Smith's lesson plans was that she lost the flash drive with the templates for the lesson plan packets. She went to Mr. Smith because she knew he had just completed the ACE program to obtain a copy of his lesson plan packets for the expressed purpose of using them as a guideline. According to Ms. Jackson, she only planned to use Mr. Smith's packets for the form of the lesson plan template so that once she was able to obtain a replacement flash drive in August 2009, she would just have to type up her lesson plans and they would be ready to submit.
Mr. Smith's testimony was a little different. He explained that Ms. Jackson was having trouble with the lesson plan part of the ACE program, and so he gave her a copy of his material so that she could get some ideas on how to develop her own lesson plans--in other words, more for substantive guidance than simply a matter of form. But whether Mr. Smith's work was borrowed by Respondent for form or substance, there was no discrepancy in the emphatic testimony by both that Mr. Smith never gave Ms. Jackson his work to use for more than just a guide. He certainly never gave permission for her to copy his work and submit it as her own.
At Respondent's August 31, 2009, interview, she admitted that she submitted Mr. Smith's altered work, but claimed that it was a mistake. She admitted then that she whited-out Mr. Smith's name in a number of places, but said that she did not white-out other information, such as the descriptions about lessons learned on a football field. She said that someone else did that, but she could not remember who. When pressed, she said it was an adult. When asked whether it was a family member or friend, she said only that it was "probably" a family member.
In the August 31, 2009, interview, Respondent said that she and a colleague had prepared the rubrics with self- evaluations and peer evaluations, which were placed mistakenly
atop Mr. Smith's altered lesson plans on the corresponding topics. According to Respondent, the rubrics actually
self-evaluated and peer-evaluated Respondent's own lesson plans that she had prepared and handwritten and that only had to be typed up (once she got a replacement flash drive) to be ready for submission.
During the follow-up September 21, 2009, interview, Respondent could not remember the name of the colleague who did the peer evaluations. Sometime later, Respondent gave her union representative, to pass on to Ms. Horne, the name of the peer evaluator: Monica Presha (the witness listed by Respondent who would provide testimony "crucial" to Respondent's case, but who did not show up for her scheduled deposition).
At the time of her August 31, 2009, interview, Respondent was provided an opportunity to turn in to Ms. Horne the lesson plan folder she said she intended to give to
Ms. Barnes, but Respondent never did so. At hearing, she claimed that she feared that submitting the file to Ms. Horne would violate the policy, which Ms. Horne recited to her at the beginning of the August 31, 2009, interview, prohibiting Respondent from contacting witnesses of the investigation.
Inconsistently, Respondent claimed that she called Ms. Horne and left a message that she had found some other material--some of the student samples that went with her lesson plans--right after
the August 31, 2009, interview, but that Ms. Horne never returned the call. Respondent also did not have any concern about getting follow-up information to Ms. Horne when she had her union representative give Monica Presha's name to Ms. Horne.
Respondent never did tell Ms. Horne that the adult who was "probably" a family member, who helped her white-out names and other information was, in fact, her own daughter-in-law, the same daughter-in-law she took into her home, along with her two grandchildren, after Respondent's son left them.
Respondent's explanation for not being able to name her own daughter-in-law or Monica Presha when interviewed on August 31, 2009, was that she was still "in total shock" and grieving for her grandmother, who died on June 22, 2009. But the August 31, 2009, interview took place several weeks after classes resumed, and Respondent apparently believed she was sufficiently fit to teach middle school students full-time.
Respondent's explanation for the her inability to recall such basic details as who she had helping her to white-out names and other information on Mr. Smith's lesson
plans on August 31, 2009, while fully recalling those details one year later at the final hearing, is not credible.
Respondent's testimony at final hearing that she only intended to submit draft lesson plans to Ms. Barnes to review informally and let her know if she was on the right track, as
opposed to intending to submit a folder of completed lesson plan packets to be scored for credit in the ACE program, is not credible. Respondent's testimony in this regard is directly at odds with Ms. Barnes' testimony that Respondent told her not once, but twice--first on the telephone when she called
Ms. Barnes at home and, again, at Wakeland Elementary when she delivered the lesson plan folder--that she had completed her lesson plans and was glad to finally catch up and relieved to be done. Ms. Barnes' testimony at hearing was clear, credible, and corroborated by Ms. Barnes' contemporaneous email to Ms. Booth. And, significantly, although Respondent was present at hearing when Ms. Barnes testified to what Respondent said in the phone call and again the next day, Respondent never refuted that testimony. Respondent did not say that Ms. Barnes got it wrong, or was mistaken, or misheard.
