STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 11-1666PL

)

ERIC REVERON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes1, before Jessica Enciso Varn, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH), on October 10, 2011, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675 Douglasville, Georgia 30154

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides, P.A. 29605 U.S. Highway 19 North

Suite 110

Clearwater, Florida 33308

STATEMENT OF THE ISSUES

Whether Respondent submitted work that demonstrated a high degree of overlap between his submission and that of another candidate when applying for National Board Certification, and what disciplinary action, if any, should be taken against his educator certificate.

PRELIMINARY STATEMENT

The instant proceeding began when Mr. Reveron (Reveron) requested a hearing to contest the allegations that the Commissioner of Education ("Commissioner") had made against him in an Administrative Complaint filed on April 4, 2011. The Commissioner charged Mr. Reveron, the holder of a valid Florida Educator Certificate, with having violated the statutes and ethical rules governing teachers based on allegations that

Mr. Reveron had submitted material for evaluation for National Board Certification which demonstrated a high degree of overlap between his submissions and that of another candidate.

Based on this allegation, the Commissioner accused

Mr. Reveron of having committed four offenses. In Count One, Mr. Reveron was charged with gross immorality or an act involving moral turpitude in violation of section 1012.795(1)(d)(2007). In Count Two, he was charged with a violation of the Principles of Professional Conduct for the Education Profession as set forth in section 1012.795(1)(j),

Florida Statutes (2007).2 Mr. Reveron was also charged with violations of subsections (5)(a) and (5)(h), of Florida Administrative Code Rule 6B-1.006, which are part of the Principles of Professional Conduct for the Education Profession in Florida. Florida Administrative Code Rule 6B-1.006 (5)(a) references honesty in all professional dealings, and Florida Administrative Code Rule 6B-1.006 (5)(h) references submitting fraudulent information on a document in connection with professional activities. If proved by clear and convincing evidence, the alleged rule violations would be grounds for discipline under section 1012.795(1)(i).

The hearing was held on October 10, 2011. At hearing, the Commissioner offered the testimony of Mr. Reveron and Catherine Wires; Commissioner’s Exhibits 1-15 were admitted into evidence. Mr. Reveron relied on his testimony during the Commissioner’s case in chief, and offered no exhibits into evidence. After an extension of time was granted for the parties to submit post- hearing documents, each party submitted Proposed Recommended Orders, which were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

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

1. Reveron holds Florida educator certificate 442908, which covers the areas of Elementary Education and English for Speakers of Other Languages (ESOL). The certificate is valid through June 30, 2013.

2. Reveron has been employed as a teacher at Dania Elementary School in Broward County, Florida, since 2003.

3. Catherine Wires (Wires) was a colleague of Reveron’s at Dania Elementary. During all times material to the instant case, Wires and Reveron taught fourth grade, and were involved in an on-again, off-again intimate relationship.

4. During the 2007-2008 school year, Reveron and Wires decided to apply for National Board Certification through the National Board for Professional Teaching Standards (NBPTS). To qualify for such certification, candidates must submit four portfolio entries.

5. In preparing their respective submissions, Reveron and Ms. Wires helped each other, and taught essentially the same curriculum.

6. According to the instructions given by the National Board, the entire portfolio had to consist of the candidate’s own work. Collaboration with a colleague was permitted, but the actual written work submitted was to be authored solely by the candidate submitting the portfolio.

   
   

7. The portfolios were due to the National Board on a Saturday in March 2008. The day before, Reveron was working in the after-school care program. In an effort to save time, he gave his flash drive, which contained his four entries, to

   Ms. Wires and asked Ms. Wires to print out all of his documents. He was hoping she could print all four entries, so that when he finished his work at 6:30 p.m., he could simply place them in his portfolio and mail the package.

8. Ms. Wires did as Reveron asked, and printed Reveron’s four entries, which she found on his flash drive. That same afternoon, Ms. Wires printed her submissions for the certification. She used the same computer when printing her documents and Reveron’s documents. After he finished working, he collected the four entries that had been printed by

   Ms. Wires, placed them in the portfolio without checking them, and mailed them to the National Board.

9. The National Board, in March 2009, notified Reveron that his scores would not be released because the Board identified a high degree of overlap between Reveron’s submission and that of another candidate. Reveron was notified that he would not be permitted to seek certification in the future, but that he could request a review of the decision. Reveron never requested such a review.

   
   

10. At issue in this case is Reveron’s submission #3, which consisted of fourteen pages. There is no dispute that the entry was almost identical to Ms. Wires’ entry #3, and had been written by Ms. Wires.

11. There were a few areas where Reveron and Wires’ submissions varied, namely, the candidate identification numbers, the classroom demographic information, and the description of a group of students in terms of their gender, seating, and clothing.

12. The only explanation provided for the overlap in the submissions was that it was a printing and packaging error.

    Ms. Wires, while in the process of printing her submissions and Reveron’s submissions off of the same computer, inadvertently printed the wrong document when she believed she was printing Reveron’s entry #3. Instead of Reveron’s entry #3, Ms. Wires printed her own entry #3. Reveron never reviewed the contents of the portfolio prior to mailing the package to the Board.

    Thus, there was a printing and packaging error that caused the “high degree of overlap” between Reveron and Wires’ entries.

13. At hearing, no explanation was provided as to why differences existed between Reveron and Ms. Wires’ entries. In her deposition, however, Ms. Wires explained that she was in a rush to gather all the documents needed for the portfolios that afternoon, and that she must have accidently printed one of the

    
    

    rough drafts of her entry #3 when she thought she was printing Reveron’s entry #3.

14. Absent from the record is any evidence of Reveron acting dishonestly or knowingly submitting fraudulent information to the National Board. Based on the evidence in the record, the overlap in the entries appears to be a result of a

    careless mistake.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1).