Also lacking credibility was Respondent's alternating testimony that the groupings of papers in the folder submitted to Ms. Barnes were either: (a) assembled that way on purpose, but only so she could use them as a guide when she put her own folder together; or (b) completely random, haphazardly mixing up her rubrics with Mr. Smith's altered lesson plans and
Mr. Smith's altered student samples, such that it was a sheer coincidence that the folder ended up with lesson plan packets grouped exactly in the order required for final submission.
Respondent's testimony that she submitted Mr. Smith's work by mistake because she had two folders and grabbed the wrong folder, is also not credible. The folder delivered to Ms. Barnes has Respondent's handwriting on the outside, stating: "To Mrs. Paulie Barnes . . . Many Thanks God Bless You fr.
D. Jackson." Although Respondent attempted to explain this handwriting by saying that she was re-using a folder she had used before to deliver ACE material to Ms. Barnes, that does not explain the additional note written on the top of the folder cover that says "@ Wakeland Elem." Ms. Barnes was at Sugg Middle School, not at Wakeland Elementary, before the summer of 2009. Therefore, Respondent not only picked up the folder with Mr. Smith's altered materials, but she wrote on its cover before delivering it to Ms. Barnes.
It would not make sense that Respondent would have written on the cover of the "wrong" folder while also writing on the cover of the folder she said she intended to deliver to
Ms. Barnes.
The explanation for the second folder itself was puzzling. According to Respondent, the folder she intended to deliver to Ms. Barnes had the handwritten note on top, saying: "Many Thanks for your help doing my 1st lesson plan--Lost my disk handout, sorry! Paulie Barnes--God Bless You. P.S. Haven't finish--Please see if its on the right track so I will
finish in Aug 09--Heading to Hospital . . . grandma is "
Respondent testified that the handwriting was cut off because it was a copy of the actual folder, and the handwriting was in green on the original folder. Respondent offered no explanation for not having the original folder with green handwriting to put in evidence or where the original folder was, stating only that "I don't have the original."
The explanation for not having the original folder is not that she provided it to Ms. Horne, even though Ms. Horne had asked her for it in the August 31, 2009, interview and even though Respondent testified that she found the original folder with the green handwriting sometime later.
Respondent stated several different times that the handwritten note on the folder she intended to deliver to Ms. Barnes was in green. However, she also said, inconsistently, that she first realized that she may have
delivered the wrong folder on August 31, 2009, when "Ms. Debbie Horne came into the office at Sugg Middle School and I saw my folder with the green writing on it and I stated, oh, I turned in the wrong file."
Respondent's explanation at hearing that the reason for the white-out on Mr. Smith's lesson plans was to protect his privacy in case the folder was lost, is not credible. First, it is difficult to credit the notion that one would fear losing a
folder that was being used in one's home as a guide to separately prepare one's own work. Moreover, the stated rationale of protecting Mr. Smith's privacy fails to justify handwriting Respondent's name over the white-out where
Mr. Smith's name had been. Respondent's attempted explanation for this--that in case someone found the lost folder, he or she would see her name and then she would be able to show that it was not her work, it was Mr. Smith's work--defies credulity given that the cornerstone of her white-out explanation was that she was trying to protect Mr. Smith's privacy.
Respondent's white-out explanation also fails on a few additional levels. First, if the exercise was to protect
Mr. Smith's privacy, as opposed to altering Mr. Smith's work so that it would appear to be Respondent's work, then Respondent would not have had any reason to hand-write in her name on pages where Mr. Smith's name did not appear at all. Yet, she did so on Mr. Smith's "Hunter Lesson Plan Template" in the folder submitted to Ms. Barnes. A comparison of that same page in
Mr. Smith's actual ACE program submission in evidence confirms that his name was not on that page.
In addition, if protecting Mr. Smith's privacy was the reason for the white-out exercise, there would have been no need to also white-out descriptions in the lesson plans that tended to suggest they were prepared by someone other than Respondent.
Yet, Respondent, or her daughter-in-law working with her, whited-out passages in the lesson plans that referred to lessons learned on the football field, and similar descriptions that one would not expect to have been written by Respondent.
Similarly, if protecting Mr. Smith's privacy was the reason for altering the lesson plans, there would have been no reason to insert into the typed lesson plans handwritten notes that attempted to explain a typed statement that seemed to not apply to Respondent. Yet, the altered lesson plans submitted by Respondent included, for example, a handwritten note above the typed reference to "2 years teaching" when Respondent had only been teaching for one year. The handwritten note indicated "(2nd school) be4 hired" as if to suggest that Respondent taught at a different school before she was hired at Sugg. Respondent offered no explanation as to why such an editorial note would have been added to Mr. Smith's work if not to make Mr. Smith's lesson plan appear to be Respondent's own work.
Another whole subject upon which Respondent's testimony fails is with respect to the rubrics submitted with Mr. Smith's altered lesson plans and student samples. According to Respondent, the rubrics themselves were hers, not
Mr. Smith's, and Mr. Smith confirmed that. Respondent testified that she did the self-evaluations on the rubrics, and Monica Presha did the peer evaluations. However, even though they were
attached to Mr. Smith's altered lesson plans and student samples, Respondent said that the self-evaluations and peer evaluations were not evaluating Mr. Smith's work; they were evaluating Respondent's own work that she had done in handwriting and planned to type up as soon as she got a replacement flash drive.
But the rubrics attached to Mr. Smith's altered lesson plans and student samples do not match up to the handwritten lesson plans in the folder Respondent says she intended to submit. Instead, they only match up to Mr. Smith's altered lesson plans and student samples to which they were attached.
The copy of the folder that Respondent says she intended to submit contains handwritten lesson plans on only four different topics. The folder Respondent claims to have mistakenly turned in had four additional rubrics with
self-evaluations and peer evaluations that do not match up to any handwritten lesson plans in the folder Respondent claims to have intended to turn in. Either the rubrics that she turned in were prepared by Respondent and Ms. Presha to self-evaluate and peer-evaluate Mr. Smith's altered lesson plan and student sample groupings to which they were attached, or they were made up, evaluating non-existent lesson plans that Respondent had never prepared.
A comparison of the rubrics containing Respondent's self-evaluations and Ms. Presha's peer evaluations with the rubrics turned in by Mr. Smith makes clear that Respondent's rubrics were prepared as evaluations of the altered lesson plans and student samples to which they were attached and were not, as represented, real evaluations of Respondent's own handwritten lesson plans. For example, Respondent's rubric on top of the first lesson plan packet in the folder Respondent turned in was for the lesson plan topic: "Silent Reading/Summarizing." A comparison of that rubric with the one turned in by Mr. Smith with his actual lesson plans shows that Mr. Smith's evaluations and peer-evaluations were essentially copied: the same numbered scores were given and the handwritten comment by Mr. Smith's peer evaluator ("This is a good way to reach the other students!!") was copied almost verbatim by Ms. Presha ("Great way to reach the other students!"). It cannot be concluded that this was just a coincidence, because this lesson plan topic is one of four topics not covered by the four handwritten lesson plan groupings in Respondent's folder that she says was the one she meant to turn in and that she meant to type up and attach to the rubrics she and Ms. Presha had prepared.
As another example, a comparison of Respondent's rubric for the lesson plan topic "Policies and Procedures" in the folder Respondent turned in with Mr. Smith's rubric that he
turned in for the same topic shows again that Respondent and Ms. Presha copied from Mr. Smith's rubric. Notably, Respondent's rubric copied Mr. Smith's (and his peer evaluator's) indication of "N/A" for the category "Correlation
of Student Sample," instead of scoring that category as was done in every other instance. But Mr. Smith's rubric added an explanation for why he and his peer evaluator scored this category, "N/A." He explained, "I did this lesson earlier this year and again after X-mas break and I let the students have their presentations, and posters." So he had no student samples to provide, and he had to score this student sample category, "N/A." No explanation was provided for why Respondent would have had to score this category the same way, unless it was because she and Ms. Presha simply copied Mr. Smith's rubrics for the purpose of turning them in as Respondent's work attached to the altered Smith lesson plans and student samples. Or to be more accurate, Respondent and Ms. Presha should have scored all of the categories on this rubric, "N/A," if they were really scoring Respondent's own work. That is because the Policies/Procedures rubric is another one that does not match up to any of the four lesson plan groups handwritten by Respondent in the folder she claims she intended to turn in.