16. Upon a finding of probable cause to believe that grounds exist to revoke or suspend a teaching certificate, or to impose any other appropriate penalty against a teacher, the Commissioner is responsible for prosecuting the formal administrative complaint. § 1012.796, Fla. Stat. (2008).

17. If the Commissioner proves any of the grounds for discipline enumerated in section 1012.795(1), then the Education Practices Commission ("EPC") is authorized to punish the certificate holder by imposing penalties that may include one or more of the following: permanent certificate revocation; certificate revocation, with reinstatement following a period of not more than ten years; certificate suspension for a period of time not to exceed five years; an administrative fine not to

    
    

    exceed $2,000 for each count or separate offense; restriction of the authorized scope of practice; issuance of a written reprimand; and placement of the teacher on probation for a period of time and subject to such conditions as the EPC may specify. §§ 1012.796(7), 1012.795(1).

18. Section 1012.795(1)(d) authorizes the EPC to take disciplinary action against a teacher when it has been shown that he "[h]as been guilty of gross immorality or an act involving moral turpitude." This is the offense which the Commissioner has charged in Count 1 of the Administrative Complaint.

19. Section 1012.795(1)(j) authorizes the EPC to take disciplinary action against a teacher when it has been shown that he "[h]as violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules." This is the offense which the Commissioner has charged in Count 2 of the Administrative Complaint, with Counts 3 and 4 specifying the particular rules that Reveron is alleged to have violated.

20. Rule 6B-1.006 provides in pertinent part 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

       
       

       certificate, 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.

       
       

       These are the rules the Commissioner has alleged Reveron violated.

21. These statutory and rule provisions are penal in nature and must be strictly construed, with ambiguities being resolved in favor of the licensee. Lester v. Dep't of Prof'l &

    Occ. Reg., 348 So. 2d 923, 925 (Fla. 1st DCA 1977). Whether Reveron committed an offense, as charged, is a question of ultimate fact to be decided in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st

    DCA 1995).

    
    

22. For the EPC to suspend or revoke a teacher's certificate, or to impose any other penalty provided by law, the Commissioner must prove the charges by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292, 294 (Fla. 1987); McKinney, 667 So. 2d at 388. Further, the grounds proven

    
    

    must be those specifically alleged in the administrative complaint. See, e.g., Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Kinney v. Dep't of State, 501

    So. 2d 129, 133 (Fla. 5th DCA 1987)

    
    

23. Regarding the standard of proof, in Slomowitz v.

    
    

    Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court held

    
    

    that:

    
    

    clear and convincing evidence requires that 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 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.

    
    

    Id. The Florida Supreme Court later adopted the Slomowitz

    
    

    court's description of clear and convincing evidence. See In re Davey, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev. den., 599

    So. 2d 1279 (Fla. 1992)(citation omitted).

    
    

24. Section 1012.795(1)(d) does not define the term "gross immorality" or the phrase "an act involving moral turpitude." Florida Administrative Code Rule 6B-4.009, which contains definitions for use by school districts in disciplining instructional staff, provides assistance.

25. No rule defines the term "gross immorality." However, Florida Administrative Code Rule 6B-4.009(2) defines immorality as:

    (2) . . . 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.

    
    

26. "Gross immorality" has been defined to mean an act of misconduct that is serious, rather than minor in nature; it is a flagrant disregard of proper moral standards. See Frank T. Brogan v. Mansfield, Case No. 96-0286 (Fla. DOAH Aug. 1, 1996; Fla. Education Practices Commission Oct. 18, 1996).

27. Rule 6B-4.009(6) defines the term “moral turpitude” as “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 its prohibition by statute fixes the moral turpitude.” The Supreme Court has defined moral turpitude as

    
    

    involv[ing] the idea of inherent baseness or depravity in the private social relations of duties owed by man or by6 a man to

    society. . . It has also been defined as anything done contrary to justice, honesty, principle or god morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated. (citations omitted)

    
    

    State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 611 (Fla. 1933).

28. In the instant case, the evidence is not clear and convincing that Reveron intended to submit Ms. Wires’ entry as his own. The evidence merely establishes that a mistake was made in the printing and packaging of the portfolio. While Reveron’s actions can certainly be characterized as careless, they cannot be found to be immoral or to be acts involving moral turpitude. Instead, the facts proven support a conclusion that Reveron’s actions were “unintentionally committed through an error of judgment, where wrong was not contemplated.”

29. Likewise, as to the charges involving the Code of Professional Conduct, the evidence does not clearly and convincingly establish that Reveron knew he was submitting fraudulent information, or that he was being dishonest.

30. The Commissioner has failed to prove the statutory and rule violations alleged in the Administrative Complaint by clear

and convincing evidence. Thus, Reveron is not guilty of the violations alleged in the Administrative Complaint.

RECOMMENDATION

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

RECOMMENDED that Department of Education dismiss the Administrative Complaint against Respondent.

DONE AND ENTERED this 22nd day of November, 2011, in Tallahassee, Leon County, Florida.

S

JESSICA ENCISO VARN

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 22nd day of November, 2011.

ENDNOTES

1/ Unless otherwise noted, all references in this Recommended Order to Florida Statutes are to Florida Statutes (2011).

2/ In the Administrative Complaint, Reveron is charged with violating sections 1012.795(1)(d) and (1)(j), but at the time of the alleged misconduct, those provisions were sections 1012.795(1)(c) and (1)(i).

COPIES FURNISHED:

Ron Weaver, Esquire Post Office Box 5675

Douglasville, Georgia 30154

Mark Herdman, Esquire

Herdman and Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33308

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

Charles M. Beal, General Counsel Department of Education Turlington Building, Suite 1244

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

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: 11-001666PL

Orders for Case No: 11-001666PL