Another entire area of anomalies not credibly explained by Respondent is with respect to the student's work in
the folder Respondent turned in. Respondent testified that the folder she submitted contained some of Mr. Smith's student samples and some of her own student samples. Respondent did not attempt to identify which was which or to match up the samples she claims were from her students to the four topics covered by the handwritten lesson plans in the folder she says she meant to turn in. But a review of the student samples shows that the dates were altered on each student's sample with a date on it, with one exception. For example, in the student samples on the topic "Integers," in Petitioner's Exhibit 5 (the folder turned in by Respondent), the page with the handwritten number 20 on the bottom right was originally dated November 16, 2007, at the top, and the seven was changed to a nine. Likewise, page 22 was dated November 26, 2007, and the seven was changed to a nine.
The same is true of page 25 dated November 26, 2007, at the top, then the six was changed to a nine. While the date alterations are not blatantly obvious, they are apparent upon very close inspection, and the fact of alteration is buttressed by the observation that November 26, 2009, the date to which these samples were changed, was actually Thanksgiving.
The lone exception of a dated student sample that did not have the date altered was a sample of student work in the first lesson plan packet dated May 6, 2008--before Respondent began the ACE program.
The folder submitted by Respondent is replete with many more examples of altered dates on the student samples. At the final hearing, although Respondent did not initially offer any explanation for the altered dates, on cross-examination, Respondent did not deny altering them. Instead, when asked why she changed the dates, she testified as follows:
It appeared to be so there wouldn't be anything that would refer back to the students, anything. If it was that year, say for instance '07, then those students of '07, the class of '07 me and Mr. Smith were in the same kind of classroom, STAR program. So anybody would know our students by the year, what year you have. So therefore if the date is changed, you don't have to go back on well, who's in that class? So
Mr. Smith's class was '07 as he stated or '08 and mine was 08/09. So therefore if the dates are changed, it protected also the students by the dates. Yes.
When asked why that was necessary if the names were already blacked out, Respondent attempted to explain:
I just doubled it over. Everything that pertained to a student or that student group, I tried to change it, erase it, or whatever.
Respondent's explanation is not believable. Her rationale does not explain why she would have altered the dates uniformly to coincide with the year she was teaching, instead of just random years, unless she was trying to give the impression that these were her student samples to go with the altered lesson plans and her rubrics assembled in final form and turned in to Ms. Barnes.
Another flaw in Respondent's explanation for the altered dates is that if Respondent were truly attempting to change or obliterate anything on the student samples that would remotely identify them or even the year they were in a particular class, then Respondent would have had to also obliterate the many personal facts in some student samples that were much more identifying than the mere year they were in a particular class. This can be seen from the fourth grouping in the folder Respondent turned in, the Hunter Lesson Plan group. The student sample on the page with the handwritten number 38 identifies the student's birth date, age, and grade and states that he has no siblings, but five pit bulls. On a draft essay submitted at page 44, Respondent altered the date when the student submitted the essay, but failed to obliterate or alter the student's age, place of residence, birth date, birth place (city and hospital) or the fact that the student has a 16-year old brother and a dog named Bently, among other personal facts.
Respondent also admitted to altering a cartoon drawing in the folder she submitted (handwritten page number 71). The picture showed a man hammering something with a hammer and a teenage boy standing next to him also hammering something with a hammer. A text bubble in the original drawing had the student saying "I must be doing this right because I watched what
Mr. Smith is doing." Respondent altered the text bubble to
change "Mr. Smith" to "Mrs. Jackson" by adding an "s" to Mr. and then whiting-out Smith and writing in Jackson. In Respondent's August 31, 2009, interview, she stated that she altered the caption on the drawing because she was going to have one of her students do a drawing like that and she wanted to show what it would say--again, intended to be used as a guide, but this time, not just to show a required form to type up her own work, but apparently to have a student copy the drawing submitted with Mr. Smith's lesson plans. This makes no sense, and even if it made sense, it would not have been appropriate for Respondent to have her students copy a sample of work submitted with Mr.
Smith's lesson plans. The whole point of student work samples as part of the lesson plan packet is to demonstrate that the teacher learned a topic, applied that topic to develop the teacher's own lesson plan used to teach students who produce their own work, showing how well they learned what the teacher taught.
Respondent's overall testimony that she submitted Mr. Smith's work by mistake and did not intend to submit the altered lesson plan packets as her own work to obtain credit in the ACE program is rejected because it was wholly lacking in credibility. Instead, the compelling weight of the clear,
convincing, and credible evidence is that Respondent intended to assemble and submit the folder of lesson plan packets that she
did submit to Ms. Barnes, knowing that it contained Mr. Smith's altered work, and intending that she receive credit as if it were her own work. The many, many holes and inconsistencies in Respondent's story discussed above demonstrate vividly and in a myriad of ways why Respondent cannot be believed. The more she dug in and insisted on her story, the more incredible it became and the worse it reflected on her for steadfastly sticking to an obviously untrue story.
No one would legitimately dispute that honesty and a sense of honor are very important qualities for teachers and others who work directly with students. It is important for the authority figures in classrooms working with students to not only teach an appropriate moral code, but also, to serve as role models for appropriate moral conduct. Educators need to be in a position to impose serious consequences if their students are caught cheating and plagiarizing. So too, educators who engage in such conduct must face serious consequences. Otherwise, the lesson is that the ends justify the means, even if those means are dishonest and immoral, which is unacceptable.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2010).
In this proceeding, Petitioner seeks to discipline Respondent's educator's certificate pursuant to the authority set forth in Subsections 1012.795(1) and 1012.796(7), Florida Statutes. Petitioner bears the burden of proving the allegations 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).
The material allegation that is the factual predicate for the violations charged is as follows:
On or about June 19, 2009, in Manatee County, Florida, Respondent, while enrolled in the Alternative Certification for Educators (ACE) Program, falsified information relating to the program.
Respondent plagiarized eight (8) lesson plans and submitted them as her own work as part of the program requirement necessary to obtain an educator's certificate.
Petitioner met its burden of proving this allegation by clear and convincing evidence.
The first three counts of the Administrative Complaint charge that Respondent's alleged conduct violated Subsections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j), Florida
Statutes, respectively. In pertinent part, Subsection 1012.795(1), Florida Statutes, provides as follows:
The Education Practices Commission may suspend the educator certificate of any person defined in s. 1012.01(2) [instructional personnel] or (3) [administrative personnel] for up to
5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for up to 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying the person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; . . . or may impose any other penalty provided by law, if the person:
* * *
(d) Has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education.
* * *
(g) Upon investigation, has been found guilty of personal conduct that seriously reduces that person's effectiveness as an employee of the district school board.
* * *
(j) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
With respect to Count 1, neither of the terms "gross immorality" or "an act involving moral turpitude" are defined in the subject statute or in rule. However, Florida Administrative Code Rule 6B-4.009, which contains definitions for use by school districts in disciplining instructional staff, provides assistance and has been used in agency precedent interpreting this statute. John L. Winn, as Commissioner of Education v. Adela Popescu, Case No. 06-1620 (DOAH Aug. 23, 2006; Final Order Jan. 23, 2006); accord Dr. Eric J. Smith, as Commissioner of Education v. Maria Elena Malvar, Case No. 10-2784 (DOAH
Sept. 13, 2010).
Florida Administrative Code Rule 6B-4.009(2) defines the term "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.
"Gross immorality" has been described in agency precedent to mean an act of misconduct that is serious, rather than minor in nature; it is a flagrant disregard of proper moral
standards. Frank T. Brogan, as Commissioner of Education v. Eston Mansfield, Case No. 96-0286 (DOAH Aug. 1, 1996; Final Order Oct. 18, 1996).
The moral standard to be upheld must be viewed in context with the profession at issue. As leaders and role models in the community, teachers are held to a high moral standard. Adams v. Professional Practices Council, 406 So. 2d 1170, 1172 (Fla. 1st DCA 1981).
In John L. Winn, as Commissioner of Education v. Adela
Popescu, supra, a teacher was found to have plagiarized material on a state certification examination. The Administrative Law Judge recommended the following conclusion of law:
26. Respondent's duties as a teacher include evaluating students by testing their knowledge. Her apparent belief that cheating or plagiarizing is acceptable conduct cannot be permitted to be taught to her students. The public has a right to rely on the placement of only honest persons in charge of teaching the community's youth. Petitioner has proven Respondent guilty of gross immorality and an act involving moral turpitude since she, as a teacher, submitted someone else's work as her own as part of her examination for certification.
The Education Practices Commission adopted the Recommended Order as its Final Order, including the above-quoted conclusion of law. The same conclusion of law applies to the facts of this case and is adopted by the undersigned as part of this Recommended Order.
Accordingly, Respondent is guilty of gross immorality and an act involving moral turpitude as charged in Count 1.
Petitioner also proved by clear and convincing evidence that Respondent has been found guilty of personal conduct which seriously reduces her effectiveness as an employee of the School Board as charged in Count 2. It would be impossible for Respondent to teach honesty, to teach that cheating or plagiarizing violates acceptable moral conduct, and that such is a serious matter deserving of equally serious consequences, if Respondent can engage in such conduct herself without bearing appropriately serious consequences. Respondent may have a good record working as a teacher's aide, may have done a creditable job as a first-year teacher, and may otherwise be a good, likeable person, but her effectiveness as an employee of the school district with direct contact teaching children is instantly and seriously diminished by the conduct she is found to have engaged in here.
Count 3 charges a violation of the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. This charge, in turn, leads to Counts 4 and 5, which charge that Respondent's alleged conduct violated Florida Administrative Code Rule 64B-1.006(5)(a)
and (h), respectively. Florida Administrative Code Rule
64B-1.006 codifies the Principles of Professional Conduct for
the Education Profession in Florida referred to in Subsection 1012.795(1)(j), Florida Statutes. Thus, establishing a violation of either rule as charged in Count 4 or Count 5 would establish a violation of Subsection 1012.795(1)(j), Florida Statutes.
The specific rule provisions invoked in Counts 4 and 5 provide as follows:
Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
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(h) Shall not submit fraudulent information on any document in connection with professional activities.
Petitioner met its burden of proving by clear and convincing evidence that Respondent's conduct violated the requirement to maintain "honesty in all professional dealings" as charged in Count 4. Certainly Respondent's participation in the ACE program, which was her chosen route to qualify for a permanent educator's certificate, constituted "professional dealings." Just as certainly, Respondent failed to maintain honesty. Instead, as found above, she falsified material submitted for the ACE program, plagiarizing Mr. Smith's lesson plans and submitting them as her own in an attempt to get program credit and ultimately an educator's certificate. Her
transgression was compounded by her continued insistence, even to the point of testifying under oath that her unbelievable story should be believed.
For the same reasons, Petitioner also proved by clear and convincing evidence that Respondent submitted fraudulent information on documents in connection with professional activities as charged in Count 5.
In making a penalty recommendation, the undersigned has taken into account Respondent's good track record as a teacher's aide and her acceptable performance as a first-year teacher, with some success in a challenging drop-out prevention program. However, those general factors cannot excuse and hardly mitigate against the very serious nature of the violations she is found to have committed.
In a recent administrative proceeding dealing with similar incidents of plagiarism, a substantial penalty was recommended by the fact-finder and adopted in the Final Order. Popescu, supra. A similar substantial penalty was recommended by the fact-finder in a very recent proceeding that had similar findings of plagiarism. Malvar, supra. In neither of those cases did the respondent steadfastly deny the conduct ultimately found to have occurred. In Popescu, the respondent did not testify at all, and the defense was a technical argument that asserted reliance on an unpromulgated rule. In Malvar, the
respondent admitted her conduct, took responsibility for it, and showed contrition.
Under the more extreme circumstances in this case, the recommended penalty is revocation of Respondent's educator's certificate for a period of at least two years.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:
RECOMMENDED that a final order be entered by the Florida Education Practices Commission finding that Respondent, Diana Marie Jackson, violated Subsections 1012.795(1)(d), (1)(g), and (1)(j), Florida Statutes (2008), and Florida Administrative Code Rules 6B-1.006(5)(a) and 6B-1.006(5)(h), and revoking Respondent's educator's certificate for at least two years as the penalty for such violations.
DONE AND ENTERED this 21st day of October, 2010, in Tallahassee, Leon County, Florida.
S
ELIZABETH W. MCARTHUR
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 2010.
ENDNOTE
1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2008 version.
COPIES FURNISHED:
Deborah K. Kearney, General Counsel Department of Education
Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
Kathleen M. Richards, Executive Director Education Practices Commission Department of Education
Turlington Building, Suite 224-E
325 West Gaines Street Tallahassee, Florida 32399-0400
Marian Lambeth, Bureau Chief
Bureau of Professional Practices Services Department of Education
Turlington Building Suite 224-E
325 West Gaines Street Tallahassee, Florida 32399-0400
Ron Weaver, Esquire Post Office Box 5675
Douglasville, Georgia 30154
Patricia A. Draper, Esquire
Meyer, Brooks, Demma and Blohm, P.A.
131 North Gadsen Street Tallahassee, Florida 32301
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 13, 2011 | Agency Final Order | |
| Oct. 21, 2010 | Recommended Order | Petitioner proved by clear and convincing evidence that Respondent plagiarized and submitted lesson plans for certification requirements in violation of statutes and rules; recommended two-year revocation of educator's certificate. |
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